MIGRATION AMENDMENT REGULATIONS 2009 (NO. 5) AMENDMENT REGULATIONS 2009 (NO. 1) (SLI NO 203 OF 2009) EXPLANATORY STATEMENT

MIGRATION AMENDMENT REGULATIONS 2009 (NO. 5) AMENDMENT REGULATIONS 2009 (NO. 1) (SLI NO 203 OF 2009)

ATTACHMENT C

Details of the Migration Amendment Regulations 2009 (No. 5) Amendment Regulations 2009
(No. 1)

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2009 (No. 5) Amendment Regulations 2009 (No. 1).

Regulation 2 – Commencement

This regulation provides that the Regulations commence on the day after registration.

The effect of this will be that the Migration Amendment Regulations 2009 (No. 5) (the Amendment Regulations), as amended by these Regulations which commence on the day after registration, will commence on 14 September 2009 in accordance with regulation 2 of the Amendment Regulations.

Regulation 3 – Amendment of Migration Amendment Regulations 2009 (No. 5)

This regulation provides that Schedule 1 amends the Migration Amendment Regulations 2009 (No. 5).

These Regulations amend the Amendment Regulations rather than the Principal Regulations because the Amendment Regulations commence on 14 September 2009. The Regulations amend the Amendment Regulations which in turn amend the Principal Regulations.

Schedule 1 – Amendments

Item [1] - Subregulation 3(2)

This item substitutes subregulation 3(2) item [9] of Schedule 1 to the Amendment Regulations and inserts new subregulations 3(3), (3) and (4).

New subregulation 3(2) is substantially the same as current subregulation 3(2) in the Amendment Regulations except for paragraphs 3(2)(c) and (f).

Paragraph 3(2)(c) provides that the amendments made by Schedule 1 apply to an application for approval as a temporary work sponsor (within the meaning given in regulation 1.03 of the Principal Regulations as amended by new item [3B] inserted by item [7] of this Schedule) made on or after 14 September 2009.

Paragraph 3(2)(f) provides that the amendments apply to an application made on or after 14 September 2009 for one of the following visas:

· Subclass 411 (Exchange) visa;

· Subclass 415 (Foreign Government Agency) visa;

· Subclass 416 (Special Program) visa;

· Subclass 419 (Visiting Academic) visa;

· Subclass 420 (Entertainment) visa;

· Subclass 421 (Sport) visa;

· Subclass 422 (Medical Practitioner) visa;

· Subclass 423 (Media and Film Staff) visa;

· Subclass 427 (Domestic Worker (Temporary) — Executive) visa;

· Subclass 428 (Religious Worker) visa;

· Subclass 442 (Occupational Trainee) visa;

· Subclass 470 (Professional Development) visa;

· Subclass 488 (Superyacht Crew) visa;

· Subclass 571 (Schools Sector) visa;

· Subclass 572 (Vocational Education and Training Sector) visa;

· Subclass 573 (Higher Education Sector) visa;

· Subclass 574 (Postgraduate Research Sector) visa.

Subregulation 3(3) specifies that the amendments made by Schedule 1 do not apply in relation to an application for approval as a sponsor under regulation 1.20AA made on or after 14 September 2009 if the sponsorship is in relation to a visa application made before 14 September 2009.

Subregulation 3(3) ensures that where a visa application for a Subclass 415 (Foreign Government Agency) visa, Subclass 420 (Entertainment) visa, Subclass 421 (Sport) visa, Subclass 423 (Media and Film Staff) visa, Subclass 427 (Domestic Worker (Temporary) – Executive) visa, Subclass 428 (Religious Worker) visa or Subclass 488 (Superyacht Crew) visa that requires sponsorship is made before 14 September 2009, but no sponsorship application is lodged in connection with that application before 14 September 2009, the sponsorship application can still be made after 14 September 2009.

Subregulation 3(4) provides that the amendment made by item [160] of Schedule 1 to the Amendment Regulations applies in relation to:

a Subclass 457 (Business (Long Stay)) visa on which condition 8107 is imposed and that is in force on 14 September 2009; and
a visa that is granted on or after 14 September 2009 and on which condition 8107 is imposed.

Item [2] – Schedule 1, after item [1]

This item inserts new items [1A] to [1H] in Schedule 1 to the Amendment Regulations.

New item [1A] inserts a definition of “Arts Minister” and removes the definition of “approved special student sponsor” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations.

“Arts Minister” means the Minister responsible for administering the National Gallery Act 1975. This currently means the Minister for Environment, Heritage and the Arts. This definition is used in regulation 2.72D inserted by item [59] which relates to the nomination criteria in relation to a Subclass 420 (Entertainment) visa.

The definition of “approved special student sponsor” is removed from the Principal Regulations as a consequence of the repeal of Division 1.4D relating to special student sponsorship by item [8] of Schedule 1 to the Amendment Regulations.

New item [1B] inserts a definition of “domestic worker sponsor” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. “Domestic worker sponsor” means a person who is both an approved sponsor and is approved as a sponsor in relation to the domestic worker sponsor class by the Minister under subsection 140E(1) of the Act.

A person who is approved under subsection 140E(1) of the Act as a domestic worker sponsor, is also an “approved sponsor” if their approval as a domestic worker sponsor has not been cancelled under section 140M of the Act, or their approval as a domestic worker sponsor has not otherwise ceased to have effect under section 140G of the Act. The term “approved sponsor” is defined in subsection 5(1) of the Act.

The different classes of sponsor in relation to which a person may be approved as a sponsor are prescribed under subsection 140E(2) of the Act in regulation 2.58 in item [9] of Schedule 1 to the Amendment Regulations, as amended by item [21].

New item [1C] inserts a definition of “entertainment sponsor” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. “Entertainment sponsor” means a person who is an approved sponsor and is approved as a sponsor in relation to the entertainment sponsor class by the Minister under subsection 140E(1) of the Act.

A person who is approved under subsection 140E(1) of the Act as an entertainment sponsor, is also an “approved sponsor” if their approval as an entertainment sponsor has not been cancelled under section 140M of the Act, or their approval as an entertainment sponsor has not otherwise ceased to have effect under section 140G of the Act. The term “approved sponsor” is defined in subsection 5(1) of the Act.

New item [1D] inserts a definition of “exchange sponsor” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. “Exchange sponsor” means a person who is an approved sponsor and is approved as a sponsor in relation to the exchange sponsor class by the Minister under subsection 140E(1) of the Act.

A person who is approved under subsection 140E(1) of the Act as an exchange sponsor, is also an “approved sponsor” if their approval as exchange sponsor has not been cancelled under section 140M of the Act, or their approval as an exchange sponsor has not otherwise ceased to have effect under section 140G of the Act. The term “approved sponsor” is defined in subsection 5(1) of the Act.

New item [1E] inserts a definition of “foreign government agency sponsor” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. “Foreign government agency sponsor” means a person who is an approved sponsor and is approved as a sponsor in relation to the foreign government agency sponsor class by the Minister under subsection 140E(1) of the Act.

A person who is approved under subsection 140E(1) of the Act as a foreign government agency sponsor, is also an “approved sponsor” if their approval a foreign government agency sponsor has not been cancelled under section 140M of the Act, or their approval as a foreign government agency sponsor has not otherwise ceased to have effect under section 140G of the Act. The term “approved sponsor” is defined in subsection 5(1) of the Act.

New item [1F] omits the definition of “labour agreement” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations and substitutes a new definition. “Labour agreement” means a formal agreement:

entered into between:

the Minister, or the Employment Minister; and
a person or organisation in Australia; and

under which an employer is authorised to recruit persons to be employed by that employer in Australia.

This definition differs in two ways from the current definition of “labour agreement”. Firstly, the words “(other than the holders of permanent visas)” are removed. This is because some labour agreements do authorise the recruitment of permanent visa holders. Secondly, current paragraph (b) of the definition, relating to a formal agreement between the Minister and a sporting organisation, is removed. This is because such agreements are now included within the definition of “work agreement” (see item [80]).

New item [1G] omits the definition of “net employment benefit” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. This definition is now located in proposed regulation 2.57 of Schedule 1 to the Amendment Regulations (see item [20]).

New item [1H] inserts a definition of “occupational trainee sponsor” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. “Occupational trainee sponsor” means a person who is an approved sponsor and is approved as a sponsor in relation to the occupational trainee sponsor class by the Minister under subsection 140E(1) of the Act.

A person who is approved under subsection 140E(1) of the Act as an occupational trainee sponsor, is also an “approved sponsor” if their approval as an occupational trainee sponsor has not been cancelled under section 140M of the Act, or their approval as an occupational trainee sponsor has not otherwise ceased to have effect under section 140G of the Act. The term “approved sponsor” is defined in subsection 5(1) of the Act.

Item [3] – Schedule 1, item [2], before proposed definition of professional development sponsor

This item inserts a definition of “primary sponsored person” before the proposed definition of “professional development sponsor” in item [2] of Schedule 1 to the Amendment Regulations. “Primary sponsored person” has the meaning given by proposed subregulation 2.57(1) in item [9] of Schedule 1 to the Amendment Regulations as amended by item [14].

Item [4] – Schedule 1, item [2], paragraph (b) of proposed definition of professional development sponsor

This item inserts “by the Minister under subsection 140E(1) of the Act” in paragraph (b) of the definition of “professional development sponsor” in item [2] of Schedule 1 to the Amendment Regulations. The effect of the amendment is that the new definition of “professional development sponsor” means a person who is an approved sponsor and is approved as a sponsor in relation to the professional development sponsor class by the Minister under subsection 140E(1) of the Act. This is to provide consistency with the definitions of classes of sponsors.

Item [5] – Schedule 1, after item [2]

This item inserts new items [2A] to [2D] in Schedule 1 to the Amendment Regulations.

New item [2A] substitutes the definition of “religious institution” and inserts a definition of “religious worker sponsor” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. The current definition of “religious institution” is a religious institution (within the meaning of paragraph 23(e) of the Income Tax Assessment Act 1936), the income of which is exempt from income tax under that paragraph. The new definition of “religious institution” means a body that satisfies the requirements of paragraphs (a) to (d).

Paragraph (a) requires it to be a body activities of which reflect that it is a body instituted for the promotion of a religious object. Paragraph (b) requires it to be a body whose members’ beliefs and practices constitute a religion due to those members:

believing in a supernatural being, thing or principle; and
accepting the canons of conduct which give effect to that belief, but which do not offend against the ordinary laws.

Paragraph (c) requires that it meets the requirements of section 50-50 of the Income Tax Assessment Act 1997. Paragraph (d) requires its income be exempt from income tax under section 50-1 of the Income Tax Assessment Act 1997.

This amendment updates the current definition of “religious institution” to specifically set out the meaning of the term in the Principal Regulations.

“Religious worker sponsor” means a person who is an approved sponsor and is approved as a sponsor in relation to the religious worker sponsor class by the Minister under subsection 140E(1) of the Act.

A person who is approved under subsection 140E(1) of the Act as a religious worker sponsor, is also an “approved sponsor” if their approval as a religious worker has not been cancelled under section 140M of the Act, or their approval as a religious worker sponsor has not otherwise ceased to have effect under section 140G of the Act. The term “approved sponsor” is defined in subsection 5(1) of the Act.

New item [2B] inserts a definition of “secondary sponsored person” after the definition of “secondary exchange student” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. “Secondary sponsored person” has the meaning given by subregulation 2.57(1) in item [9] of the Principal Regulations as amended by item [15].

New item [2C] inserts a definition of “special program sponsor” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. “Special program sponsor” means a person who is an approved sponsor and is approved as a sponsor in relation to the special program sponsor class by the Minister under subsection 140E(1) of the Act.

A person who is approved under subsection 140E(1) of the Act as a special program sponsor, is also an “approved sponsor” if their approval as a special program worker has not been cancelled under section 140M of the Act, or their approval as a special program sponsor has not otherwise ceased to have effect under section 140G of the Act. The term “approved sponsor” is defined in subsection 5(1) of the Act.

New item [2D] inserts a definition of “sport sponsor” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. “Sport sponsor” means a person who is an approved sponsor and is approved as a sponsor in relation to the sport sponsor class by the Minister under subsection 140E(1) of the Act.

A person who is approved under subsection 140E(1) of the Act as a sport sponsor, is also an “approved sponsor” if their approval as a sport sponsor has not been cancelled under section 140M of the Act, or their approval as a sport sponsor has not otherwise ceased to have effect under section 140G of the Act. The term “approved sponsor” is defined in subsection 5(1) of the Act.

Item [6] – Schedule 1, item [3], proposed definition of standard business sponsor, not including the notes

This item substitutes the definition of “standard business sponsor” in item [3] of Schedule 1 to the Amendment Regulations with a new definition of “standard business sponsor”. “Standard business sponsor” means a person who is an approved sponsor and is approved as a sponsor in relation to the standard business sponsor class by the Minister under subsection 140E(1) of the Act. This is a technical amendment to provide consistency with the definitions of the other classes of sponsor inserted by items [2] and [5].

Item [7] – Schedule 1, after item [3]

This item inserts new items [3A] to [3D] in Schedule 1 to the Amendment Regulations.

New item [3A] inserts a definition of “superyacht crew sponsor” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. “Superyacht crew sponsor” means a person who is an approved sponsor and is approved as a sponsor in relation to the superyacht crew sponsor class by the Minister under subsection 140E(1) of the Act.

A person who is approved under subsection 140E(1) of the Act as a superyacht crew sponsor, is also an “approved sponsor” if their approval as a superyacht crew sponsor has not been cancelled under section 140M of the Act, or their approval as a superyacht crew sponsor has not otherwise ceased to have effect under section 140G of the Act. The term “approved sponsor” is defined in subsection 5(1) of the Act.

New item [3B] inserts a definition of “temporary work sponsor in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. “Temporary work sponsor” means any of the following: an exchange sponsor; a foreign government agency sponsor; a special program sponsor; a visiting academic sponsor; an entertainment sponsor; a sport sponsor; an domestic worker sponsor; an religious worker sponsor; an occupational trainee sponsor; or a superyacht crew sponsor.

This definition allows the term “temporary work sponsor” to be used when a regulation applies to all the listed classes of sponsor.

New item [3C] inserts a definition of “visiting academic sponsor” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. “Visiting academic sponsor” means a person who is an approved sponsor and is approved as a sponsor in relation to the visiting academic sponsor class by the Minister under subsection 140E(1) of the Act.

A person who is approved under subsection 140E(1) of the Act as a visiting academic sponsor, is also an “approved sponsor” if their approval as a visiting academic has not been cancelled under section 140M of the Act, or their approval as a visiting academic sponsor has not otherwise ceased to have effect under section 140G of the Act. The term “approved sponsor” is defined in subsection 5(1) of the Act.

New item [3D] omits regulation 1.12A from Division 1.2 of Part 1 of the Principal Regulations. Regulation 1.12A sets out the definition of “net employment benefit”. This definition is now located in proposed subregulation 2.57(4) item [20] of Schedule 1 to these Regulations.

Item [8] – Schedule 1, after item [5]

This item inserts new items [5A] to [5I] after item [5] in Schedule 1 to the Amendment Regulations.

New item [5A] omits the references to the Sponsored Training (Temporary) (Class UV) visa and Superyacht Crew (Temporary) (Class UW) visa from paragraph 1.20(2)(b) of Division 1.4 of Part 1 of the Principal Regulations. This item is consequential to the amendment made by new item [5E] in item [8].

Regulation 1.20 contains provisions relating to the sponsorship of an applicant and the undertakings of a sponsor. Paragraph 1.20(2)(b) provides the undertakings that a sponsor of an application for certain kinds of temporary visas must make.

New item [5B] omits “granted;” from subparagraph 1.20(2)(e)(ii) of Division 1.4 of Part 1 of the Principal Regulations and inserts “granted.” This amendment is technical in nature and consequential to the amendment made by new item [5C].

New item [5C] omits paragraph 1.20(2)(f) from Division 1.4 of Part 1 of the Principal Regulations. Paragraph 1.20(2)(f) provides that if the application is for a visa of the Superyacht Crew (Temporary) (Class UW), the sponsor undertakes to accept responsibility for the obligations provided for in subparagraphs 1.20(2)(f)(i) to (iii).

The effect of this amendment is that sponsors of applicants for a visa of the Superyacht Crew (Temporary) (Class UW) will no longer be required to undertake to accept responsibility for those obligations. This is because sponsors of applicants for a visa of the Superyacht Crew (Temporary) (Class UW) will be subject to mandatory sponsorship obligations, upon approval as a superyacht crew sponsor. (See regulation 2.60K in item [33]).

New item [5D] omits “Stay)).” from paragraph 1.20(4)(h) of Division 1.4 of Part 1 of the Principal Regulations, and inserts “Stay));”. This amendment is technical in nature and consequential to the amendment made by new item [5E].

New item [5E] inserts new paragraphs 1.20(4)(i) to (m) in Division 1.4 of Part 1 of the Principal Regulations. The new paragraphs contain the following visa classes: Cultural/Social (Temporary) (Class TE); Educational (Temporary)(Class TH); Domestic Worker (Temporary)(Class TG); Superyacht Crew (Temporary)(Class UW); Sponsored Training (Temporary)(Class UV).

The effect of this amendment is that regulation 1.20 does not apply to the visa classes listed in new paragraphs 1.20(4)(i) to (m). This is because these visa classes are now governed by the enforceable sponsorship framework under Division 3A of Part 2 of the Act.

New item [5F] omits the note in subregulation 1.20(4) of Division 1.4 of Part 1 of the Principal Regulations. The note explains that the sponsorship arrangements for Subclass 457 (Business (Long Stay)) visas are set out in Division 1.4A of the Principal Regulations. This is consequential to the repeal of Division 1.4A made by item [6] of Schedule 1 to the Amendment Regulations.

New item [5G] omits subregulation 1.20(5) from Division 1.4 of Part 1 of the Principal Regulations. Subregulation 1.20(5) provides that regulation 1.20 does not apply to the subclasses in paragraphs 1.20(5)(a) to (d) if the applicant for the visa is a person designated under regulation 2.07AO, or is applying on the basis of being a member of the family unit of a person designated under regulation 2.07AO.

The amendment made by new item [5G] is a consequence of the repeal of Division 1.4D relating to special student sponsorship by item [8] of Schedule 1 to the Amendment Regulations.

New item [5H] substitutes subregulation 1.20AA(1) in Division 1.4 of Part 1 of the Principal Regulations with new subregulation 1.20AA(1). New subregulation 1.20AA(1) provides that regulation 1.20AA applies to a Subclass 422 (Medical Practitioner) visa. Regulation 1.20AA relates to the approval of a sponsor in relation to specified temporary visa applicants.

The amendment made by new item [5H] is consequential to the amendment made by item [5E] of item [8] of this Schedule, whereby the Subclass 422 (Medical Practitioner) visa is the only visa subclass of the eight visa subclasses previously listed under subregulation 1.20AA not to be incorporated into the enforceable sponsorship framework.

New item [5I] omits “a school, foreign government agency or” from subregulation 1.20AA(2) in Division 1.4 of Part 1 of the Principal Regulations. Subregulation 1.20AA(2) provides generally that the Minister may approve or refuse to approve a person or an organisation (including a school, foreign government agency or unincorporated association) as a sponsor of an applicant for a visa or multiple applicants for the same subclass of visa.

This amendment removes school and foreign government agency because an organisation which is a school or a foreign government agency would not be sponsoring a Subclass 422 (Medical Practitioner) visa applicant.

Item [9] – Schedule 1, after item [8]

This item inserts new items [8A] to [8C] after item [8] in Schedule 1 to the Amendment Regulations.

New item [8A] substitutes paragraph 2.43(1)(ia) in Subdivision 2.9.2 of Division 2.9 of Part 2 of the Principal Regulations. Subregulation 2.43(1) prescribes the grounds for cancellation for the purposes of paragraph 116(1)(g) of the Act.

New paragraph 2.43(1)(ia) provides that in the case of a holder of one of the following subclasses:

· Subclass 411 (Exchange) visa;

· Subclass 415 (Foreign Government Agency) visa;

· Subclass 416 (Special Program) visa;

· Subclass 419 (Visiting Academic) visa;

· Subclass 420 (Entertainment) visa;

· Subclass 421 (Sport) visa;

· Subclass 423 (Media and Film Staff) visa;

· Subclass 427 (Domestic Worker (Temporary) – Executive) visa;

· Subclass 428 (Religious Worker) visa;

· Subclass 442 (Occupational Trainee) visa; and

· Subclass 488 (Superyacht Crew) visa;

a prescribed ground for cancellation of the visa is that the grounds in subregulation 2.43(1A) are met. Subregulation 2.43(1A) is inserted by item [8C].

New item [8B] substitutes paragraphs 2.43(1)(l), (la) and (lb) from Division 2.9 of Part 2 of the Principal Regulations with new paragraphs 2.43(1)(kb), (l), (la), (lc), (ld) and (le).

Paragraph 2.43(1)(kb) provides that a prescribed ground for cancellation for the purposes of paragraph 116(1)(g) of the Act is, in the case of the holder of a Subclass 457 (Business (Long Stay)) visa that was granted on the basis that the applicant met the requirements of subregulation 457.223 (4), that despite the grant of the visa, the Minister is satisfied that:

the holder:

did not have a genuine intention to perform the occupation mentioned in paragraph 457.223 (4)(d) at the time of grant of the visa; or
has ceased to have a genuine intention to perform that occupation; and

the position associated with the nominated occupation is not genuine.

The proposed Schedule 2 criteria in clause 457.223(4) in Schedule 1 to the Migration Amendment Regulations (No. ) requires the Minister to be satisfied that the visa applicant has a genuine intention to perform the nominated occupation and that the position associated with the occupation is genuine. The purpose of the amendment is to translate the visa criteria into an ongoing obligation. This is because if either the applicant or the position are no longer genuine, it may be inappropriate for the Subclass 457 visa holder to remain in Australia.

Paragraph 2.43(1)(l) provides that the prescribed grounds for cancellation for the purposes of paragraph 116(1)(g) of the Act are, in the case of the holder of a Subclass 457 (Business (Long Stay)) visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the “sponsor”), set out in subparagraphs 2.43(1)(l)(i) to (v). The prescribed grounds are:

the sponsor has not complied, or is not complying, with the undertaking given by the business sponsor in accordance with approved form 1067, 1196 or 1196 (Internet); or
the sponsor has given false or misleading information to Immigration or the Migration Review Tribunal in relation to either the application (if any) under regulation 1.20C for approval as a business sponsor, or any other matter relating to the business sponsor; or
the sponsor has failed to satisfy a sponsorship obligation; or
the sponsor has been cancelled or barred under section 140M of the Act; or
the labour agreement has been terminated, has been suspended or has ceased.

The definitions of “primary sponsored person” and “secondary sponsored person” are set out in items [14] and [15].

Depending on the circumstances, it may be appropriate to cancel a visa based on the conduct of the visa holder’s sponsor. There are two main instances in which this may occur. First, where the visa holder is complicit in the conduct that led to the non-compliance by the sponsor. For example, if the primary sponsored person and the standard business sponsor collude in providing false or misleading information to the Department. Second, where the non-compliance by the sponsor is so serious that it would be inappropriate for the sponsor’s relationship with the visa holder to continue, despite the personal preference of the visa holder concerned. For example, if a standard business sponsor’s approval is cancelled for serious and repeated breaches of obligations, the Department needs to be able to encourage affected visa holders, if they do not already wish to do so, to find a new sponsor or return home.

Paragraph 2.43(1)(la) provides that a prescribed ground for cancellation for the purposes of paragraph 116(1)(g) of the Act is, in the case of the holder of a Subclass 457 (Business (Long Stay)) visa who was granted the visa on the basis of a nomination of an activity under regulation 1.20GA as in force immediately before 14 September 2009, that the holder is living or working within an area specified by the Minister in an instrument in writing.

This amendment preserves an existing cancellation ground in relation to the Subclass 457 visa.

Paragraph 2.43(1)(lc) provides that, in the case of a holder of one of the following visa subclasses who is a primary sponsored person in relation to a person who is or was an approved sponsor:

o Subclass 411 (Exchange) visa;

o Subclass 415 (Foreign Government Agency) visa;

o Subclass 416 (Special Program) visa;

o Subclass 419 (Visiting Academic) visa;

o Subclass 420 (Entertainment) visa;

o Subclass 421 (Sport) visa;

o Subclass 423 (Media and Film Staff) visa;

o Subclass 427 (Domestic Worker (Temporary) – Executive) visa;

o Subclass 428 (Religious Worker) visa;

o Subclass 442 (Occupational Trainee) visa; and

o Subclass 488 (Superyacht Crew) visa;

a prescribed ground for cancellation of the visa is that one of the grounds specified in new subregulation 2.43(1B) is met. New subregulation 2.43(1B) is inserted by item [8C] of the Amendment Regulations.

Paragraph 2.43(1)(ld) provides that, in the case of a holder of one of the following visa subclasses who is a secondary sponsored person in relation to a person who is or was an approved sponsor:

o Subclass 411 (Exchange) visa;

o Subclass 419 (Visiting Academic) visa;

o Subclass 420 (Entertainment) visa;

o Subclass 421 (Sport) visa;

o Subclass 423 (Media and Film Staff) visa;

o Subclass 427 (Domestic Worker (Temporary) – Executive) visa;

o Subclass 428 (Religious Worker) visa;

o Subclass 442 (Occupational Trainee) visa; and

o Subclass 457 (Business (Long Stay));

a prescribed ground for cancellation of the visa is that the approved sponsor of the primary sponsored person to whom the secondary sponsored person is related has not listed the secondary sponsored person in the latest nomination in which the primary sponsored person is identified.

Paragraph 2.43(1)(ld) ensures that a visa can be cancelled where the approved sponsor of a primary sponsored person is not also the approved sponsor of any secondary sponsored persons who are related to the primary sponsored persons. This may occur where the primary sponsored person transitions between standard business sponsors onshore and the subsequent sponsor has not agreed to sponsor some or all of the secondary sponsored persons. This provision serves two purposes. First, it operates as an incentive for primary sponsored persons to ensure that secondary sponsored persons are included in subsequent nominations. Second, it serves to protect the first sponsor who remains liable for the secondary sponsored person despite no longer benefiting from the services of the primary sponsored person until, among other things, the visa ceases as a result of cancellation.

Paragraph 2.43(1)(le) provides that, in the case of a holder of a Subclass 427 (Domestic Worker (Temporary) – Executive) visa; a Subclass 428 (Religious Worker) visa; or a Subclass 457 (Business (Long Stay)) visa who is a primary sponsored person or a secondary sponsored person (the “sponsored person”) in relation to a person who is or was an approved sponsor, a prescribed ground for cancellation for the purposes of paragraph 116(1)(g) of the Act is that the religious worker sponsor or the domestic worker sponsor has paid the return travel costs of the sponsored person in accordance with the sponsorship obligation mentioned in regulation 2.80 or 2.80A.

Item [9] of Schedule 1 to the Amendment Regulations inserts regulation 2.80, which is amended by items [85] to [87].. Item [88] inserts regulation 2.80A. Regulation 2.80 relates to an obligation to pay travel costs to enable sponsored persons to leave Australia. Regulation 2.80A sets out a domestic worker sponsor’s obligation to pay travel costs.

This cancellation ground preserves the policy intention of the obligation to pay return travel costs in regulations 2.80 and 2.80A, which is to ensure that the Commonwealth does not have to pay to remove the sponsored person from Australia. The cancellation ground allows a visa to be cancelled where the sponsored person has returned to their home country, having had their return travel costs paid by the approved sponsor. This prevents the sponsored person from returning to Australia as the holder of that visa, once the obligation to pay return travel costs has already been satisfied.

New item [8C] inserts new subregulations 2.43(1A) and (1B) in Division 2.9 of Part 2 of the Principal Regulations. Subregulation 2.43(1A) prescribes the following grounds for cancellation for the purposes of paragraph 116(1)(g) of the Act and new paragraph 2.43(1)(ia) (inserted by item 8A):

· the visa holder did not have at the time of grant of the visa, or has ceased to have, a genuine intention to stay temporarily in Australia to carry out the work or activity in relation to which the applicant’s visa was granted; or

· if the visa holder is identified in a nomination after the visa is granted, then the applicant was identified in a nomination.

The amended Schedule 2 criteria for these visas require the Minister to be satisfied that the visa applicant has a genuine intention to perform the nominated activity. The purpose of the amendment is to translate these visa criteria into an ongoing obligation. This is because if either the applicant or the position are no longer genuine, it may be inappropriate for the visa holder to remain in Australia.

Subregulation 2.43(1B) prescribes the grounds for cancellation for the purposes of paragraph 116(1)(g) of the Act and new paragraph 2.43(1)(lc). Subregulation 2.43(1B) provides that for paragraph 2.43(1)(lc), the grounds are set out in paragraphs 2.43(1B)(a) to (d). Paragraphs 2.43(1B)(a) to (d) are:

the approval of the person as a sponsor has been cancelled, or the approved sponsor has been barred, under section 140M of the Act;
if the approved sponsor is a party to a work agreement – the work agreement has been terminated or has ceased;
if the primary sponsored person is required to be identified in a nomination – the criteria for approval of the latest nomination in which the primary sponsored person is identified are no longer met;
the person who is or was an approved sponsor has failed to satisfy a sponsorship obligation.

The purpose of this amendment is the same as the purpose of paragraph 2.43(1)(l) inserted by this item (see above).

Item [10] – Schedule 1, item [9], proposed regulation 2.56

This item substitutes regulation 2.56 in Item [9] of Schedule 1 to the Amendment Regulations with new regulation 2.56. New regulation 2.56 provides, for the purposes of section 140A of the Act, that Division 3A of Part 2 of the Act applies to the following visa subclasses:

the Subclass 411 (Exchange) visa;
the Subclass 415 (Foreign Government Agency) visa;
the Subclass 416 (Special Program) visa;
the Subclass 419 (Visiting Academic) visa;
the Subclass 420 (Entertainment) visa;
the Subclass 421 (Sport) visa;
the Subclass 423 (Media and Film Staff) visa;
the Subclass 427 (Domestic Worker (Temporary) —
Executive) visa;
the Subclass 428 (Religious Worker) visa;
the Subclass 442 (Occupational Trainee) visa;
the Subclass 457 (Business (Long Stay)) visa;
the Subclass 470 (Professional Development) visa;
the Subclass 488 (Superyacht Crew) visa.

Section 140A of the Act provides that Division 3A of Part 2 of the Act only applies to visas of a prescribed kind (however described).

Item [11] – Schedule 1, item [9], proposed subregulation 2.57(1), definition of Australian organisation

This item omits the word “corporate” and inserts the words “corporate, partnership” into the definition of Australian organisation in subregulation 2.57(1) in item [9] of Schedule 1 to the Amendment Regulations. This amendment is to clarify that a partnership is an Australian organisation for the purposes of Part 2A of the Regulations.

Item [12] – Schedule 1, item [9], proposed subregulation 2.57(1), after definition of competent authority

This item inserts a definition of “foreign government agency” into subregulation 2.57(1) in item [9] of Schedule 1 to the Amendment Regulations. For the purposes of Part 2A, “foreign government agency” includes:

· an organisation that is conducted under the official auspices of a foreign national government and is operating in Australia, including foreign tourist and media bureaus, trade offices and other foreign government entities;

· a foreign diplomatic or consular mission in Australia; and

· an organisation conducted under the official auspices of an international organisation recognised by Australia.

The definition of “foreign government agency” is relevant to the criteria for approval as a foreign government agency sponsor in regulation 2.60C inserted by item [33]. This ensures that a person must meet the definition of foreign government agency to be approved as a foreign government agency sponsor.

The definition replaces the current definition of “foreign government agency” in Part 415 of Schedule 2 to the Principal Regulations. The new definition allows a broad range of overseas and international government agencies to be approved as a foreign government agency sponsor, including agencies of international organisations such as the United Nations, and to clarify that (unless it is an agency of an international organisation) the agency must be established under the auspices of a foreign national government.

Item [13] – Schedule 1, item [9], proposed subregulation 2.57(1), definition of overseas employer

This item omits each mention of “1 year” and inserts “12 months” in the definition of “overseas employer” in subregulation 2.57(1) in item [9] of Schedule 1 to the Amendment Regulations.

This is a technical amendment to ensure consistency of terminology.

Item [14] – Schedule 1, item [9], proposed subregulation 2.57(1), definition of primary sponsored person

This item substitutes the definition of primary sponsored person with the following definition in regulation 2.57(1) at item [9] of Schedule 1 to the Amendment Regulations. However, it does not make any substantive changes to the operation of the definition provided for in the Amendment Regulations in relation to holders and former holders of Subclass 457 and Subclass 470 visas. For the purposes of Part 2A in item [9] of Schedule 1 to the Amendment Regulations “primary sponsored person” has a different meaning depending on the person in relation to whom it is being defined.

For the purposes of Part 2A, “primary sponsored person” has a different meaning depending on the person in relation to whom it is being defined. “Primary sponsored person” has a particular meaning in relation to:

· a person who is or was approved as a sponsor in a class of sponsor; and

· a party to a work agreement or a former party to a work agreement.

A person who is or was approved as a sponsor

There are two types of people who may be a “primary sponsored person” in relation to a person who is or was approved as a sponsor in a class of sponsor under subsection 140E(1) of the Act. First, it is a person who:

· holds a visa prescribed for the purpose of section 140A of the Act; and

· either:

o was last identified in an approved nomination by the approved sponsor; or

o who satisfied the primary criteria for the grant of the visa on the basis of the approved sponsor having agreed, in writing, to be the approved sponsor in relation to the person.

Second, a “primary sponsored person” in relation to a person who is or was approved as a sponsor is a person:

· who is in the migration zone; and

· who does not hold a substantive visa; and

· whose last substantive visa was a visa prescribed for section 140A of the Act; and

· who:

o was last identified in an approved nomination by the approved sponsor; or

o satisfied the primary criteria for the grant of the visa on the basis of the approved sponsor having agreed, in writing, to be the approved sponsor in relation to the person.

A party or former party to a work agreement

There are two types of people who may be a primary sponsored person in relation to a party to a work agreement (other than a Minister) or former party to a work agreement (other than a Minister). First, it is a person who:

· holds a Subclass 457 visa, a Subclass 421 or a Subclass 428 visa; and

· was last identified in an approved nomination by the party to the work agreement or the former party to a work agreement.

Second, a “primary sponsored person” in relation to a party to a work agreement or former party to a work agreement is a person:

· who is in the migration zone; and

· who does not hold a substantive visa; and

· whose last substantive visa was a Subclass 457 visa, a Subclass 421 or a Subclass 428 visa; and

· who was last identified in an approved nomination by the party to the work agreement or the former party to a work agreement.

The purpose of this amendment is to expand the definition in the Amendment Regulations to accommodate the new visa subclasses prescribed for the purpose of section 140A of the Act. It also adds persons who satisfied the primary criteria for the grant of a visa on the basis of an agreement in writing by the approved sponsor, as an alternative to being identified in an approved nomination by the approved sponsor. This is because not all sponsors have a nomination process, rather the sponsor agrees in writing for the visa applicant to be a primary sponsored person in relation to the sponsor.

Item [15] – Schedule 1, item [9], proposed subregulation 2.57(1), definition of secondary sponsored person

This item substitutes the definition of “secondary sponsored person” with the following definition in subregulation 2.57(1) in item [9] of Schedule 1 to the Amendment Regulations. However, it does not make any substantive changes to the operation of the definition in relation to holders and former holders of Subclass 457 visas.

For the purposes of Part 2A, “secondary sponsored person” has a different meaning depending on the person in relation to whom it is being defined. “Secondary sponsored person” has a particular meaning in relation to:

· a person who is or was approved as a sponsor in a class of sponsor; and

· a party to a work agreement or a former party to a work agreement.

A person who is or was approved as a sponsor

There are four types of people who may be a “secondary sponsored person” in relation to a person who is or was approved as a sponsor in a class of sponsor under subsection 140E(1) of the Act.

First, it is a person who:

· holds a visa prescribed for the purpose of section 140A of the Act; and

· was granted the visa on the basis of having satisfied the secondary criteria for the grant of the visa; and

· either:

o was last identified in an approved nomination by the approved sponsor; or

o in relation to whom the approved sponsor was the last person to have agreed, in writing, to the person being a secondary sponsored person in relation to the approved sponsor.

The second type of “secondary sponsored person” in relation to a person who is or was approved as a sponsor is a person:

· who holds a visa prescribed for the purpose of section 140A of the Act; and

· who is taken to have been granted the visa at the time of the person’s birth under section 78 of the Act; and

· who is a member of the family unit of:

o a primary sponsored person who was last identified in an approved nomination by the approved sponsor; or

o a primary sponsored person who the approved sponsor has agreed in writing to be the approved sponsor of.

The third type of “secondary sponsored person” in relation to a person who is or was approved as a sponsor is a person:

· who is in the migration zone; and

· who does not hold a substantive visa; and

· whose last substantive visa was a visa prescribed for the purpose of section 140A of the Act; and

· who is a member of the family unit of:

o a primary sponsored person who was last identified in an approved nomination by the approved sponsor; or

o a primary sponsored person who the approved sponsor has agreed in writing to be the approved sponsor of.

Section 78 of the Act provides that if a child born in Australia is a non-citizen when born and at the time of the birth one or both of the child’s parents holds a visa, then the child is taken to have been granted at birth one or more visas of the same kinds and classes and on the same terms and conditions (if any) as those visas.

Finally, a “secondary sponsored person” in relation to a person who is or was approved as a sponsor is a person:

· who is in the migration zone; and

· who does not hold a substantive visa; and

· whose last substantive visa was a visa prescribed for the purpose of section 140A of the Act; and

· was granted the visa on the basis of having satisfied the secondary criteria for the grant of the visa; and

· either:

o was last identified in an approved nomination by the approved sponsor; or

o in relation to whom the approved sponsor was the last person to have agreed, in writing, to the person being a secondary sponsored person in relation to the approved sponsor.

The purpose of this amendment is to expand the definition in the Amendment Regulations to accommodate the new visa subclasses prescribed for the purpose of section 140A of the Act.

A party or former party to a work agreement

There are four types of people who may be a “secondary sponsored person” in relation to a party to a work agreement or former party to a work agreement.

First, it is a person who:

· holds a Subclass 457 visa, Subclass 421 visa or a Subclass 428 visa; and

· was granted the visa on the basis of having satisfied the secondary criteria for the grant of the visa; and

· either:

o was last identified in an approved nomination by the party to a work agreement or former party to a work agreement; or

o in relation to whom the party to a work agreement or former party to a work agreement was the last person to have agreed, in writing, to the person being a secondary sponsored person in relation to the party to a work agreement or former party to a work agreement.

The second type of “secondary sponsored person” in relation to a party to a work agreement or former party to a work agreement is a person:

· who holds a Subclass 457 visa, Subclass 421 visa or a Subclass 428 visa; and

· who is taken to have been granted the visa at the time of the person’s birth under section 78 of the Act; and

· who is a member of the family unit of a primary sponsored person who was last identified in an approved nomination made by the party to a work agreement or former party to a work agreement.

The third type of “secondary sponsored person” in relation to a party to a work agreement or former party to a work agreement is a person:

· who is in the migration zone; and

· who does not hold a substantive visa; and

· whose last substantive visa was a Subclass 457 visa, Subclass 421 visa or a Subclass 428 visa; and

· who was granted the visa on the basis of having satisfied the secondary criteria for the grant of the visa; and

· either:

o was last identified in an approved nomination by the party to a work agreement or former party to a work agreement; or

Finally, a “secondary sponsored person” in relation to a party to a work agreement or former party to a work agreement is a person:

· who is in the migration zone; and

· who does not hold a substantive visa; and

· whose last substantive visa was a Subclass 457 visa, Subclass 421 visa or a Subclass 428 visa; and

· the visa was taken to have been granted at the time of the person’s birth under section 78 of the Act; and

· who is a member of the family unit of a primary sponsored person who was last identified in an approved nomination made by the party to a work agreement or former party to a work agreement.

The purpose of this amendment is to expand the definition in the Amendment Regulations to accommodate the new visa subclasses prescribed for the purpose of section 140A of the Act.

Work agreements are currently provided for in the nomination criteria for the Subclass 421 (Sport) visa and Subclass 428 (Religious Worker) visa as provided for in item [59].

This item also inserts a definition of sporting organisation. For the purpose of Part 2A, sporting organisation means an Australian organisation that administers or promotes sport or sporting events.

The term ‘sporting organisation’ is used in regulation 2.60G which relates to the criteria for approval as a sport sponsor (see item [33]).

Item [16] – Schedule 1, item [9], proposed paragraph 2.57(2)

This item substitutes subregulation 2.57(2) in item [9] of Schedule 1 to the Amendment Regulations. New subregulation 2.57(2) provides that in Part 2A (in item [9] of Schedule 1 to the Amendment Regulations):

a person (the associated person) is associated with a person that is a corporation if the associated person is an officer of the corporation, a related body corporate or an associated entity; and
a person (the associated person) is associated with a person that is a partnership if the associated person is a partner of the partnership; and
a person (the associated person) is associated with a person that is an unincorporated association if the associated person is a member of the association’s committee of management; and
a person (the associated person) is associated with a person that is an entity not mentioned in paragraphs (a), (b) and (c) if the associated person is an officer of the entity.

The definition previously referred to an ‘applicant’ in place of a ‘person’. However, the context in which ‘adverse information’ is used is not limited to the situation where the person is an applicant. It could include, for example, a person who has been approved as a sponsor under section 140E of the Act. In this case, the person is no longer an applicant. The purpose of the amendment is to update the definition so that it makes sense in the different contexts in which it is used.

Item [17] - Schedule 1, item [9], proposed subregulation 2.57 (3)

This item amends the definition of “adverse information” in subregulation 2.57(3) in item [9] of Schedule 1 to the Amendment Regulations to replace “an applicant’s suitability as a sponsor in relation to the class of sponsor that the applicant has applied for” with “a person’s suitability as an approved sponsor”.

The purpose of this amendment is the same as the amendment at item [16] of this Schedule.

Item [18] - Schedule 1, item [9], proposed paragraph 2.57(3)(a)

This item replaces each mention of the word “applicant” with the word “person” in the definition of “adverse information” in paragraph 2.57(3)(a) in item [9] of Schedule 1 to the Amendment Regulations.

The purpose of this amendment is the same as the amendment at item [16] of this Schedule.

Item [19] - Schedule 1, item [9], proposed subparagraph 2.57(3)(a)(ii)

This item replaces the phrase “has been found, by a competent authority, to have” with the phrase “has, to the satisfaction of a competent authority” in the definition of adverse information in subparagraph 2.57(3)(a)(ii) in item [9] of the Amendment Regulations.

The purpose of this amendment is to clarify that competent authority need not ‘make a finding’ but rather ‘reach a state of satisfaction’. This is a more appropriate description of the proper role of an administrative body contemplated by the proposed subparagraph.

Item [20] – Schedule 1, item [9], after proposed subregulation 2.57(3)

This item inserts subregulations 2.57(4) and (5) in item [9] of Schedule 1 to the Amendment Regulations.

Net employment Benefit

Subregulation 2.57(4) provides for a definition of “net employment benefit” for the purposes of Part 2A in item [9] of Schedule 1 to the Amendment Regulations.. This definition is substantively the same, and achieves the same policy objective, as the current definition of “net employment benefit” in regulation 1.12A of the Principal Regulations. Regulation 1.12A is omitted by item [5] of Schedule 1 to the Amendment Regulations, which inserts new item [3D]. The definition is relocated to Part 2A because it is only used for the purposes of regulation 2.72D in Part 2A inserted by item [59] of this Schedule.

Volunteer Role

Subregulation 2.57(5) provides for a definition of “volunteer role” for the purposes of Part 2A. A person performs a volunteer role if the person will not receive remuneration for performing the duties of the position, other than reimbursement for reasonable expenses or prize money, and the duties would not otherwise be carried out by an Australian citizen or an Australian permanent resident in return for wages. This definition is used in subregulation 2.72A(8) inserted by item [59] of this Schedule and proposed regulation 2.85 as amended by item [121] of this Schedule. Regulation 2.72A sets out the criteria for approval of nomination of various visas.

Item [21] – Schedule 1, item [9], proposed regulation 2.58

This item substitutes a new regulation 2.58 in item [9] of Schedule 1 to the Amendment Regulations. This item prescribes the following classes of sponsor in relation to which a person may be approved as a sponsor for section 140E(2) of the Act:

a standard business sponsor;
a professional development sponsor.
an exchange sponsor;
a foreign government agency sponsor;
a special program sponsor;
a visiting academic sponsor;
an entertainment sponsor;
a sport sponsor;
a domestic worker sponsor;
a religious worker sponsor;
an occupational trainee sponsor;
a superyacht crew sponsor.

Subsection 140E(2) provides that the regulations must prescribe classes in relation to which a person may be approved as a sponsor.

The subclass of visa that a class of sponsor is eligible to sponsor is determined by the criteria in Schedule 1 and 2 to the Principal Regulations for the visa subclass.

A note following regulation 2.58 explains that a party to a work agreement is not required to apply for approval as a sponsor and is not required to be approved as a sponsor in relation to a class of sponsor. A party to a work agreement is taken to be an approved sponsor under subsection 5(1) of the Act.

Item [22] – Schedule 1, item [9], proposed paragraph 2.59(a)

This item omits a reference to Division 2.14 and inserts a reference to regulation 2.61 into paragraph 2.59(a) in item [9] of Schedule 1 to the Amendment Regulations which provides for criteria for approval as a standard business sponsor.

This is a technical amendment to ensure consistency with other provisions which refer to the process for applying for approval.

Item [23] – Schedule 1, item [9], proposed paragraph 2.59(c)

This item substitutes new paragraph 2.59(c) in item [9] of Schedule 1 to the Amendment Regulations. Currently, proposed paragraph 2.59(c) provides that a criterion for approval as a standard business sponsor is that the Minister is satisfied that the applicant must be lawfully operating a business in Australia, or outside Australia. New paragraph 2.59(c) provides that the applicant must be lawfully operating a business (whether in or outside Australia).

This is a technical amendment to clarify that, to be approved as a standard business sponsor, the applicant must be lawfully operating a business either in Australia or outside Australia.

Item [24] - Schedule 1, item [9], proposed paragraph 2.59(d)

This item omits a reference to “paragraph” and inserts a reference to “paragraph; and” into paragraph 2.59(d) in item [9] of Schedule 1 to the Amendment Regulations.

This is a technical amendment to correct the punctuation.

Item [25] - Schedule 1, item [9], proposed paragraph 2.59(e)

This item omits a reference to “12 months or less” and inserts a reference to “less than 12 months” in paragraph 2.59(e) in item [9] of Schedule 1 to the Amendment Regulations.

This amendment clarifies that paragraph 2.59(e) will apply to a person who has applied for approval as a standard business sponsor who has traded for less than 12 months.

Item [26] - Schedule 1, item [9], proposed paragraph 2.59(e)

This item omits a reference to “paragraph (d);” and inserts a reference to “paragraph (d); and” in paragraph 2.59(e) in item [9] of Schedule 1 to the Amendment Regulations.

This is a technical amendment to correct the punctuation.

Item [27] - Schedule 1, item [9], proposed paragraph 2.59(f)

This item inserts “if the applicant is lawfully operating a business in Australia – ” in paragraph 2.59(f) in item [9] of Schedule 1 to the Amendment Regulations.

This item provides that, to meet the criteria for approval as a standard business sponsor, only an applicant who is lawfully operating a business in Australia (rather than an applicant who is only lawfully operating a business outside Australia) must attest in writing that the applicant has a strong record of, or demonstrated commitment to, employing local labour and non-discriminatory employment practices.

The purpose of this amendment is to clarify that the requirement in paragraph 2.59(f) will only apply to a person who has applied for approval as a standard business sponsor who is operating a business in Australia.

Item [28] - Schedule 1, item [9], proposed paragraph 2.59(g)

This item omits each mention of a reference to “the Minister” and inserts a reference to “Immigration” in paragraph 2.59(g) in item [9] of Schedule 1 to the Amendment Regulations.

This is a technical amendment to provide consistency with other provisions which relate to the determination of whether there is adverse information.

Item [29] - Schedule 1, item [9], proposed paragraph 2.59(g)

This item omits a reference to “applicant.” and inserts a reference to “applicant; and” in paragraph 2.59(g) in item [9] of Schedule 1 to the Amendment Regulations.

This amendment changes the punctuation to allow new paragraph 2.59(g) to be inserted (see item [30]).

Item [30] - Schedule 1, item [9], after proposed paragraph 2.59(g)

This item inserts paragraph 2.59(h) after paragraph 2.59(g) in item [9] of Schedule 1 to the Amendment Regulations.

New paragraph 2.59(h) provides that if the applicant is lawfully operating a business outside Australia and does not lawfully operate a business in Australia, to meet the criteria for approval as a standard business sponsor, the applicant must:

· be seeking to be approved as a standard business sponsor in relation to a holder of, or an applicant or proposed applicant (the visa applicant) for, a Subclass 457 (Business (Long Stay)) visa, and

· intend for the visa holder, visa applicant or proposed visa applicant to establish, or assist in establishing, on behalf of the applicant, a business operation in Australia with overseas connections, or to fulfil, or assist in fulfilling, a contractual obligation of the applicant.

This amendment inserts a new criterion for approval as a standard business sponsor where the applicant is lawfully operating a business outside Australia and does not operate a business in Australia. The purpose of this amendment is to more appropriately locate criteria that are currently reflected in Schedule 2 to the Principal Regulations.

Item [31] - Schedule 1, item [9], proposed paragraph 2.60 (1) (h)

This item omits each mention of a reference to “the Minister” and inserts a reference to “Immigration” in paragraph 2.60(1)(h) in item [9] of Schedule 1 to the Amendment Regulations.

This is a technical amendment to provide consistency with other provisions which relate to the determination of whether there is adverse information.

Item [32] - Schedule 1, item [9], proposed sub-subparagraph 2.60(2)(a)(i)(A)

This item omits “1 year” and inserts “12 months” in sub-subparagraph 2.60(2)(a)(i)(A) in item [9] of Schedule 1 to the Amendment Regulations.

This is a technical amendment to ensure consistency of terminology.

Item [33] – Schedule 1, item [9], after proposed regulation 2.60

This item inserts new regulations 2.60A to 2.60K after regulation 2.60 in item [9] of Schedule 1 to the Amendment Regulations, which establish the criteria that must be satisfied by a person seeking approval as certain kinds of work sponsor. Subsection 140E(1) of the Act provides that the Minister must approve a person as a sponsor if the prescribed criteria are satisfied.

Regulation 2.60A – Criteria for approval as a temporary work sponsor

New regulation 2.60A sets out the criteria for approval as a temporary work sponsor for subsection 140E(1) of the Act.

Firstly, the applicant must have applied for approval as a temporary work sponsor in accordance with the process set out in regulation 2.61 in item [9] of Schedule 1 to the Amendment Regulations (Note: items [34] to [38] amend regulation 2.61).

Secondly, the applicant cannot already be a sponsor of the class for which the applicant is applying. This is to prevent a person having two concurrent approvals as the same class of sponsor. An approved sponsor who wishes to extend the duration of their approval as the same class of sponsor may, instead of making a further application for approval, apply to vary the duration of their approval as that class of sponsor. Under this one sponsorship approval, the sponsor can nominate any number of visa holders. This eases the administrative burden on the client and the Department.

Thirdly, the Minister must be satisfied that there is either no adverse information known to Immigration about the applicant or a person associated with the applicant, or it is reasonable to disregard any adverse information known to Immigration about the applicant or a person associated with the applicant. This criterion is to allow the Minister to consider information about the applicant’s suitability as a sponsor or nominator in deciding whether to approve an application.

It might be reasonable to disregard information if, for example, the person had developed practices and procedures to ensure the relevant conduct was not repeated. To illustrate, if a person was found to have breached occupational health and safety legislation two years ago but had since appointed an occupational health and safety manager and had a clean occupational health and safety record, it may be reasonable to disregard the original breach.

The definitions for the terms “associated with” and “adverse information” are provided in subregulations 2.57(2) and (3) in item [9] of Schedule 1 to the Amendment Regulations. (Note: 2.57(2) and (3) are amended by items [16] to [19] of those Amendment Regulations).

Fourthly, the applicant must have the capacity to comply with the sponsorship obligations applicable to a person who is or was a sponsor of the class for which the applicant has applied. This is to ensure that a person is not approved as a sponsor if, for example, they do not have the financial resources to satisfy their sponsorship obligations.

Regulation 2.60B – Criteria for approval as an exchange sponsor

New regulation 2.60B sets out the criterion for approval as an exchange sponsor for subsection 140E(1) of the Act. This criterion must be satisfied by a person applying to be approved as an exchange sponsor in addition to the criterion set out in regulation 2.60A.

An exchange sponsor is able to sponsor Subclass 411 (Exchange) visa holders.

For the Minister to approve an application by a person for approval as an exchange sponsor, the person must be an Australian organisation that is lawfully operating in Australia, or a government agency. The definitions of “Australian organisation” and “government agency” are in proposed regulation 2.57 inserted by item [9] of Schedule 1 to the Amendment Regulations and amended by item [11]. “Australian organisation” means a body corporate, partnership or an unincorporated association (other than an individual or sole trader) that is lawfully established in Australia. “Government agency” means an agency of the Commonwealth or of a State or Territory.

Regulation 2.60C – Criteria for approval as a foreign government agency sponsor

New regulation 2.60C sets out the criterion for approval as a foreign government agency sponsor for subsection 140E(1) of the Act. This criterion must be satisfied by a person applying to be approved as a foreign government agency sponsor in addition to the criterion set out in regulation 2.60A.

A foreign government agency sponsor is able to sponsor Subclass 415 (Foreign Government Agency) visa holders.

For the Minister to approve an application by a person for approval as a foreign government agency sponsor, the person must be a foreign government agency. A definition of “foreign government agency” is inserted by item [12].

Regulation 2.60D – Criteria for approval as a special program sponsor

New regulation 2.60D sets out the criteria for approval as a special program sponsor for subsection 140E(1) of the Act. These criteria must be satisfied by a person applying to be a special program sponsor in addition to the criterion set out in regulation 2.60A.

A special program sponsor is able to sponsor Subclass 416 (Special Program) visa holders.

Firstly, if the applicant is proposing to conduct a youth exchange program that has been approved by the Secretary, the applicant must be an Australian organisation or a government agency, or in any other case, the applicant must be a community-based, non-profit Australian organisation, or a government agency. Secondly, if the applicant is an Australian organisation, then the applicant must be lawfully operating in Australia. Please see above for an explanation of the terms “Australian organisation” and “government agency”.

Thirdly, the applicant must be a party to a special program agreement with the Secretary, or the special program the applicant is proposing to conduct is either the School to School Interchange Program or the School Language Assistants Program. These two programs are exempted because they are long-running programs that do not currently require a special program agreement to be in place. All other special programs currently require the existence of a special program agreement.

Fourthly, the applicant must be proposing to conduct a special program that meets the following requirements:

the program is a youth exchange program, or has the object of cultural enrichment or community benefits; and
the program has been approved in writing by the Secretary, either:

for the purposes of this paragraph; or
for the purposes of paragraph 416.222(b) or (c) of Schedule 2 to the Principal Regulations as in force immediately before the commencement of this regulation.

Current paragraphs 416.222(b) and (c) of Schedule 2 to the Principal Regulations provide respectively for a youth exchange program to be approved in writing by the Secretary and for an organisation and program of activity with the object of cultural enrichment or community benefits to be approved by the Secretary. This formed the basis for an applicant to be eligible for a Subclass 416 (Special Program) visa. New Regulation 2.60D preserves this existing policy intention.

Regulation 2.60E – Criteria for approval as a visiting academic sponsor

New regulation 2.60E sets out the criteria for approval as a visiting academic sponsor for subsection 140E(1) of the Act. This criterion must be satisfied by a person applying to be approved as a visiting academic sponsor in addition to the criterion set out in regulation 2.60A.

A visiting academic sponsor is able to sponsor Subclass 419 (Visiting Academic) visa holders.

For the Minister to approve an application by a person for approval as a visiting academic sponsor the person must be an Australian tertiary institution or an Australian research institution that is lawfully established in Australia and lawfully operating in Australia.

New regulation 2.72E has the effect that a Subclass 419 (Visiting Academic) visa holder will be taking part in an Australian research project at the Australian tertiary or research institution that is sponsoring the visa holder. For this reason, it is required that a person is an Australian tertiary or research institution to be approved as a visiting academic sponsor.

New regulation 2.60F – Criteria for approval as an entertainment sponsor

New regulation 2.60F sets out the criteria for approval as an entertainment sponsor for subsection 140E(1) of the Act. This criterion must be satisfied by a person applying to be approved as an entertainment sponsor in addition to the criterion set out in regulation 2.60A.

An entertainment sponsor is able to sponsor Subclass 420 (Entertainment) visa holders and Subclass 423 (Media and Film Staff) visa holders.

For the Minister to approve an application by a person for approval as an entertainment sponsor, the person must be an Australian organisation that is lawfully operating in Australia, or a government agency, or an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is usually resident in Australia.

Please see above for an explanation of the terms “Australian organisation” and “government agency”. An Australian permanent resident is defined in regulation 1.03 of the Principal Regulations to mean (in short) a non-citizen who, being usually resident in Australia, is the holder of a permanent visa. An eligible New Zealand citizen is defined in regulation 1.03 to mean (in short) a New Zealand citizen who would have satisfied certain public interest criteria at the time of his or her last entry to Australia and was in Australia on or during particular dates.

Regulation 2.60G – Criteria for approval as a sport sponsor

New regulation 2.60G sets out the criteria for approval as a sport sponsor for subsection 140E(1) of the Act. This criterion must be satisfied by a person applying to be approved as a sport sponsor in addition to the criterion set out in regulation 2.60A.

A sport sponsor is able to sponsor Subclass 421 (Sport) visa holders.

For the Minister to approve an application by a person for approval as a sport sponsor the person must be a sporting organisation that is lawfully operating in Australia. “Sporting organisation” is defined in subregulation 2.57(1) in item [9] of Schedule 1 to the Amendment Regulations as amended by item [15] of this Schedule, as an Australian organisation that administers or promotes sport or sporting events.

Regulation 2.60H – Criteria for approval as a domestic worker sponsor

New regulation 2.60H sets out the criteria for approval as a domestic worker sponsor for subsection 140E (1) of the Act. This criterion must be satisfied by a person applying to be approved as a domestic worker sponsor in addition to the criterion set out in regulation 2.60A.

A domestic worker sponsor is able to sponsor Subclass 427 (Domestic Worker (Temporary) – Executive) visa holders.

For the Minister to approve an application by a person for approval as a domestic worker sponsor, the person must be an eligible Subclass 457 visa holder. A person is an “eligible Subclass 457 visa holder” if the person holds a Subclass 457 (Temporary Business (Long Stay)) visa that was granted on the basis of meeting the requirements of subclause 457.223 (2), (4), (7A), (9) or (10) of Schedule 2 to the Principal Regulations, and has been appointed to, or holds the position of national managing director, deputy national managing director or state manager of an Australian office of a foreign organisation.

The subclauses mentioned in the preceding paragraph relate to eligibility for a Subclass 457 (Business (Long Stay)) visa on the basis that the occupation or activity in which the visa applicant intends to engage is the subject of a labour agreement or an Invest Australia Supported Skills (IASS) agreement, or the sponsor is a standard business sponsor, or a person to whom certain privileges and immunities will be accorded; or the Subclass 457 visa holder is an independent executive.

The reason for providing for sponsorship by these categories of people is to ensure there is a direct relationship between the visa holder and the domestic worker sponsor. Currently Subclass 427 visa applicants are only required to be sponsored if they are to be employed by Subclass 457 visa holders who are themselves sponsored and the Subclass 427 and Subclass 457 visa holders are sponsored by the same sponsor. This amendment ensures that all Subclass 427 visa holders are sponsored directly by the Subclass 457 holder who employs them.

Regulation 2.60I – Criteria for approval as a religious worker sponsor

New regulation 2.60I sets out the criteria for approval as a religious worker sponsor for subsection 140E(1) of the Act. This criterion must be satisfied by a person applying to be approved as a religious worker sponsor in addition to the criterion set out in regulation 2.60A.

A religious worker sponsor is able to sponsor Subclass 428 (Religious Worker) visa holders.

For the Minister to approve an application by a person for approval as a religious worker sponsor the person must be a religious institution that is lawfully operating in Australia. “Religious institution” is defined in item in regulation 1.03 in new item [2A] of Schedule 1 to the Amendment Regulations as inserted by item [5] of this Schedule.

Regulation 2.60J – Criteria for approval as an occupational trainee sponsor

New regulation 2.60J sets out the criteria for approval as an occupational trainee

Sponsor for subsection 140E (1) of the Act. This criterion must be satisfied by a person applying to be approved as an occupational trainee sponsor in addition to the criterion set out in regulation 2.60A.

An occupational trainee sponsor is able to sponsor Subclass 442 (Occupational Trainee) visa holders.

For the Minister to approve an application by a person for approval as an occupational trainee sponsor, the person must be an Australian organisation that is lawfully operating in Australia, or a government agency. The terms “Australian organisation” and “government agency” are explained above.

Regulation 2.60K – Criteria for approval as a superyacht crew sponsor

New regulation 2.60K sets out the criteria for approval as a superyacht crew sponsor for subsection 140E(1) of the Act. This criterion must be satisfied by a person applying to be approved as a superyacht crew sponsor in addition to the criterion set out in regulation 2.60A.

A superyacht crew sponsor is able to sponsor Subclass 488 (Superyacht Crew) visa holders.

For the Minister to approve an application by a person for approval as a superyacht crew sponsor, the person must be the captain or owner of a superyacht. This preserves the existing policy intention of the Subclass 488 (Superyacht Crew) visa which is that the sponsor is the captain or owner of the superyacht on which the Subclass 488 visa holder is working.

Item [34] – Schedule 1, item [9], proposed subregulation 2.61 (2)

This item omits the words “A person” from subregulation 2.61(2) in item [9] of Schedule 1 to the Amendment Regulations and inserts the phrase “Subject to subregulation (3), a person”. Regulation 2.61 relates to an application for approval as a sponsor. The effect of the amendment is to provide that subregulation 2.61(2) is subject to new subregulation 2.61(3) which is being inserted by item [38] of this Schedule.

Item [35] – Schedule 1, item [9], proposed subregulation 2.61(2), table

This item omits each mention of “$285” in the table in subregulation 2.61(2) in item [9] of Schedule 1 to the Amendment Regulations and inserts “$345”. Subregulation 2.61(2) provides that subject to subregulation 2.61(3), a person mentioned in an item of the table must make the application in accordance with the approved form mentioned in the item, and pay the application fee (if any) mentioned in the item. The effect of this amendment is to increase to $345 the application fee which relates to an application for approval as a standard business sponsor. This reflects the adjustment of the relevant fees that occurred on 1 July 2009.

Item [36] – Schedule 1, item [9], proposed subregulation 2.61(2), table, item 4

This item omits “$1 145” in item 4 of the table in subregulation 2.61(2) in item [9] of Schedule 1 to the Amendment Regulations and inserts “$1 370”. Subregulation 2.61(2) provides that subject to subregulation 2.61(3), a person mentioned in an item of the table must make the application in accordance with the approved form mentioned in the item, and pay the application fee (if any) mentioned in the item. The effect of this amendment is to increase to $1 370 the application fee which relates to an application for approval as a professional development sponsor in circumstances where the applicant is not a Commonwealth agency. This reflects the adjustment of the relevant fees that occurred on 1 July 2009.

Item [37] – Schedule 1, item [9], proposed subregulation 2.61(2), table, after item 4

This item inserts items 5 and 6 after item 4 of the table in subregulation 2.61(2) in item [9] of Schedule 1 to the Amendment Regulations. New item 5 provides that if a person makes an application for approval as a temporary work sponsor (other than a superyacht crew sponsor), the approved form is 1377 and the application fee is $345. New item 6 provides that if a person makes an application for approval as a superyacht crew sponsor, the approved form is 1366 and the application fee is nil.

Item [38] – Schedule 1, item [9], after the table in proposed subregulation 2.61 (2)

This item inserts new subregulations 2.61(3) to (6) in item [9] of Schedule 1 to the Amendment Regulations.

Subregulation 2.61(3) provides that if the circumstances in paragraphs 2.61(3)(a) to (c) exist, then the application fee for the first application for approval as a sponsor made by the applicant on or after 14 September 2009 is nil. These circumstances are that the applicant:

paid a sponsorship fee under regulation 5.38 of the Principal Regulations in relation to an application for approval as a sponsor before 14 September 2009 (regulation 5.38 applies to sponsorship of an applicant if the applicant is applying for a temporary visa for which sponsorship is a requirement (except in relation to certain visas)); and
was approved as a sponsor in relation to the application before 14 September 2009 but no earlier than 1 July 2009; and
no visa application was lodged in relation to sponsorship by the applicant before 14 September 2009.

This is to ensure that a person does not have to pay two fees in the situation where a sponsorship approved prior to 14 September 2009 can no longer be used because a visa application in relation to that sponsorship was not lodged prior to 14 September 2009.

Subregulation 2.61(4) provides that if a person is applying to be approved as a temporary work sponsor (other than a superyacht crew sponsor), the person must make the application by posting the application (with the correct pre-paid postage), delivering the application by courier service or otherwise by hand, or faxing it to the address or fax number specified by the Minister in an instrument in writing. Under subregulation 2.61(5) the Minister may specify different addresses and fax numbers for applications for different classes in relation to which a person may be approved as a sponsor. If no legislative instrument has been made specifying an address to which the application must be posted, the application must be sent to an office of immigration in Australia.

Subregulation 2.61(6) is substantively the same as subparagraph 2.61(4) except that an application cannot be made by delivering it by hand.

Item [39] - Schedule 1, item [9], proposed regulation 2.63, heading

This item omits the current heading “Standard business sponsor” and substitutes it with a new heading “Standard business sponsor or temporary work sponsor” in regulation 2.63 in item [9] of Schedule 1 to the Amendment Regulations.

This amendment is consequential to the amendment in item [40].

Item [40] – Schedule 1, item [9], proposed regulation 2.63

This item inserts “or temporary work sponsor” after “sponsor” in regulation 2.63 in item [9] of Schedule 1 to the Amendment Regulation. Regulation 2.63 provides that for the purposes of subsection 140G(2) of the Act, a kind of term of an approval as a standard business sponsor is the duration of the approval.

Subsection 140G(2) of the Act provides that the terms of an approval as a sponsor must be of a kind prescribed in the regulations.

The duration of approval may be specified in the approval as one of the following:

· a period of time; or

· as ending on a particular date; or

· as ending on the occurrence of a particular event.

The purpose of this amendment is to provide that proposed regulation 2.63 in item [9] of Schedule 1 to the Amendment Regulations applies to temporary work sponsors.

It is intended that approval as a temporary work sponsor will cease 24 months after the day on which the standard business sponsor was approved unless a variation to the terms is approved under Division 2.16 as amended by items [43] to [55].

Item [41] – Schedule 1, item [9], after proposed regulation 2.64

This item inserts new regulation 2.64A in item [9] of Schedule 1 to the Amendment Regulations. Regulation 2.64A relates to subsection 140G(3) of the Act, which provides that different kinds of terms may be prescribed for different kinds of visa (however described). Subregulation 2.64A(1) provides that for subsection 140G(3) of the Act, the terms of approval as a special program sponsor are prescribed in this regulation.

Subregulation 2.64A(2) provides that an approval as a special program sponsor has effect only in relation to:

the special program specified in the application for approval, as varied from time to time by agreement between the special program sponsor and the Secretary; and
the special program agreement or agreements specified in the application for approval, as varied from time to time by agreement between the special program sponsor and the Secretary; and
the employer or employers specified in the application for approval.

This is similar to existing regulation 2.64 in item [9] of Schedule 1 to the Amendment Regulations in relation to professional development sponsors. It ensures that the special program sponsor adheres to the special program as approved by the Minister and the special program agreement entered into with the Secretary.

Item [42] – Schedule 1, item [9], proposed Division 2.16, heading

This item omits the current heading “Variation of terms of approval of sponsorship – standard business sponsor” and substitutes “Variation of terms of approval of sponsorship” in the heading of Division 2.16 in item [9] of Schedule 1 to the Amendment Regulations.

The purpose of this amendment is to clarify that Division 2.16 applies to sponsors including but not limited to standard business sponsors.

Item [43] – Schedule 1, item [9], proposed regulation 2.65

This item inserts “or a temporary work sponsor” after “sponsor” in regulation 2.65 in item [9] of Schedule 1 to the Amendment Regulations. The effect of this amendment is that Division 2.16 in item [9] of Schedule 1 to the Amendment Regulations, which contains provisions relating to the variation of the terms of approval of a person’s sponsorship, applies to a person who is a standard business sponsor or a temporary work sponsor.

Item [44] – Schedule 1, item [9], proposed regulation 2.66, heading

This item omits the current heading “Process to apply for variation of terms of approval” and substitutes “Process to apply for variation of terms of approval – standard business sponsor” in the heading of regulation 2.66 in item [9] of Schedule 1 to the Amendment Regulations.

The purpose of this amendment is to clarify that regulation 2.66 applies to standard business sponsors only.

Item [45] – Schedule 1, item [9], proposed subregulation 2.66(4)

This item omits the current fee of $285 and substitutes a new fee of $345 in subregulation 2.66(4) in item [9] of Schedule 1 to the Amendment Regulations. This means that an application lodged to vary a term of approval as a standard business sponsor must be accompanied by a fee of $345.

This amendment is to update the fee for an application for approval of as a standard business sponsor following the fee update which came into effect on 1 July 2009.

Item [46] – Schedule 1, item [9], after proposed regulation 2.66

This item inserts new regulation 2.66A in item [9] of Schedule 1 to the Amendment Regulations. New regulation 2.66A provides for the process for applying to the Minister to vary a term of an approval as a temporary work sponsor, for the purposes of subsection 140GA(1) of the Act. Subsection 140GA(1) provides that the regulations may establish a process for the Minister to vary a term of a person’s approval as a sponsor.

An application to vary a term of approval as a temporary work sponsor (other than a superyacht crew sponsor) must be made in accordance with approved form 1377 and must be accompanied by a fee of $345. It must be made by posting, delivering by courier service or by hand, or faxing to the address or fax number (as the case may be) specified by the Minister in an instrument in writing. The address or fax number may differ according to the class of sponsor the terms of which the applicant is applying to vary.

An application to vary a term of approval as a superyacht crew sponsor must be made in accordance with approved form 1366 and must be accompanied by a fee of $345. It must be made by posting, delivering by courier service or faxing to the address or fax number (as the case may be) specified by the Minister in an instrument in writing.

Item [47] – Schedule 1, item [9], proposed regulation 2.67

This item inserts “or a temporary work sponsor” after “sponsor” in regulation 2.67 in item [9] of Schedule 1 to the Amendment Regulations. Currently, regulation 2.67 provides that a term of approval as a standard business sponsor that may be varied in the duration of the approval.

This amendment provides that a term of approval as a standard business sponsor or a temporary work sponsor that may be varied is the duration of the approval.

Item [48] – Schedule 1, item [9], proposed regulation 2.68, heading

This item omits the current heading “Criteria for variation of terms of approval” and substitutes “Criteria for variation of terms of approval – standard business sponsor” in the heading of regulation 2.68 in item [9] of Schedule 1 to the Amendment Regulations.

The purpose of this amendment is to clarify that regulation 2.68 applies to standard business sponsors only.

Item [49] – Schedule 1, item [9], proposed paragraph 2.68(d)

This item substitutes new paragraph 2.68(d) in item [9] of Schedule 1 to the Amendment Regulations. Currently, proposed paragraph 2.68(d) provides that a criteria for varying the terms of approval as a standard business sponsor is that the Minister is satisfied that the applicant must be lawfully operating a business in Australia, or outside Australia. New paragraph 2.68(d) provides that the applicant must be lawfully operating a business (whether in or outside Australia).

This is a technical amendment to clarify that, to be approved as a standard business sponsor, the applicant must be lawfully operating a business either in Australia or outside Australia.

Item [50] - Schedule 1, item [9], proposed paragraph 2.68(e)

This item omits “more -”and inserts “more – ” in paragraph 2.68(e) in item [9] of Schedule 1 to the Amendment Regulations. This is a technical amendment to correct the punctuation.

Item [51] - Schedule 1, item [9], proposed paragraph 2.68(f)

This item omits the phrase “12 months or less –” and inserts the phrase “less than 12 months —” in paragraph 2.68(f) in Item [9] of Schedule 1 to the Amendment Regulations.

This amendment clarifies that paragraph 2.68(f) will apply to a person who has applied to vary the term of approval as a standard business sponsor who has traded for less than 12 months.

Item [52] - Schedule 1, item [9], proposed paragraph 2.68(g)

This item inserts the phrase “if the applicant is lawfully operating a business in Australia —” before the phrase “the applicant has attested” in paragraph 2.68(g) in Item [9] of Schedule 1 to the Amendment Regulations.

This item provides that, to meet the criteria for approval of an application to vary the terms of an approval as a standard business sponsor, only an applicant who is lawfully operating a business in Australia (rather than an applicant who is lawfully operating a business outside Australia) must attest in writing that the applicant has a strong record of, or demonstrated commitment to, employing local labour and non-discriminatory employment practices.

This is to clarify that paragraph 2.68(g) will only apply to a person who has applied to vary the term of approval as a standard business sponsor who is operating a business in Australia.

Item [53] - Schedule 1, item [9], proposed paragraph 2.68(h)

This item omits the word “applicant” and inserts “applicant; and” in paragraph 2.68(h) in Item [9] of Schedule 1 to the Amendment Regulations. This amendment changes the punctuation to allow new subparagraph 2.68(h)(i) to be inserted (see item [54]).

Item [54] - Schedule 1, item [9], after proposed paragraph 2.68 (h)

This item inserts paragraph 2.68(i) after paragraph 2.68(h) in item [9] of Schedule 1 to the Amendment Regulations.

New paragraph 2.68(i) provides that if the applicant is lawfully operating a business outside Australia and does not lawfully operate a business in Australia, to meet the criteria for approval of an application to vary a term of approval as a standard business sponsor, the applicant must:

· be seeking to vary the terms of approval as a standard business sponsor in relation to a holder of, or an applicant or proposed applicant (the visa applicant) for, a Subclass 457 (Business (Long Stay)) visa, and

This amendment inserts a new criterion to vary a term of approval as a standard business sponsor where the applicant is lawfully operating a business outside Australia and does not operate a business in Australia. The purpose of this amendment is to more appropriately locate criteria that are currently contained in Schedule 2 to the Principal Regulations.

Item [55] – Schedule 1, item [9], after proposed regulation 2.68

This item inserts regulation 2.68A in item [9] of Schedule 1 of the Amending Regulations. New regulation 2.68A prescribes, for the purposes of paragraph 140GA(2)(b) of the Act, the criteria for variation of the terms of approval as a temporary work sponsor. Paragraph 140GA(2)(b) of the Act provides that the regulations may prescribe criteria that must be satisfied to vary a term of approval as a sponsor.

The criteria to vary terms of approval as a temporary work sponsor are firstly, that the applicant satisfies the criteria for approval as a temporary work sponsor set out in paragraphs 2.60A(c) and (d) and, depending on the class of sponsor the terms of which the applicant is applying to vary, the criteria for approval in one of regulations 2.60B to 2.60K of Division 2.13, which are specific to each class of sponsor (please see item [33] for details).

Secondly, the applicant must apply for the variation in accordance with the process set out in regulation 2.66A (please see item [46] for details).

Thirdly, the applicant must be applying to vary the terms of approval of a class of sponsor and the applicant must be in that class. This is to ensure that there is an existing approval to vary. If the approval as a class of sponsor has ceased then there is no approval to vary.

If an applicant has ceased to be a sponsor of the class the terms of which the applicant is applying to vary after making an application for variation but before a decision is made on the application, the application will be assessed for the purposes of making an application for approval as a sponsor under Division 2.13 (see item [33] above).

The purpose of varying the terms of approval to extend the duration of an approval, rather than granting a new approval as the same class of sponsor, is two-fold. First, it prevents a person from having two concurrent approvals as the same class of sponsor. Second, it simplifies administrative processes by reducing the number of approvals that are granted to sponsors who are eligible to be approved as sponsors over a long period of time.

Item [56] - Schedule 1, item [9], proposed paragraph 2.70(b)

This item omits “Minister).” and inserts “Minister); or” in paragraph 2.70(b) in item [9] of Schedule 1 to the Amendment Regulations. This amendment changes the punctuation to allow new paragraph 2.70(c) to be inserted (see item [57]).

Item [57] - Schedule 1, item [9], after proposed paragraph 2.70 (b)

This item inserts paragraph 2.70(c) in item [9] of Schedule 1 to the Amendment Regulations. Paragraph 2.70(c) provides that Division 2.17 in item [9] of Schedule 1 to the Amendment Regulations, relating to nominations of an occupation, program or activity, applies to a temporary work sponsor (other than a foreign government agency sponsor, a special program sponsor or a superyacht crew sponsor). These sponsors are excluded as there is no nomination stage for the visa subclasses they relate to.

Item [58] - Schedule 1, item [9], proposed regulation 2.71

This item omits regulation 2.71 from item [9] of Schedule 1 to the Amendment Regulations. Proposed regulation 2.71 currently provides that the Subclass 457 (Business) (Long Stay)) visa is prescribed for paragraph 140GB(1)(a) of the Act. This is a technical amendment because an occupation, program or activity is nominated for the purposes of paragraph 140GB(1)(b) of the Act rather than paragraph 140GB(1)(a).

Item [59] – Schedule 1, item [9], proposed regulation 2.72

This item substitutes regulation 2.72 in item [9] of Schedule 1 to the Amendment Regulations with new regulations 2.72 and 2.72A to 2.72I.

New regulation 2.72 provides for the criteria for approval of nomination in relation to a Subclass 457 (Business (Long Stay)) visa for the purposes of subsection 140GB(2) of the Act.

New regulations 2.72A to 2.72I prescribe the criteria for approval of a nomination in relation to the various visas within the enforceable sponsorship framework, other than a Subclass 457 visa.

Regulation 2.72 - Criteria for approval of nomination – Subclass 457 (Business (Long Stay)) visa

Subregulation 2.72(1) clarifies that the regulation applies to a person who is a standard business sponsor or a party to a work agreement (other than a Minister) who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or proposed applicant for, a Subclass 457 (Business (Long Stay)) visa.

The criteria for approval of a nomination made by a standard business sponsor or a party to a work agreement (other than a Minister) are set out in subregulations 2.72(3) to (12). These criteria are substantively the same as the criteria in current proposed regulation 2.72 with the following exceptions.

Subregulation 2.72(5) provides that the Minister must be satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation. This amendment clarifies the original policy intention, which is that the standard business sponsor must identify the person who will work in the nominated occupation. It replaces current proposed paragraph 2.72(f)(v).

Paragraph 2.72(6)(a) provides that if the person identifies a holder of a Subclass 457 (Business (Long Stay)) visa (the visa holder) for subregulation (5), the Minister must be satisfied that the person has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2.

Clause 457.321 of Schedule 2 as in force prior to 1 July 2009 provided that the applicant was a member of the family unit or the interdependent partner or a dependent child of the interdependent partner of the person who having satisfied the primary criteria, is the holder of a Subclass 457 visa.

Clause 457.321 of Schedule 2 as in force from 1 July 2009 provides that the applicant was a member of the family unit of a person who having satisfied the primary criteria is the holder of a Subclass 457 visa.

Paragraph 2.72(6)(a) will apply to a person who was granted a visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2 as in force prior to 1 July 2009 or after 1 July 2009. Paragraph 2.72(6)(a) replaces current proposed paragraph 2.72(1)(e).

Paragraph 2.72(6)(b) provides that if the person identifies a holder of a Subclass 457 (Business (Long Stay)) visa (the visa holder) for subregulation (5), the Minister must be satisfied that if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to carry out the duties of the occupation, the visa holder must demonstrate that he or she has those skills in the manner specified by the Minister.

The effect of this amendment is that the Minister may require a Subclass 457 (Business (Long Stay)) visa holder to undertake a skills assessment prior to approving the nomination.

The purpose of this amendment is to create a corresponding criteria at the nomination stage to paragraphs 457.223(2)(d) and 457.223(4)(e) of Schedule 2 to the Principal Regulations. As a Subclass 457 (Business (Long Stay)) visa holder is able to move between parties to a labour agreement and standard business sponsors without the need for a new Subclass 457 (Business (Long Stay)) visa, paragraph 2.72(6)(b) allows the Minister to require a skills assessment which would otherwise be required under paragraphs 457.223(2)(d) or 457.223(4)(e) of Schedule 2.

Subsection 2.72(7) provides that the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so. These amendments clarify the wording of existing paragraph 2.72(1)(e) and subsection 2.72(2).

Paragraph 2.72(10)(e) provides that the person must have certified as part of the nomination, in writing, a number of different items. This is similar to current proposed paragraph 2.72(1)(g), but with additional items.

Subparagraph 2.72(10)(e)(ii) provides that if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia, the person must have certified as part of the nomination, in writing, that the nominated occupation is a position in the business of the standard business sponsor or the nominated occupation is an occupation specified by the Minister in an instrument in writing for this paragraph.

The effect of this amendment is that if a standard business sponsor is operating a business outside Australia and not in Australia, the Subclass 457 (Business (Long Stay)) visa holder must work directly for the sponsor, unless the occupation is specified by the Minister in an instrument in writing.

The purpose of this amendment is to prevent a standard business sponsor who is operating a business outside Australia and not in Australia from placing the Subclass 457 (Business (Long Stay)) visa holder with an associated entity which is operating in Australia and thereby circumventing the criteria which apply to a standard business sponsor who is operating a business in Australia.

Paragraph 2.72(11)(b) requires a party to a work agreement to certify as part of the nomination, in writing, that the duties of the position include a significant majority of the duties of the nominated occupation listed in the ASCO or the nominated occupation specified in the work agreement. The intention is that a party to a work agreement must make the same certification as a standard business sponsor is required to make at sub-subparagraph 2.72(10)(e)(iv) in this item in this Schedule.

Subregulation 2.72(12) requires that if the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement the Minister is satisfied that the requirements of the work agreement have been met.

The purpose of this amendment is that if a work agreement sets out specific requirements for the nomination stage, for example the maximum number of nominations which may be approved in a particular year, then those requirements must also be met before the nomination can be approved.

Regulation 2.72A – Criteria for approval of nomination – various visas

Regulation 2.72A provides for the nomination criteria that must be satisfied by an approved sponsor who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation, program or activity in relation to a holder of, or an applicant or proposed applicant for, one of the following visas:

a Subclass 411 (Exchange) visa;
a Subclass 419 (Visiting Academic) visa;
a Subclass 420 (Entertainment) visa;
a Subclass 421 (Sport) visa;
a Subclass 423 (Media and Film Staff) visa;
a Subclass 427 (Domestic Worker (Temporary) — Executive) visa;
a Subclass 428 (Religious Worker) visa;
a Subclass 442 (Occupational Trainee) visa.

Paragraph 140GB(1)(b) of the Act provides that an approved sponsor may nominate a proposed occupation, program or activity and subsection 140GB(2) provides that the Minister must approve an approved sponsor’s nomination if prescribed criteria are satisfied.

Subregulation 2.72A(3) provides that the Minister must be satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73A, 2.73B or 2.73C in item [59] of this Schedule, depending on the type of visa to which the nomination relates.

Subregulation 2.72A(4) provides that the Minister must be satisfied that the person has identified in the nomination the visa holder, or applicant or proposed applicant for a visa, (the “identified visa holder or applicant”) who will work or participate in the nominated occupation, program or activity. This is to ensure that an occupation, program or activity is nominated for a specific applicant or holder of a specific visa.

Subregulation 2.72A(5) provides that if the person identifies a visa holder (rather than a visa applicant or proposed applicant) who will work or participate in the nominated occupation, program or activity, the Minister must be satisfied that the person has listed on the nomination each secondary sponsored person who holds the same visa as the visa holder on the basis of the secondary sponsored person’s relationship to the visa holder. The nomination may also list other persons who are not current secondary sponsored persons, but it must at least include all current secondary sponsored persons.

The purpose of this criterion is twofold. First, it ensures that the person making the nomination is aware of all the secondary sponsored persons who are connected to the primary sponsored person that is being nominated. Second, it ensures that the person who owes obligations in relation to a person granted a visa on the basis of satisfying the secondary criteria, is the same as the person who owes obligations in relation to the person granted a visa on the basis of satisfying the primary criteria. In other words, it ensures that the liability for the family unit moves with the primary person.

Subregulation 2.72A(6) provides that the Minister may disregard the fact that one or more secondary sponsored persons are not listed on the nomination if the Minister is satisfied that it is reasonable in the circumstances to do so. An example of a circumstance in which it may be reasonable to approve the nomination where all secondary sponsored persons are not included is where the relevant secondary sponsored person has left Australia and does not intend to return, but their visa is still in effect.

Paragraph 2.72A(7)(a) provides firstly that the person must provide information that identifies the employer or employers in relation to the nominated occupation, program or activity, including the location and contact details of each employer and, if the person and the employer are not the same person, the relationship between the person and the employer. Subregulation 2.72(8) provides that for paragraph 2.72A(7)(a) in the case of a nominated occupation, program or activity which is a volunteer role, “employer” includes the person or organisation responsible for the tasks to be carried out as part of the nominated occupation, program or activity. A note advises that “volunteer role” is defined in subregulation 2.57(5) (see item [20] of this Schedule).

Paragraph 2.72A(7)(b) provides that the person must also provide information that identifies the location or locations where the nominated occupation, program or activity will be carried out. This information will also assist the department to monitor whether a person is complying with the person’s sponsorship obligations.

Paragraph 2.72A(7)(c) provides that the person must provide information that identifies each member of the family unit of the identified visa holder or applicant who holds, or proposes to apply for, the same visa as the identified visa holder or applicant on the basis of satisfying the secondary criteria. This information will ensure that all family members who hold the same visa as the identified visa holder or who intend to apply for the same visa as the identified applicant are, included in the nomination.

These three types of information will assist the department to monitor whether a person is complying with the person’s sponsorship obligations.

Subregulation 2.72A(9) provides that the Minister must be satisfied that there is no adverse information known to Immigration about the person or a person associated with the person, or if any adverse information is known, it is reasonable to disregard the information. It would be reasonable to disregard information if, for example, the person had developed practices and procedures to ensure the relevant conduct was not repeated. To illustrate, if a person was found to have breached occupational health an safety legislation two years ago and had since appointed an occupational health and safety manager and had a clean occupational health and safety record, it may be reasonable to disregard the original breach.

Definitions for the terms “associated with” and “adverse information” are provided by subregulations 2.57(2) and (3) inserted by item [9] of Schedule 1 to the Amendment Regulations as amended by items [16] to [19] of this Schedule.

Regulation 2.72B – Criteria for approval of nomination — Subclass 411 (Exchange) visa

Regulation 2.72B applies to a person who is an exchange sponsor and who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation, program or activity in relation to a holder of, or an applicant or proposed applicant for, a Subclass 411 (Exchange) visa (the “identified visa holder or applicant”).

An applicant or proposed applicant who is identified in a nomination approved on the basis that the criteria in regulation 2.72B are met, may be eligible for a Subclass 411 visa. An existing Subclass 411 visa holder who is identified in a nomination approved on the basis that the criteria in regulation 2.72B are met, will be sponsored by the exchange sponsor who made the nomination without applying for a new visa (provided the visa is still in effect).

For subsection 140GB(2) of the Act, and in addition to the criteria set out in regulation 2.72A (see above) the criteria that must be satisfied for the Minister to approve a nomination by the exchange sponsor are set out in subregulations 2.72B(3) to (6).

Subregulation 2.72B(3) provides that the Minister must be satisfied that the person making the nomination is an exchange sponsor. This is because only an exchange sponsor may sponsor Subclass 411 (Exchange) visa holders or applicants.

Subregulation 2.72B(4) provides that the Minister must be satisfied that there is a written agreement in place between the exchange sponsor and a reciprocating foreign organisation that:

· provides for the identified visa holder or applicant to work for the exchange sponsor in the nominated occupation, program or activity in Australia for a specified period; and

· provides a named person, who is an Australian citizen or an Australian permanent resident, with the opportunity to obtain experience with the reciprocating foreign organisation for a specified period.

Subregulation 2.72B(5) provides that the Minister must be satisfied that the exchange, as set out in subregulation (4), will be of benefit to both the identified visa holder or applicant, and to the Australian citizen or Australian permanent resident.

Subregulation 2.72B(6) provides that the Minister must be satisfied that the nominated position is a skilled position. It is intended that under policy, a skilled position is one where the Australian Standard Classification of Occupations (ASCO) dictionary indicates that the occupation to which the position relates has a graded skill-level or a range of duties sufficiently broad to enable the occupant to demonstrably add to or enhance their current skills in that occupation.

These provisions largely reflect the eligibility criterion for a Subclass 411 (Exchange) visa in clause 411.222 of Schedule 2 to the Principal Regulations prior to the commencement of the Amendment Regulations and ensure that the existing purpose of the Subclass 411 visa is preserved. The purpose of the Subclass 411 visa is to facilitate the exchange of staff working in skilled positions between an Australian organisation or government agency and a reciprocating foreign organisation, where the exchange will be of benefit to both the non-citizen participant and the Australian participant.

Regulation 2.72C – Criteria for approval of nomination — Subclass 419 (Visiting Academic) visa

Regulation 2.72C applies to a person who is a visiting academic sponsor and who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation, program or activity in relation to a holder of, or an applicant or proposed applicant for, a Subclass 419 (Visiting Academic) visa (the “identified visa holder or applicant”).

An applicant or proposed applicant who is identified in a nomination approved on the basis that the criteria in regulation 2.72C are met, may be eligible for a Subclass 419 visa. Also an existing Subclass 419 visa holder who is identified in a nomination approved on the basis that the criteria in regulation 2.72C are met, will be sponsored by the visiting academic sponsor who made the nomination without applying for a new visa (provided the visa is still in effect).

For subsection 140GB(2) of the Act, and in addition to the criteria set out in regulation 2.72A (see above) the criteria that must be satisfied for the Minister to approve a nomination by the visiting academic sponsor are set out in subregulations (3) to (6).

Subregulation 2.72C(3) provides that the Minister must be satisfied that the person making the nomination is a visiting academic sponsor. This is because only a visiting academic sponsor may sponsor Subclass 419 (Visiting Academic) visa holders or applicants.

Subregulation 2.72C(4) provides that the Minister must be satisfied that the identified visa holder or applicant will observe or participate in an Australian research project at the sponsoring Australian tertiary or research institution and in collaboration with other academics employed by the sponsoring Australian tertiary or research institution.

Subregulation 2.72C(5) provides that the Minister must be satisfied that the identified visa holder or applicant is employed, or was formerly employed, as an academic at a tertiary education institution or research institution, and the identified visa holder or applicant has a significant record of achievement in his or her field.

Subregulation 2.72C(6) provides that the Minister must be satisfied that the identified visa holder or applicant will not receive from the visiting academic sponsor a salary, scholarship or allowance (other than an allowance for living expenses in Australia and travel costs).

These provisions largely reflect the eligibility criteria for a Subclass 419 (Visiting Academic) visa in clauses 419.222 and 419.224 of Schedule 2 to the Principal Regulations prior to the commencement of the Amendment Regulations and ensure that the existing purpose of the Subclass 419 visa is preserved. The purpose of the Subclass 419 visa is to provide for qualified academics to observe or participate in research at an Australian tertiary or research institution provided they will not be remunerated by the Australian tertiary or research institution.

Regulation 2.72D – Criteria for approval of nomination — Subclass 420 (Entertainment) visa

Regulation 2.72D applies to a person who is an entertainment sponsor and who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation, program or activity in relation to a holder of, or an applicant or proposed applicant for, a Subclass 420 (Entertainment) (the “identified visa holder or applicant”). An applicant or proposed applicant who is identified in a nomination approved on the basis that the criteria in regulation 2.72D are met, may be eligible for a Subclass 420 visa. Also an existing Subclass 420 visa holder who is identified in a nomination approved on the basis that the criteria in regulation 2.72D are met, will be sponsored by the entertainment sponsor who made the nomination without applying for a new visa (provided the visa is still in effect).

For subsection 140GB (2) of the Act, and in addition to the criteria set out in regulation 2.72A (see above), the criteria that must be satisfied for the Minister to approve a nomination by the entertainment sponsor are:

· that the Minister is satisfied that the person making the nomination is an entertainment sponsor; and

· the criteria set out in one of subregulations 2.72D(4) to (9).

This means that a nomination made by an entertainment sponsor may be approved if it meets one of the six sets of criteria set out in subregulation 2.72D(4) to (9).

Performing in film or television production subsidised by government

Paragraph 2.72D(4)(a) provides that the Minister must be satisfied that the identified visa holder or applicant will be:

performing as an entertainer under a performing contract for one or more specific engagements (other than non-profit engagements) in Australia; and
performing in a film or television production that is subsidised, in whole or in part, by a government in Australia; and
performing in a leading role, major supporting role or cameo role, or to satisfy ethnic or other special requirements.

Paragraph 2.72D(4)(b) provides that the Minister must be satisfied that the nomination is supported by a certificate given by the Arts Minister, or a person authorised by the Arts Minister, confirming that the relevant Australian content criteria have been met.

Paragraph 2.72D(4)(c) provides that the Minister must be satisfied that the entertainment sponsor holds any necessary licences in respect of the work to which the nomination relates.

Paragraph 2.72D(4)(d) provides that the Minister must be satisfied that the entertainment sponsor has consulted with relevant Australian unions in relation to the employment or engagement of the identified visa holder or applicant in

Australia.

Performing in film or television production not subsidised by government

Paragraph 2.72D(5)(a) provides that the Minister must be satisfied that the identified visa holder or applicant will be:

performing as an entertainer under a performing contract for one or more specific engagements (other than non-profit engagements) in Australia; and
performing in a film or television production that is not subsidised in any way by a government in Australia; and
performing in a leading role, major supporting role or cameo role, or to satisfy ethnic or other special requirements.

Paragraph 2.72D(5)(b) provides that the Minister must be satisfied that the nomination is supported by a certificate given by the Arts Minister, or a person authorised by the Arts Minister, confirming that:

citizens or residents of Australia have been afforded a reasonable opportunity to participate in all levels of the production; and
the foreign investment, or the private investment guaranteed against the foreign returns by a distributor, in the production is greater than the amount to be expended on entertainers sponsored for entry.

Paragraph 2.72D(5)(c) provides that the Minister must be satisfied that the entertainment sponsor holds any necessary licences in respect of the work to which the nomination relates.

Paragraph 2.72D(5)(d) provides that the Minister must be satisfied that the entertainment sponsor has consulted with relevant Australian unions in relation to the employment or engagement of the identified visa holder or applicant in Australia.

Performing in productions not related to film or television

Paragraph 2.72D(6)(a) provides that the Minister must be satisfied that the identified visa holder or applicant will be performing as an entertainer under a performing contract that:

is not related to a film or television production; and
is for one or more specific engagements in Australia (other than non-profit engagements).

Paragraph 2.72D(6)(b) provides that the Minister must be satisfied that the nominated activity will bring a net employment benefit to the Australian entertainment industry.

Paragraph 2.72D(6)(c) provides that the Minister must be satisfied that the entertainment sponsor holds any necessary licences in respect of the work to which the nomination relates.

Paragraph 2.72D(6)(d) provides that the Minister must be satisfied that the entertainment sponsor has consulted with relevant Australian unions in relation to the employment or engagement of the identified visa holder or applicant in Australia.

Paragraph 2.72D(6)(e) provides that the Minister must be satisfied that the entertainment sponsor has provided an itinerary specifying the dates and venues for all performances.

Production roles other than as a performer

Paragraph 2.72D(7)(a) provides that the Minister must be satisfied that the identified visa holder or applicant will be directing, producing or taking another part (otherwise than as a performer) in a theatre, film, television or radio production, or a concert or recording to be performed or shown in Australia.

Paragraph 2.72D(7)(b) provides that the Minister must be satisfied that the nominated activity will bring a net employment benefit to the Australian entertainment industry.

Paragraph 2.72D(7)(c) provides that the Minister must be satisfied that the entertainment sponsor holds any necessary licences in respect of the work to which the nomination relates.

Paragraph 2.72D(7)(d) provides that the Minister must be satisfied that the entertainment sponsor has consulted with relevant Australian unions in relation to the employment or engagement of the identified visa holder or applicant in Australia.

Paragraph 2.72D(7)(e) provides that the Minister must be satisfied that the entertainment sponsor has provided an itinerary specifying the dates and venues for the production, concert or recording.

Support staff

Paragraph 2.72D(8)(a) provides that the Minister must be satisfied that the identified visa holder or applicant will be supporting an entertainer or group of entertainers (whether by assisting a performance or by personal services) in relation to a performing contract for 1 or more specific engagements in Australia.

Paragraph 2.72D(8)(b) provides that the Minister must be satisfied that the nominated activity will bring a net employment benefit to the Australian entertainment industry.

Paragraph 2.72D(8)(c) provides that the Minister must be satisfied that the entertainment sponsor holds any necessary licences in respect of the work to which the nomination relates.

Paragraph 2.72D(8)(d) provides that the Minister must be satisfied that the entertainment sponsor has consulted with relevant Australian unions in relation to the employment or engagement of the identified visa holder or applicant in Australia.

Paragraph 2.72D(8)(e) provides that the Minister must be satisfied that the entertainment sponsor has provided an itinerary specifying the dates and venues for all performances.

Non-profit engagements

Paragraph 2.72D(9)(a) provides that the Minister must be satisfied that the identified visa holder or applicant will be performing as an entertainer in one or more specific engagements that are for non-profit purposes.

Paragraph 2.72D(9)(b) provides that the Minister must be satisfied that the entertainment sponsor has provided an itinerary specifying the dates and venues for all performances.

These provisions largely reflect the eligibility criteria for a Subclass 420 (Entertainment) visa in clauses 420.222 and 420.223 of Schedule 2 to the Principal Regulations prior to the commencement of the Amendment Regulations and ensure that the existing purpose of the Subclass 420 visa is preserved. The purpose of the Subclass 420 (Entertainment) visa is to provide for people in the entertainment industry to perform as an entertainer, support an entertainer or participate in the making of productions, concerts or recordings.

All nominations in relation to the Subclass 420 visa must provide an itinerary specifying dates and venues of the relevant activities, except where the performance relates to taking part in a film or television production. This is to assist the department in monitoring the person’s compliance with sponsorship obligations.

Regulation 2.72E – Criteria for approval of nomination — Subclass 421 (Sport) visa

Regulation 2.72E applies to a person who is a sport sponsor or a party to a work agreement (other than a Minister) and who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation, program or activity in relation to a holder of, or an applicant or proposed applicant for, a Subclass 421 (Sport) visa (the “identified visa holder or applicant”). An applicant or proposed applicant who is identified in a nomination approved on the basis that the criteria in regulation 2.72E are met, may be eligible for a Subclass 421 visa. An existing Subclass 421 visa holder who is identified in a nomination approved on the basis that the criteria in regulation 2.72E are met, will be sponsored by the sport sponsor who made the nomination without applying for a new visa (provided the visa is still in effect).

For subsection 140GB (2) of the Act, and in addition to the criteria set out in regulation 2.72A, the criteria that must be satisfied for the Minister to approve a nomination by the sport sponsor are:

· that the Minister is satisfied that the person making the nomination is a sport sponsor; and

· the criteria set out in one of subregulations 2.72E(4) to (7).

This means that a nomination made by a sport sponsor may be approved if it meets one of the four sets of criteria set out in subregulation 2.72E(4) to (7).

For subsection 140GB (2) of the Act, and in addition to the criteria set out in regulation 2.72A, the criteria that must be satisfied for the Minister to approve a nomination by the party to a work agreement are if:

· the person making the nomination is a party to a work agreement; and

· the nomination satisfies the requirements of the work agreement.

This means that a party to a work agreement does not need to meet one of the sets of nomination criteria set out in subregulations 2.72E(4) to (7) and instead allows flexible criteria to be determined in the work agreement between the sport sponsor and the Minister.

Competitors in sporting events

The nomination must meet one of subparagraphs 2.72E(4)(a)(i), (ii) or (iii).

Subparagraph 2.72E(4)(a)(i) provides that the Minister must be satisfied that the identified visa holder or applicant is entered individually or as a member of a team to compete in a sporting event, or sporting events, in Australia, and is not entered as a Taiwanese national claiming to represent Taiwan, China or the Republic of China. This reflects the eligibility criterion for a Subclass 421 (Sport) visa in subclause 421.222(2) of Schedule 2 to the Principal Regulations prior to the commencement of the Amendment Regulations.

Subparagraph 2.72E(4)(a)(ii) provides that the Minister must be satisfied that the identified visa holder or applicant has been, or will be, appointed or employed, under a contractual agreement, to assist a participant or team of a kind mentioned in subparagraph 2.72E(4)(a)(i). This reflects the current eligibility criterion for a Subclass 421 (Sport) visa in subclause 421.222(3) of Schedule 2 to the Principal Regulations prior to the commencement of the Amendment Regulations.

Subparagraph 2.72E(4)(a)(iii) provides that the Minister must be satisfied that the identified visa holder or applicant has been, or will be, appointed or employed, under a contractual agreement, to assist, in one or more specified sporting events, an Australian sportsperson who is known internationally and who has a record of participation in international events. This extends the support person stream to enable internationally renowned Australian sportspeople to bring in support staff to assist their participation in specified events.

Paragraph 2.72E(4)(b) provides that the Minister must be satisfied that the identified visa holder or applicant is not a player, coach or instructor in relation to an Australian sporting team or sporting organisation. This ensures that where a position as a player, coach or instructor in relation to an Australian sporting team or sporting organisations is being nominated, the criteria in subregulation 2.72E(5) must be met.

Contracted players, coaches and instructors

Paragraph 2.72E(5)(a) provides that the Minister must be satisfied that the sport sponsor and the identified visa holder or applicant have entered into a formal arrangement that provides for the identified visa holder or applicant to be a player, coach or instructor in relation to an Australian sporting team or sporting organisation. This reflects the current eligibility criterion for the Subclass 421 (Sport) visa in subclause 421.222(4) of Schedule 2 to the Principal Regulations.

Paragraph 2.72E(5)(b) provides that the Minister must be satisfied that the formal arrangement specifies the period during which the identified visa holder or applicant will be a player, coach or instructor in relation to the Australian team or organisation. The purpose of this provision is to ensure that the Minister knows the period of time during which the identified visa holder or applicant will be participating in the nominated activity in Australia.

Paragraph 2.72E(5)(c) provides that the Minister must be satisfied that the arrangement will be of benefit to the sport in Australia. Under policy, the arrangement will be of benefit to the sport if it improves the level of the sport in Australia through participation of the visa holder in high-level competition with Australian residents.

Paragraph 2.72E(5)(d) provides that the Minister must be satisfied that the identified visa holder or applicant has an established reputation in the field of sport. This reflects the eligibility criterion for the Subclass 421 (Sport) visa in subclause 422.222(4) of Schedule 2 to the Principal Regulations prior to the commencement of the Amendment Regulations.

Paragraph 2.72E(5)(e) provides that the Minister must be satisfied that the sport sponsor has provided a letter of endorsement from the relevant Australian national sporting body, certifying that:

the identified visa holder or applicant has the ability to play, coach or instruct at the Australian national level; and
the participation of the identified visa holder or applicant in the sport in Australia would benefit the sport in Australia by raising the standard of competition.

Subregulation 2.72E(8) provides that the relevant Australian national sporting body means the national sporting body responsible for administering that sport in Australia.

The purpose of paragraph 2.72E(5)(e) is to ensure that the criteria to which the relevant Australian national sporting body certifies are assessed objectively by the relevant expert.

Sports trainees

Paragraph 2.72E(6)(a) provides that the Minister must be satisfied that the sport sponsor and the identified visa holder or applicant have entered into a formal arrangement that provides for the identified visa holder or applicant to participate in a sports training program. This reflects the current eligibility criterion for the Subclass 421 (Sport) visa in subclause 422.222(4) of Schedule 2 to the Principal Regulations.

Paragraph 2.72E(6)(b) provides that the Minister must be satisfied that the arrangement specifies the period during which the identified visa holder or applicant will participate in the sports training program. The purpose of this provision is to ensure that the Minister knows the period of time during which the identified visa holder or applicant will be participating in the nominated activity in Australia.

Paragraph 2.72E(6)(c) provides that the Minister must be satisfied that the training program provides a structured framework with clear outcomes that will add to or enhance the skill level of the identified visa holder or applicant in the relevant sport. This is to ensure that the training program meets the developmental needs of the trainee and enhances their future participation in the relevant sport.

Paragraph 2.72E(6)(d) provides that the Minister must be satisfied that the arrangement will be of benefit to the sport in Australia. Under policy, the arrangement will be of benefit to the sport if it improves the level of the sport in Australia through participation of the visa holder in training with Australian residents.

Paragraph 2.72E(6)(e) provides that the Minister must be satisfied that the sport sponsor has provided a letter of endorsement from the relevant Australian national sporting body, certifying that the identified visa holder or applicant is currently competing, coaching or instructing the sport at the national level in the home country of the identified visa holder or applicant.

Subregulation 2.72E(8) provides that the relevant Australian national sporting body means the national sporting body responsible for administering that sport in Australia.

The purpose of paragraph 2.72E(6)(d) is to ensure that the criterion to which the relevant Australian national sporting body certifies is assessed objectively by the relevant expert.

Judges and adjudicators

Paragraph 2.72E(7)(a) provides that the Minister must be satisfied that the identified visa holder or applicant will act as a judge or adjudicator at one or more sporting events or sporting competitions in Australia. This reflects the eligibility criterion for the Subclass 421 (Sport) visa in subclause 422.222(6) of Schedule 2 to the Principal Regulations prior to the commencement of the Amendment Regulations.

Paragraph 2.72E(7)(b) provides that the Minister must be satisfied that the identified visa holder or applicant has the appropriate experience and skills to act as a judge or adjudicator at those sporting events or competitions in Australia.

Regulation 2.72F – Criteria for approval of nomination — Subclass 423 (Media and Film Staff) visa

Regulation 2.72F applies to a person who is an entertainment sponsor and who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation, program or activity in relation to a holder of, or an applicant or proposed applicant for, a Subclass 423 (Media and Film Staff) visa (the “identified visa holder or applicant”). An applicant or proposed applicant who is identified in a nomination approved on the basis that the criteria in regulation 2.72F are met, may be eligible for a Subclass 423 visa. An existing Subclass 423 visa holder who is identified in a nomination approved on the basis that the criteria in regulation 2.72F are met, will be sponsored by the entertainment sponsor who made the nomination without applying for a new visa (provided the visa is still in effect).

For subsection 140GB (2) of the Act, and in addition to the criteria set out in regulation 2.72A, the criteria that must be satisfied for the Minister to approve a nomination by the entertainment sponsor are:

· that the person making the nomination is an entertainment sponsor; and

· the nomination meets the criteria in one of subregulations (4), (5) and (6).

This means that a nomination made by an entertainment sponsor may be approved if it meets one of the three sets of criteria set out in subregulation 2.72F(4) to (6).

Journalist, correspondent or reporter of foreign news organisation that is not represented in Australia

Subregulation 2.72F(4) provides that the Minister must be satisfied that:

· the identified visa holder or applicant will represent a foreign news organisation as a journalist, correspondent or reporter; and

· the foreign news organisation is not represented in Australia; and

· representation of the foreign news organisation would not be contrary to the interests of Australia.

Journalist, correspondent or reporter of foreign news organisation that is represented in Australia

Subregulation 2.72F(5) provides that the Minister must be satisfied that:

· the identified visa holder or applicant will represent a foreign news organisation as a journalist, correspondent or reporter; and

· the foreign news organisation is represented in Australia; and there is no suitable person in Australia who is capable of doing, and available to do, the nominated occupation; and

· the nominated occupation would not be contrary to the interests of Australia.

Documentary program or commercial

Subregulation 2.72F(6) provides that the Minister is satisfied that:

· the identified visa holder or applicant will make a documentary program or commercial that is exclusively for overseas use; and

· there is no suitable person in Australia who is capable of doing, and available to do, the nominated occupation; and

· the nominated occupation would not be contrary to the interests of Australia.

These provisions reflect the eligibility criteria for a Subclass 423 (Media and Film Staff) visa in clause 423.222 of Schedule 2 to the Principal Regulations prior to the commencement of the Amendment Regulations and ensure that the existing purpose of the Subclass 423 visa is preserved. The purpose of the Subclass 423 visa is to provide for non-citizens to undertake media related work in Australia where (among other things) the work is not contrary to the interests of Australia.

Regulation 2.72G – Criteria for approval of nomination — Subclass 427 (Domestic Worker (Temporary) — Executive) visa

This regulation applies to a person: who is a domestic worker sponsor; and who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or proposed applicant for, a Subclass 427 (Domestic Worker (Temporary) — Executive) visa (the “identified visa holder or applicant”). An applicant or proposed applicant who is identified in a nomination approved on the basis that the criteria in regulation 2.72G are met, may be eligible for a Subclass 427 visa. An existing Subclass 427 visa holder who is identified in a nomination approved on the basis that the criteria in regulation 2.72G are met, will be sponsored by the domestic worker sponsor who made the nomination without applying for a new visa (provided the visa is still in effect).

For subsection 140GB (2) of the Act, and in addition to the criteria set out in regulation 2.72A, the criteria that must be satisfied for the Minister to approve a nomination by the domestic worker sponsor are set out in subregulations 2.72G(3) to (7).

Subregulation 2.72G(3) provides that the Minister must be satisfied that the person making the nomination is a domestic worker sponsor. This is because only a domestic worker sponsor may sponsor Subclass 427 (Domestic Worker (Temporary) - Executive) visa holders or applicants.

Subregulation 2.72G(4) provides that the Minister must be satisfied that the identified visa holder or applicant will be employed to undertake full-time domestic duties in the private household of the domestic worker sponsor.

Subregulation 2.72G(5) provides that the Minister is satisfied that the number of domestic workers sponsored by the domestic worker sponsor will not at any time exceed three (including the identified visa holder or applicant). This makes it clear that employers are not able to import an unlimited supply of unskilled labour for their households.

Subregulation 2.72G(6) provides that the Minister is satisfied that the identified visa holder or applicant has turned 18 and has experience working as a domestic worker.

Subregulation 2.72G(7) provides that the Minister is satisfied that the domestic worker sponsor has been unable to find a suitable person in Australia for the nominated occupation and there are compelling reasons for employing the identified visa holder or applicant, for example, where the applicant is an established permanent member of the executive's household staff.

These provisions largely reflect the eligibility criteria for a Subclass 427 (Domestic Worker (Temporary) – Executive) visa in clauses 427.224 to 427.226 of Schedule 2 to the Principal Regulations prior to the commencement of the Amendment Regulations and ensure that the existing purpose of the Subclass 427 visa is preserved. The purpose of the Subclass 427 visa is to provide for a limited number of non-citizens to undertake full-time domestic duties in the private household of the domestic worker sponsor, where there is no suitable person in Australia to undertake the domestic duties or there are compelling reasons for employing the domestic worker.

Regulation 2.72H – Criteria for approval of nomination — Subclass 428 (Religious Worker) visa

Regulation 2.72H applies to a person who is a religious worker sponsor or a party to a work agreement (other than a Minister) and who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation, program or activity in relation to a holder of, or an applicant or proposed applicant for, a Subclass 428 (Religious Worker) visa (the “identified visa holder or applicant”). An applicant or proposed applicant who is identified in a nomination approved on the basis that the criteria in regulation 2.72H are met, may be eligible for a Subclass 428 visa. An existing Subclass 428 visa holder who is identified in a nomination approved on the basis that the criteria in regulation 2.72H are met, will be sponsored by the religious worker sponsor who made the nomination without applying for a new visa (provided the visa is still in effect).

For subsection 140GB(2) of the Act, and in addition to the criteria set out in regulation 2.72A, the criteria that must be satisfied for the Minister to approve a nomination by the religious worker sponsor or the party to a work agreement are set out in subregulations 2.72H(3) to (5).

Subregulation 2.72H(3) provides that the Minister must be satisfied that the person making the nomination is a religious worker sponsor or a party to a work agreement (other than a Minister). This is because only a religious worker sponsor may sponsor Subclass 428 (Religious Worker) visa holders or applicants.

Subregulation 2.72H(4) provides that the Minister must be satisfied that if the person making the nomination is a religious worker sponsor, the Minister must be satisfied that:

· the identified visa holder or applicant will be engaged on a full-time basis to work or participate in an activity in Australia that is predominately non-profit in nature and directly serves the religious objectives of the religious institution that is the religious worker sponsor; and

· the identified visa holder or applicant has appropriate qualifications and experience to work or participate in the nominated position.

These provisions largely reflect the eligibility criteria for a Subclass 428 (Religious Worker) visa in clause 428.222 of Schedule 2 to the Principal Regulations prior to the commencement of the Amendment Regulations and ensure that the existing purpose of the Subclass 428 visa is preserved. The purpose of the Subclass 428 visa is to provide for non-citizens to undertake work in Australia that directly serves the religious objectives of the organisation.

The requirement that the work is predominately non-profit in nature has been added to specifically exclude work that has a commercial function such as working on building or construction projects or in restaurant operations or market gardens.

Subregulation 2.72H(5) provides that if the person making the nomination is a party to a work agreement (other than a Minister), the Minister must be satisfied that the nomination satisfies the requirements of the work agreement. This allows flexible criteria to be determined in the work agreement between the religious worker sponsor and the Minister.

Regulation 2.72I – Criteria for approval of nomination — Subclass 442 (Occupational Trainee) visa

Regulation 2.72I applies to a person who is an occupational trainee sponsor and who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation, program or activity in relation to a holder of, or an applicant or proposed applicant for, a

Subclass 442 (Occupational Trainee) visa (the “identified visa holder or applicant”). An applicant or proposed applicant who is identified in a nomination approved on the basis that the criteria in regulation 2.72I are met, may be eligible for a Subclass 442 visa. An existing Subclass 442 visa holder who is identified in a nomination approved on the basis that the criteria in regulation 2.72I are met, will be sponsored by the occupational trainee sponsor who made the nomination without applying for a new visa (provided the visa is still in effect).

Where the occupational training is to be provided to the identified visa holder or applicant by the Commonwealth, there is no need for the occupational trainee sponsor to nominate the Subclass 442 visa applicant, proposed applicant or holder (see item [139] of Schedule 1 to the Amendment Regulations as inserted by item [159] of this Schedule).

For subsection 140GB(2) of the Act, and in addition to the criteria set out in regulation 2.72A, the criteria that must be satisfied for the Minister to approve a nomination by the occupational trainee sponsor are:

· that the Minister is satisfied that the person making the nomination is an occupational trainee sponsor criteria; and

· the criteria set out in one of subregulations 2.72I(4), (5) and (6).

The following sets of criteria for approval of a nomination of an occupation, program or activity in relation to a holder of, or an applicant or proposed applicant for, a

Subclass 442 (Occupational Trainee) visa do not reflect the current eligibility requirements for a Subclass 442 visa but aim to strengthen these requirements.

Occupational training required for registration

Paragraph 2.72I(4)(a) provides that the Minister must be satisfied that the nominated occupational training is necessary for the identified visa holder or applicant to obtain registration, membership or licensing in Australia or in the home country of the identified visa holder or applicant, in relation to the occupation of the identified visa holder or applicant.

Paragraph 2.72I(4)(b) provides that the registration, membership or licensing is required in order for the identified visa holder or applicant to be employed in the occupation of the identified visa holder or applicant in Australia or in the home country of the identified visa holder or applicant.

Paragraph 2.72I(4)(c) provides that the duration of the occupational training is necessary for the identified visa holder or applicant to obtain registration, membership or licensing in Australia or in the home country of the identified visa holder or applicant, in relation to the occupation of the identified visa holder or applicant, taking into account the prior experience of the identified visa holder or applicant.

Paragraph 2.72I(4)(d) provides that the Minister must be satisfied that the identified visa holder or applicant has appropriate qualifications, experience and English language skills to undertake the occupational training.

The policy intention for this set of nomination criteria is to ensure that a person is eligible for the Subclass 442 visa if the occupational training is required for registration, membership or licensing.

Occupational training to enhance skills

Paragraph 2.72I(5)(a) provides that the Minister must be satisfied that the nominated occupational training is:

a structured workplace training program; and
specifically tailored to the training needs of the identified visa holder or applicant; and

of a duration that meets the specific training needs of the identified visa holder or applicant.

Paragraph 2.72I(5)(b) provides that the nominated occupational training is in relation to an occupation specified by the Minister in an instrument in writing for this paragraph. It is intended that the same occupations will be specified by the Minister in an instrument in writing for this paragraph as for paragraph 2.72(10)(a), which sets out the criteria for approval of a nomination in relation to a holder of, or an applicant or proposed applicant for, a Subclass 457 (Business (Long Stay)) visa.

Paragraph 2.72I(5)(c) provides that the identified visa holder or applicant has the equivalent of at least 12 months full-time experience in the occupation to which the nominated occupational training relates in the 24 months immediately preceding the time of nomination.

The policy intention for this set of nomination criteria is to ensure that a person is only eligible for the Subclass 442 visa if the occupational training relates to an occupation specified for the purposes of the Subclass 457 (Business (Long Stay)) visa, unless the person meets the requirements set out in subregulations 2.72I(4) or (6) (relating to occupational training required for registration or for capacity building overseas).

Occupational training for capacity building overseas

Paragraph 2.72I(6)(a) provides that the Minister must be satisfied that the nominated occupational training is not available in the home country of the identified visa holder or applicant.

Paragraph 2.72I(6)(b) provides that the Minister must be satisfied that 1 of the following requirements is met:

the nominated occupational training is supported by a government agency in Australia or a government agency in the home country of the identified visa holder or applicant;
the identified visa holder or applicant is required to complete a period of no more than 6 months of practical experience, research or observation to obtain a qualification from a foreign educational institution; or
the identified visa holder or applicant: is a student of a foreign educational institution, or has graduated from a foreign educational institution during the 12 months preceding the time of nomination, and the nominated occupational training is to undertake research in Australia that is closely related to the course in which the student is or was enrolled at the foreign educational institution.

Paragraph 2.72I(6)(c) provides that the Minister must be satisfied that the nominated occupational training is a structured workplace-based training program specifically tailored to the identified visa holder or applicant.

Paragraph 2.72I(6)(d) provides that the Minister must be satisfied that the nominated occupational training will give the identified visa holder or applicant additional or enhanced skills in the occupation to which the nominated occupational training relates.

Paragraph 2.72I(6)(e) provides that the Minister must be satisfied that the identified visa holder or applicant intends to return to his or her home country after successfully completing the nominated occupational training.

The policy intention for this set of nomination criteria is to ensure that a person is eligible for the Subclass 442 visa if the occupational training is for capacity building where the identified visa holder or applicant intends to return overseas at the completion of the occupational training.

Item [60] - Schedule 1, item [9], proposed regulation 2.73,

This item substitutes the heading of regulation 2.73 in item [9] of Schedule 1 to the Amendment Regulations with the heading “2.73 Process for nomination — Subclass 457 (Business (Long Stay)) visa”

This amendment clarifies that the process for a nomination set out in regulation 2.73 in item [9] of Schedule 1 to the Amendment Regulations is in relation to the Subclass 457 (Business (Long Stay)) visa.

Item [61] - Schedule 1, item [9], before proposed subregulation 2.73(1)

This item inserts subregulation 2.73(1A) before subregulation 2.73(1) in item [9] of Schedule 1 to the Amendment Regulations.

Subregulation 2.73(1A) provides that regulation 2.73 applies to a person who is nominating an occupation under paragraph 140GB(1)(b) of the Act and who identifies in the nomination a holder of, or applicant or proposed applicant for, a Subclass 457 (Business (Long Stay)) visa as the person who will work in the occupation.

This amendment clarifies that the process for a nomination set out in regulation 2.73 is in relation to a person who is nominating an occupation and has identified a Subclass 457 (Business (Long Stay)) visa holder or a person who has applied or will apply for a Subclass 457 (Business (Long Stay)) visa.

Item [62] - Schedule 1, item [9], proposed subregulation 2.73 (1)

This item omits “for an applicant, or proposed applicant,” in subregulation 2.73(1) in item [9] of Schedule 1 to the Amendment Regulations.

This amendment is to remove unnecessary words from subregulation 2.73(1) as subregulation 2.73(1A) (as inserted by item [61] of this Schedule) refers to a person who has applied or will apply for a Subclass 457 (Business (Long Stay)) visa.

Item [63] - Schedule 1, item [9], proposed paragraph 2.73 (4) (a)

This item omits “paragraph 2.72(1)(f)” and inserts “subregulations 2.72(5) and (8)” in paragraph 2.73(4)(a) in item [9] of Schedule 1 to the Amendment Regulations.

This amendment is to consequential to the amendments made to regulation 2.72 by item [59] of this Schedule, which repeal paragraph 2.72(1)(f). This amendment does not substantively alter the legal effect of paragraph 2.73(4)(a). Paragraph 2.73(4)(a) provides that a person must provide, as part of the nomination, the information mentioned in paragraph 2.72(1)(f). Paragraph 2.72(1)(f) prescribes information that a standard business sponsor or party to work agreement is required to provide in a nomination. Subregulation 2.72(5) in item [59] of this Schedule prescribes the same information as subparagraph 2.72(1)(f)(v), and subregulation 2.72(8) in item [59] of this Schedule prescribes the same information as subparagraphs 2.72(1)(f)(i) to (iv).

Item [64] - Schedule 1, item [9], proposed paragraph 2.73 (4) (b)

This item omits “2.72(1)(g)” and inserts “2.72(10)(d)” in paragraph 2.73 (4)(b) in item [9] of Schedule 1 to the Amendment Regulations.

This amendment is consequential to the amendments made to regulation 2.72 by item [59] of this Schedule, which repeal paragraph 2.72(1)(g). Paragraph 2.73(4)(b) provides that a person who is a standard business sponsor must provide, as part of the nomination, the certification mentioned in paragraph 2.72(1)(g). Paragraph 2.72(1)(g) requires a standard business sponsor to certify in writing certain information. Paragraph 2.72(10)(d) in item [59] of this Schedule, also requires a person who is standard business sponsor to certify in writing information mentioned in paragraph 2.72(1)(g) and, if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia, the person must also certify additional information.

Item [65] - Schedule 1, item [9], proposed paragraph 2.73 (4) (c)

This item omits “2.72(1)(h)” and inserts “2.72(11)(b)” in paragraph 2.73(4)(c) in item [9] of Schedule 1 to the Amendment Regulations.

This amendment is consequential to the amendments made to regulation 2.72 by item [59] of this Schedule, which repeal paragraph 2.72(1)(h). Paragraph 2.73(4)(c) provides that a person who is a party to a work agreement (other than a Minister) must provide, as part of the nomination, the certification mentioned in paragraph 2.72(1)(h). Paragraph 2.72(1)(h) requires a person who is party to a work agreement to certify in writing certain information relating to the person, and also the applicant or proposed applicant. Paragraph 2.72(11)(b) in item [59] of this Schedule, requires a person who is party to a work agreement to certify in writing certain information relating to the visa holder, applicant or proposed applicant; and also information relating to the duties of the position.

Item [66] - Schedule 1, item [9], proposed subregulation 2.73 (5)

This item omits the amount of “$60” and inserts the amount of “$70” in subregulation 2.73(5) in item [9] of Schedule 1 to the Amendment Regulations.

This amendment is to update the fee for an application for approval of a nomination which relates to a Subclass 457 visa following the fee update for such a nomination, which came into effect on 1 July 2009.

Item [67] - Schedule 1, item [9], proposed subparagraph 2.73 (6) (a) (i)

This item omits “subparagraph 2.72(1)(c)(i)” and inserts “paragraph 2.72(10)(a)” in subparagraph 2.73(6)(a)(i) in item [9] of Schedule 1 to the Amendment Regulations.

This amendment is consequential to the amendments made to regulation 2.72 by item [59] of this Schedule, which repeal subparagraph 2.72(1)(c)(i). Paragraph 2.73(6)(a) provides that the Minister may refund the nomination fee if both subparagraphs 2.73(6)(a)(i) and (ii) apply. Subparagraph 2.73(6)(a)(i) relates to the tasks of the nominated occupation and specifies an instrument made for the purpose of subparagraph 2.72(1)(c)(i). Paragraph 2.72(10)(a) in item [59] of this Schedule, provides for a similar power to make an instrument to the power in subparagraph 2.72(1)(c)(i).

Item [68] - Schedule 1, item [9], proposed subparagraph 2.73 (6) (a) (ii)

This item omits “140GA” and inserts “140GB” in subparagraph 2.73 (6)(a)(ii) in item [9] of Schedule 1 to the Amendment Regulations. The purpose of this amendment is to correct the error in subparagraph 2.73(6)(a)(ii) in item [59] of the Amendment Regulations. Paragraph 2.73(6)(a) provides that the Minister may refund the nomination fee if both subparagraphs 2.73(6)(a)(i) and (ii) apply. Subparagraph 2.73(6)(a)(ii) is that the person withdraws the nomination for that reason (specified in subparagraph 2.73 (6)(a)(i)) before a decision is made under section 140GA of the Act. That section sets out provisions relating to the variation of terms of approval as a sponsor and does not contain provision relating to the approval of nominations. Section 140GB of the Act is the section which allows the Minister to approve a nomination.

Item [69] - Schedule 1, item [9], proposed subparagraph 2.73 (6) (b) (i)

This item omits “140GA” and inserts “140GB” in subparagraph 2.73 (6)(b)(i) in item [9] of Schedule 1 to the Amendment Regulations. The purpose of this amendment is to correct the error in subparagraph 2.73(6)(b)(i) in item [59] of the Amendment Regulations, for the same reasons explained in item [68] of this Schedule. Paragraph 2.73(6)(b) provides that the Minister may refund the nomination fee if both subparagraphs 2.73(6)(b)(i) and (ii) apply. Subparagraph 2.73(6)(b)(i) is that the nomination is approved under section 140GA of the Act. That subparagraph should refer to section 140GB of the Act.

Item [70] - Schedule 1, item [9], proposed subparagraph 2.73 (6) (b) (ii)

This item omits “subparagraph 2.72(1)(c)(i).” and inserts “paragraph 2.72(10)(a); or” in subparagraph 2.73(6)(b)(ii) in item [9] of Schedule 1 to the Amendment Regulations.

This amendment is consequential to the amendments made to regulation 2.72 by item [59] of this Schedule, which repeal subparagraph 2.72(1)(c)(i). This amendment is made for the same reasons explained in item [67] of this Schedule.

Item [71] - Schedule 1, item [9], after proposed subparagraph 2.73 (6) (b) (ii)

This item inserts paragraph 2.73(6)(c) after subparagraph 2.73(6)(b)(ii) in item [9] of Schedule 1 to the Amendment Regulations. Paragraph 2.73(6)(c) provides that in circumstances where the person is a party to a work agreement, the Minister may refund the nomination fee if both subparagraphs 2.73(6)(c)(i) and (ii) apply. Subparagraph 2.73(6)(c)(i) is that the person withdraws the nomination before a decision is made under section 140GB of the Act, and subparagraph 2.73(6)(c)(ii) is the reason for withdrawing the nomination.

Item [72] - Schedule 1, item [9], after proposed regulation 2.73

This item inserts new regulations 2.73A, 2.73B and 2.73C in item [9] of Schedule 1 to the Amendment Regulations. New regulations 2.73A, 2.73B and 2.73C provide, for the purposes of subsection 140GB(3) of the Act, the process for nominating an occupation, program or activity in relation to an applicant or proposed applicant for, or holder of, various visas. Subsection 140GB(3) of the Act provides that the regulations may establish a process for the Minister to approve an approved sponsor’s nomination.

Subsection 2.72A(3) (inserted by item [59] of this Schedule) provides that if a nomination is not made in accordance with the process set out in regulation 2.73A, 2.73B or 2.73C (whichever is relevant) then the nomination cannot be approved.

Regulation 2.73A – Process for nomination – various visas

Regulation 2.73A applies to a person who is nominating an occupation, program or activity under paragraph 140GB(1)(b) of the Act and who identifies in the nomination, as the person who will work or participate in the occupation, program or activity, a holder of, or applicant or proposed applicant for, a Subclass 411 (Exchange) visa, a Subclass 419 (Visiting Academic) visa, a Subclass 427 (Domestic Worker (Temporary) – Executive) visa, a Subclass 428 (Religious Worker) visa, or a Subclass 442 (Occupational Trainee) visa.

Subregulation 2.73A(2) provides that for subsection 140GB(3) of the Act, the person may nominate the occupation, program or activity in accordance with the process set out in regulation 2.73A.

Subregulation 2.73A(3) provides that the nomination must be made in accordance with approved form 1378 and subregulation 2.73A(4) provides that it must be accompanied by a fee of $2800 if the person is making more than 20 nominations together, or $140 in any other case.

Subregulations 2.73A(5) and (6) provide generally that the nomination must be made by posting (with the correct pre-paid postage), delivering by courier service or by hand, or by faxing the nomination to the address or fax number (whichever is relevant) specified by the Minister in an instrument in writing. The Minister may specify different addresses and fax numbers for nominations identifying holders, applicants or proposed applicants, for different kinds of visa. If no legislative instrument has been made in relation to the address to which the nomination must be posted, the nomination must be lodged at an office of immigration in Australia.

Regulation 2.73B – Process for nomination – Subclass 420 (Entertainment) visa and Subclass 423 (Media and Film Staff) visa

Regulation 2.73B applies to a person who is nominating an occupation, program or activity under paragraph 140GB(1)(b) of the Act and who identifies in the nomination, as the person who will work or participate in the occupation, program or activity, a holder of, or applicant or proposed applicant for, a Subclass 420 (Entertainment) visa or a Subclass 423 (Media and Film Staff) visa.

Subregulation 2.73B(2) provides that for subsection 140GB(3) of the Act, the person may nominate the occupation, program or activity in accordance with the process set out in regulation 2.73B.

The process is the same as that in regulation 2.73A except that the nomination must be made in accordance with approved form 1379 (rather than approved form 1378) (see subregulations 2.73B(3), (4), (6) and (7)).

Subregulation 2.73B(5) provides that there is an exemption from the requirement to pay a fee where the nomination appears to the Minister, on the basis of the information contained in the nomination, to meet the requirements of subregulation 2.72D(9) (as inserted by item [59] of this Schedule). Subregulation 2.72D(9) relates to a nomination made on the basis that the holder of, or applicant or proposed applicant for, a Subclass 420 (Entertainment) visa will be performing in one or more engagements that are for non-profit purposes. This reflects the exemption for applicants for a Subclass 420 (Entertainment) visa from the need to pay a visa application charge if they will be performing in one or more engagements that are for non-profit purposes (see item [40] in item [159] of this Schedule). There is also an exemption from the requirement to pay a fee where the nomination is made by an entertainment sponsor who is funded wholly or in part by the Commonwealth and is approved by the Secretary for this subparagraph.

Regulation 2.73C – Process for nomination – Subclass 421(Sport) visa

Regulation 2.73C applies to a person who is nominating an occupation, program or activity under paragraph 140GB(1)(b) of the Act and who identifies in the nomination, the person who will work or participate in the occupation, program or activity, a holder of, or applicant or proposed applicant for, a Subclass 421 (Sport) visa.

Subregulation 2.73C(2) provides that for subsection 140GB(3) of the Act, the person may nominate the occupation, program or activity in accordance with the process set out in regulation 2.73C.

The process is the same as that in regulation 2.73A except that a fee exemption applies in the case of a nomination which identifies a visa holder or applicant who is entered as an amateur participant in a sporting event, or appointed or employed to assist an amateur participant or team in a sporting event. This reflects the exemption for applicants for a Subclass 421 (Sport) visa from the need to pay a visa application charge in the same circumstances (see subparagraph 1205(2)(a)(iii) in Schedule 1 to the Principal Regulations).

Item [73] - Schedule 1, item [9], proposed regulation 2.75, heading

This item omits the current heading “Period of approval of nomination” and substitutes “Period of approval of nomination – Subclass 457 (Business (Long Stay)) visa” in the heading to regulation 2.75 in item [9] of Schedule 1 to the Amendment Regulations.

This amendment is consequential to the amendment made by item [74] of this Schedule. The purpose of this amendment is to clarify that regulation 2.75 applies only to nominations relating to Subclass 457 (Business (Long Stay)) visas.

Item [74] - Schedule 1, item [9], proposed regulation 2.75, after the heading

This item inserts subregulation 2.75(1) in item [9] of Schedule 1 to the Amendment Regulations. Subregulation 2.75 (1) provides that regulation 2.75 applies only to a nomination of an occupation in which a holder of, or an applicant or proposed applicant for, a Subclass 457 (Business (Long Stay)) visa is identified as the person who will work in the occupation.

Item [75] – Schedule 1, item [9], proposed regulation 2.75

This item omits “An approval” and inserts “(2) An approval” in regulation 2.75 in item [9] of Schedule 1 to the Amendment Regulations. The effect of this amendment is that current paragraphs 2.75(a) to (f) are amended to become paragraphs 2.75(2)(a) to (f). This amendment is consequential to the amendment made by item [74] of this Schedule.

Item [76] – Schedule 1, item [9], proposed paragraph 2.75 (a)

This item omits “person” and inserts “approved sponsor” in paragraph 2.75(a) in item [9] of Schedule 1 to the Amendment Regulations, as amended by item [75] of this Schedule. This is a technical amendment for consistency with other nomination criteria.

Item [77] – Schedule 1, item [9], after proposed regulation 2.75

This item inserts new regulation 2.75A after regulation 2.75 in item [9] of Schedule 1 to the Amendment Regulations. Regulation 2.75A sets out the period of approval of nomination for visas other than Subclass 457 (Business (Long Stay)) visas.

Subregulation 2.75A(1) provides that regulation 2.75A applies to a nomination of an occupation, program or activity in which the person identified as the person who will work or participate in the nominated occupation, program or activity is a holder of, or an applicant or proposed applicant for, one of the following visas: a Subclass 411 (Exchange) visa; a Subclass 419 (Visiting Academic) visa; a Subclass 420 (Entertainment) visa; a Subclass 421 (Sport) visa; a Subclass 423 (Media and Film Staff) visa; a Subclass 427 (Domestic Worker (Temporary) — Executive) visa; a Subclass 428 (Religious Worker) visa; or a Subclass 442 (Occupational Trainee) visa.

Subregulation 2.75A(2) provides that an approval of a nomination ceases on the earliest of the following:

· the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor; and

· 12 months after the day on which the nomination is approved; and

· 3 months after the day on which the person’s approval as a sponsor ceases in circumstances where the approval of the nomination is given to an approved sponsor who is not a party to a work agreement (other than a Minister); and

· the day on which the person’s approval as a sponsor is cancelled in the following circumstances: the approval of the nomination is given to an approved sponsor who is not a party to a work agreement (other than a Minister), and the person’s approval as a sponsor is cancelled under subsection 140M (1) of the Act; and

· the day on which the work agreement ceases in circumstances where the approval of the nomination is given to a party to a work agreement (other than a Minister); and

· the day on which the applicant, or the proposed applicant, who is identified in relation to the nominated occupation, program or activity, is granted a visa on the basis of that nomination.

Item [78] - Schedule 1, item [9], proposed subregulation 2.76 (1)

This item substitutes new subregulation 2.76(1) into item [9] of Schedule 1 to the Amendment Regulation. Subregulation 2.76(1) provides that for section 140GC of the Act, and for the definition of “work agreement” in subsection 5(1) of the Act, a work agreement must meet the requirements prescribed in subregulation 2.76(2), (3) or (4). Section 140GC of the Act provides generally that the regulations may prescribe requirements that an agreement must satisfy.

Item [80] of this Schedule inserts subregulations 2.76(3) and (4) in item [9] of Schedule 1 to the Amendment Regulations.

Item [79] – Schedule 1, item [9], proposed paragraph 2.76(2)(b)

This item omits the word “authorise” and inserts the phrase “be a labour agreement that authorises” in paragraph 2.76 (2)(b) in item [9] of Schedule 1 to the Amendment Regulation.

Current paragraph 2.76(2)(b) provides that a work agreement must authorise the recruitment, employment, or engagement of services of a person who intended to be employed or engaged as a holder of a Subclass 457 (Business (Long Stay)) visa.

The purpose of this amendment is to ensure that a work agreement is a labour agreement which authorises the recruitment, employment or engagement of services of a person who intended to be employed or engaged as a holder of a Subclass 457 (Business (Long Stay)) visa.

Item [80] – Schedule 1, item [9], after proposed subregulation 2.76 (2)

This item inserts new subregulations 2.76(3) and (4) after subregulation 2.76(2) in item [9] of Schedule 1 to the Amendment Regulations. The purpose of this amendment is to prescribe for section 140GC of the Act, the requirements that a work agreement must satisfy. These are in addition to the requirements set out in current subregulation 2.76(2).

Subregulation 2.76(3) provides generally that a work agreement must be between the Commonwealth and a sporting organisation, and must authorise the recruitment of a person who it is proposed will take part in the sporting activities of the sporting organisation as a holder of a Subclass 421 (Sport) visa, whether as an employee or otherwise. The work agreement must be in effect and must not be an IASS (Invest Australia Supported Skills) agreement.

Subregulation 2.76(4) provides that a work agreement must be between the Secretary and a religious institution in Australia, and must authorise the recruitment of a person who it is proposed will take part in the religious activities of the religious institution as a holder of a Subclass 428 (Religious Worker) visa, whether as an employee or otherwise. The work agreement must be in effect.

Item [81] – Schedule 1, item [9], proposed subregulation 2.78 (1)

This item substitutes new subregulation 2.78(1) into item [9] of Schedule 1 to the Amendment Regulations. Regulation 2.78 sets out the obligation to cooperate with inspectors. Subregulation 2.78(1) provides that regulation 2.78 applies to a person who is or was a standard business sponsor, or a party to a work agreement (other than the Minister) or a professional development sponsor.

New subregulation 2.78(1) provides that regulation 2.78 applies to a person who is or was an approved sponsor. The effect of this item is that a temporary work sponsor, as well as a standard business, professional development sponsor and party to a work agreement, must satisfy this obligation.

Item [82] – Schedule 1, item [9], proposed subregulation 2.78(4)

This item omits “a standard business sponsor or a professional development sponsor” and inserts “approved as a sponsor in a class of sponsor under subsection 140E(1) of the Act” in subregulation 2.78(4) in item [9] of Schedule 1 to the Amendment Regulations. This item ensures that subregulation 2.78 (4) refers generally to a person who is or was approved as a sponsor in a class of sponsor under section 140E (1) of the Act, rather than just a standard business sponsor or professional development sponsor.

Item [83] – Schedule 1, item [9], proposed paragraph 2.78(4)(a)

This item omits “under section 140E” from paragraph 2.78 (4) (a) in item [9] of Schedule 1 to the Amendment Regulations and inserts “in a class under subsection 140E(1)”. This item ensures that paragraph 2.78(4)(a) refers generally to the day on which the person is approved as a class of sponsor under section 140E (1) of the Act.

Item [84] – Schedule 1, item [9], proposed subparagraph 2.79(4)(a)(ii)

This item omits “nomination - ” and inserts “nomination – ” in subparagraph 2.79(4)(a)(ii) in item [9] of Schedule 1 to the Amendment Regulations.

This is a technical amendment to correct punctuation.

Item [85] - Schedule 1, item [9], proposed subregulation 2.80(1)

This item substitutes new subregulation 2.80(1) in item [9] of Schedule 1 to the Amendment Regulations. Regulation 2.80 sets out the obligation to pay travel costs to enable sponsored persons to leave Australia. Current subregulation 2.80(1) describes the persons to which regulation 2.80 applies.

New subregulation 2.80(1) provides generally that regulation 2.80 applies to a person who is or was a standard business sponsor, special program sponsor, religious worker sponsor or a party to a work agreement who is or was an approved sponsor, of a primary sponsored person or a secondary sponsored person (the “sponsored person”), if the sponsored person holds, or last held, a Subclass 457 (Business (Long Stay)) visa, a Subclass 416 (Special Program) visa, or a Subclass 428 (Religious Worker) visa.

The purpose of this amendment is to ensure that the obligation to pay travel costs to enable sponsored persons to leave Australia applies to special program sponsors and religious worker sponsors, as well as to standard business sponsors and parties to a work agreement.

Item [86] – Schedule 1, item [9], proposed paragraph 2.80(3)(d)

This item omits “a Subclass 457 (Business (Long Stay)) visa” in paragraph 2.80(3)(d) in item [9] of Schedule 1 to the Amendment Regulations, and inserts “the Subclass 457 (Business (Long Stay)) visa, the Subclass 416 (Special Program) visa or the Subclass 428 (Religious Worker) visa”. Subregulation 2.80(3) prescribes the nature of a request to pay travel costs. The purpose of this amendment is to require the request to pay travel costs to be made while the person whose travel will be funded is the holder of one of the following visas: a Subclass 457 (Business (Long Stay)) visa, a Subclass 416 (Special Program) visa or a Subclass 428 (Religious Worker) visa.

Item [87] – Schedule 1, item [9], proposed subregulation 2.80 (5)

This item substitutes subregulation 2.80(5) in item [9] of Schedule 1 to the Amendment Regulations with new subregulation 2.80(5). New subregulation 2.80(5) provides when the obligation to pay travel costs starts to apply and ceases to apply.

New subregulation 2.80(5) is substantively the same as subregulation 2.80(5) in item [9] of Schedule 1 to the Amendment Regulations, but is amended to refer to a Subclass 416 (Special Program) visa and a Subclass 428 (Religious Worker) visa, in addition to the Subclass 457 (Business (Long Stay)) visa.

Item [88] – Schedule 1, item [9], after proposed regulation 2.80

This item inserts new regulation 2.80A in item [9] of Schedule 1 to the Amendment Regulations. Regulation 2.80A sets out the obligation to pay travel costs for domestic worker sponsors.

Subregulation 2.80A(1) provides that the obligation applies to a person who is or was a domestic worker sponsor of a primary sponsored person or a secondary sponsored person (the “sponsored person”), if the sponsored person holds or last held a Subclass 427 (Domestic Worker (Temporary) — Executive) visa. This clarifies that for the purposes of subsection 140H(4) of the Act, the obligation to pay travel costs to enable sponsored persons to leave Australia applies in respect of each primary sponsored person and secondary sponsored person rather than generally. Subsection 140H(4) of the Act provides that the regulations may require a person to satisfy a sponsorship obligation in respect of each visa holder sponsored by the person, or generally.

Subregulation 2.80A(2) provides that the person must pay the travel costs of the sponsored person that will enable the sponsored person to travel to Australia, and leave Australia, unless the costs have already been paid in accordance with the obligation. The person must pay travel costs that are reasonable and necessary.

Subregulation 2.80A(3) further clarifies subregulation 2.80A(2) by providing that a person is taken to have paid reasonable and necessary costs, in relation to the cost of travel to Australia, if:

· the costs include the cost of travel to Australia, and from the place of arrival in Australia to the primary sponsored person’s or secondary sponsored person’s usual place of residence in Australia; and

· the costs include the cost of travel from the primary sponsored person’s or secondary sponsored person’s usual place of residence in Australia to the place of departure from Australia; and

· the costs include the cost of travel from Australia to the country from which the primary sponsored person or the secondary sponsored person came to Australia; and

· the costs are for economy class air travel or the equivalent of economy class air travel.

Subregulation 2.80A(4) provides for the dates on which the obligation to pay travel costs for a domestic worker sponsor start and end. These start and end dates are substantively the same as the start and end dates for the obligation to pay travel costs in regulation 2.80, which applies to standard business sponsors, religious worker sponsors and special program sponsors. These start and end dates are set out in subregulation 2.80(5) in item [9] of Schedule 1 of the Amendment Regulations, as amended by item [87] of this Schedule). The start and end dates aim to ensure that the travel costs are paid by the time the sponsored person leaves Australia.

Item [89] – Schedule 1, item [9], proposed subregulation 2.81(1)

This item substitutes new subregulation 2.81(1) in item [9] of Schedule 1 to the Amendment Regulations. Regulation 2.81 sets out the obligation to pay costs incurred by the Commonwealth to locate and remove unlawful non-citizens. New subregulation 2.81(1) provides that regulation 2.81 applies to a person who is or was an approved sponsor.

This item ensures that all classes of sponsor and parties to a work agreement must satisfy the obligation to pay costs incurred by the Commonwealth, rather than just standard business sponsors, professional development sponsors and parties to a work agreement.

Item [90] – Schedule 1, item [9], proposed subparagraph 2.81(3)(a)(ii)

This item omits “regulation” from subparagraph 2.81(3)(a)(ii) in item [9] of Schedule 1 to the Amendment Regulations and inserts “subregulation”. This is a technical amendment to correct the terminology of subparagraph 2.81(3)(a)(ii).

Item [91] - Schedule 1, item [9], proposed subregulation 2.82(1)

This item substitutes new subregulation 2.82(1) in item [9] of Schedule 1 to the Amendment Regulations. Subregulation 2.82 sets out the obligation to keep records. New subregulation 2.82(1) provides that the regulation applies to a person who is or was an approved sponsor.

This amendment ensures that all classes of sponsor and parties to a work agreement must satisfy the obligation to keep records, rather than just standard business sponsors and parties to a work agreement.

Item [92] - Schedule 1, item [9], proposed paragraph 2.82(2)(a)

This item substitutes new paragraph 2.82(2)(a) and inserts new paragraph 2.82(2)(aa) in item [9] of Schedule 1 to the Amendment Regulations. Subregulation 2.82(2) sets out the records that a person must keep and the manner in which they must keep those records.

New paragraph 2.82(2)(a) provides firstly that if the person is a standard business sponsor, the person must keep records of a kind specified in subregulation 2.82(3). This is consequential amendment to clarify that subregulation 2.82(3) applies to standard business sponsors (as currently provided for in proposed regulation 2.82).

Secondly, if the person is a party to a work agreement, the person must keep records of a kind specified in subregulations 2.82(3) and (3A). Proposed subregulation 2.82(2) currently provides that a party to work agreement must keep the records specified in subregulation (3). See item [99] of this Schedule for an explanation of subregulation 2.82(3A).

Thirdly, if the person is a temporary work sponsor, the person must keep records of a kind specified in paragraphs 2.82(3)(a) and (b). These records include records of the written request for payment of travel costs and how the person complied with the request to pay return travel costs in relation to the obligation mentioned in regulation 2.80. Only religious worker sponsors and special program sponsors must keep these records because they are the only temporary work sponsors who are required to satisfy the obligation to pay travel costs in regulation 2.80. The records also include records of a notification to Immigration, including particulars, of an event specified in regulation 2.84, which sets out the obligation to provide information to Immigration when certain events occur. All temporary work sponsors must satisfy this obligation.

New paragraph 2.82(2)(aa) provides that all classes of sponsor and parties to a work agreement must keep records of a kind specified by the Minister in an instrument in writing (if any). This has the same effect as current subparagraph 2.82(2)(a)(ii) in item [9] of Schedule 1 to the Amendment Regulations.

Item [93] - Schedule 1, item [9], proposed subparagraph 2.82(2)(c)(ii)

This item omits “(3)(a)(iii)” and inserts “(3)(a)(iii),(3)(e)(i) or (3)(e)(ii)” in subparagraph 2.82(2)(c)(ii) in item [9] of Schedule 1 to the Amendment Regulations.

Subparagraph 2.82(2)(c) provides in part that if the record is a record mentioned in subparagraph 2.82(3)(a)(iii), the person must keep that record in a manner that is capable of being verified by an independent person. Subparagraph 2.82(3)(a)(iii) requires that a person must keep records of how the person complied with the request to pay return travel costs. The effect of this amendment is that a person must also keep records of a kind mentioned in subparagraph 2.82(3)(e)(i) or (ii) in a manner that is capable of being verified by an independent person.

Subparagraphs 2.82(3)(e)(i) and (ii) are inserted by item [98] of this Schedule.

Item [94] - Schedule 1, item [9], proposed subregulation 2.82(3)

This item omits “subparagraph (2)(a)(i)” and substitutes it with “paragraph (2)(a)” in subregulation 2.82(3) in item [9[ of Schedule 1 to the Amendment Regulations. This amendment is consequential to the amendments made by item [92] of this Schedule.

Item [95] - Schedule 1, item [9], proposed paragraph 2.82 (3) (a)

This item omits the words “in relation to the obligation mentioned in regulation 2.80:” and inserts the words “if the obligation mentioned in regulation 2.80 applies to the person:” in paragraph 2.82(3)(a) in item [9] of Schedule 1 to the Amendment Regulations. This is a consequential amendment to item [85] of this Schedule and clarifies that the record need only be kept if the obligation in regulation 2.80 applies to the person. Regulation 2.80 sets out the obligation to pay travel costs and only applies to a person who is or was a standard business sponsor, a religious worker sponsor, a special program sponsor or a party to a work agreement (other than a Minister) who is or was an approved sponsor.

Item [96] - Schedule 1, item [9], proposed paragraph 2.82(3)(c)

This item substitutes new paragraph 2.82(3)(c) in item [9] of Schedule 1 to the Amendment Regulations. This amendment provides generally that a record of the tasks performed by the primary sponsored person need only be kept if the primary sponsored person holds or last held a Subclass 457 (Business (Long Stay)) visa. This is a technical amendment that clarifies that a record of tasks must also be kept where the primary sponsored person has ceased to hold a Subclass 457 (Business (Long Stay)) visa, but their last substantive visa was a Subclass 457 (Business (Long Stay)) visa.

Item [97] - Schedule 1, item [9], proposed paragraph 2.82(3)(d)

This item omits “performed.” and inserts “performed; and” in paragraph 2.82(3)(d) in item [9] of Schedule 1 to the Amendment Regulations. This is a consequential amendment to allow new paragraph 2.82(3)(e) in item [98] of this Schedule to be inserted.

Item [98] - Schedule 1, item [9], after proposed paragraph 2.82 (3) (d)

This item inserts new paragraph 2.82(3)(e) in item [9] of Schedule 1 to the Amendment Regulations.

Paragraph 2.82(3)(e) provides that if the obligation mentioned in regulation 2.79, which is the obligation to ensure equivalent terms and conditions of employment, applies to the person, the records which are to be kept are:

· a record of the money paid to the primary sponsored person; and

· a record of the money applied or dealt with way on the primary sponsored person’s behalf or as the primary sponsored person directed; and

· a record of the non-monetary benefits provided to the primary sponsored person, including the agreed value and the time at which, or the period over which, those benefits were provided; and

· if there is an equivalent worker or workers in the person’s workplace — a record of the most beneficial terms and conditions that apply, or did apply, to an equivalent worker or workers, including the period over which the terms and conditions applied.

This amendment reflects the fact that regulation 2.79 now sets out the substantive matters that were proposed to be set out in an instrument in writing. The purpose of the amendment is to provide certainty to standard business sponsors.

Item [99] – Schedule 1, item [9], after proposed subregulation 2.82 (3)

This item inserts subregulation 2.82(3A) after subregulation 2.82 (3) in item [9] of Schedule 1 to the Amendment Regulations.

Subregulation 2.82(3A) provides that for subparagraph 2.82(2)(a)(ii) (as inserted by item [92] of this Schedule) records that must be kept by a party to work agreement are the records specified in the work agreement as records which must be kept.

The purpose of this amendment is to provide that a failure to keep records which are required to be kept under a work agreement will be a failure to satisfy the sponsorship obligation rather than a failure to comply with the work agreement.

Item [100] - Schedule 1, item [9], proposed subregulation 2.82 (4)

This item omits the words “a standard business sponsor” and inserts the words “approved as a sponsor in a class of sponsor under subsection 140E(1) of the Act” in subregulation 2.82(4) in item [9] of Schedule 1 to the Amendment Regulations.

This item was inserted so that subregulation 2.82(4) refers generally to a person who is or was approved as a class of sponsor under subsection 140E(1) of the Act, rather than just a standard business sponsor. It ensures that the existing start and end dates apply to all persons to whom the obligation applies (see item [101] in this Schedule). That is, the obligation starts to apply on the day on which the person is approved as a sponsor and ends 2 years after the person ceases to sponsor any persons.

Item [101] - Schedule 1, item [9], proposed paragraph 2.82(4)(a)

This item omits the words “a standard business sponsor under section 140E” and inserts the words “sponsor in a class of sponsor under subsection 140E (1)” in paragraph 2.82(4)(a) in item [9] of Schedule 1 to the Amendment Regulations. This item ensures that paragraph 2.82(4)(a) refers generally to a person who is approved as a sponsor in a class of sponsor under section 140E (1) of the Act, rather than just as a standard business sponsor.

Item [102] - Schedule 1, item [9], proposed paragraph 2.82 (4) (b)

This item omits the words “a standard business sponsor” and inserts the words “an approved sponsor” in paragraph 2.82 (4) (b) in item [9] of Schedule 1 to the Amendment Regulations. This item ensures that paragraph 2.82(4)(b) refers generally to a person who is an approved sponsor, rather than just a standard business sponsor.

Item [103] - Schedule 1, item [9], proposed subregulation 2.83 (1)

This item substitutes new subregulation 2.83(1) in item [9] of Schedule 1 to the Amendment Regulations. Regulation 2.83 sets out the obligation to provide records and information to the Minister.

New subregulation 2.83(1) provides that regulation 2.83 applies to a person who is or was an approved sponsor. This item ensures that all classes of sponsor and parties to a work agreement must satisfy the obligation to provide records and information to the Minister, rather than just standard business sponsors, professional development sponsors and parties to a work agreement.

Item [104] - Schedule 1, item [9], proposed paragraph 2.83(2)(c)

This item substitutes paragraph 2.83(2)(c) in item [9] of Schedule 1 to the Amendment Regulations.

New paragraph 2.83(2)(c) differs from paragraph 2.83(2)(c) of the Amendment Regulations in that it provides that if the person is a party to a work agreement, the person must provide records or information to the Minister that relate to the administration of the work agreement. This is in addition to the requirement in paragraph 2.83(2)(c) of the Amendment Regulations, which applies to anyone who is or was an approved sponsor, to provide records or information that relate to the administration of Division 3A of Part 2 of the Act and the Regulations made under that Division.

The reason for this amendment is that a work agreement may impose additional obligations in relation to which the Minister may require additional information in order to conduct compliance activity. Not all records and information which are required to be kept under a work agreement relate to the administration of Division 3A of Part 2A of the Act and the Regulations made under that Division.

Item [105] – Schedule 1, item [9], proposed subregulation 2.83(4)

This item omits the phrase “a standard business sponsor or a professional development sponsor” and inserts the phrase “approved as a sponsor in a class of sponsor under subsection 140E(1) of the Act” in subregulation 2.83(4) in item [9] of Schedule 1 to the Amendment Regulations.

This item was inserted so that subregulation 2.83(4) refers generally to a person who is or was approved as a class of sponsor under subsection 140E(1) of the Act, rather than just a standard business sponsor and professional development sponsor. It ensures that the existing start and end dates of the obligation apply to all persons to whom the obligation applies (see item [103] of Schedule 1 to these Regulations). That is, the obligation starts to apply on the day on which the person is approved as a sponsor and ends 2 years after the person ceases to sponsor any persons.

Item [106] – Schedule 1, item [9], proposed subparagraph 2.83 (4)(b) (i)

This item omits the phrase “a standard business sponsor or professional development sponsor” and substitutes it with “an approved sponsor” in subparagraph 2.83(4)(b)(i) in item [9] of Schedule 1 to the Amendment Regulations. The purpose of this amendment is the same as for item [105]. That is, to ensure that the existing start and end dates of the obligation apply to all persons who are required to satisfy this obligation.

Item [107] – Schedule 1, item [9], proposed subregulation 2.84 (1)

This item substitutes new subregulation 2.84(1) in item [9] of Schedule 1 to the Amendment Regulations with new subregulation 2.84(1). Regulation 2.84 sets out the obligation to provide information to Immigration when certain events occur.

New subregulation 2.84(1) provides that Regulation 2.84 applies to a person who is or was an approved sponsor. This item ensures that all classes of sponsor and parties to a work agreement must satisfy the obligation to provide information to Immigration when certain events occur, rather than just standard business sponsors, professional development sponsors and parties to a work agreement.

Item [108] – Schedule 1, item [9], after proposed paragraph 2.84(3)(a)

This item inserts subparagraph 2.84(3)(aa) in item [9] of Schedule 1 to the Amendment Regulations.

Subregulation 2.84(3) prescribes the events about which a person who is or was a standard business sponsor or party to a work agreement must notify Immigration of when they occur. New subparagraph 2.84(3)(aa) provides that if the person is or was a standard business sponsor or a party to a work agreement, the person must notify Immigration about a change to the work duties carried out by a primary sponsored person.

The purpose of this amendment is to ensure the Department is informed of any changes in duties of the primary sponsored person in order to assess whether it amounts to a change in occupation which would require a new nomination on the part of the standard business sponsor or party to a work agreement.

Item [109] - Schedule 1, item [9], after proposed paragraph 2.84(3)(b)

This item inserts subparagraph 2.84(3)(ba) in item [9] of Schedule 1 to the Amendment Regulations.

Subregulation 2.84(3) prescribes the events about which a person who is or was a standard business sponsor or party to a work agreement must notify Immigration of when they occur. New subparagraph 2.84(3)(ba) provides that if the person is or was a party to a work agreement, the person must notify Immigration about a change to the training information provided in the work agreement, or the person’s address and contact details provided in the work agreement.

The purpose of this amendment is to assist Immigration in monitoring the party to the work agreement’s compliance with the work agreement.

Item [110] - Schedule 1, item [9], proposed paragraph 2.84(4)(g)

This item omits paragraph 2.84(4)(g) from item [9] of Schedule 1 to the Amendment Regulations.

Subregulation 2.84(4) prescribes the events about which a person who is or was a professional development sponsor must notify Immigration of when they occur. The omitted paragraph 2.84(4)(g) relates to notifying Immigration if certain events relating to bankruptcy occur.

As a professional development sponsor cannot be a natural person, paragraph 2.84(4)(g) of the Amendment Regulations is not necessary.

Item [111] - Schedule 1, item [9], proposed paragraph 2.84(4)(i)

This item omits the reference to paragraph 2.84(4)(g) from paragraph 2.84(4)(i) in item [9] of Schedule 1 to the Amendment Regulations. This amendment is consequential to the amendment made by item [110].

Item [112] - Schedule 1, item [9], after proposed subregulation 2.84(4)

This item inserts subregulations 2.84(4A) to (4J) in item [9] of Schedule 1 to the Amendment Regulations. These subregulations prescribe the events about which temporary work sponsors must notify Immigration of when they occur

The reasons these events are prescribed is to assist with Immigration’s monitoring of the temporary work sponsor’s continued compliance with the criteria for approval as a temporary work sponsor and their sponsorship obligations.

The events which relate to the activities of a primary sponsored person are prescribed as these events may be an indication that a primary sponsored person is not complying with their visa conditions. Not every occurrence of such an event will mean a primary sponsored person is not complying with their visa conditions, but Immigration will investigate the events on receiving notification to determine if the primary sponsored person is complying with their visa conditions.

Subregulation 2.84(4A) obligates a person who is or was an exchange sponsor to inform Immigration sponsors about the following events:

· a primary sponsored person ceases work, in the position for which the primary sponsored person was identified in the nomination, earlier than the cessation date specified in the exchange agreement mentioned in subregulation 2.72B(4) (see item [59] for an explanation of subregulation 2.72B(4)); or

· a change to the information, in relation to the person’s address and contact details, provided to Immigration in the person’s application for approval as an exchange sponsor.

Subregulation 2.84(4B) obligates a person who is or was a foreign government agency sponsor to inform Immigration about each of the following events:

· the cessation, or expected or expected cessation, of a primary sponsored person’s employment; or

· a change to the information, in relation to the person’s address and contact details, provided to Immigration in the person’s application for approval as a foreign government agency sponsor.

Subregulation 2.84(4C) obligates a person who is or was a special program sponsor to inform Immigration if a primary sponsored person:

· is unable to meet the requirements of the special program;

· is unable to participate in a special program;

· ceases participation in a special program prior to the ending of the special program; or

· fails to attend a special program.

Subregulation 2.84(4D) obligates a person who is or was a visiting academic sponsor to inform Immigration about each of the following events:

· a primary sponsored person fails to participate in the nominated activity for which the primary sponsored person was identified; or

· a change to the information, in relation to the person’s address and contact details, provided to Immigration in the person’s application for approval as a visiting academic sponsor.

Subregulation 2.84(4E) obligates a person who is or was an entertainment sponsor to inform Immigration about each of the following events:

· a primary sponsored person fails to participate in the nominated activity for which the primary sponsored person was identified;

· if a primary sponsored person was identified in a nomination to perform in a film or television production – the cessation of the primary sponsored person’s participation in the nominated activity for which the primary sponsored person was identified;

· a primary sponsored person (other than a person identified in a nomination to perform in a film or television production), ceases participation in the nominated activity for which the primary sponsored person was identified, prior to the cessation date specified in the itinerary provided to the Minister in accordance with the nomination criteria;

· the entertainment sponsor ceases to hold a licence that the entertainment sponsor was required to hold for the nomination to be approved;

· a change to the information, in relation to the person’s address and contact details, provided to Immigration in the person’s application for approval as an entertainment sponsor; or

· if the entertainment sponsor is an Australian organisation — the legal entity of the sponsor ceases to exist.

Subregulation 2.84(4F) obligates a person who is or was a sport sponsor to inform Immigration about each of the following events:

· if a primary sponsored fails to participate in the nominated activity for which the primary sponsored person was identified;

· a change the information, in relation to the person’s address and contact details, provided to Immigration in the person’s application for approval as a sport sponsor;

· if a primary sponsored person was identified in a nomination to be a player, coach or instructor; or participate in a sports training program; on the basis that a formal arrangement has been entered into between the primary sponsored person and the sport sponsor — a change in the formal arrangement between the sport sponsor and the primary sponsored person;

· if a primary sponsored person was identified in a nomination to be a player, coach or instructor, or participate in a sports training program, on the basis that a formal arrangement has been entered into between the primary sponsored person and the sport sponsor — a change in the formal arrangement between the sport sponsor and the primary sponsored person;

· if a primary sponsored person was identified in a nomination to be a player, coach or instructor; or participate in a sports training program; on the basis that a formal arrangement has been entered into between the primary sponsored person and the sport sponsor — the primary sponsored ceases participation in the nominated activity prior to the cessation date specified in the formal agreement.

Subregulation 2.84(4G) obligates a person who is or was a domestic worker sponsor to inform Immigration about the following events:

· the cessation, or expected cessation, of a primary sponsored person’s employment with the person; or

· a change to the information, in relation to the person’s address and contact details, provided to Immigration in the person’s application for approval as a domestic worker sponsor.

Subregulation 2.84(4H) obligates a person who is or was religious worker sponsor to inform Immigration about the following events:

· a primary sponsored person ceases participation in the nominated activity for which the primary sponsored person was identified;

· a primary sponsored person fails to participate in the nominated activity for which the primary sponsored person was identified;

· a change to the information, in relation to the person’s address and contact details, provided to Immigration in the person’s application for approval as a religious worker sponsor; or

· the person has paid the return travel costs of a primary or secondary sponsored person in accordance with the obligation mentioned in regulation 2.80.

Subregulation 2.84(4I) obligates a person who is or was an occupational trainee sponsor to inform Immigration about the following events:

· a primary sponsored person ceases participation in the nominated occupational training for which the sponsored person was identified;

· a primary sponsored person fails to participate in the nominated occupational training for which the primary sponsored person was identified; or

· a change to the information, in relation to the person’s address and contact details, provided to Immigration in the person’s application for approval as an occupational trainee sponsor.

Subregulation 2.84(4J) obligates a person who is or was a superyacht crew sponsor to inform Immigration about the following events:

· the cessation, or expected cessation, of a primary sponsored person’s employment with the person; or

· a change to the information, in relation to the person’s address and contact details, provided to Immigration in the person’s application for approval as a superyacht crew sponsor.

Item [113] - Schedule 1, item [9], proposed subregulation 2.84(5)

This item omits the reference to paragraph 2.84(3)(a) from subregulation 2.84(5) in item [9] of Schedule 1 to the Amendment Regulations and inserts a reference to paragraphs 2.84(3)(a), (4B)(a), (4G)(a) or (4J)(a).

Subregulation 2.84(5) clarifies paragraphs 2.84(3)(a), (4B)(a), (4G)(a) or (4J)(a) by providing that in addition to informing Immigration of the cessation or expected cessation, of a primary sponsored person’s employment, a person may notify Immigration of the final date of employment of the primary sponsored person before the day of cessation. However, if the primary sponsored person does not cease employment with the person, or ceases employment on a different date, the person must notify Immigration of the continued employment or the new date of cessation.

Item [114] - Schedule 1, item [9], proposed subregulation 2.84(6), table, item 1, column 2

This item omits “paragraph 3(a)” from item 1, column 2 in the table, in subregulation 2.84(6) of the Amendment Regulations, and substitutes it with “paragraphs 3(a), (4B)(a), (4G)(a) or (4J)(a)” in item 1, column 2 in the table, in subregulation 2.84(6) in item [9] of Schedule 1 to the Amendment Regulations.

Subregulation 2.84(6) sets out the period within which a person must notify Immigration of the occurrence of a prescribed event. Paragraphs 2.84(3)(a), (4B)(a), (4G)(a) or (4J)(a) provide that an event about which Immigration must be informed of is the cessation or expected cessation, of a primary sponsored person’s employment.

This item provides that where a primary sponsored person ceases or is expected to cease employment with a person, the person must notify Immigration of this event within 10 working days of the primary sponsored person ceasing employment.

Item [115] - Schedule 1, item [9], proposed subregulation 2.84(6), table, item 2, column 2

This item omits “paragraph 3(b)” from item 2, column 2 in the table in subregulation 2.84(6), and substitutes it with “(3)(aa)” in item [9] of Schedule 1 to the Amendment Regulations.

This is a consequential change to item [108] and ensures that the person must notify Immigration within 10 working days of a change to the work duties carried out by a primary sponsored person occurring.

Item [116] Schedule 1, item [9], proposed subregulation 2.84(6), table, after item 3

This item inserts new “item 3A” after item 3, column 1 in the table in subregulation 2.84(6) in item [9] of Schedule 1 to the Amendment Regulations.

This item provides that for an event mentioned in subregulations (4A) to (4J), other than the paragraphs mentioned in item 1 in column 2 of the table in subregulation 2.86(6), the person must notify Immigration within 10 working days of the change or event occurring. This is consistent with the existing period for notification provided for in proposed subregulation 2.84(6) in item [9] of Schedule 1 to the Amendment Regulations.

Item [117] Schedule 1, item [9], proposed subregulation 2.84 (6), table, item 4, column 3, paragraph (a)

This item omits the reference to paragraph “(3)(a)” and inserts a reference to paragraphs “(3)(a), (4B)(a), (4G)(a) or (4J)(a)” in item 4, column 3, paragraph (a) in the table in subregulation 2.84(6) in item [9] of Schedule 1 to the Amendment Regulations.

Paragraph 2.84(3)(a) of the Amendment Regulations and paragraphs 2.84(6)(4B)(a), 2.84(4G)(a) and 2.84(4J)(a) of these regulations require a person who is or was a standard business sponsor, a party to a work agreement, foreign government agency sponsor, domestic worker sponsor or superyacht crew sponsor to notify Immigration if the primary sponsored person ceases work or employment.

The amendment provides that if the primary sponsored person does not cease work or employment with the person or ceases work or employment on a different date, the person must notify Immigration on the earliest of:

· within 10 working days of the date originally notified to Immigration; or

· within 10 working days of the actual date the primary sponsored person ceases working for the person.

Item [118] - Schedule 1, item [9], proposed subregulation 2.84(7)

This item omits the phrase “a standard business sponsor or a professional development sponsor” and inserts the phrase “approved as a sponsor in a class of sponsor under subsection 140E (1) of the Act” in subregulation 2.84(7) in item [9] of Schedule 1 to the Amendment Regulations.

This item is inserted so that subregulation 2.84(7) refers generally to a person who is or was approved as a class of sponsor under subsection 140E(1) of the Act, rather than just a standard business sponsor and professional development sponsor. It ensures that the existing start and end dates apply to all persons to whom the obligation applies (see item [107]). That is, the obligation starts to apply on the day on which the person is approved as a sponsor and ends after the day the person ceases to sponsor any persons.

Item [119] - Schedule 1, item [9], proposed subparagraph 2.84(7)(b)(i)

This item omits the phrase “a standard business sponsor or a professional development sponsor” and inserts the phrase “an approved sponsor” in subparagraph 2.84(7)(b)(i) in item [9] of Schedule 1 to the Amendment Regulations. The purpose of this amendment is the same as for item [118]. That is, to ensure that the existing start and end dates of the obligation apply to all persons who are required to satisfy this obligation.

Item [120] - Schedule 1, item [9], proposed regulation 2.85

This item substitutes the heading “Obligation to secure an offer of a reasonable standard of accommodation for a primary sponsored person” with “Obligation to secure an offer of a reasonable standard of accommodation” in item [9] of Schedule 1 to the Amendment Regulations. This amendment is consequential to item [121] which provides that, in some cases, the obligation applies in relation to secondary sponsored persons as well as to primary sponsored persons.

Item [121] - Schedule 1, item [9], proposed subregulation 2.85(1)

This item substitutes new subregulation 2.85(1) in item [9] of Schedule 1 to the Amendment Regulations. Regulation 2.85 sets out the obligation to secure an offer of a reasonable standard of accommodation for a primary sponsored person.

New subregulation 2.85(1) provides that the obligation at regulation 2.85 applies to a professional development sponsor in relation to a primary sponsored person, if the primary sponsored person holds or last held a Subclass 470 (Professional Development) visa. This preserves the intention of subregulation 2.85(1) of the Amendment Regulations and clarifies that the obligation will be owed to a primary sponsored person who has ceased to hold a Subclass 470 (Professional Development) visa but whose last substantive visa was a Subclass 470 (Professional Development) visa.

Subparagraphs 2.85(1)(b) to (f) provide that regulation 2.85 applies to a special program sponsor, an entertainment sponsor, a sport sponsor, a religious worker sponsor, an occupational trainee sponsor and a party to a work agreement, in relation to a primary sponsored person or a secondary sponsored person who holds or whose last substantive visa was:

· a Subclass 416 (Special Program) visa;

· a Subclass 420 (Entertainment) visa;

· a Subclass 421 (Sport) visa;

· a Subclass 428 (Religious Worker) visa; or

· a Subclass 442 (Occupational Trainee) visa;

if the primary sponsored person or secondary sponsored person was identified in a nomination of an occupation, program or activity that is a volunteer role.

“Volunteer role” is defined in item [20] of Schedule 1 to these Regulations. The obligation to secure an offer of a reasonable standard of accommodation only applies where the visa holder is not being paid because this category of visa holder is most vulnerable to not being able to access reasonable accommodation.

Item [122] - Schedule 1, item [9], proposed subregulation 2.85(2)

This item omits from subregulation 2.85(2) in item [9] of Schedule 1 to the Amendment Regulations the phrase “for the primary sponsored person” and substitutes the phrase “for the primary sponsored person or secondary sponsored person”. This amendment is consequential to item [121] which provides that, except for professional development sponsors, a person to whom the obligation applies has to satisfy the obligation applies in relation to secondary sponsored persons as well as to primary sponsored persons.

Item [123] - Schedule 1, item [9], proposed paragraph 2.85(2)(b)

This item substitutes new paragraph 2.85(2)(b) in item [9] of Schedule 1 to the Amendment Regulations.

New subparagraph 2.85(2)(b) provides that persons listed in subparagraph 2.85(1) must secure one or more offers of accommodation that will ensure that the primary sponsored person or secondary sponsored person has accommodation while that person is in Australia. This is to ensure that the person is not obliged to secure an offer of a reasonable accommodation for periods during which the visa holder is outside Australia. New subparagraph 2.85(2)(b) also provides that the obligation applies in relation to a secondary sponsored person.

Item [124] - Schedule 1, item [9], proposed subregulation 2.85(2), example

This item substitutes the note after paragraph 2.85(2)(b) in item [9] of Schedule 1 to the Amendment Regulations with a new note explaining that if, for example, accommodation that has been secured becomes unavailable, the approved sponsor must secure another offer of accommodation for the primary sponsored person or secondary sponsored person.

This is the same as the note following subregulation 2.85(2) of the Amendment Regulations except that it replaces the reference to “professional development sponsor” with the broader term “approved sponsor” and includes reference to “secondary sponsored person”.

Item [125] - Schedule 1, item [9], proposed regulation 2.85(4)

This item substitutes new subregulation 2.85(4) in item [9] of Schedule 1 to the Amendment Regulations.

Subregulation 2.85(4) of the Amendment Regulations, establishes that the obligation starts to apply on the day on which the sponsored person is granted a visa and ends when the sponsored person is either granted a further substantive visa (that is a different subclass to the visa currently held) or leaves Australia permanently. See item [130] of Schedule 1 to these Regulations for an explanation of what it means to “leave Australia permanently”.

New subregulation 2.85(4) ensures that the start and end dates for this obligation apply to all classes of sponsors in relation to whom the obligation applies (see item [121] of Schedule 1 of these Regulations), rather than just professional development sponsors. New subregulation 2.85(4) also provides that if the primary sponsored person holds a Subclass 420 (Entertainment) visa, Subclass 428 (Religious Worker) visa or Subclass 442 (Occupational Trainee) visa on the day on which the nomination which identifies the primary sponsored person is approved,, the obligation will start to apply on the day the nomination is approved.

Finally, new subregulation 2.85(4) establishes when the obligation ends in relation to a secondary sponsored person. In relation to a secondary sponsored person the obligation ends the earliest of the day on which:

· the Minister approves a nomination by another approved sponsor in which the primary sponsored person is identified; and

· the day on which the secondary sponsored person is granted a further substantive visa that is a visa of a different subclass to the last substantive visa held by the secondary sponsored person and is in effect; and

· the day the secondary sponsored person leaves Australia permanently.

See item [130] of Schedule 1 to these Regulations for an explanation of what it means to “leave Australia permanently”.

Item [126] - Schedule 1, item [9], proposed regulation 2.86, heading

This item substitutes the heading in regulation 2.86 in item [9] of Schedule 1 to the Amendment Regulations. The new heading provides “Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity”. This amendment is consequential to item [129] of Schedule 1 to these Regulations and ensures that the heading is relevant in relation to both standard business sponsors and temporary work sponsors.

Item [127] - Schedule 1, item [9], proposed subregulation 2.86(1)

This item substitutes new subregulation 2.86(1) in item [9] of Schedule 1 to the Amendment Regulations. Regulation 2.86 sets out the obligation to ensure the primary sponsored person works or participates in the nominated occupation, program or activity.

New subregulation 2.86(1) provides that regulation 2.86 applies to a person who is or was a standard business sponsor, an exchange sponsor, a visiting academic sponsor, an entertainment sponsor, a sport sponsor, a domestic worker sponsor, a religious worker sponsor, an occupational trainee sponsor or a party to a work agreement in relation to a primary sponsored person who holds or whose last substantive visa was a:

· a Subclass 457 (Business (Long Stay)) visa;

· a Subclass 411 (Exchange) visa;

· a Subclass 419 (Visiting Academic) visa;

· a Subclass 420 (Entertainment) visa;

· a Subclass 421 (Sport) visa;

· a Subclass 423 (Media and Film Staff) visa;

· a Subclass 427 (Domestic Worker (Temporary) — Executive) visa;

· a Subclass 428 (Religious Worker) visa; or

· a Subclass 442 (Occupational Trainee) visa

These visas (and corresponding classes of sponsor that can sponsor these visa holders) have a nomination stage at which an approved sponsor nominates an occupation, program or activity and identifies an individual to work or participate in that occupation, program or activity.

Item [128] - Schedule 1, item [9], proposed subregulation 2.86(2)

This item omits the word “The” and inserts the phrase “If the primary sponsored person holds a Subclass 457 (Business (Long Stay) visa, or the last substantive visa held by the primary sponsored person was a Subclass 457 (Business (Long Stay) visa, the,” in subregulation 2.86(2) in item [9] of Schedule 1 to the Amendment Regulations. This preserves the intention of subregulation 2.86(2) of the Amendment Regulations and clarifies that subregulation 2.86(2) only applies where the primary sponsored person holds or last substantive visa was a Subclass 457 (Business (Long Stay)) visa.

Item [129] - Schedule 1, item [9], after proposed subregulation 2.86(2)

This item inserts subparagraphs 2.86(2A), (2B) and (2C) in item [9] of Schedule 1 to the Amendment Regulations.

Subregulation 2.86(2A) provides that, subject to subregulation 2.86(2B), if the primary sponsored person holds or last substantive visa was a Subclass 457 (Business (Long Stay)) visa, the person must ensure that the primary sponsored person is only engaged as an employee of the person or as an employee of an associated entity of the person.

The purpose of this amendment is to ensure that the Subclass 457 (Business (Long Stay)) visa is used for employees. Several other provisions including regulation 2.79 of the Amendment Regulations rely on the Subclass 457 (Business (Long Stay)) visa holder being an ‘employee’.

Subregulation 2.86(2B) provides that for subregulation 2.86(2A), if the Minister specifies an occupation in an instrument in writing for this subregulation, a primary sponsored person may be engaged in that occupation as an independent contractor by the person or an associated entity of the person.

This provision has been inserted primarily to accommodate employment arrangements typically associated with medical practitioners currently provided from under the Subclass 422 (Medical Practitioner) visa. Medical practitioners are already relatively frequent users of the Subclass 457 (Business (Long Stay)) visa program and this added flexibility may enable the Subclass 422 (Medical Practitioner) visa to be completely phased out over time. The list may need updated from time to time as the standard classification of medical practitioner occupations changes, from the Australian Standard to the Australian and New Zealand Standard for example.

Subregulation 2.86(2C) provides that if the primary sponsored person holds a Subclass 411 (Exchange) visa, a Subclass 419 (Visiting Academic) visa, a Subclass 420 (Entertainment) visa, a Subclass 423 (Media and Film Staff) visa, a Subclass 421 (Sport) visa, a Subclass 427 (Domestic Worker (Temporary) – Executive) visa, a Subclass 428 (Religious Worker) visa, or a Subclass 442 (Occupational Trainee) visa, the person must ensure that the primary sponsored person works or participates in the nominated occupation, program or activity in relation to which the primary sponsored person was identified.

This obligation imposes responsibility on the approved sponsor to ensure that the visa holder is complying with condition 8107, which provides (in part) that a visa holder must not cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified. The Schedule 2 criteria for grant of these visas, as amended by this Schedule, provide that condition 8107 must be imposed as a mandatory condition on these visas. The obligation ensures that administrative action may be taken against the approved sponsor or civil penalties imposed if the visa holder does not work in the nominated occupation, program or activity.

Item [130] - Schedule 1, item [9], proposed subregulation 2.86 (3)

This item substitutes new subregulation 2.86(3) in item [9] of Schedule 1 to the Amendment Regulations.

New subregulation 2.86(3) ensures that the start and end dates for this obligation apply to all classes of sponsors in relation to whom the obligation applies (see item [127] of Schedule 1 to these Regulations), rather than just standard business sponsors and parties to a work agreement.

The obligation starts to apply on the day on which the Minister approves a nomination identifying the primary sponsored person or, if the primary sponsored person does not hold a visa on the day the nomination is approved, the obligation starts to apply on the day on which a visa is granted on the basis of the approved nomination. The obligation ends on the day on which a nomination identifying the primary sponsored person is approved by a different approved sponsor, or the day on which the primary sponsored person is granted a further substantive visa that is of a different subclass to the last substantive visa they held, or the day on which the primary sponsored person leaves Australia permanently.

A primary sponsored person is taken to “leave Australian permanently” on the first day on which each of the following has occurred:

· the primary sponsored person has left Australia;

· the visa granted to the primary sponsored person on the basis of being identified in an approved nomination by the person has ceased to be in effect;

· if the primary sponsored person held a Subclass 020 (Bridging B) visa when they left Australia and the last substantive visa held by the primary sponsored person was the visa granted to the primary sponsored person on the basis of being identified in an approved nomination by the person; the bridging visa has ceased to be in effect.

Item [131] - Schedule 1, item [9], proposed subregulation 2.87(1)

This item substitutes new subregulation 2.87(1) in item [9] of Schedule 1 to the Amendment Regulations. Regulation 2.87 sets out the obligation not to recover certain costs for a primary sponsored person or a secondary sponsored person.

New subregulation 2.87(1) provides that the obligation applies to a person who is or was an approved sponsor (other than a professional development sponsor) of a primary sponsored person or a secondary sponsored person. This item ensures that all classes of sponsor and parties to a work agreement, other than professional development sponsors, must satisfy the obligation not to recover certain costs from sponsored persons.

Item [132] - Schedule 1, item [9], after proposed subregulation 2.87(2)

This item inserts subregulations 2.87(2A) in item [9] of Schedule 1 to the Amendment Regulations.

Subregulation 2.87(2A) provides that if a person is or was a domestic worker sponsor, a religious worker sponsor or a party to a work agreement in relation to a primary sponsored person or a secondary sponsored person (the “sponsored person”) who holds or whose last substantive visa was a Subclass 427 visa (Domestic Worker (Temporary) - Executive) visa or a Subclass 428 (Religious Worker) visa, the person must not recover or seek to recover from the sponsored person any expenditure by the person in relation to financial support of the sponsored person in Australia.

Currently, the sponsor of a Subclass 427 (Domestic Worker (Temporary) – (Executive) visa or Subclass 428 (Religious Worker) visa holder must make an undertaking not to recover any expenditure by the person in relation to financial support of the visa holder in Australia. This amendment ensures that under the new sponsorship framework, a sponsor of a Subclass 427 (Domestic Worker (Temporary) – (Executive) visa or Subclass 428 (Religious Worker) visa holder continues to be subject to this obligation.

Item [133] - Schedule 1, item [9], proposed subregulation 2.87(3)

This item substitutes subregulation 2.87(3) with new subregulations 2.87(3) and 2.87(4) in item [9] of Schedule 1 to the Amendment Regulations.

New subregulation 2.87(3) provides that if the person is or was approved as a sponsor in a class of sponsor under section 140E(1) of the Act, the obligation not to recover costs starts to apply on the day on which the person is approved as a sponsor and ends when the person ceases to be an approved sponsor and there is no primary sponsored person or secondary sponsored person in relation to the person.

New subregulation 2.87(4) provides that if the person is was a party to a work agreement, the obligation not to recover costs starts to apply on the day on which the work agreement commences and ends when the person ceases to be a party to a work agreement and there is no primary or secondary sponsored person in relation to the person.

Item [134] - Schedule 1, item [9], after proposed regulation 2.87

This item inserts regulation 2.87A in item [9] of Schedule 1 to the Amendment Regulations. Regulation 2.87A creates an obligation to make the same or equivalent position available to exchange participants on their return to Australia.

Subregulation 2.87A(1) provides that the obligation applies to a person who is or was an exchange sponsor. An exchange sponsor is able to sponsor Subclass 411 (Exchange) via holders.

Subregulation 2.87A(2) provides the substance of the obligation, that is, immediately after the completion of the exchange, the person (who is or was an exchange sponsor) must make available to the Australian citizen or Australian permanent resident named in the exchange agreement under that subregulation (the “Australian participant”) the same position as, or a position equivalent to, the position held by the Australian participant in Australia at the time the exchange agreement was entered into.

Subparagraphs 2.87A(3)(a) and (b) provide when the obligation starts and ends. Subparagraph 2.87A(3)(a) provides that the obligation starts on the day the Minister approves the exchange nomination. Subparagraphs 2.87A(3)(b) provides that the obligation ends 30 days after completion of the exchange.

This obligation preserves the existing policy intention of the Subclass 411 (Exchange) visa, which is that the same position as that held by the Australian participant before the exchange, will be available to the Australian participant on completion of the exchange. The obligation ensures that if the exchange sponsor does not arrange for the position to be made available to the Australian participant, a civil penalty may be imposed or administrative action taken.

Item [135] - Schedule 1, item [9], proposed subregulation 2.89(1)

This item substitutes new subregulation 2.89(1) in item [9] of Schedule 1 to the Amendment Regulations. Regulation 2.89 prescribes for the purposes of subparagraph 140L(1)(a)(i) of the Act, a circumstance in relation to the failure to satisfy a sponsorship obligation.

Subparagraph 140L(1)(a)(i) provides that the regulations may prescribe circumstances in which the Minister may take one or more of the actions mentioned in section 140M of the Act in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) and within the period (if any) prescribed by the regulations.

Section 140M of the Act sets out the barring and cancelling actions that may be taken in relation to an approved sponsor or a former approved sponsor.

New subregulation 2.89(1) ensures that regulation 2.89 applies to a person who is or was a temporary work sponsor in relation to a primary or secondary sponsored person, as well as a standard business sponsor and professional development sponsor.

The objective of proposed regulation 2.89 is to allow the Minister to cancel approval of a sponsor, or bar an approved sponsor from sponsoring more people, or bar an approved sponsor or former approved sponsor from applying for further approval as a sponsor, where the sponsor fails to satisfy a sponsorship obligation.

Item [136] - Schedule 1, item [9], proposed paragraph 2.90(1)(b)

This item omits the word “sponsor” and inserts “sponsor; or” in paragraph 2.90(1)(b) in item [9] of Schedule 1 to the Amendment Regulations. This amendment is consequential to the amendment made by item [137].

Item [137] - Schedule 1, item [9], after proposed paragraph 2.90(1)(b)

This item inserts new paragraph 2.90(1)(c) in item [9] of Schedule 1 to the Amendment Regulations. Regulation 2.90 prescribes, for the purposes of subparagraph 140L(1)(a)(ii) of the Act, a circumstance in relation to the provision of false or misleading information to Immigration or the Migration Review Tribunal (MRT).

Paragraph 2.90(1)(c) ensures that regulation 2.90 applies to a person who is or was a temporary work sponsor.

The objective of proposed regulation 2.90 is to allow the Minister to cancel approval of a sponsor, or bar an approved sponsor from sponsoring more people, or bar an approved sponsor or former approved sponsor from applying for further approval as a sponsor, where the sponsor has provided false or misleading information to Immigration or the MRT.

Item [138] - Schedule 1, item [9], proposed paragraph 2.91(1)(b)

This item omits the word “sponsor” and inserts “sponsor; or” in paragraph 2.91(1)(b) in item [9] of Schedule 1 to the Amendment Regulations. This amendment is consequential to the amendment made by item [139].

Item [139] - Schedule 1, item [9], after proposed paragraph 2.91(1)(b)

This item inserts paragraph 2.91(1)(c) after paragraph 2.91(1)(b) in item [9] of Schedule 1 to the Amendment Regulations. Regulation 2.91 prescribes, for the purposes of subparagraph 140L(1)(a)(ii) of the Act, a circumstance in relation to a sponsor not continuing to meet the criteria for approval as a sponsor, or the criteria for variation of terms of approval as a sponsor.

Paragraph 2.91(1)(c) provides that regulation 2.91 applies to a person who is or was a temporary work sponsor.

The objective of new regulation 2.91 is to allow the Minister to cancel approval of a sponsor, or bar an approved sponsor from sponsoring more people, or bar an approved sponsor or former approved sponsor from applying for further approval as a sponsor, where the Minister is satisfied that the person no longer satisfies the criteria for approval as a sponsor, or no longer satisfies the criteria for approval of a variation.

Item [140] - Schedule 1, item [9], proposed paragraph 2.91(2)(b)

This item omits the word “has” and inserts “or temporary work sponsor have” in paragraph 2.91(2)(b) in item [9] of Schedule 1 to the Amendment Regulations. Paragraph 2.91(2)(b) provides that for subparagraph 140L(1)(a)(ii) of the Act, an additional circumstance for cancelling or barring is that the Minister is satisfied that, if the terms of the approval of the person as a standard business sponsor have been varied, the person no longer satisfies the criteria prescribed under section 140GA of the Act at the time of the approval of the variation. Section 140GA of the Act relates to the variation of the terms of approval as an approved sponsor.

The effect of this amendment is that the additional circumstance prescribed in paragraph 2.91(2)(b) also relates to a temporary work sponsor.

Item [141] – Schedule 1, item [9], proposed subregulation 2.92(1)

This item substitutes subregulation 2.92(1) in item [9] of Schedule 1 to the Amendment Regulations with new subregulation 2.92(1). Regulation 2.92 prescribes for the purposes of subparagraph 140L(1)(a)(ii) of the Act, a circumstances in relation to a sponsor or a primary sponsored person contravening the law.

New subregulation 2.92(1) ensures that regulation 2.92 applies to a person who is or was a temporary work sponsor in relation to a primary sponsored person, as well as a standard business sponsor in relation to a primary sponsored person and a professional development sponsor.

The objective of new regulation 2.92 is to allow the Minister to cancel approval of a sponsor, or bar an approved sponsor from sponsoring more people, or bar an approved sponsor or former approved sponsor from applying for further approval as a sponsor, where the sponsor has been found to have contravened a Commonwealth, State or Territory law.

Item [142] – Schedule 1, item [9], proposed subregulation 2.92 (2), heading

This item omits the current heading “Standard business sponsors and professional development sponsors” and substitutes “Standard business sponsors, professional development sponsors and temporary work sponsors” in the heading of subregulation 2.92(2) in item [9] of Schedule 1 to the Amendment Regulations.

The purpose of this amendment is to clarify that subregulation 2.92(2) applies to temporary work sponsors as well as standard business sponsors and professional development sponsors.

Item [143] – Schedule 1, item [9], proposed subregulation 2.92(2)

This item omits the phrase “or a professional development sponsor” and inserts the phrase”, a professional development sponsor or a temporary work sponsor” in subregulation 2.92(2) in item [9] of Schedule 1 to the Amendment Regulations.

Subregulation 2.92(2) provides that for the purposes of subparagraph 140L(1)(a)(ii) of the Act, an additional circumstance is that the Minister is satisfied that the person has been found by a court or a competent authority to have contravened a Commonwealth, State or Territory law.

The effect of this item is that this additional circumstance applies to a person who is or was a temporary work sponsor, as well as a standard business sponsor or a professional development sponsor.

Item [144] – Schedule 1, item [9], proposed subregulation 2.92 (4), heading

This item omits the current heading “Standard business sponsors” and substitutes it with new heading “Standard business sponsors and temporary work sponsors” in the new heading of subregulation 2.92(4) in item [9] of Schedule 1 to the Amendment Regulations.

The purpose of this amendment is to clarify that subregulation 2.92(4) applies to standard business sponsors and to temporary work sponsors.

Item [145] – Schedule 1, item [9], proposed subregulation 2.92(4)

This item inserts the phrase “or a temporary work sponsor” after the phrase “a standard business sponsor” in subregulation 2.92(4) in item [9] of Schedule 1 to the Amendment Regulations.

Subregulation 2.92(4) provides that for the purposes of subparagraph 140L(1)(a)(ii) of the Act, an additional circumstance is that the Minister is satisfied that a primary sponsored person has been found by a court or a competent authority to have contravened a Commonwealth, State or Territory law relating to licensing, registration or membership in relation to the primary sponsored person’s occupation.

The effect of this item is that the circumstance applies to a person who is or was a temporary work sponsor, as well as a standard business sponsor. See item [147] of Schedule 1 to these Regulations for further details.

Item [146] – Schedule 1, item [9], proposed paragraph 2.92(4)(b)

This item inserts the word “approved” before the word “occupation” in paragraph 2.92(4)(b) in item [9] of Schedule 1 to the Amendment Regulations. This is a technical amendment to clarify that the reference to the primary sponsored person’s occupation, is the primary sponsored person’s approved occupation.

Item [147] – Schedule 1, item [9], proposed paragraph 2.92(4)(c)

This item substitutes paragraph 2.92(4)(c) in item [9] of Schedule 1 to the Amendment Regulations.

Subregulation 2.92(4)(c), in conjunction with paragraphs 2.92(4)(a) and (b), provides that for the purposes of subparagraph 140L(1)(a)(ii) of the Act, an additional circumstance is that the Minister is satisfied that a primary sponsored person has been found by a court or a competent authority to have contravened a Commonwealth, State or Territory law relating to licensing, registration or membership in relation to the primary sponsored person’s occupation, if the primary sponsored person was required to comply with the law in order to work in the nominated occupation.

Paragraph 2.92(4)(c) is substantively the same as current paragraph 2.92(4)(c) but includes a reference to a temporary work sponsor. It ensures that the paragraph applies to a temporary work sponsor as well as to a standard business sponsor.

Item [148] – Schedule 1, item [9], proposed regulation 2.93, heading

This item substitutes the current heading “Unapproved change to professional development program” with the new heading, “Unapproved change to professional development program or special program” in the heading of regulation 2.93 in item [9] of Schedule 1 to the Amendment Regulations.

This amendment clarifies that regulation 2.93 applies to special programs as well as to professional development programs and is consequential to item [149] of Schedule 1 to the Regulations.

Item [149] – Schedule 1, item [9], proposed subregulations 2.93(1) and (2)

This item substitutes subregulations 2.93(1) and (2) in item [9] of Schedule 1 to the Amendment Regulations. Regulation 2.93 provides, for the purposes of subparagraph 140L(1)(a)(ii) of the Act, an additional circumstance is that the Minister is satisfied that the person has made an unapproved change to a professional development program.

New subregulation 2.93(1) provides that regulation 2.93 applies to a person who is or was a special program sponsor, as well as to a professional development sponsor.

New subregulation 2.93(2) is the same as current subregulation 2.92(2) as it relates to professional development programs, but provides in addition that for subparagraph 140L(1)(a)(ii) of the Act, a circumstance in which the Minster may take action under section 140M of the Act is that the Minister is satisfied that a person who is or was a special program sponsor made a change (without the approval in writing of the Secretary) to the special program.

The objective of regulation 2.93 is to allow the Minister to cancel approval of a sponsor, or bar an approved sponsor from sponsoring more people, or bar an approved sponsor or former approved sponsor from applying for further approval as a sponsor, where there has been an unapproved change to a professional development program or special program. This is to ensure that the professional development program or special program that is being provided is the program that has been approved.

Item [150] – Schedule 1, item [9], after proposed regulation 2.94

This item inserts new regulation 2.94A after regulation 2.94 in item [9] of Schedule 1 to the Amendment Regulations.

New regulation 2.94A provides, for the purposes of subparagraph 140L(1)(a)(ii) of the Act, the circumstance in relation to a person who is or was a special program sponsor is that the Minister is satisfied that the person has failed to comply with the terms of a special program agreement.

Subregulation 2.94A(1) provides that the regulation applies to a person who is or was a special program sponsor.

Subregulation 2.94A(2) provides that for the purposes of subregulation 140L(1)(a)(ii) of the Act, the circumstance in which the Minister may take an action under section 140M of the Act if that the Minister is satisfied that the person has not complied with a term or condition of the special program agreement in relation to which the special program sponsor was approved.

Paragraph 140L(1)(b) of the Act provides that the regulations may prescribe the criteria to be taken into account by the Minister in determining what action to take under section 140M.

Subregulation 2.94A(3) provides, for the purposes of paragraph 140L(1)(b) of the Act, the following criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in Subregulation 2.94A(2):

the past and current conduct of the person in relation to Immigration; and

the extent to which the person has not complied with the special program agreement; and

the number of occasions on which the person has failed to comply with the special program agreement; and
any other relevant factors.

The objective of regulation 2.94A is to allow the Minister to cancel approval of a special program sponsor, or bar a special program sponsor from sponsoring more people, or bar an approved sponsor or former approved sponsor from applying for further approval as a sponsor, where the special program sponsor has not complied with a term or condition of the special program agreement in relation to which the special program sponsor was approved.

Item [151] – Schedule 1, item [9], after proposed regulation 2.102

This item inserts new Division 2.22A in item [9] of Schedule 1 to the Amendment Regulations.

New Division 2.22A provides in relation to inspectors, the period of their appointment, the prescribed form their identity cards and the purposes for which their powers may be exercised.

New regulation 2.102A provides that for subsection 140V(2) of the Act, the period specified in an instrument of appointment issued under subsection 140V(1) of the Act must not exceed 4 years. This ensures consistency with the period of appointment of inspectors appointed under the Fair Work Act 2009.

New paragraph 2.102B(1)(a) provides that for paragraph 140W(2)(a) of the Act, an identity card must be in accordance with prescribed form 4; or the form approved by the Fair Work Ombudsman under subsection 702(3) of the Fair Work Act 2009.

This amendment allows an inspector who is appointed under both the Fair Work Act 2009 and the Act to carry the one identity card. This amendment does not mean that an inspector appointed under the Act is deemed to be an inspector under the Fair Work Act 2009 or that an inspector appointed under the Fair Work Act 2009 is deemed to be an inspector under the Act. The amendment is intended to simplify administration and inspection procedures where an appointment has been made under both Acts.

Paragraph 2.102B(1)(b) provides that an identity card may include additional information that is not set out in the form mentioned in paragraph (a).

This amendment clarifies that whilst it is mandatory for the information in paragraph 2.102B(1)(a) to be included on an inspector’s identity card who is appointed under the Act, other information beyond the scope of prescribed form 4 and the form approved by the Fair Work Ombudsman under subsection 702(3) of the Fair Work Act 2009 may also be included.

Regulation 2.102C provides that pursuant to paragraph 140X(b) of the Act, the purposes for which an inspector may exercise his or her powers are:

determining whether a term or condition of a work agreement is being, or has been complied with; and
determining whether a circumstance prescribed under section 140L of the Act exists or has existed; and
investigating a circumstance, if a circumstance exists or has existed, in order to assist the Minister in determining what (if any) action to take under section 140M of the Act.

Note 1 to regulation 2.102C provides that these purposes are additional to the purpose of determining whether a sponsorship obligation is being, or has been complied with – see paragraph 140X(a) of the Act.

Note 2 to regulation 2.102C provides that section 140L of the Act allows the regulations to prescribe circumstances in which a sponsor may be barred or a sponsor’s approval may be cancelled. These circumstances are prescribed in Division 2.20.

Note 3 to regulation 2.102C provides that section 140M of the Act enables the Minister to cancel the approval of a sponsor or to bar a sponsor if regulations are prescribed under section 140L of the Act.

This amendment ensures that inspectors may exercise their powers to investigate whether there is or has been compliance to the terms and conditions of a work agreement in addition to whether any circumstances exist or existed which may lead to sanction action under Subdivision D of Division 3A of Part 2 of the Act.

Item [152] – Schedule 1, after item [10]

This item inserts new subregulation 4.02(1AA) and 4.02(1A), in item [10A] of Schedule 1 to the Amendment Regulations.

New subregulation 4.02(1AA) provides that for the purposes of section 337 of the Act, the term “sponsored” includes being identified in a nomination under section 140GB of the Act. Section 337 sets out the interpretation provisions for Part 5 of the Act, which relate to merits review. It provides that “sponsored” has the same meaning as in the regulations.

This amendment ensures that the term “sponsored” is defined to include being identified in a nomination under section 140GB of the Act so that paragraph 338(2)(d) of the Act applies to visas within the enforceable sponsorship framework in Division 3A of Part 2 of the Act.

New subregulation 4.02(1A) provides that for paragraph 338(2)(d) of the Act, which pertains to MRT-reviewable decisions (other than a decision covered by subsection 338(4) of or section 501 of the Act) the following visas are prescribed:

· a Subclass 411 (Exchange) visa;

· a Subclass 415 (Foreign Government Agency) visa;

· a Subclass 416 (Special Program) visa;

· a Subclass 419 (Visiting Academic) visa;

· a Subclass 420 (Entertainment) visa;

· a Subclass 421 (Sports) visa;

· a Subclass 423 (Media and Film Staff) visa;

· a Subclass 427 (Domestic Worker (Temporary) – Executive) visa;

· a Subclass 428 (Religious Worker) visa;

· a Subclass 442 (Occupational Trainee) visa;

· a Subclass 457 (Business (Long Stay)) visa; and

· a Subclass 488 (Superyacht Crew) visa.

This amendment ensures that where it is a criterion for the grant of a visa prescribed by new subregulation 4.02(1A) that the non-citizen is sponsored by an approved sponsor, the non-citizen cannot apply for merits review of the decision to refuse their visa application in the MRT unless they are sponsored by an approved sponsor at the time the merits review application (to review the decision to refuse to grant the visa) is made in the MRT, or an application for merits review of a decision not to approve the sponsor has been made in the MRT but the MRT’s decision in relation to that application is pending. This is to ensure that only genuine applicants may seek merits review in the MRT of a decision to refuse a visa of the kind prescribed by new subregulation 4.02(1A), that is, a Subclass 411 (Exchange) visa; a Subclass 415 (Foreign Government Agency)visa ; a Subclass 416 (Special Program); a Subclass 419 (Visiting Academic); a Subclass 420 (Entertainment) visa; a Subclass 421 (Sports) visa; a Subclass 423 (Media and Film Staff) visa; a Subclass 427 (Domestic Worker (Temporary) – Executive) visa; a Subclass 428 (Religious Worker) visa; a Subclass 442 (Occupational Trainee) visa; a Subclass 457 (Business (Long Stay)); and a Subclass 488 (Superyacht Crew) visa.

Item [153] – Schedule 1, item [23], proposed regulation 5.20A, heading

This item substitutes the heading of regulation 5.20A in item [23] of Schedule 1 to the Amendment Regulations with new heading “Prescribed penalties – civil penalties (Act, ss 140Q, 140XE, 140XF). This amendment is consequential to item [154] of this Schedule.

Item [154] – Schedule 1, item [23], proposed regulation 5.20A

This item omits “(1) or (2)” from regulation 5.20A in item [23] of Schedule 1 to the Amendment Regulations and inserts “(1), 140Q(2), 140XE(3) or 140XF(3)”.

Regulation 5.20A provides that for subsection 140R(1) of the Act, the penalty to be paid as an alternative to the Minister applying to a Court for an order that a pecuniary penalty be paid for a contravention of subsection 140Q(1), 140Q(2), 140XE(3) or 140XF(3) is set out in paragraph 5.20A(a) or (b).

Item [155] – Schedule 1, item [23], proposed paragraph 5.20A(a)

This item omits the phrase “a failure to satisfy a sponsorship obligation” and inserts the phrase “a contravention of a civil penalty provision” in paragraph 5.20A(a) in item [23] of Schedule 1 to the Amendment Regulations.

This amendment ensures that, where a person has previously been ordered by a Court to pay a pecuniary penalty for contravention of a civil penalty provision, the penalty to be paid as an alternative to the Minister applying to a Court for an order, is set out in subparagraph 5.20A(a)(i) or (ii).

Subparagraph 5.20A(a)(i) provides that where a person has previously been ordered by a Court to pay a pecuniary penalty for a contravention of a civil penalty provision and the person is a natural person the penalty to be paid as an alternative to the Minister applying to a Court for an order that a pecuniary penalty is paid is 12 penalty units.

Subparagraph 5.20A(b)(i) provides that where a person has previously been ordered by a Court to pay a pecuniary penalty for a contravention of a civil penalty provision and the person is a body corporate the penalty to be paid as an alternative to the Minister applying to a Court for an order that a pecuniary penalty is paid is 60 penalty units.

Item [156] – Schedule 1, item [23], proposed regulation 5.20A, note

This item substitutes the note in regulation 5.20A in item [23] of Schedule 1 to the Amendment Regulations with the new Note 1, Note 2 and Note 3.

New note 1 provides that subsections 140Q(1) and (2) of the Act are civil penalty provisions which are contravened if an approved sponsor or a form approved sponsor fails to satisfy a sponsorship obligation.

New note 2 provides that subsection 140XE(3) of the Act is a civil penalty provision which is contravened if a person does not comply with a requirement to:

tell and inspector the person’s name and address if the inspector reasonably believes that the person has contravened a civil penalty provision; or
give evidence of the correctness of the person’s name and address if the inspector reasonably believes that the name or address provided by the person is false.

New note 3 provides that subsection 140XF(3) of the Act is a civil penalty provision which is contravened if a person does not comply with a notice to produce a record or document to an inspector,

These new notes explain how subsections 140Q(1) and (2), 140XE(3) and 140XF(3) relate to regulation 5.20A.

This amendment is consequential to the amendment made by item [154] of this Schedule.

Item [157] – Schedule 1, items [25] to [27]

This item substitutes items [25] to [27] of Schedule 1 to the Amendment Regulations with new item [25].

New item [25] substitutes the note at the end of subregulation 5.21(1) with the new Note 1 and Note 2. Regulation 5.21 sets out the definition of terms for the purposes of Division 5.5. The current note explains the effects of sections 137, 229, 230, and subsections 245L(2) and 245N(2) of the Act. New Note 1 explains the effects of those sections and also subsections 140Q(1) and (2), 140XE(3) and 140XF(3) of the Act, and new Note 2 explains that “civil penalty provision” is defined in subsection 5(1) the Act.

Item [158] – Schedule 1, item [28], proposed subregulation 5.22(3) note

This item inserts “or secondary sponsored person” after “primary sponsored person” in the note in subregulation 5.22 (3) in item [28] in Schedule 1 to the Amendment Regulations.

Regulation 5.22 sets out when an infringement notice can be served. The current note explains the effects of regulations 2.78 and 2.85 in item [9] of Schedule 1 to the Amendment Regulations.

The effect of this amendment is to ensure that the note correctly explains the effects of regulations 2.78 and 2.85, as amended by items [129] to [134] of this Schedule. This amendment is consequential to the amendments made by those items.

Item [159] – Schedule 1, after item [38]

This item inserts items [39] to [161] after item [38] of Schedule 1 to the Amendment Regulations. Items [39] to [48] amend Schedule 1 to the Principal Regulations and items [49] to [159] amend Schedule 2 to the Principal Regulations. Items [160] and [161] amend Schedules 8 and 10 to the Principal Regulations.

Item [39] - Schedule 1, subparagraph 1205(2)(a)(i)

This item substitutes subparagraph 1205(2)(a)(i) in Schedule 1 to the Principal Regulations.

Item 1205 in Part 2 of Schedule 1 to the Principal Regulations sets out the requirements to make a valid application for a Cultural/Social (Temporary) (Class TE) visa. New subparagraph 1205(2)(a)(i) provides that there is no visa application charge if the applicant is outside Australia at the time of application and the application appears to the Minister to satisfy subparagraph 1205(2)(a)(iii). A person will satisfy subparagraph 1205(2)(a)(iii) if the application is made on the basis that the applicant is entered as an amateur participant in a sporting event or appointed or employed to assist an amateur participant or team in a sporting event.

This amendment removes the nil visa application charge for an applicant outside Australia who appears to the Minister to meet the requirements for the grant of a Subclass 411 (Exchange) visa. Currently, Subclass 411 visa applicants who are outside Australia at the time of application need not pay a visa application charge, while applicants for a Subclass 411 visa who are in Australia at the time of application must pay a visa application charge. The purpose of the amendment is to ensure that all applicants for a Subclass 411 visa must pay the same visa application charge, regardless of whether they apply in Australia or outside Australia.

Item [40] - Schedule 1, subparagraph 1205(2)(a)(ii)

This item substitutes subparagraph 1205(2)(a)(ii) in Schedule 1 to the Principal Regulations.

New subparagraph 1205(2)(a)(ii), in conjunction with subparagraph 1205(2)(a)(ia), provides that there is no visa application charge if an applicant for a Cultural/Social (Temporary) (Class TE) visa has been identified in a nomination under section 140G of the Act to perform as an entertainer in one or more specific engagements that are for non-profit purposes, or the entertainment sponsor, or proposed entertainment sponsor of the applicant is funded wholly or in part by the Commonwealth and is approved by the Secretary for the purposes of the nil visa application charge.

This simplifies current subparagraph 1205(2)(a)(ii), which in conjunction with subparagraph 1205(2)(a)(ia) sets out a number of circumstances in which an applicant who is visiting Australia to perform as an entertainer or to assist in performances does not need to pay a visa application charge. These circumstances include where the applicant’s visit is cultural and not for pecuniary award exceeding the expenses of the applicant, where the applicant is performing in a festival specified in an instrument in writing or approved by the Secretary, or where the sponsor is funded wholly or in part by the Commonwealth and is approved by the Secretary.

The purpose of the amendment is to ensure that applicants do not have to pay a visa application charge where the engagements in which they are performing are non-profit or funded by the Commonwealth.

Item [41] - Schedule 1, paragraph 1205(3)(c)

This item inserts the word “primary” before the word “criteria” in paragraph 1205(3)(c) of Schedule 1 to the Principal Regulations. Paragraph 1205(3)(c) sets out the additional application requirements that must be met by a person applying for a Cultural/Social (Temporary) (Class TE) visa who is seeking to satisfy the primary criteria for the grant of a Subclass 420 Entertainment visa.

This amendment, in conjunction with item [42], clarifies that only primary applicants must provide form 1379 with their visa application. Form 1379 is the approved nomination form that must be used for a nomination that identifies a holder of, or an applicant or proposed for, a Subclass 420 (Entertainment) visa (see regulation 2.79B inserted by item [72] of this Schedule).

Item [42] - Schedule 1, paragraph 1205(3)(c)

This item omits the reference to form number “148” and inserts a reference to form number “1379” in paragraph 1205(3)(c) of Schedule 1 to the Principal Regulations. Paragraph 1205(3)(c) sets out the additional application requirements that must be met by a person applying for a Cultural/Social (Temporary) (Class TE) visa who is seeking to satisfy the primary criteria for the grant of a Subclass 420 Entertainment visa.

The purpose of this amendment is to update the nomination form number that must be used for a nomination that identifies a holder of, or an applicant or proposed for, a Subclass 420 (Entertainment) visa (see regulation 2.79B inserted by item [72] of this Schedule).

Item [43] – Schedule 1, after paragraph 1205(3)(c), including the note

This item inserts paragraphs 1205(3)(ca) and 1205(3)(cb) in Schedule 1 to the Principal Regulations.

Paragraph 1205(3)(ca) provides that, to make a valid visa application, an applicant for a Cultural/Social (Temporary) (Class TE) visa (other than an applicant seeking to satisfy the criteria for the grant of a Subclass 416 (Special Program) visa) must satisfy subparagraphs 1205(3)(B)(ca)(i) and (ii).

Subparagraphs 1205(3)(B)(ca)(i) provides that applicants must specify, in the application, the person by whom the applicant has been identified, or proposes to be identified, in a nomination for the purposes of section 140GB of the Act. Section 140GB of the Act provides for the approval of nominations. Item [59] sets out the nomination criteria for the relevant visas.

Subparagraphs 1205(3)(B)(ca)(ii) provides that applicants must provide evidence that the person by whom the applicant has been identified, or proposes to be identified, is:

· if an applicant seeks to satisfy the primary criteria for the grant of a Subclass 411 (Exchange) visa – an exchange sponsor, or a person who has applied for approval as an exchange sponsor but whose application has not yet been decided; or

· if an applicant seeks to satisfy the primary criteria for the grant of a Subclass 420 (Entertainment) visa or a Subclass 423 (Media and Film Staff) visa – an entertainment sponsor, or a person who has applied for approval as an entertainment sponsor but whose application has not yet been decided; or

· if an applicant seeks to satisfy the primary criteria for the grant of a Subclass 421 (Sport) visa – a sport sponsor or a party to a work agreement (other than a Minister) of a kind mentioned in subregulation 2.76(3) (see item [80]), or a person who has applied for approval as a sport sponsor but whose application has not yet been decided; or

· if an applicant seeks to satisfy the primary criteria for the grant of a Subclass 428 (Religious Worker) visa – a religious worker sponsor or a party to a work agreement of a kind mentioned in subregulation 2.76(4) (see item [80]), or a person who has applied for approval as a religious worker sponsor but whose application has not yet been decided.

These amendments ensure that, to make a valid visa application, a visa applicant must either have been identified in a nomination made by the relevant approved sponsor, or must be able to demonstrate that there is a relevant approved sponsor, or a person who has applied to become the relevant approved sponsor, who intends to make a nomination that identifies the visa applicant. The Schedule 2 criteria for the relevant visas, as amended by this Schedule, provide that a nomination identifying the visa applicant must be approved by the time of the Minister’s decision on the visa application.

Subparagraph 1205(3)(cb) provides that an applicant for a Cultural/Social (Temporary) (Class TE) visa who is seeking to satisfy the primary criteria for the grant of a Subclass 416 (Special Program) visa (other than the criterion specified in paragraph 416.222(d) of Schedule 2 to the Principal Regulations) must specify, in the application, the person who proposes to be the special program sponsor in relation to the applicant, and provide evidence that the person is a special program sponsor, or is a person who has applied for approval as a special program sponsor but whose application has not yet been decided. Paragraph 416.222(d) relates to applicants who have been invited to undertake seasonal work in Australia. These applicants are excluded from the requirement to be sponsored. For further details see item [68] of this Schedule.

This amendment ensures that, to make a valid visa application, and where sponsorship is required, a visa applicant must be able to demonstrate that there is a special program sponsor or a person who has applied for approval as a special program sponsor, who proposes to be the special program sponsor in relation to the applicant. The Schedule 2 criteria for the Subclass 416 visa, as amended by item [68] inserted by item [159] of this Schedule, provide that a special program sponsor must have agreed in writing to be the special program sponsor in relation to the applicant by the time of the Minister’s decision on the visa application.

Item [44] - Schedule 1, after paragraph 1207(3)(b)

This item inserts paragraph 1207(3)(ba) in Schedule 1 to the Principal Regulations.

Item 1207 in Part 2 of Schedule 1 to the Principal Regulations sets out the requirements to make a valid application for a Domestic (Temporary) (Class TG) visa.

New paragraph 1207(3)(ba) provides that applicants seeking to satisfy the criteria for the grant of a Subclass 427 (Domestic Worker (Temporary) - Executive) must specify in the application the person by whom the applicant proposes to be identified in a nomination for the purposes of section 140GB of the Act and provide evidence that the person is a domestic worker sponsor, or is a person who has applied for approval as a domestic worker sponsor but whose application has not yet been decided. Section 140GB of the Act provides for the approval of nominations.

This amendment ensures that, to make a valid visa application, a visa applicant must either have been identified in a nomination made by a domestic worker sponsor, or must be able to demonstrate that there is a domestic worker sponsor, or a person who has applied to become a domestic worker sponsor, who intends to make a nomination that identifies the visa applicant. The Schedule 2 criteria for the Subclass 427 visa, as amended by item [122] inserted by item [159] of this Schedule, provide that a nomination identifying the visa applicant must be approved by the time of the Minister’s decision on the visa application.

Item [45] – Schedule 1, after paragraph 1208(3)(b)

This item inserts paragraphs 1208(3)(ba), (bb), (bc) in item 1208 of Schedule 1 to the Principal Regulations.

Item 1208 in Part 2 of Schedule 1 to the Principal Regulations sets out the requirements to make a valid application for an Educational (Temporary) (Class TH) visa.

New paragraph 1208(3)(ba) provides that an applicant seeking to satisfy the primary criteria for the grant of a Subclass 415 (Foreign Government Agency) visa must specify in the application the person who proposes to be the foreign government agency sponsor in relation to the applicant, and provide evidence that the person is a foreign government agency sponsor, or is a person who has applied for approval as a foreign government agency sponsor but whose application has not yet been decided.

This amendment ensures that, to make a valid visa application, a visa applicant must be able to demonstrate that there is a foreign government agency sponsor or a person who has applied for approval as a foreign government agency sponsor, who proposes to be the foreign government agency sponsor in relation to the applicant. The Schedule 2 criteria for the Subclass 415 visa, as amended by item [62] inserted by item [159] of this Schedule, provide that a foreign government agency sponsor must have agreed in writing to be the foreign government agency sponsor in relation to the applicant by the time of the Minister’s decision on the visa application.

New paragraph 1208(3)(bb) provides that an applicant seeking to satisfy the primary criteria for the grant of a Subclass 419 (Visiting Academic) visa must specify in the application the person by whom the applicant proposes to be identified in a nomination for the purposes of section 140GB of the Act, and provide evidence that the person is a visiting academic sponsor, or is a person who has applied for approval as a visiting academic sponsor but whose application has not yet been decided. Section 140GB of the Act provides for the approval of nominations.

New paragraph 1208(3)(bc) provides that unless subitem 1208(3A) applies (see item [46] inserted by item [159] of this Schedule), an applicant seeking to satisfy the primary criteria for the grant of a Subclass 442 (Occupational Trainee) visa must specify in the application the person by whom the applicant proposes to be identified in a nomination for the purposes of section 140GB of the Act, and provide evidence that the person is an occupational trainee sponsor, or is a person who has applied for approval as an occupational trainee sponsor but whose application has not yet been decided.

This amendment ensures that, to make a valid visa application, a visa applicant must either have been identified in a nomination, or must be able to demonstrate that there is an approved sponsor, or a person who has applied to become an approved sponsor, who intends to make a nomination that identifies the visa applicant. The Schedule 2 criteria, as amended by this Schedule, provide that a nomination identifying the visa applicant must be approved by the time of the Minister’s decision on the visa application.

Item [46] – Schedule 1, after subitem 1208(3)

This item inserts new subitem 1208(3A) after subitem 1208(3) in item 1208 of Schedule 1 to the Principal Regulations.

Subitem 1208(3A) provides that an applicant seeking to satisfy the primary criteria for the grant of a Subclass 442 (Occupational Trainee) visa in order to undertake a program of occupational training which will be provided by the Commonwealth must specify in the application the person who proposes to be the occupational trainee sponsor in relation to the applicant, and provide evidence that the person is an occupational trainee sponsor, or is a person who has applied for approval as an occupational trainee sponsor but whose application has not yet been decided.

This amendment ensures that, to make a valid visa application, and where the occupational training will be provided by the Commonwealth, a visa applicant must be able to demonstrate that there is an occupational trainee sponsor or a person who has applied for approval as an occupational trainee sponsor, who proposes to be the occupational trainee sponsor in relation to the applicant. The Schedule 2 criteria for the Subclass 442 visa, as amended by item [138] inserted by item [159] of this Schedule, provides that where the occupational training is to be provided by the Commonwealth, an occupational trainee sponsor must have agreed in writing to be the occupational trainee sponsor in relation to the applicant by the time of the Minister’s decision on the visa application.

Where the occupational training will be provided by the Commonwealth, the applicant is not required to be nominated by the occupational trainee sponsor, but it is sufficient if the occupational trainee sponsor agrees in writing to be the occupational trainee sponsor of the applicant. See item [138] of this Schedule for further details.

Item [47] – Schedule 1, subparagraphs 1220B(3)(a)(i) and (ii), including the note

This item substitutes subparagraphs 1220B(3)(a)(i) and (ii), including the note, from item 1220B of Schedule 1 to the Principal Regulations.

Item 1220B in Part 2 of Schedule 1 to the Principal Regulations sets out the requirements for making a valid application for a Sponsored Training (Temporary) (Class UV) visa.

Subparagraphs 1220B(3)(a)(i) and (ii) provide that an applicant for a Sponsored Training (Temporary) (Class UV) visa who is seeking to satisfy the criteria for the grant of a Subclass 470 (Professional Development) visa must:

include evidence that a professional development sponsor has agreed, in writing, to be the professional development sponsor in relation to the person; and
include evidence that the professional development sponsor is not barred from sponsoring the person under paragraph 140M (1) (c) of the Act; and
be lodged by the professional development sponsor.

Immediately after subparagraph 1220B(3)(a)(ii) there appears a note which explains that under paragraph 140M(1)(c) of the Act, a professional development sponsor may be barred for a specified period from sponsoring more people under the terms of one or more specified, or all, existing approvals for visas. Section 140M of the Act contains provisions relating to the cancelling approval as a sponsor or barring a person who is or was an approved sponsor.

The purpose of this amendment is to update subparagraph 1220B(3)(a) following the amendments to the Act by the Migration Legislation Amendment (Worker Protection) Act 2008.

Item [48] – Schedule 1, after paragraph 1227A(3)(c)

This item inserts new paragraph 1227A(3)(ca) in item 1227A of Schedule 1 to the Principal Regulations.

Item 1227A in Part 2 of Schedule 1 to the Principal Regulations sets out the requirements for making a valid application for a Superyacht Crew (Temporary) (Class UW) visa.

New paragraph 1227A(3)(ca) provides that an applicant seeking to satisfy the primary criteria for the grant of a Subclass 488 (Superyacht Crew) visa must specify, in the application, the person who proposes to be the superyacht crew sponsor in relation to the applicant and provide evidence that the person is a superyacht crew sponsor, or is a person who has applied for approval as a superyacht crew sponsor but whose application has not yet been decided.

This amendment ensures that, to make a valid visa application, and where sponsorship is required, a visa applicant must be able to demonstrate that there is a superyacht crew sponsor or a person who has applied for approval as a superyacht crew sponsor, who proposes to be the superyacht crew sponsor in relation to the applicant. The Schedule 2 criteria for the Subclass 488 visa, as amended by item [155] inserted by item [159] of this Schedule, provide that a superyacht crew sponsor must have agreed in writing to be the superyacht crew sponsor in relation to the applicant by the time of the Minister’s decision on the visa application.

Item [49] - Schedule 2, clause 411.211

This item substitutes clause 411.211 with new clause 411.211 in Subdivision 411.12 of Division 411.1 in Part 411 of Schedule 2 to the Principal Regulations

Clause 411.211 provides that if a Subclass 411 (Exchange) visa applicant is in the migration zone at the time of application, they must hold a visa from a class or subclass listed in subclauses 411.211(a), 411.211(b), or 411.211(c). Paragraph 411.211(d) provides that if the applicant is in the migration zone and not the holder of a substantive visa, the last visa held by the applicant was a kind specified in either paragraph 411.211(a) or (c). Paragraph 411.211(e) provides if the applicant is in the migration zone and not the holder of a substantive visa, the last visa held by the applicant was a kind specified in paragraph 411.211(b). For paragraphs 411.211(d) or (e) the applicant must also satisfy Schedule 3 criteria 3002, 3002, 3004 and 3005.

New subclause 411.211(a) provides that an applicant who is in the migration zone at the time of application may apply for a Subclass 411 visa, provided they hold a substantive visa, other than a Subclass 426 (Domestic Worker (Temporary) - Diplomatic or Consular) visa, a Subclass 771 (Transit) visa, a Subclass 995 (Diplomatic (Temporary)) visa, or a special purpose visa.

New subclause 411.211(b) provides that an applicant who is in the migration zone at the time of application and does not hold a substantive visa may apply for a Subclass 411 visa, provided the last substantive visa held by the applicant was not a visa listed in subclause 411.221(a), and the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.

Schedule 3 criteria 3002, 3003, 3004 and 3005 refer to additional criteria which are applicable to unlawful non-citizens and holders of certain bridging visas.

New clause 411.211 reflects a change in policy whereby applicants will be permitted to apply for a temporary work visa on the basis that they currently hold or have held any visa subclasses, with the exception of the subclasses listed in paragraph 411.221(a).

Item [50] - Schedule 2, clauses 411.221 to 411.224

This item substitutes clauses 411.221 to 411.224 with new clauses 411.222, 411.222A, 411.222B and 411.224 in Subdivision 411.22 of Division 411.2 in Schedule 2 to the Principal Regulations.

Clauses 411.221, 411.223 and 411.224 have been omitted as they are inconsistent with the new sponsorship framework. All applicants for the Subclass 411 visa are required to be sponsored and be the subject of an approved nomination at the time of decision.

Clause 411.222 provides that the Minister must be satisfied at the time of decision that an applicant for a Subclass 411 (Exchange) visa that:

· is in an exchange position in Australia which is a skilled position; and

· the arrangements envisaged under the exchange would provide a person who is an Australian citizen or an Australian permanent resident with the opportunity to obtain experience with a reciprocating organisation overseas; and

· the same position as that currently held by the resident, or an equivalent position in Australia will be available to the resident on the completion of the exchange; and

· the exchange arrangement will be of benefit both to the applicant and the resident.

New clause 411.222 provides time of decision criteria that the Minister must be satisfied of by an applicant for a Subclass 411 (Exchange) visa.

Paragraph 411.222(a) provides that the Minister must be satisfied at the time of decision that the applicant is identified in a nomination of an occupation, program or activity approved under section 140GB of the Act.

Section 140GB of the Act provides that an approved sponsor may nominate an applicant or proposed applicant for a visa or a prescribed kind of a visa in relation to an occupation, activity or program.

The effect of new paragraph 411.222(a) is to provide a time of decision criteria which provides that all applicants for the Subclass 411 visa are identified in a nomination. This criterion is consistent with the broader policy objective to bring the Subclass 411 into the new sponsorship framework.

New paragraph 411.222(b) provides the Minister must be satisfied that the nomination was made by a person who was an exchange sponsor at the time the nomination was approved.

This amendment provides that applicants for a Subclass 411 visa must at the time of decision be identified in an approved nomination which was made by a person who was an exchange sponsor at the time of approval.

New paragraph 411.222(c) provides that the approval of the nomination must not have ceased under regulation 2.75A of the Amendment Regulations. Regulation 2.75A is inserted by item [77] to this Schedule, which provides the period of approval of nomination for all visa subclasses with the exception of the Subclass 457 (Business (Long Stay)) visa.

New paragraph 411.222(d) provides the Minister must be satisfied that the applicant must is seeking to enter to remain in Australia to work for the exchange sponsor in the nominated occupation, program or activity in relation to which the applicant is identified.

This amendment ensures that the visa will only be granted where the applicant shows they will be working for the exchange sponsor in the nominated occupation, program or activity in relation to which the applicant is identified. A nomination made by an exchange sponsor must be approved if the relevant nomination criteria in item [59] to this Schedule are met.

New paragraph 411.222(e) provides that the exchange agreement between the exchange sponsor and the reciprocating foreign organisation must still in place.

This amendment is necessary to ensure that the exchange agreement in relation to which the nomination was approved as set out in item [59] to this Schedule, has not ceased in the period between the approval of the nomination and a when a decision on the visa application is made.

New paragraph 411.222(f) provides that, either:

there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 411.222(a) or a person associated with that person; or
it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 411.222(a) or a person associated with that person.

New paragraph 411.222(f) allows the Minister to consider information about the person who made the approved nomination mentioned in paragraph 411.222(a) and use the information to assess the person’s suitability as a sponsor.

New clause 411.222A

New clause 411.222A provides that the Minister must be satisfied at the time of decision that the applicant genuinely intends to stay temporarily in Australia to carry out the work for which the applicant was identified in the nomination.

The purpose of this amendment is to ensure that applicants, who seek to enter Australia for a specified purpose, do so with a genuine intention to carry out the specified purpose.

New clause 411.222B

New clause 411.222B provides that the Minister, taking into account the applicant’s work rights during the period of the applicant’s intended stay in Australia, must be satisfied at the time of decision that the applicant has satisfied either paragraph 411.222B(a) or 411.222B(b), which provide that the applicant must have adequate means to support himself or herself, or access to adequate means to support himself or herself.

The purpose of this amendment is to ensure that visitors to Australia can adequately support themselves and do not become destitute during the period of their stay.

New clause 411.224

New clause 411.224 provides that if the application has been made in the migration zone, the applicant has substantially complied with the conditions that apply or applied to either the last substantive visa (if any) or any subsequent bridging visas held by the applicant.

The purpose of this amendment is to ensure that visitors to Australia comply with their visa conditions. This amendment allows the Department to refuse an application in circumstances where the applicant has previously held a visa to Australia and has demonstrated a history of non-compliance with their visa conditions.

Item [51] - Schedule 2, paragraph 411.226(b)

This item omits “4019.” And inserts “4019; and” to paragraph 411.226(b) of clause 411.226 in Subdivision 411.22 of Division 411.2 in Part 411 in Schedule 2 to the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [52] of item [159] to this Schedule.

Item [52] - Schedule 2, after paragraph 411.226(b)

This item inserts new paragraph 411.226(c) after paragraph 411.226(b) in clause 411.226 of Subdivision 411.22 in Division 411.2 of Part 411 in Schedule 2 to the Principal Regulations.

New paragraph 411.226(c) provides that an applicant for a Subclass 411 (Exchange) visa, who has not yet turned 18 years of age at the time of decision, must satisfy public interest criteria 4012, 4017 and 4018.

Public interest criteria 4012, 4017 and 4018 provide criteria that the Minister must be satisfied of in respect to applicants who are under the age of 18 years.

Public interest criteria 4012 provides the Minister must be satisfied that an undertaking to provide accommodation for, and be responsible for the support and general welfare of, the applicant during the applicant’s stay in Australia has been made by a person, who is of good character (see clause 4012 in Part 1 of Schedule 4 to the Principal Regulations).

Public interest criteria 4017 provides the Minister must be satisfied:

· either:

o the law of the applicant’s home country permits the removal of the applicant; or

o each person who can lawfully determine where the applicant is to live consents to the grant of the visa; or

o the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

Public interest criteria 4018 provides the Minister must be satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.

Item [53] - Schedule 2, after clause 411.226

This item inserts new clause 411.226A after clause 411.226 in Subdivision 411.22 of Division 411.2 of Part 411 in Schedule 2 to the Principal Regulations.

New clause 411.226A provides that the applicant must provide the Minister with evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia at time of decision.

This requirement seeks to ensure that the applicant has adequate health insurance arrangements in Australia for the period of the applicant’s intended stay, which reflects the broader policy objective to ensure visitors to Australia do not become a burden on the Australian health system. This requirement is supported by the application of condition 8501 (item [56] of item [159] to this Schedule), which requires the visa holder to maintain adequate arrangements for health insurance while the holder is in Australia.

Item [54] - Schedule 2, clause 411.227

This item omits clause 411.227 from Subdivision 411.22 in Division 411.2 of Part 411 in Schedule 2 to the Principal Regulations

Clause 411.227 provides that in circumstances where a holder of a Subclass 411 visa makes a subsequent application for a Subclass 411 visa whilst in Australia, the Minister at the time of application must be satisfied that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a Subclass 411 visa.

This amendment is necessary as clause 411.227 is inconsistent with the new sponsorship framework, which requires the Minister to be satisfied that the applicant has an exchange sponsor and approved nomination to be able to grant a new Subclass 411 visa.

Item [55] - Schedule 2, after clause 411.322

This item substitutes clause 411.322 with new clause 411.322, 411.322A and 411.322B in Subdivision 411.32 of Division 411.3 in Part 411 of Schedule 2 to the Principal Regulations.

Clause 411.322 provides that the member of the family unit who satisfies the primary criteria must produce to the Minister, at the time of application, evidence of adequate means to support the applicant for the period of stay applied for by the applicant, taking into account the working rights of both that member of the family unit and the applicant.

New clause 411.322 provides that the Minister, taking into account the applicant’s work rights during the applicant’s period of stay in Australia, must be satisfied at the time of application that a secondary applicant for a Subclass 411 visa has adequate means to support himself or herself or has access to adequate means of support.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement to for all applicants to provide adequate means of support to satisfy the criteria for the grant of a Subclass 411 visa.

New clause 411.322A

New clause 411.322A provides that the Minister must be satisfied at the time of decision that the exchange sponsor, who has most recently identified the member of the family unit who satisfied the primary criteria in a nomination, has agreed in writing to be the exchange sponsor in relation to the applicant.

This requirement ensures the Minister is satisfied that the approved sponsor of the member of the family unit who satisfied the primary criteria in a nomination agrees in writing to be the approved sponsor of an applicant who seeks to satisfy the secondary criteria for a temporary work visa. This will ensure the sponsorship obligations held by the approved sponsor to the most recently identified the member of the family unit who satisfied the primary criteria in a nomination will be extended to the applicant seeking to satisfy the secondary criteria for the grant of a temporary work visa.

New clause 411.322B

New clause 411.322B provides that the applicant must provide the Minister with evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia at time of decision.

The policy rationale for this change is consistent with the explanation provided at item [53] of item [159] to this Schedule, as it relates to the policy rationale supporting for the applicant to provide evidence of adequate arrangements in Australia for health insurance.

Item [56] - Schedule 2, after clause 411.611

This item inserts new clause 411.611A after clause 411.611 in Subdivision 411.61 of Division 411.6 in Part 411 of Schedule 2 to the Principal Regulations.

Condition 8501 provides that the visa holder must maintain adequate arrangements for health insurance while the holder is in Australia.

New clause 411.611A provides that condition 8501 must be applied to an applicant who satisfies either the primary or secondary criteria for the Subclass 411 visa.

The imposition of condition 8501 enforces the broader policy objective, which seeks to ensure that visitors to Australia have made adequate arrangements in Australia for health insurance. This seeks to prevent visitors to Australia becoming a burden on the Australian health system.

Item - [57] Schedule 2, clause 411.612

This item omits the reference to “8501,” from clause 411.612 in Subdivision 411.61 in Division 411.6 of Part 411 of Schedule 2 in the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [56] of item [159] to this Schedule.

Item - [58] Schedule 2, Division 415.1

This item substitutes the heading and inserts new note at Division 415.1 of Part 415 in Schedule 2 to the Principal Regulations.

The new note at Division 415.1 provides that a “foreign government agency” is defined in regulation 2.57.

Regulation 2.57 of the Amendment Regulations (as amended by item [12] of these Regulations) provides that a foreign government agency includes:

an organisation:

that is conducted under the official auspices of a foreign national government; and
that is operating is Australia;

including foreign tourist and media bureaus, trade offices and other foreign government entities;

a foreign diplomatic or consular mission in Australia;
an organisation conduced under the official auspices of an international organisation recognised by Australia.

Item [12] to this Schedule provides an explanation of the policy rationale supporting the amendment relating to the definition of “foreign government agency”. The effect of the new note at Division 415.1 is to identify where the definition of a “foreign government agency” is located in the regulations.

Item - [59] Schedule 2, clause 415.211

This item substitutes clause 415.211 with new clause 415.211 in Subdivision 415.21 of Division 415.2 in Part 415 in Schedule 415 to the Principal Regulations.

Clause 415.211 of the Principal Regulations provides that if a Subclass 415 (Foreign Government Agency) visa applicant is in the migration zone at the time of application, they must hold a visa from a class or subclass listed in paragraphs 415.211(a), 415.211(b), or 415.211(c). Paragraph 415.211 (d) provides that if the applicant is in the migration zone and not the holder of a substantive visa, the last visa held by the applicant was a kind specified in either paragraph 415.211(a) or (c). Paragraph 415.211(e) provides if the applicant is in the migration zone and not the holder of a substantive visa, the last visa held by the applicant was a kind specified in paragraph 415.211(b). For paragraphs 415.211(d) or (e) the applicant must also satisfy Schedule 3 criteria 3002, 3002, 3004 and 3005.

New subclause 415.211(a) provides that an applicant who is in the migration zone at the time of application may apply for a Subclass 411 visa, provided they hold a substantive visa, other than a Subclass 426 (Domestic Worker (Temporary) - Diplomatic or Consular) visa, a Subclass 771 (Transit) visa, a Subclass 995 (Diplomatic (Temporary)) visa, or a special purpose visa.

New paragraph 415.211(b) provides that an applicant who is in the migration zone at the time of application and does not hold a substantive visa may apply for a Subclass 411 visa, provided the last substantive visa held by the applicant was not a visa listed in paragraph 415.221(a), and the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.

Schedule 3 criteria 3002, 3003, 3004 and 3005 refer to additional criteria which are applicable to unlawful non-citizens and holders of certain bridging visas.

The policy rationale for this change is consistent with the explanation provided at item [49] of item [159] to this Schedule, as it relates to the policy rationale supporting the amendment to the qualifying visas an applicant in Australia must hold to make a valid application for a Subclass 415 visa.

Item [60] - Schedule 2, clause 415.221

This item omits clause 415.221 from Subdivision 415.22 in Division 415.2 in Part 415 in Schedule 2 to the Principal Regulations.

Clause 415.221 provides that if the application is made either outside Australia or in the migration zone by an applicant who does not hold a Subclass 415 visa, the applicant must satisfy clauses 415.222 to 415.230.

Clause 415.221 is no longer consistent with the new sponsorship framework, as all applicants for a Subclass 415 visa will be required to satisfy the criteria listed in clauses 415.222 to 415.225 regardless of the applicant’s visa status or location. By omitting clause 415.221 all applicants for a Subclass 415 will be required to satisfy the criteria listed in clauses 415.222 to 415.230.

Item [61] - Schedule 2, paragraph 415.222(b)

This item omits paragraph 415.222(b) from Subdivision 415.22 in Division 415.2 in Part 415 of Schedule 2 to the Principal Regulations.

Clause 415.222 provides that an applicant for a Subclass 415 visa must at the time of decision seek to enter Australia for one of the purposes listed in paragraphs 415.222(a), 415.222(b) or 415.222(c).

By omitting paragraph 415.222(b) an applicant will no longer be eligible for the grant of a Subclass 415 visa in circumstances where the applicant seeks to enter Australia temporarily under an agreement between Australia and another country.

This stream of eligibility has been removed from the Subclass 415 visa and incorporated into the new Subclass 406 (Government Agreement) visa, which is established by proposed amendments to the Principal Regulations commencing on 14 September 2009.

Item [62] - Schedule 2, clauses 415.223 and 415.224

This item omits clauses 415.223 and 415.224 and substitutes with clauses 415.223, 415.223A, 415.223B and 415.223C in Subdivision 415.22 of Division 415.2 in Part 415 of Schedule 2 to the Principal Regulations.

Clause 415.223 provides that an applicant to whom paragraph 415.222(a) or 415.222(b) applies must provide evidence of sponsorship by a foreign government agency. This clause is no longer necessary as the sponsorship criteria for the Subclass 415 visa are contained within the new Part 2A to the Principal Regulations as amended by this Schedule.

The omission of clause 415.224 is necessary as the clause is inconsistent with the new sponsorship framework as all applicants for a Subclass 415 visa will be required to be sponsored.

New paragraph 415.223(a) provides that at the time of decision the Minister must be satisfied that a foreign government agency sponsor has agreed in writing to be the foreign government agency sponsor in relation to the applicant.

This requirement ensures the Minister is satisfied that the approved sponsor of the member of the family unit who satisfied the primary criteria agrees in writing to be the approved sponsor of an applicant who seeks to satisfy the secondary criteria for a visa. This links the applicant who seeks to satisfy the secondary criteria with the approved sponsor and ensures the sponsorship obligations held by the approved sponsor to the member of the family unit who satisfied the primary criteria will be extended to the applicant seeking to satisfy the secondary criteria for the grant of a visa.

New paragraph 415.223(b) provides that at the time of decision the Minister must be satisfied that the foreign government agency sponsor is not barred from sponsoring the applicant under paragraph 140M(1)(c) of the Act.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the policy rationale that a foreign government agency sponsor is not barred from sponsoring the applicant in relation to a Subclass 415 visa.

Paragraph 140M(1)(c) of the Act provides that if regulations are prescribed under section 140L of the Act, the Minister may (or must) take action to bar the approved sponsor, for a specified period, from sponsoring more people under the terms of one or more existing specified approvals for different kinds of visa (however described).

New paragraph 415.223(c) provides that the Minister is satisfied that, either:

there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 415.223(a) or a person associated with that person; or
it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 415.223(a) or a person associated with that person.

New paragraph 415.223(c) allows the Minister to consider information about the foreign government agency sponsor mentioned in paragraph 415.223(a) and use the information to assess the person’s suitability as a sponsor.

New clause 415.223A

New clause 415.223A provides that the Minister must be satisfied that the applicant genuinely intends to stay temporarily in Australia to carry out the work mentioned in clause 415.222.

Clause 415.222 as amended by item [61] of this Schedule provides that at time of decision the Minister must be satisfied that an applicant for a Subclass 415 visa is:

· a person who:

o seeks to enter Australia to be employed as a representative of a foreign government agency that does not enjoy official status in Australia; and

o would not, as a representative of that kind, enjoy official status in Australia; or

a foreign language teacher intending to work in an Australian school but as an employee of a foreign government.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement that an applicant must genuinely intend to stay in Australia temporarily.

New clause 415.223B

New clause 415.223B provides that the Minister, taking into account the applicant’s work rights during the period of the applicant’s intended stay in Australia, is satisfied that subclauses 415.223B(a) or 415.223B(b) are met, which provide that the applicant has adequate means to support himself or herself, or access to adequate means to support himself or herself,

New clause 415.223C

New clause 415.223C provides that the applicant must provide the Minister with evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia at time of decision.

Item [63] - Schedule 2, clause 415.229

This item omits clause 415.229 from Subdivision 415.22 in Division 415.2 in Part 415 of Schedule 2 to the Regulations.

Subclause 415.229(1) provides that in circumstances where the applicant or holder of one of the classes listed in clause 415.229(1)(a) makes an application in the migration zone and seeks to enter Australia for a period exceeding 3 months, and the applicant is an applicant to whom paragraphs 415.222(a) or 415.222(c) applies, the applicant must be sponsored by the intended employer.

Subclause 415.229(2) provides that subclause 415.229(1) does not apply to an applicant who:

· is the holder of a Subclass 415 visa; or

· has entered under an agreement mentioned in paragraph 415.222(b); and

· continues to a person to which the agreement mentioned in paragraph 415.222(b) applies.

This amendment is necessary as clause 415.229 is inconsistent with the new sponsorship framework as all applicants for a Subclass 415 visa will be required to be sponsored. The stream of entry provided by paragraph 415.222(b) has been removed and replicated in the new Subclass 406 (Foreign Government Agreement) visa, which is established by proposed amendments to the Principal Regulations commencing on 14 September 2009

Item [64] - Schedule 2, clause 415.231

This item omits clause 415.231 from Subdivision 415.22 in Division 415.2 in Part 415 of Schedule 2 to the Regulations.

Clause 415.231 provides that in circumstances where a holder of a Subclass 415 visa makes a subsequent application for a Subclass 415 visa whilst in Australia, the applicant satisfies the Minister that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a Subclass 415 visa.

This amendment is necessary as clause 415.231 is inconsistent with the new sponsorship framework, as the Minister must be satisfied that the applicant has a foreign government agency sponsor to be able to grant the visa.

Item [65] - Schedule 2, clauses 415.322 and 415.323

This item substitutes clauses 415.322 and 415.323 with new clause 415.322, 415.323 and 415.323A in Subdivision 415.32 of Division 415.3 in Part 415 of Principal Regulations.

Clause 415.322 provides that at time of decision an applicant must be included in any sponsorship required in respect of the member of the family unit who satisfies the primary criteria.

New clause 415.322 provides that at time of decision the Minister is satisfied that the foreign government agency sponsor of the member of the family unit who satisfies the primary criteria has agreed in writing to be the foreign government agency sponsor in relation to the applicant.

The policy rationale for this change is consistent with the explanation provided at item [55] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement for the foreign government agency sponsor to agree in writing to sponsor the applicant.

Clause 415.323 provides that if sponsorship is not required for the family unit member who satisfies the primary criteria, that family unit member must produce to the Minister evidence of adequate means to support the applicant for the period of stay applied for by the applicant, taking into account the working rights of both that member of the family unit and the applicant.

New clause 415.323 provides that at the time of decision, the Minister must be satisfied that a secondary applicant for a Subclass 415 visa has adequate means to support himself or herself or alternatively has access to adequate means of support, taking into account the applicant’s work rights during the applicant’s period of stay in Australia.

New clause 415.323A

New clause 415.323A provides that the applicant must provide the Minister with evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia at time of decision.

Item [66] - insert clause 415.611A, after clause 415.611 Schedule 2

This item inserts new clause 415.611A after clause 415.611 in Subdivision 415.61 of Division 415.6 in part 415 to the Principal Regulations.

New clause 415.611A provides that condition 8501 must be applied to an applicant who satisfies either the primary or secondary criteria for the Subclass 415 visa.

Condition 8501 provides that the visa holder must maintain adequate arrangements for health insurance while the holder is in Australia.

The policy rationale for this change is consistent with the explanation provided at item [56] of item [159] to this Schedule, as it relates to the policy rationale supporting the mandatory imposition of condition 8501 on all applicants who satisfy either the primary or secondary criteria in relation to applicants for a Subclass 415 visa.

Item [67] - Schedule 2, clause 415.612

This item omits the reference to “8501,” from clause 415.612 in Subdivision 415.61 in Division 415.6 of Part 415 of Schedule 2 in the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [66] of item [159] to this Schedule.

Item [68] - Schedule 2, clauses 416.221 and 416.222

This item substitutes clauses 416.221 and 416.222 with new clauses 416.222, 416.222A, 416.222B and 416.222C in Subdivision 416.22 of Division 416.2 in Part 416 to the Principal Regulations.

Clause 416.222 provides that at the time of decision the applicant must produce evidence that the applicant:

is the holder of a Churchill Fellowship; or
is applying for the visa for the purpose of taking part in a youth exchange program approved in writing by the Secretary; or
has been nominated by a community-based non-commercial organisation in Australia to take part in a program of activity that has the object of cultural enrichment or community benefits and both that organisation and that program have been approved by the Secretary for the purposes of this paragraph; or
has been invited to undertake seasonal work in Australia:

by an organisation approved by the Secretary for this subparagraph; and
in accordance with a program for undertaking seasonal work approved by the Secretary for the subparagraph.

New clause 416.222 provides that at the time of decision the Minister must be satisfied that:

· the applicant seeks to enter or remain in Australia to participate in an approved special program conducted by the special program sponsor in relation to the applicant; or

· has been invited to undertake seasonal work in Australia:

o by an organisation approved by the Secretary for this subparagraph; and

o in accordance with a program for undertaking seasonal work approved by the Secretary for the subparagraph.

The purpose of new clause 416.222 is to provide that an applicant for a Subclass 416 (Special Program) visa must be sponsored by a special program sponsor, with the exception of applicants seeking to undertake seasonal work in Australia. This is because the seasonal worker program is a pilot scheme and therefore needs to maintain flexibility which would not be available under the enforceable sponsorship framework.

New clause 416.222A

New paragraph 416.222A(a) provides that at the time of decision the Minister must be satisfied that a special program sponsor has agreed in writing to be the special program sponsor in relation to the applicant.

The policy rationale for this change is consistent with the explanation provided at item [62] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement for the special program sponsor to agree in writing to sponsor the applicant.

New paragraph 416.222A(b) provides that at the time of decision the Minister must be satisfied that the special program sponsor is not barred from sponsoring the applicant under paragraph 140M(1)(c) of the Act.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the policy rationale that a special program sponsor is not barred from sponsoring the applicant in relation to a Subclass 416 visa.

The purpose of new paragraphs 416.222A(a) and 416.222A(b) is to ensure that all applicants are sponsored under the new sponsorship framework and that the proposed special program sponsor agrees to sponsor an applicant and has not been barred from sponsoring the applicant for a Subclass 416 visa.

New paragraph 416.222A(c) provides that the Minister is satisfied that, either:

there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 416.222(a) or a person associated with that person; or
it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 416.222(a) or a person associated with that person.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the policy rationale that no adverse information is known to Immigration or that it is reasonable to disregard any adverse information in relation to an applicant for a Subclass 416 visa.

New clause 416.222B

New clause 416.222B provides that the Minister is satisfied that the applicant genuinely intends to stay temporarily in Australia to carry out the activity mentioned in clause 416.222.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement that an applicant must genuinely intend to stay in Australia temporarily.

New clause 416.222C

New clause 416.222C provides that the Minister is satisfied that paragraphs 416.222C(a) or 416.222C(b) are met. That is that the applicant has adequate means to support himself or herself; or access to adequate means to support himself or herself, taking into account the applicant’s work rights during the period of the applicant’s intended stay in Australia.

Item [69] - Schedule 2, paragraph 416.223(b)

This item replaces the reference to “4019.” with “4019; and”, in paragraph 416.223(b) of clause 416.223 in Subdivision 416.22 of Division 416.2 in Part 416 in Schedule 2 of the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [70] of item [159] to this Schedule.

Item [70] - Schedule 2, after paragraph 416.223(b)

This item inserts new paragraph 416.223(c) after paragraph 416.223(b) in clause 416.223 of Subdivision 416.22 in Division 416.2 of Part 416 in Schedule 2 of the Principal Regulations.

New paragraph 416.223(c) provides that at the time of decision, an applicant for a Subclass 416 (Special Program) visa who has not yet turned 18 years of age must satisfy public interest criteria 4017 and 4018.

Public interest criteria 4017 and 4018 provide criteria that the Minister must be satisfied of in respect to applicants who are under the age of 18 years.

Public interest criteria 4017 provides that the Minster must be satisfied:

· that:

o the law of the applicant’s home country permits the removal of the applicant; or

o each person who can lawfully determine where the applicant is to live consents to the grant of the visa; or

o the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

Public interest criteria 4018 provides that the Minister must be satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.

Item [71] - Schedule 2, after clause 416.223

This item inserts new clause 416.223A in Subdivision 416.22 of Division 416.2 in Part 416 to the Principal Regulations.

New clause 416.223A provides that the applicant must provide the Minister with evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia at time of decision.

Item [72] - Schedule 2, clause 416.227

This item omits clause 416.227 from Subdivision 416.22 in Division 416.2 of Part 416 to the Principal Regulations.

Clause 416.227 provides that in circumstances where a holder of a Subclass 416 visa makes a subsequent application for a Subclass 416 visa whilst in Australia, the applicant must satisfy the Minister that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a Subclass 416 visa.

An explanation for the policy rationale supporting the omission of this clause relating to a subsequent application for a Subclass 416 visa by a holder of a Subclass 416 visa, whilst the holder remains in Australia, is provided at item [64] of item [159] to this Schedule.

Item [73] - Schedule 2, after clause 416.311

This item inserts new clause 416.311A after clause 416.311 in Subdivision 416.31 of Division 416.3 in Part 416 to the Principal Regulations.

New clause 416.311A provides that at the time of decision the Minister must be satisfied that the special program sponsor of the member of the family unit who satisfies the primary criteria has agreed in writing to be the special program sponsor in relation to the applicant.

Item [74] - Schedule 2, clause 416.322

This item substitutes clause 416.322 with new clause 416.322 in Subdivision 416.32 of Division 416.3 in Part 416 to the Principal Regulations.

New clause 416.322 provides that at the time of decision the Minister must be satisfied that a secondary applicant for a Subclass 416 (Special Program) visa has adequate means to support himself or herself or alternatively has access to adequate means of support, taking into account the applicant’s work rights during the applicant’s period of stay in Australia.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement for all applicants to provide adequate means of support to satisfy the criteria for the grant of a Subclass 416 visa.

Item [75] - Schedule 2, paragraph 416.323(c)

This item replaces the reference to “4019.” with “4019; and”, in paragraph 416.323(c) of clause 416.323 in Subdivision 416.32 of Division 416.3 in Part 416 in Schedule 2 of the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [76] of item [159] to this Schedule.

Item [76] - Schedule 2, after paragraph 416.323(c)

This item inserts new paragraph 416.323(d) after paragraph 416.323(c) of clause 416.323 in Subdivision 416.32 of Division 416.3 in Part 416 of the Principal Regulations.

New paragraph 416.323(d) provides that at the time of decision, an applicant for a Subclass 416 (Special Program) visa who has not yet turned 18 years of age must satisfy public interest criteria 4017 and 4018.

The policy rationale for this change is consistent with the explanation provided at item [71] of item [159] to this Schedule, as it relates to the policy rationale an applicant who has not yet turned 18 years of age must satisfy public interest criteria 4017 and 4018 as it relates to an applicant for a Subclass 416 visa.

Item [77] - Schedule 2, after clause 416.324A

This item inserts new clause 416.324B after clause 416.324A in Subdivision 416.32 of Division 416.3 of Part 416 in Schedule 2 to the Principal Regulations.

New clause 416.324B provides that the applicant must provide the Minister with evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia at time of decision.

Item [78] - Schedule 2, clause 416.611

This item inserts new clause 416.611B after clause 416.611A in Subdivision 416.61 of Division 416.6 in Part 416 of Schedule 2 to the Principal Regulations.

New clause 416.611B provides that condition 8501 must be applied to an applicant who satisfies either the primary or secondary criteria for the Subclass 416 visa.

Condition 8501 provides that the visa holder must maintain adequate arrangements for health insurance while the holder is in Australia.

Item [79] - Schedule 2, clause 416.611A

This item omits clause 416.611A of Subdivision 416.61 in Division 416.6 in Part 416 of Schedule 2 to the Principal Regulations.

Clause 416.611A provides that if the applicant satisfies the primary or secondary criteria, condition 8403 may be imposed.

This amendment is technical in nature and consequential to the amendment made by item [80] of item [159] to this Schedule.

Item [80] - Schedule 2, clause 416.612

This item omits condition “8501” from clause 416.612 and inserts condition “8403” in to clause 416.612 in Subdivision 416.61 in Division 416.6 in Part 416 of Schedule 2 to the Principal Regulations.

Condition 8403 provides that the holder must visit an office of Immigration within the time specified by the Minister for the purposes of having evidence of the visa placed in the holder’s passport.

The omission of condition “8501’ from clause 416.612 is technical in nature and consequential to the amendment made by item [78] of item [159] to this Schedule.

This insertion of condition “8403” reflects the broader policy objective, where visa evidencing is no longer a mandatory requirement for the majority of the temporary visa subclasses.

Item [81] - Schedule 2, clause 419.211

This item substitutes clause 419.211 in Subdivision 419.11 of Division 419.1 in Part 419 of Schedule 2 to the Principal Regulations.

Clause 419.211 of the Principal Regulations provides that if a Subclass 419 (Visiting Academic) visa applicant is in the migration zone at the time of application, they must hold a visa from a class or subclass listed in subclauses 419.211(a), 419.211(b), or 419.211(c). Paragraph 419.211(d) provides that if the applicant is in the migration zone and not the holder of a substantive visa, the last visa held by the applicant must be of a kind specified in either paragraph 419.221(a) or (c). Paragraph 419.221(e) provides that if the applicant is in the migration zone and not the holder of a substantive visa, the last visa held by the applicant must be of a kind specified in paragraph 419.221(b). For paragraphs 419.221(d) or (e) the applicant must also satisfy Schedule 3 criteria 3002, 3002, 3004 and 3005.

New subclause 416.211(a) provides that an applicant who is in the migration zone at the time of application may apply for a Subclass 411 visa, provided they hold a substantive visa other than a Subclass 426 (Domestic Worker (Temporary) - Diplomatic or Consular) visa, a Subclass 771 (Transit) visa, a Subclass 995 (Diplomatic (Temporary)) visa, or a special purpose visa.

New subclause 419.211(b) provides that an applicant who is in the migration zone at the time of application and does not hold a substantive visa may apply for a Subclass 419 visa, provided the last substantive visa held by the applicant was not a visa listed in subclause 419.222(a) and the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.

Schedule 3 criteria 3002, 3003, 3004 and 3005 refer to additional criteria which are applicable to unlawful non-citizens and holders of certain bridging visas.

Item [82] - Schedule 2, clauses 419.221 to 419.224

This item substitutes clauses 419.211 to 419.224 with new clauses 419.222, 419.222A and 419.222B in Subdivision 419.22 of Division 419.2 in Part 419 of Schedule 2 to the Principal Regulations.

Clause 419.221 provides that if the application is made either outside Australia or in the migration zone by an applicant who does not hold a Subclass 419 visa, the applicant must satisfy clauses 419.222 to 419.228.

Clause 419.221 is inconsistent with the new sponsorship and nomination framework, as all applicants for a Subclass 419 visa will be required to satisfy the criteria listed in clauses 419.222 to 419.228 regardless of the applicant’s visa status or location.

Clauses 419.222, to 419.224 have been omitted as they are inconsistent with the new sponsorship and nomination framework. All applicants for the Subclass 419 visa are required to be sponsored and be the subject of an approved nomination at the time of decision.

New clause 419.222 of the Principal Regulations provides time of decision criteria that the applicant for a Subclass 419 (Visiting Academic) visa must satisfy.

Paragraph 419.222(a) provides that the Minister must be satisfied that the applicant is identified in a nomination of an occupation, program or activity approved under section 140GB of the Act.

Section 140GB of the Act provides that an approved sponsor may nominate an applicant or proposed applicant for a visa of a prescribed kind of a visa, in relation to an occupation, activity or program.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to supporting the requirement that the applicant is identified in a nomination as it relates to an applicant for a Subclass 419 visa.

New paragraph 419.222(b) provides that the nomination was made by a person who was a visiting academic sponsor at the time of the nomination was approved.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the requirement that a nomination must be made by a person who is a visiting academic sponsor.

New paragraph 419.222(c) provides that the approval of the nomination must not have ceased under regulation 2.75A.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the requirement that a nomination must not have ceased under regulation 2.75A as it relates to an applicant for a Subclass 419 visa.

New paragraph 419.222(d) provides that the applicant:

· must seek to enter to remain in Australia for the purposes of observing or participating in an Australian research project at the sponsoring Australian tertiary or research institution; and

· will not be receiving a salary, scholarship, or allowance (other than an allowance for living expenses in Australia and travel costs) for the visiting academic sponsor.

This amendment ensures that the visa will only be granted where the applicant shows they will be engaged in the nominated occupation, program or activity in relation to which the applicant is identified. A nomination made by a visiting academic sponsor must be approved if the relevant nomination criteria in item [59] to this Schedule are met.

New paragraph 419.222(e) provides that the Minister is satisfied that, either:

there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 419.222(a) or a person associated with that person; or
it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 419.222(a) or a person associated with that person.

New clause 419.224A

New clause 419.224A provides that at the time of decision the Minister must be satisfied that the applicant genuinely intends to stay temporarily in Australia to carry out the activity for which the applicant was identified in the nomination.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement that an applicant must genuinely intend to stay in Australia temporarily.

New clause 419.224B

New clause 419.224B provides that at the time of decision the Minister, taking into account the applicant’s work rights during the period of the applicant’s intended stay in Australia, must be satisfied that the applicant has satisfied either subclause 419.222B(a) or 419.222B(b), which provide that the applicant must have adequate means to support himself or herself; or access to adequate means to support himself or herself.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement to for all applicants to provide to satisfy the criteria for the grant of a Subclass 419 visa.

Item [83] - Schedule 2, paragraph 419.225 (b)

This item replaces the reference to “4019.” with “4019; and”, in paragraph 419.225(b) of clause 419.225 in Subdivision 419.22 of Division 419.2 in Part 419 in Schedule 2 of the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [84].

Item [84] - Schedule 2, after paragraph 419.225 (b)

This item inserts new paragraph 419.225(c) after paragraph 419.225(b) in clause 419.225 of Subdivision 419.22 in Division 419.2 of Part 419 in Schedule 2 to the Principal Regulations.

New paragraph 419.225(c) provides that at the time of decision, an applicant for a Subclass 419 (Visiting Academic) visa who has not yet turned 18 years of age must satisfy public interest criteria 4012, 4017 and 4018.

The policy rationale for this change is consistent with the explanation provided at item [52] of item [159] to this Schedule, as it relates to the policy rationale an applicant who has not yet turned 18 years of age must satisfy public interest criteria 4012, 4017 and 4018 as it relates to an applicant for a Subclass 419 visa.

Item [85] - Schedule 2, after clause 419.225

This item inserts new clause 419.225A after clause 419.225 in Subdivision 419.22 of Division 419.2 in Part 419 to the Principal Regulations

New clause 419.225A provides that the applicant must provide the Minister with evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia at time of decision.

Item [86] - Schedule 2, clause 419.229

This item omits clause 419.229 from Subdivision 419.22 in Division 419.2 of Part 419 in Schedule 2 of the Principal Regulations.

Clause 419.229 provides that in circumstances where a holder of a Subclass 419 visa makes a subsequent application for a Subclass 419 visa whilst in Australia, the Minister must be satisfied that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a Subclass 419 visa.

An explanation for the policy rationale supporting the omission of this clause relating to a subsequent application for a Subclass 419 visa by a holder of a Subclass 419 visa, whilst the holder remains in Australia is provided at item [54] of item [159] to this Schedule.

Item [87] - Schedule 2, after clause 419.321

This item inserts new clause 419.321A after clause 419.321 in Subdivision 419.32 of Division 419.3 in Part 419 to the Principal Regulations.

Clause 419.321A is a time of decision criterion for secondary applicants. It provides that the Minister must be satisfied (at the time of decision) that the visiting academic sponsor of the member of the family unit who satisfies the primary criteria has agreed in writing to be the visiting academic sponsor in relation to that secondary applicant.

New clause 419.321 provides that at the time of decision the Minister must be satisfied that the visiting academic sponsor who has most recently identified the member of the family unit who satisfies the primary criteria has agreed in writing to be the visiting academic sponsor in relation to the applicant.

The policy rationale for this change is consistent with the explanation provided at item [55] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement for the visiting academic sponsor to agree in writing to sponsor the applicant.

Item [88] - Schedule 2, clause 419.322

This item substitutes clause 419.322 with new clause 419.322 in Subdivision 419.32 of Division 419.3 in Part 419 of Schedule 2 of the Principal Regulations.

Clause 419.322 provides that the member of the family unit who satisfies the primary criteria produces to the Minister evidence of adequate means to support the applicant for the period of stay applied for by the applicant, taking into account the working rights of both that member of the family unit and the applicant.

New clause 419.322 provides that at the time of decision, a secondary applicant for a Subclass 419 visa must satisfy the Minister that he or she has adequate means to support himself or herself or alternatively access to adequate means of support, taking into account the applicant’s work rights during the applicant’s period of stay in Australia.

New clause 419.322A

New clause 419.322A provides that the applicant must provide the Minister with evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia at time of decision.

Item [89] - Schedule 2, after clause 419.611

This item inserts new clause 419.611A after clause 419.611 in Subdivision 419.61 of Division 419.6 in part 419 to the Principal Regulations.

New clause 419.611A provides that condition 8501 must be applied to an applicant who satisfies either the primary or secondary criteria for the Subclass 419 visa.

Condition 8501 provides that the visa holder must maintain adequate arrangements for health insurance while the holder is in Australia.

The policy rationale for this change is consistent with the explanation provided at item [55] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement for the visiting academic sponsor to agree in writing to sponsor the applicant.

Item [90] - Schedule 2, clause 419.612

This item omits the reference to “8501,” from clause 419.612 in Subdivision 419.61 in Division 419.6 of Part 419 of Schedule 2 to the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [89] of item [159] to this Schedule.

Item [91] - Schedule 2, Division 420.1

This item substitutes the heading and inserts new note at Division 420.1 of Part 410 in Schedule 2 of the Principal Regulations.

The new note at Division 420.1 provides that “Arts Minister” is defined in regulation 1.03 of the Principal Regulations.

Regulation 1.03 as amended by item [2] of Schedule 1 to these Regulations provides that “Arts Minister” means the Minister responsible for administering the National Gallery Act 1975.

Item [92] - Schedule 2, clause 420.211

This item substitutes clause 420.211 with new clause 420.211 in Subdivision 420.21 of Division 420.2 in Part 420 in Schedule 420 of the Principal Regulations.

Clause 420.211 of the Principal Regulations provides that if a Subclass 420 (Entertainment) visa applicant is in the migration zone at the time of application, they must hold a visa from a class or subclass listed in subclauses 420.211(a), 420.211(b), or 420.211(c) Paragraph 420.211(d) provides that if the applicant is in the migration zone and not the holder of a substantive visa, the last visa held by the applicant must be of a kind specified in either paragraph 420.211(a) or (c). Paragraph 420.211(e) provides if the applicant is in the migration zone and not the holder of a substantive visa, the last visa held by the applicant must be of a kind specified in paragraph 420.211(b). For paragraphs 420.211(d) or (e) the applicant must also satisfy Schedule 3 criteria 3002, 3002, 3004 and 3005.

New subclause 420.211(a) provides that an applicant who is in the migration zone at the time of application may apply for a Subclass 411 visa, provided, they hold a substantive visa, other than a Subclass 426 (Domestic Worker (Temporary) - Diplomatic or Consular) visa, a Subclass 771 (Transit) visa, a Subclass 995 (Diplomatic (Temporary)) visa, or a special purpose visa.

New subclause 420.211(b) provides that an applicant who is in the migration zone at the time of application and does not hold a substantive visa may apply for a Subclass 420 visa, provided the last substantive visa held by the applicant was not a visa listed in subclause 420.221(a), and the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.

Schedule 3 criteria 3002, 3003, 3004 and 3005 refer to additional criteria which are applicable to unlawful non-citizens and holders of certain bridging visas.

Item [93] - Schedule 2, clauses 420.221 to 420.225

This item substitutes clauses 420.221 to 420.225 with new clauses 420.222, 420.222, 420.225A and 420.225B in Subdivision 420.22 of Division 420.2 in Part 420 of Schedule 2 to the Principal Regulations.

Clause 420.222 provides that if the application is made either outside Australia or in the migration zone by an applicant who does not hold a Subclass 420 visa, the applicant must have satisfy clauses 420.222 to 4120.229.

Clauses 420.221, to 420.225 have been omitted as they are inconsistent with the new sponsorship and nomination framework. All applicants for the Subclass 420 visa are required to be sponsored and be the subject of an approved nomination at the time of decision.

New clause 420.222 provides time of decision criteria that the Minister must be satisfied of for an applicant for a Subclass 420 (Entertainment) visa.

Paragraph 420.222(a) provides that the Minister must be satisfied that the applicant is identified in a nomination of an occupation, program or activity approved under section 140GB of the Act.

Section 140GB of the Act provides that an approved sponsor may nominate an applicant or proposed applicant for a visa of a prescribed kind of a visa in relation to an occupation, activity or program.

New paragraph 420.222(b) provides that the nomination was made by a person who was an entertainment sponsor at the time the nomination was approved.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to supporting the requirement that a nomination must be made by a person who is an entertainment sponsor.

New paragraph 420.222(c) provides that at the approval of the nomination must not have ceased under regulation 2.75A.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the requirement that a nomination must not have ceased under regulation 2.75A as it relates to an applicant for a Subclass 420 visa.

New paragraph 420.222(d) provides that the applicant must seek to enter to remain in Australia to work or participate in the nominated occupation, program or activity in relation to which the applicant is identified.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the requirement that an applicant must seek to enter Australia to work or participate in the nominated occupation, program or activity as it relates to an applicant for a Subclass 420 visa.

New paragraph 420.222(e) provides that the Minister must be satisfied that, either:

there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 420.222(a) or a person associated with that person; or
it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 420.222(a) or a person associated with that person.

New clause 420.225A

New clause 420.225A provides that the Minister must be satisfied at the time of decision that the applicant genuinely intends to stay temporarily in Australia to carry out the activity for which the applicant was identified in the nomination.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement that an applicant must genuinely intend to stay in Australia temporarily in relation to an applicant for a Subclass 420 visa.

New clause 420.225B

New clause 420.225B provides that the Minister, taking into account the applicant’s work rights during the period of the applicant’s intended stay in Australia, must be satisfied at the time of decision that the applicant has satisfied either subclause 420.225B(a) or 420.225B(b), which provide that the applicant must have adequate means to support himself or herself; or access to adequate means to support himself or herself.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement to for all applicants to provide to satisfy the criteria for the grant of a Subclass 420 visa.

Item [94] - Schedule 2, paragraph 420.226(b)

This item replaces the reference to “4019.” with “4019; and”, in paragraph 420.226(b) of clause 420.226 in Subdivision 420.22 of Division 420.2 in Part 420 in Schedule 2 to the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [95] of item [159] to this Schedule.

Item [95] - Schedule 2, after paragraph 420.226(b)

This item inserts new paragraph 420.226(c) after paragraph 420.226(b) in clause 420.226 of Subdivision 420.22 in Division 420.2 of Part 420 in Schedule 2 to the Principal Regulations.

New paragraph 420.226(c) provides that at the time of decision, an applicant for a Subclass 420 (Entertainment) visa who has not yet turned 18 years of age must satisfy public interest criteria 4012, 4017 and 4018.

Item [96] - Schedule 2, after clause 420.226

This item inserts new clause 420.226A after clause 420.226 in Subdivision 420.22 of Division 420.2 of Part 420 in Schedule 2 of the Principal Regulations.

New clause 420.226A provides that the applicant must provide the Minister with evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia at time of decision.

Item [97] - Schedule 2, clause 420.230

This item omits clause 420.230 from Subdivision 420.22 of Division 420.2 of Part 420 in Schedule 2 of the Principal Regulations.

Clause 420.230 provides that in circumstances where a holder of a Subclass 416 visa makes a subsequent application for a Subclass 420 visa whilst in Australia, the applicant will satisfy the Minister that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a Subclass 420 visa.

An explanation for the policy rationale supporting the omission of this clause relating to a subsequent application for a Subclass 420 visa by a holder of a Subclass 420 visa, whilst the holder remains in Australia is provided at item [54] of item [159] to this Schedule.

Item [98] - Schedule 2, clauses 420.322 and 420.323

This item substitutes clause 420.322 and 420.323 with new clause 420.322, 420.323 and 420.323A in Subdivision 420.32 of Division 420.3 in Part 420 of Schedule 2 to the Principal Regulations.

Clause 420.322 provides that at the time of decision a secondary applicant must be a member of the family unit of a person who has applied for a Subclass 420 visa.

New clause 420.322 provides that at the time of decision the Minister must be satisfied that the entertainment sponsor who has most recently identified the member of the family unit who satisfied the primary criteria in a nomination has agreed in writing to be the entertainment sponsor in relation to the applicant.

The policy rationale for this change is consistent with the explanation provided at item [55] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement for the entertainment sponsor to agree in writing to sponsor the applicant.

Clause 420.323

Clause 420.323 provides that if the applicant seeking to satisfy the secondary criteria was outside Australia at the time of application and the application was made separately from that of the person satisfying the primary criteria:

the person seeking to satisfy the primary criteria must be, or expected soon to be in Australia; and
the applicant intends to stay temporarily in Australia as a member of the family unit of that person.

New clause 420.323 provides that at the time of decision the Minister, taking into account the applicant’s work rights during the period of the applicant’s intended stay in Australia, must be satisfied that the applicant has satisfied either paragraph 420.323(a) or 420.323(b), which provide that the applicant has adequate means to support himself or herself or access to adequate means to support himself or herself.

New clause 420.323A

This item inserts new clause 420.323A after clause 420.323 in Subdivision 420.32 of Division 420.3 in Part 420 of Schedule 2 to the Principal Regulations.

New clause 420.323A provides that the applicant must provide the Minister with evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia at time of decision.

Item [99] - Schedule 2, after clause 420.611

This item inserts new clause 420.611A after clause 420.611 in Subdivision 420.61 of Division 420.6 in Part 420 of Schedule 2 to the Principal Regulations.

New clause 420.611A provides that condition 8501 must be applied to an applicant who satisfies either the primary or secondary criteria for the Subclass 420 visa.

Item [100] - Schedule 2, clause 420.612

This item omits the reference to “8501,” from clause 420.612 in Subdivision 420.61 in Division 420.6 of Part 420 of Schedule 2 to the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [99].

Item [101] - Schedule 2, clause 421.211

This item substitutes clause 421.211 with new clause 421.211 in Subdivision 421.21 of Division 421.2 in Part 421 of Schedule 2 in the Principal Regulations.

Clause 421.211 of the Principal Regulations provides that if a Subclass 421 (Sport) visa applicant is in the migration zone at the time of application, they must hold a visa from a class or subclass listed in subclauses 421.211(a), 421.211(b), or 421.211(c). Paragraph 421.211(d) provides that if the applicant is in the migration zone and not the holder of a substantive visa, the last visa held by the applicant was a kind specified in either paragraph 421.211(a) or (c). Paragraph 421.211(e) provides if the applicant is in the migration zone and not the holder of a substantive visa, the last visa held by the applicant was a kind specified in paragraph 421.211(b). For paragraphs 421.211(d) or (e) the applicant must also satisfy Schedule 3 criteria 3002, 3002, 3004 and 3005.

New subclause 421.211(a) provides that an applicant who is in the migration zone at the time of application may apply for a Subclass 421 visa, provided, they hold a substantive visa, other than a Subclass 426 (Domestic Worker (Temporary) - Diplomatic or Consular) visa, a Subclass 771 (Transit) visa, a Subclass 995 (Diplomatic (Temporary)) visa, or a special purpose visa.

New subclause 421.211(b) provides that an applicant who is in the migration zone at the time of application and does not hold a substantive visa may apply for a Subclass 421 visa, provided the last substantive visa held by the applicant was not a visa listed in subclause 421.211(a) and the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.

Schedule 3 criteria 3002, 3003, 3004 and 3005 refer to additional criteria which are applicable to unlawful non-citizens and holders of certain bridging visas.

Item [102] - Schedule 2, clauses 421.221 to 421.224A

This item substitutes clauses 421.221 to 421.224A with new clause 421.222, 421.224B and 421.224C in Subdivision 421.22 of Division 421.2 in Part 421 of Schedule 2 to the Principal Regulations.

Clause 421.222 provides that at the time of decision an applicant must meet the requirements of either subclause 421.222(2), 421.222(3), 421.222(4), 421.222(5), 421.222(6), or 421.222(7).

New clause 421.222 provides time of decision criteria that the Minister must be satisfied of by an applicant for a Subclass 421 (Sport) visa.

Paragraph 421.222(a) provides that the Minister must be satisfied that the applicant is identified in a nomination of an occupation, program or activity approved under section 140GB of the Act.

New paragraph 421.222(b) provides that the nomination was made by a person who was a sport sponsor or a party to a work agreement, at the time of the nomination was approved.

An explanation of the policy rationale supporting the requirement that a nomination must be made by a person who is a sport sponsor is provided at item [50] of item [159] to this Schedule.

New paragraph 421.222(c) provides that at the approval of the nomination must not have ceased under regulation 2.75A.

An explanation of the policy rationale supporting the requirement that a nomination must not have ceased under regulation 2.75A is provided at item [50] of item [159] to this Schedule.

New paragraph 421.222(d) provides that the applicant must seek to enter to remain in Australia to work or participate in the nominated occupation, program or activity in relation to which the applicant is identified.

This amendment ensures that the visa will only be granted where the applicant shows they will be working or participating in the nominated occupation, program or activity in relation to which the applicant is identified. A nomination made by a sport sponsor must be approved if the relevant nomination criteria in item [59] of this Schedule are met.

New paragraph 421.222(e) provides that if the nominated activity for which the applicant was identified in the nomination required a formal arrangement to be in place between the sport sponsor and the applicant, the agreement is still in place.

This amendment is necessary to ensure that the formal agreement to which the nomination was approved as set out in item [59] of this Schedule, has not ceased in the period between the approval of the nomination and when a decision on the visa application is made.

New paragraph 421.222(f) provides that the Minister is satisfied that, either:

there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 421.222(a) or a person associated with that person; or
it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 421.222(a) or a person associated with that person.

An explanation of the policy rationale supporting the requirement that no adverse information is known to Immigration or that it is reasonable to disregard any adverse information is provided at item [50] of item [159] to this Schedule.

New clause 421.224B

New clause 421.222B provides that the Minister is satisfied that the applicant genuinely intends to stay temporarily in Australia to carry out the work for which the applicant was identified in the nomination.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement that an applicant must genuinely intend to stay in Australia temporarily.

New clause 421.224C

New clause 421.224C provides that the Minister, taking into account the applicant’s work rights during the period of the applicant’s intended stay in Australia, must be satisfied that paragraphs 421.222C(a) or 421.222C (b) are met, which provide that the applicant must have adequate means to support himself or herself, or access to adequate means to support himself or herself.

Item [103] - Schedule 2, paragraph 421.225(b)

This item replaces the reference to “4019.” with “4019; and”, in paragraph 421.225(b) of clause 421.225 in Subdivision 421.22 of Division 421.2 in Part 421 in Schedule 2 to the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [104].

Item [104] - Schedule 2, after paragraph 421.225(b)

This item inserts new paragraph 421.225(c) after paragraph 421.225(b) in clause 421.225 of Subdivision 421.22 in Division 421.2 of Part 421 in Schedule 2 of the Principal Regulations.

New paragraph 421.225 (c) provides that at the time of decision, an applicant for a Subclass 421 (Sport) visa who has not yet turned 18 years of age, must satisfy public interest criteria 4012, 4017 and 4018.

An explanation of the policy rationale supporting the requirement that an applicant who has not yet turned 18 years of age must satisfy public interest criteria 4012, 4017 and 4018 is provided at item [52] of item [159] to this Schedule.

Item [105] - Schedule 2, after clause 421.225

This item inserts new clause 421.225A after clause 421.225 of Subdivision 421.22 of Division 421.2 in Part 421 of Schedule 2 of the Principal Regulations.

New clause 421.225A provides that the applicant must provide the Minister with evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia at time of decision.

Item [106] - Schedule 2, clauses 421.229 and 421.230

This item omits clause 421.229 and clause 421.230 from Subdivision 421.22 of Division 421.2 in Part 421 of Schedule 2 to the Principal Regulations.

Clause 421.229 provides that at the time of decision if the application is made in the migration zone and the application is for a proposed stay of longer than 3 months, the applicant:

must be sponsored by an Australia citizen, Australian permanent resident, an eligible New Zealand citizen or an organisation operating in Australia; or
must be an individual competitor, or associated with an individual competitor or a team, known internationally and having a record of participation in international events.

This clause has been omitted as it is inconsistent with the new sponsorship and nomination framework, as all Subclass 421 visa applicants will be required to be sponsored and identified in relation to an approved nomination.

Clause 421.230

Clause 421.230 provides that in circumstances where a holder of a Subclass 421 visa, makes a subsequent application for a Subclass 421 visa whilst in Australia, the applicant will satisfy the Minister that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a Subclass 421 visa.

An explanation for the policy rationale supporting the omission of this clause relating to a subsequent application for a Subclass 421 visa by a holder of a Subclass 421 visa, whilst the holder remains in Australia is provided at item [54] of item [159] to this Schedule.

Item [107] - Schedule 2, clauses 421.322 and 421.323

This item substitutes clause 421.322 and 421.323 with new clause 421.322 and 421.323 in Subdivision 421.32 of Division 421.3 in Part 421 of Schedule 2 to the Principal Regulations.

Clause 421.322 provides that at the time of decision the applicant who seeks to satisfy the secondary criteria must be included in any sponsorship required in respect of the member of the family unit who satisfied the primary criteria.

New clause 421.322 provides that at the time of decision the Minister must be satisfied that the sport sponsor who has most recently identified the member of the family unit who satisfied the primary criteria in a nomination has agreed in writing to be the sport sponsor in relation to the applicant.

The policy rationale for this change is consistent with the explanation provided at item [55] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement for the sport sponsor to agree in writing to sponsor the applicant.

Clause 421.323

Clause 421.323 provides if sponsorship is not required for the person who satisfied the primary criteria for the Subclass 421 visa, the person seeking to satisfy the secondary criteria must provide the Minister with evidence of adequate means to support the applicant during the period of stay applied for by the applicant, taking into account the working rights of both the person who satisfied the primary criteria and the applicant.

New clause 421.323 provides that at the time of decision, a secondary applicant for a Subclass 421 visa must satisfy the Minister that he or she has adequate means to support himself or herself or alternatively access to adequate means of support, taking into account the applicant’s work rights during the applicant’s period of stay in Australia.

New clause 421.323A

New clause 421.323A provides that the applicant must provide the Minister with evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia at time of decision.

Item [108] - Schedule 2, after clause 421.611

This item inserts new clause 421.611A after clause 421.611 in Subdivision 421.62 of Division 421.6 in Part 421 of Schedule 2 to the Principal Regulations.

New clause 421.611A provides that condition 8501 must be applied to an applicant who satisfies either the primary or secondary criteria for the Subclass 421 visa.

Item [109] - Schedule 2, clause 421.612

This item omits the reference to “8501,” from clause 421.612 in Subdivision 421.61 in Division 421.6 of Part 421 of Schedule 2 to the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [110].

Item [110] - Schedule 2, after clause 422.611

This item inserts new clause 422.611A after clause 422.611 in Subdivision 421.61 in Division 422.6 of Part 422 of Schedule 2 to the Principal Regulations.

New clause 422.611A provides that condition 8501 must be applied to an applicant who satisfies either the primary or secondary criteria for the Subclass 422 visa.

Item [111] - Schedule 2, clause 422.612

This item omits the reference to “8501” from clause 422.612 in Subdivision 422.61 in Division 422.6 of Part 422 of Schedule 2 to the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [110].

Item [112] - Schedule 2, clause 423.211

This item substitutes clause 423.211 with new clause 423.211 in Subdivision 423.21 of Division 423.2 in Part 423 of Schedule 2 to the Principal Regulations.

Clause 423.211 of the Principal Regulations provides that if a Subclass 423 (Media and Film Staff) visa applicant is in the migration zone at the time of application, they must hold a visa from a class or subclass listed in subclauses 423.211(a), 423.211(b), or 423.211(c). Paragraph 423.211(d) provides that if the applicant is in the migration zone and not the holder of a substantive visa, the last visa held by the applicant was a kind specified in either paragraph 423.211(a) or (c). Paragraph 423.211(e) provides if the applicant is in the migration zone and not the holder of a substantive visa, the last visa held by the applicant was a kind specified in paragraph 423.211(b). For paragraphs 423.211(d) or (e) the applicant must also satisfy Schedule 3 criteria 3002, 3002, 3004 and 3005.

New subclause 423.211(a) provides that an applicant who is in the migration zone at the time of application may apply for a Subclass 423 visa, provided they hold a substantive visa other than a Subclass 426 (Domestic Worker (Temporary) - Diplomatic or Consular) visa, a Subclass 771 (Transit) visa, a Subclass 995 (Diplomatic (Temporary)) visa, or a special purpose visa.

New subclause 423.211(b) provides that an applicant who is in the migration zone at the time of application and does not hold a substantive visa may apply for a Subclass 423 visa, provided the last substantive visa held by the applicant was not a visa listed in subclause 423.211(a) and the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.

Schedule 3 criteria 3002, 3003, 3004 and 3005 refer to additional criteria which are applicable to unlawful non-citizens and holders of certain bridging visas.

Item [113] - Schedule 2, clauses 423.221 to 423.224

This item substitutes clauses 423.221 to 423.224 with new clauses 423.223, 423.224A and 423.224B in Subdivision 423.22 of Division 423.2 in Part 423 of Schedule 2 to the Principal Regulations.

Clause 423.223 provides that if sponsorship is required under paragraph 423.222(2)(b) or 423.222(3)(c), the Minister must have approved a person or an organisation as a sponsor of the applicant and the prescribed sponsorship fee must have been paid.

Clauses 423.221 to 423.224 have been omitted as they are inconsistent with the new sponsorship framework. All applicants for the Subclass 423 visa are required to be sponsored and be the subject of an approved nomination at the time of decision.

New clause 423.223 provides time of decision criteria that the Minister must be satisfied of by an applicant for a Subclass 423 (Media and Film Staff) visa.

Paragraph 423.223(a) provides that the Minister must be satisfied that the applicant is identified in a nomination of an occupation, program or activity approved under section 140GB of the Act.

New paragraph 423.223(b) provides that the nomination was made by a person who was an entertainment sponsor at the time of the nomination was approved.

New paragraph 423.223(c) provides that at the approval of the nomination must not have ceased under regulation 2.75A.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the requirement that a nomination must not have ceased under regulation 2.75A as it relates to an applicant for a Subclass 423 visa.

New paragraph 423.223(d) provides that the applicant must be seeking to enter to remain in Australia to work or participate in the nominated occupation, program or activity in relation to which the applicant is identified.

This amendment links the visa application to the criteria for approval of a nomination made by an entertainment sponsor, as set out in item [59] of this Schedule.

New paragraph 423.223 (e) provides that the Minister is satisfied that, either:

there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 423.222(a) or a person associated with that person; or
it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 423. 223 (a) or a person associated with that person.

New clause 423.224A

New clause 423.224A provides that the Minister is satisfied that the applicant genuinely intends to stay temporarily in Australia to carry out the work for which the applicant was identified in the nomination.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement that an applicant must genuinely intend to stay in Australia temporarily.

New clause 423.224B

New clause 423.224B provides that at the time of decision the Minister, taking into account the applicant’s work rights during the period of the applicant’s intended stay in Australia, must be satisfied that the applicant has satisfied either subclause 419.222B(a) or 419.222B(b), which provide that the applicant must have adequate means to support himself or herself or access to adequate means to support himself or herself.

Item [114] - Schedule 2, paragraph 423.225(b)

This item replaces the reference to “4019.” with “4019; and”, in paragraph 423.225(b) of clause 423.225 in Subdivision 423.22 of Division 423.2 in Part 423 in Schedule 2 to the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [115].

Item [115] - Schedule 2, after paragraph 423.225(b)

This item inserts new paragraph 423.225(c) after paragraph 423.225(b) in clause 423.225 of Subdivision 423.22 in Division 423.2 of Part 423 in Schedule 2 to the Principal Regulations.

New paragraph 423.225(c) provides that at the time of decision, an applicant for a Subclass 423 (Media and Film Staff) visa who has not yet turned 18 years of age must satisfy public interest criteria 4012, 4017 and 4018.

Item [116] - Schedule 2, after clause 423.225

This item inserts new clause 423.225A after clause 423.225 in Subdivision 423.22 in Division 423.2 of Part 423 in Schedule 2 to the Principal Regulations

New clause 423.225A provides that the applicant must provide the Minister with evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia at time of decision.

Item [117] - Schedule 2, clauses 423.229 and 423.230

This item omits clause 423.229 and 423.230 from Subdivision 423.22 in Division 423.2 of Part 423 in Schedule 2 to the Principal Regulations.

Clause 423.229 provides that the applicant must be sponsored by the intended employer if:

the applicant is in the migration zone;
the applicant at the time of application, was the holder of a visa of a visa of a class listed in subparagraph 423.229(1)(a)(i); or
the applicant at the time of application, was the holder of a visa from one the subclasses listed in 423.229(1)(a)(ii); or
the applicant at the time of application, was the holder of a visa of a class listed in subparagraph 423.229(1)(a)(iii); and
the grant of the visa would allow the applicant a total period of stay in Australia for a period of more than 3 months.

Clause 423.229 has been omitted as it is inconsistent with the new sponsorship framework. All applicants for the Subclass 423 visa are required to be sponsored and be the subject of an approved nomination at the time of decision.

Clause 423.230 provides that in circumstances where a holder of a Subclass 423 visa, makes a subsequent application for a Subclass 423 visa whilst in Australia, the applicant will satisfy the Minister that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a Subclass 423 visa.

An explanation for the policy rationale supporting the omission of this clause relating to a subsequent application for a Subclass 423 visa by a holder of a Subclass 423 visa, whilst the holder remains in Australia is provided at item [54] of item [159] to this Schedule.

Item [118] - Schedule 2, clauses 423.322 and 423.323

This item substitutes clause 423.322 and 423.323 with new clause 423.322 and 423.323 of Subdivision 423.32 in Division 423.3 of Part 423 in Schedule 2 of the Principal Regulations

Clause 423.322 provides that an applicant seeking to satisfy the secondary criteria must be included in any sponsorship required in respect of the person who satisfies the primary criteria.

New clause 423.322 provides that at the time of decision the Minister must be satisfied that the entertainment sponsor who has most recently identified the member of the family unit who satisfied the primary criteria in a nomination has agreed in writing to be the entertainment sponsor in relation to the applicant.

The policy rationale for this change is consistent with the explanation provided at item [55] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement for the entertainment sponsor to agree in writing to sponsor the applicant.

Clause 423.323

Clause 423.323 provides that the member of the family unit who satisfies the primary criteria produces to the Minister evidence of adequate means to support the applicant for the period of stay applied for by the applicant, taking into account the working rights of both that member of the family unit and the applicant.

New clause 423.323 provides that at the time of decision, a secondary applicant for a Subclass 423 visa must satisfy the Minister that he or she has adequate means to support himself or herself or alternatively access to adequate means of support, taking into account the applicant’s work rights during the applicant’s period of stay in Australia.

Item [119] - Schedule 2, after clause 423.611

This item inserts new clause 423.611A after clause 423.611 of Subdivision 423.61 in Division 423.6 in Part 423 of Schedule 2 to the Principal Regulations.

New clause 423.611A provides that condition 8501 must be applied to an applicant who satisfies either the primary or secondary criteria for the Subclass 423 visa.

Item [120] - Schedule 2, clause 423.612

This item omits the reference to “8501,” from clause 423.612 in Subdivision 423.61 in Division 423.6 of Part 423 of Schedule 2 to the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [119].

Item [121] - Schedule 2, clause 427.211

This item substitutes clause 427.211 with new clause 427.211 of Subdivision 427.21 of Division 427.2 in Part 427 of Schedule 2 to the Principal Regulations.

Clause 427.211 provides that provides that if a Subclass 427 (Domestic Worker (Temporary) Executive) visa applicant is in the migration zone at the time of application, they must hold a visa from a class or subclass listed in subclauses 427.211(a), 427.211(b), or 427.211(c). Paragraph 427.211(d) provides that if the applicant is in the migration zone and not the holder of a substantive visa, the last visa held by the applicant was a kind specified in either paragraph 427.211(a) or (c). Paragraph 427.211(e) provides if the applicant is in the migration zone and not the holder of a substantive visa, the last visa held by the applicant was a kind specified in paragraph 427.211(b). For paragraphs 427.211(d) or (e) the applicant must also satisfy Schedule 3 criteria 3002, 3002, 3004 and 3005.

New clause 427.211(a) provides that an applicant who is in the migration zone at the time of application may apply for a Subclass 427 visa, provided, they hold a substantive visa, other than a Subclass 426 (Domestic Worker (Temporary) - Diplomatic or Consular) visa, a Subclass 771 (Transit) visa, a Subclass 995 (Diplomatic (Temporary)) visa, or a special purpose visa.

New subclause 427.211(b) provides that an applicant who is in the migration zone at the time of application and does not hold a substantive visa may apply for a Subclass 427 visa provided the last substantive visa held by the applicant was not a visa listed in subclause 427.211 (a), and the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.

Schedule 3 criteria 3002, 3003, 3004 and 3005 refer to additional criteria which are applicable to unlawful non-citizens and holders of certain bridging visas.

Item [122] - Schedule 2, clauses 427.221 to 427.225

This item substitutes clause 427.221 to 427.225 with new clauses 427.222, 427.225A and 427.225B of Subdivision 427.22 in Division 427.2 of Part 427 to the Principal Regulations.

Clause 427.222 provides that at the time of decision the applicant must seek to enter Australia to undertake full-time domestic duties in the household of an executive who:

is in charge for an Australian office of an overseas organisation; and
is the holder of a visa of a kind listed in paragraph 427.222(b).

Clauses 427.221 to 427.225 have been omitted as they are inconsistent with the new sponsorship framework. All applicants for the Subclass 427 visa are required to be sponsored and be the subject of an approved nomination at the time of decision.

New clause 427.222 provides time of decision criteria that the Minister must be satisfied of by an applicant for a Subclass 427 (Domestic Worker (Temporary)) visa.

New paragraph 427.222(a) provides that the Minister must be satisfied that the applicant is identified in a nomination of an occupation, program or activity approved under section 140GB of the Act.

New paragraph 427.222(b) provides that the nomination was made by a person who was a domestic worker sponsor at the time of the nomination was approved.

New paragraph 427.222(c) provides that at the approval of the nomination must not have ceased under regulation 2.75A.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the requirement that a nomination must not have ceased under regulation 2.75A as it relates to an applicant for a Subclass 427 visa.

New paragraph 427.222(d) provides that the applicant must be seeking to enter or remain in Australia to undertake full-time domestic duties in the private household of the domestic worker sponsor.

This amendment links the visa application to the criteria for approval of a nomination made by a domestic worker sponsor, as set out in item [59] of this Schedule.

New paragraph 427.222(e) provides that the Minister is satisfied that, either:

there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 427.222(a) or a person associated with that person; or
it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 427.222(a) or a person associated with that person.

New clause 427.225A

New clause 427.225A provides that the Minister is satisfied that the applicant genuinely intends to stay temporarily in Australia to undertake the duties for which the applicant was identified in the nomination.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement that an applicant must genuinely intend to stay in Australia temporarily.

New clause 427.225B

New clause 427.225B provides that the Minister is satisfied that paragraphs 427.225B(a) or 427.225B (b) are met. That is that the applicant has adequate means to support himself or herself; or access to adequate means to support himself or herself (taking into account the applicant’s work rights during the period of the applicant’s intended stay in Australia).

Item [123] - Schedule 2, clause 427.226

This item omits clause 427.2276 from Subdivision 427.22 in Division 427.2 of Part 427 to the Principal Regulations.

Clause 427.226 provides that the applicant has turned 18 and has experience as a domestic worker.

This clause is no longer necessary as the requirement for the applicant to have turned 18 and have experience as a domestic worker has been incorporated in to the nomination criteria (see item [59] of this Schedule) for the Subclass 427 visa.

Item [124] - Schedule 2, after clause 427.228

This item inserts new clause 427.228A after clause 427.228 of Subdivision 427.22 in Division 427.2 of Part 427 to the Principal Regulations.

New clause 427.228A provides that the applicant must provide the Minister with evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia at time of decision.

Item [125] - Schedule 2, clause 427.231

This item omits clause 427.231 from Subdivision 427.22 in Division 427.2 of Part 427 of the Principal Regulations.

Clause 427.231 provides that at the time of decision either:

the Minister has approved a person or an organisation as a sponsor of the applicant under subregulation 1.20AA(2); or
the documents mentioned in clause 427.224 have been lodged with the Minister; and
as the case requires, the sponsorship fee specified in regulation 5.38 has been paid.

This clause has been omitted as it is inconsistent with the new sponsorship framework, as all applicants for a Subclass 427 visa will be required to be sponsored and identified as the subject of an approved nomination.

Item [126] - Schedule 2, clause 427.233

This item omits clause 427.233 from Subdivision 427.22 in Division 427.2 of Part 427 to the Principal Regulations.

Clause 427.233 provides that in circumstances where a holder of a Subclass 427 visa makes a subsequent application for a Subclass 427 visa whilst in Australia, the applicant satisfies the Minister that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a Subclass 427 visa.

An explanation for the policy rationale supporting the omission of this clause relating to a subsequent application for a Subclass 427 visa by a holder of a Subclass 427 visa, whilst the holder remains in Australia, is provided at item [54] of item [159] to this Schedule.

Item [127] - Schedule 2, clauses 427.322 and 427.323

This item substitutes clause 427.322 and 427.323 with new clause 427.322 and 427.323 of Subdivision 427.32 in Division 427.3 of Part 427 to the Principal Regulations.

Clause 427.322 provides the applicant is included in any sponsorship required in respect of the person who satisfies the primary criteria.

New clause 427.322 provides that at the time of decision the Minister must be satisfied that the domestic worker sponsor who has most recently identified the member of the family unit who satisfied the primary criteria in a nomination has agreed in writing to be the domestic worker sponsor in relation to the applicant.

The policy rationale for this change is consistent with the explanation provided at item [55] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement for the domestic worker sponsor to agree in writing to sponsor the applicant.

Clause 427.323 provides if sponsorship is not required for the person who satisfied the primary criteria for the Subclass 427 visa, the person seeking to satisfy the secondary criteria must provide the Minister with evidence of adequate means to support the applicant during the period of stay applied for by the applicant, taking into account the working rights of both the person who satisfied the primary criteria and the applicant.

New clause 427.323 provides that provides that the Minister is satisfied that subclauses 427.323(a) or 427.323(b) are met. That is that the applicant has adequate means to support himself or herself or access to adequate means to support himself or herself (taking into account the applicant’s work rights during the period of the applicant’s intended stay in Australia), taking into account the applicant’s work rights during the period of the applicant’s intended stay in Australia.

Item [128] - Schedule 2, after clause 427.611

This item inserts new clause 427.611A after clause 427.611 Subdivision 427.61 in Division 427.6 of Part 427 to the Principal Regulations.

Clause 427.611A provides that if the applicant meets the primary or secondary criteria, condition 8501 may be imposed.

New clause 427.611A provides that condition 8501 must be applied to an applicant who satisfies either the primary or secondary criteria for the Subclass 427 visa.

Item [129] - Schedule 2, clause 427.612

This item omits the reference to “8501,” from clause 427.612 in Subdivision 427.61 in Division 427.6 of Part 427 of Schedule 2 in the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [128].

Item [130] - Schedule 2, clause 428.211

This item substitutes clause 428.211 in Subdivision 428.21 of Division 428.2 in Part 428 of Schedule 2 to the Principal Regulations.

Clause 428.211 of the Principal Regulations provides that if a Subclass 428 (Religious Worker) visa applicant is in the migration zone at the time of application, they must hold a visa from a class or subclass listed in subclauses 428.211 (a), 428.211(b), or 428.211(c). Paragraph 428.211(d) provides that if the applicant is in the migration zone and not the holder of a substantive visa, the last visa held by the applicant was a kind specified in either paragraph 428.211(a) or (c). Paragraph 428.211(e) provides if the applicant is in the migration zone and not the holder of a substantive visa, the last visa held by the applicant was a kind specified in paragraph 428.211(b). For paragraphs 428.211(d) or (e) the applicant must also satisfy Schedule 3 criteria 3002, 3002, 3004 and 3005.

New paragraph 428.211(a) provides that an applicant who is in the migration zone at the time of application may apply for a Subclass 428 visa, provided, they hold a substantive visa, other than a Subclass 426 (Domestic Worker (Temporary) - Diplomatic or Consular) visa, a Subclass 771 (Transit) visa, a Subclass 995 (Diplomatic (Temporary)) visa, or a special purpose visa.

New paragraph 428.211(b) provides that an applicant who is in the migration zone at the time of application and does not hold a substantive visa may apply for a Subclass 428 visa, provided the last substantive visa held by the applicant was not a visa listed in subclause 428.211(a), and the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.

Schedule 3 criteria 3002, 3003, 3004 and 3005 refer to additional criteria which are applicable to unlawful non-citizens and holders of certain bridging visas.

Item [131] - Schedule 2, clauses 428.221 to 428.223

This item omits clauses 428.221 to 428.223 with new clauses 428.222 and 428.222B in Subdivision 428.22 of Division 428.2 in Part 428 of Schedule 2 to the Principal Regulations.

Clause 428.222 provides that at the time of decision each of the following must apply:

the applicant is sponsored by a religious organisation in Australia to undertake work in Australia that directly serves the religious objectives of the organisation;
the Minister has approved a religious organisation as a sponsor of the applicant under subregulation 1.2AA(2);
the sponsorship fee prescribed in regulation 5.38 has been paid.

Clauses 428.221 and 428.223 have been omitted as they are inconsistent with the new sponsorship framework. All applicants for the Subclass 428 visa are required to be sponsored and be the subject of an approved nomination at the time of decision.

New clause 428.222 provides time of decision criteria that the Minister must be satisfied of by an applicant for a Subclass 428 (Religious Worker) visa.

Paragraph 428.222(a) provides that the Minister must be satisfied that the applicant is identified in a nomination of an occupation, program or activity approved under section 140GB of the Act.

New paragraph 428.222(b) provides that the nomination was made by a person who was a religious worker sponsor or a party to a work agreement at the time the nomination was approved.

New paragraph 428.222(c) provides that at the approval of the nomination must not have ceased under regulation 2.75A.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the requirement that a nomination must not have ceased under regulation 2.75A as it relates to an applicant for a Subclass 428 visa.

New paragraph 428.222(d) provides that the applicant must be seeking to enter to remain in Australia to be engaged on a full-time basis to participate in work or an activity that is predominately non-profit in nature, and directly serves the religious objectives of the religious institution that is the religious worker sponsor.

This amendment links the visa application to the criteria for approval of a nomination made by a religious worker sponsor, as set out in item [59] of this Schedule.

New paragraph 428.222(e) provides that the Minister is satisfied that, either:

there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 428.222(a) or a person associated with that person; or
it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 428.222(a) or a person associated with that person.

New clause 428.222B

New clause 428.222B provides that Minister must be satisfied at the time of decision that the applicant genuinely intends to stay temporarily in Australia to carry out the activity for which the applicant was identified in the nomination.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement that an applicant must genuinely intend to stay in Australia temporarily.

Item [132] - Schedule 2, paragraph 428.225(b)

This item replaces the reference to “4019.” with “4019; and”, in paragraph 428.225(b) of clause 428.225 in Subdivision 428.22 of Division 428.2 in Part 428 in Schedule 2 of the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [133].

Item [133] - Schedule 2, after paragraph 428.225(b)

This item inserts a new paragraph 428.225(c) after paragraph 428.225(b) in clause 428.225 of Subdivision 428.22 in Division 428.2 of Part 428 in Schedule 2 to the Principal Regulations.

New paragraph 428.225(c) provides that at the time of decision, an applicant for a Subclass 428 (Religious Worker) visa who has not yet turned 18 years of age must satisfy public interest criteria 4012, 4017 and 4018.

Item [134] - Schedule 2, after clause 428.225

This item inserts new clause 428.225A and 428.225B after clause 428.225 of Subdivision 428.22 in Division 428.2 of Part 428 in Schedule 2 of the Principal Regulations.

New clause 428.225A provides that at the time of decision, a secondary applicant for a Subclass 428 visa must satisfy the Minister that he or she has adequate means to support himself or herself or alternatively access to adequate means of support, taking into account the applicant’s work rights during the applicant’s period of stay in Australia.

New clause 428.225B

New clause 428.225B provides that the applicant must provide the Minister with evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia at time of decision.

Item [135] - Schedule 2, clause 428.322

This item substitutes clause 428.322 with new clauses 428.322, 428.322A and 428.322B of Subdivision 428.32 in Division 428.3 of Part 428 in Schedule 2 to the Principal Regulations.

Clause 428.322 provides that at the time of decision the applicant must be included in the sponsorship required in respect of the person who meets the primary criteria.

New clause 428.322 provides that at the time of decision the Minister must be satisfied that the religious worker sponsor who has most recently identified the member of the family unit who satisfied the primary criteria in a nomination has agreed in writing to be the religious worker sponsor in relation to the applicant.

The policy rationale for this change is consistent with the explanation provided at item [55] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement for the religious worker sponsor to agree in writing to sponsor the applicant.

New clause 428.322A

New clause 428.322A provides that at the time of decision, a secondary applicant for a Subclass 428 visa must satisfy the Minister that he or she has adequate means to support himself or herself or alternatively access to adequate means of support, taking into account the applicant’s work rights during the applicant’s period of stay in Australia.

New clause 428.322B

New clause 428.322B provides that the applicant must provide the Minister with evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia at time of decision.

Item [136] - Schedule 2, after clause 428.611

This item inserts new clause 428.611A after clause 428.611 Subdivision 428.61 in Division 428.6 of Part 428 to the Principal Regulations.

Clause 428.611A provides that if the applicant meets the primary or secondary criteria, condition 8501 may be imposed.

New clause 428.611A provides that condition 8501 must be applied to an applicant who satisfies either the primary or secondary criteria for the Subclass 428 visa.

Item [137] - Schedule 2, clause 428.612

This item omits the reference to “8501,” from clause 428.612 in Subdivision 428.61 in Division 428.6 of Part 428 of Schedule 2 to the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [136].

Item [138] - Schedule 2, clauses 442.221 to 442.223

This item substitutes clauses 442.221 to 442.223 with new clauses 442.222 and 442.223 in Subdivision 442.22 of Division 442.2 in Part 442 of Schedule 2 to the Principal Regulations.

Clause 442.222 provides that:

· except in the case of an application made in relation to occupational training to be provided by the Commonwealth, a nomination in respect of the occupational training has been lodged and has been approved by the Minister where:

· “occupational training provided by the Commonwealth” includes occupational training provided by:

o a body corporate incorporated for a public purpose by an Act or regulations made under an Act; or

o an authority or body, not being a body corporate, established for a public purpose by, or under, an Act or regulations made under an Act; and

· the nomination must include a declaration that the applicant will be engaged or employed under Australian Industrial Relations law and relevant Commonwealth, State or Territory awards and conditions for the industry in which the applicant will undertake occupational training.

New clause 442.222 sets out the criteria the Minister must be satisfied of at the time of decision.

New paragraph 442.222(1)(a) provides the Minister must be satisfied that the applicant is identified in a nomination of an occupation, program or activity approved under section 140GB of the Act, unless the occupational training is to be provided to the applicant by the Commonwealth.

New paragraph 442.222(1)(b) provides that if the occupational training is provided to the applicant by the Commonwealth, the occupational trainee sponsor must have agreed in writing to be the occupational trainee sponsor in relation to the applicant.

This amendment is necessary as there is no nomination stage to the Subclass 442 visa. This amendment implements the broader policy objectives outlined in item [55] to these Regulations, where in circumstances where occupational training is provided by the Commonwealth, the occupational trainee sponsor has agreed in writing to be the occupational trainee sponsor of the applicant.

New paragraph 442.222(1)(c) provides that the nomination was made by a person who was an occupational trainee sponsor at the time of the nomination was approved.

New paragraph 442.222(1)(d) provides that the approval of the nomination must not have ceased under regulation 2.75A.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the requirement that a nomination must not have ceased under regulation 2.75A as it relates to an applicant for a Subclass 449 visa.

New paragraph 442.222(1)(e) provides that the applicant must be seeking to enter or remain in Australia to undertake the occupational training.

This amendment links the visa application to the criteria for approval of a nomination made by an occupational trainee sponsor, as set out in item [59] to this Schedule.

New paragraph 442.222(f) provides that the Minister is satisfied that, either:

there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 442.222(a) or a person associated with that person; or
it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 442.222(a) or a person associated with that person.

New subclause 442.222(2) provides that for the purposes of subclause (1) occupational training which is provided by the Commonwealth includes occupational training which is provided by:

a body corporate incorporated for a public purpose under the Act or regulations made under an Act; or
an authority or body (other than a body corporate) established for a public purpose under an Act or regulations made under an Act.

This amendment seeks to clarify the types of occupational training that are considered to be provided by the Commonwealth.

Clause 442.223

Clause 442.223 provides that the Minister is satisfied that the occupational training proposed:

is workplace based; and
will give the applicant additional or enhanced skills that the applicant will be able to utilise in the applicant’s employment; and
will not adversely affect the occupational opportunities available to Australian citizens or permanent residents of Australia.

New clause 442.223 provides that the Minister is satisfied that the occupational opportunities available to Australian citizens or permanent residents of Australia will not be adversely affected if the visa is granted.

This amendment is consistent with the broader policy objectives to ensure that Australia’s migration program does not adversely affect the work and training opportunities available to Australian citizens or permanent residents in Australia.

Item [139] - Schedule 2, clause 442.230

This item omits clause 442.230 from Subdivision 442.22 of Division 442.2 in Part 442 of Schedule 2 to the Principal Regulations.

Clause 442.230 provides that in circumstances where a holder of a Subclass 442 visa makes a subsequent application for a Subclass 442 visa whilst in Australia, the applicant must satisfy the Minister that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a Subclass 442 visa.

An explanation for the policy rationale supporting the omission of this clause relating to a subsequent application for a Subclass 442 visa by a holder of a Subclass 442 visa, whilst the holder remains in Australia, is provided at item [64] of item [159] to this Schedule.

Item [140] - Schedule 2, after clause 442.322

This item substitutes clause 442.322 for new clauses 442.322 and 442.321A in from Subdivision 442.32 of Division 442.3 in Part 442 of Schedule 2 to the Principal Regulations.

Clause 442.322 provides that the member of the family unit who satisfies the primary criteria produces to the Minister evidence of adequate means to support the applicant during the period of stay applied for by the applicant, taking into account the working rights of both that family unit member and the applicant.

New clause 442.322 provides that at the time of decision, the Minister must be satisfied that a secondary applicant for a Subclass 442 visa must satisfy the Minister that he or she has adequate means to support himself or herself or alternatively access to adequate means of support, taking into account the applicant’s work rights during the applicant’s period of stay in Australia.

New clause 442.321A

New clause 442.321A provides that at the time of decision the Minister must be satisfied that the occupational trainee sponsor who has most recently identified the member of the family unit who satisfied the primary criteria in a nomination has agreed in writing to be the occupational trainee sponsor in relation to the applicant.

The policy rationale for this change is consistent with the explanation provided at item [62] of item [159] to this Schedule, as it relates to the policy rationale supporting the requirement for the occupational trainee sponsor to agree in writing to sponsor the applicant.

Item [141] - Schedule 2, clause 470.111

This item omits “employed,” from clause 470.111 of Division 470.1 in Part 470 of Schedule 2 to the Principal Regulations.

This is a technical amendment as there will no longer be a definition of “employed”.

Item [142] - Schedule 2, clause 470.111

This item omits “1.20M” and inserts “2.57” in clause 470.111 of Division 470.1 in Part 470 of Schedule 2 to the Principal Regulations.

This is a technical amendment as the Amendment Regulations insert the definitions relating to professional development sponsors into regulation 2.57.

Item [143] - Schedule 2, clause 470.111, note

This item substitutes the note to clause 470.111 of Division 470.1 in Part 470 of Schedule 2 to the Principal Regulations.

The new note to clause 470.111 provides that “professional development sponsor is defined in regulation 1.03”.

This is a technical amendment as the Amendment Regulations provide that the term is “professional development sponsor” rather than “approved professional development sponsor”.

Item [144] - Schedule 2, clause 470.112

This item omits “applicable agreement” and inserts “professional development agreement” in clause 470.112 of Division 470.1 in Part 470 of Schedule 2 to the Principal Regulations.

This amendment is to provide clarity that the agreement being referred to is a professional development agreement.

Item [145] - Schedule 2, clause 470.112

This item omits “approved” from clause 470.112 of Division 470.1 in Part 470 of Schedule 2 to the Principal Regulations.

This is a technical amendment similar to item [144] of item [159] to this Schedule.

Item [146] Schedule 2, clause 470.222

This item substitutes clause 470.222 and inserts new clause 470.222A with new clause 470.222 in Subdivision 470.22 of Division 470.2 in Part 470 of Schedule 2 to the Principal Regulations.

Clause 470.222 provides that at the time of decision the applicant must nominate an approved professional development sponsor as the applicant’s sponsor in the application for the visa, and the applicant must be sponsored by the approved professional development sponsor.

New clause 470.222 provides at the time of decision the applicant must nominate a professional development sponsor as the applicant’s sponsor in the application for the visa.

This is a technical amendment similar to item [143] of item [159] to this Schedule.

New clause 470.222A

New clause 470.222A provides that at the time of decision the professional development sponsor nominated by the applicant must not:

have ceased to be an approved sponsor; and
have not withdrawn the agreement, in writing, to be a professional development sponsor in relation to the applicant; and
has not been barred from sponsoring the applicant under paragraph 140M(1)(c) of the Act.

Paragraph 140M(1)(c) of the Act provides that if regulations are prescribed under the Act, the Minister may (or must) take action to bar the approved sponsor, for a specified period, from sponsoring more people under the terms of one or more existing specified approvals for different kinds of visa (however described).

The note attached to new clause 470.222A provides that “approved sponsor is defined in subsection 5(1) of the Act”.

The purpose of this amendment is to clarify what the status of the professional development sponsor must be at the time of deciding the Subclass 470 visa application.

Item [147] - Schedule 2, clause 470.223

This item inserts “professional development” before “sponsor” in clause 470.223 in Subdivision 470.22 of Division 470.2 in Part 470 of Schedule 2 to the Principal Regulations.

This amendment is to clarify that it is a professional development sponsor that is being referred to.

Item [148] - Schedule 2, clause 470.225

This item omits clause 470.225 from Subdivision 470.22 of Division 470.2 in Part 470 of Schedule 2 to the Principal Regulations.

Clause 470.225 is omitted because this intention is contained within new clause 470.222A as outlined above provided at item [146] of item [159] to this Schedule.

Item [149] - Schedule 2, clause 470.226

This item substitutes clause 470.226 with new clause 470.226 in Subdivision 470.22 of Division 470.2 in Part 470 of Schedule 2 to the Principal Regulations.

Clause 470.226 provides that at the time of decision the applicant must be employed, within the meaning of regulation 1.20M:

by an overseas employer; and
be employed in a managerial or other professional position.

New clause 470.266 provides that at the time of decision the applicant:

must have an overseas employer; and
is in a managerial or professional position in relation to the overseas employer.

This is a technical amendment as there will no longer be a definition of employed.

Item [150] - Schedule 2, clause 470.227

This item omits “applicable agreement” and inserts “professional development agreement” in Subdivision 470.22 of Division 470.2 in Part 470 of Schedule 2 to the Principal Regulations.

This is a technical amendment as a result of the amendment in item [144] of item [159] to this Schedule.

Item [151] - Schedule 2, clause 470.228

This item omits clause 470.228 from Subdivision 470.22 of Division 470.2 in Part 470 of Schedule 2 to the Principal Regulations.

Clause 470.228 is omitted because the Migration Legislation Amendment (Worker Protection) Act 2008 repeals the undertakings and replaces them with obligations. An approved sponsor is not required to make obligations, the obligations are imposed as a matter of law.

Item [152] - Schedule 2, clause 470.229

This item omits “approved” from clause 470.229 from Subdivision 470.22 of Division 470.2 in Part 470 of Schedule 2 to the Principal Regulations.

This is a technical amendment similar to item [143] of item [159] to this Schedule.

Item [153] - Schedule 2, clause 470.232

This item omits “approved” from clause 470.232 from Subdivision 470.22 of Division 470.2 in Part 470 of Schedule 2 to the Principal Regulations.

This is a technical amendment similar to item [144] of item [159] to this Schedule.

Item [154] – Schedule 2, clause 470.234

This item omits “applicable agreement” and inserts “professional development agreement” in Subdivision 470.22 of Division 470.2 in Part 470 of Schedule 2 to the Principal Regulations.

This is a technical amendment as a result of the amendment in item [144] of item [159] to this Schedule.

Item [155] - Schedule 2, clause 488.222

This item substitutes clause 488.222 with new clause 488.222 in Subdivision 488.22 of Division 488.2 in Part 488 of Schedule 2 to the Principal Regulations.

Clause 488.222 provides that at time of decision an applicant for a Subclass 488 visa must be sponsored by the captain or owner of a superyacht. In addition the following must be satisfied:

the captain or owner sponsoring the applicant has not defaulted on any previous sponsorship entered into under the Principal Regulations;
the captain or owner sponsoring the applicant has given written undertakings in accordance with approved form 1366;
the Minister has approved the captain or owner as a sponsor for the applicant.

New clause 488.222 provides the criteria that at time of decision the Minister must be satisfied.

New paragraph 488.222(a) provides at time of decision the Minister must be satisfied that a superyacht crew sponsor has agreed to be the superyacht crew sponsor in relation to the applicant.

This requirement ensures the Minister is satisfied that the superyacht crew sponsor has agreed to be the sponsor of the applicant. This will ensure that the visa applicant is linked to the superyacht crew sponsor and ensure the sponsor will be accountable for the sponsorship obligations owed to the applicant.

New paragraph 488.222(b) provides at the time of decision the Minister must be satisfied that the superyacht crew sponsor is not barred from sponsoring the applicant under paragraph 140M(1)(c) of Act.

The policy rationale for this change is consistent with the explanation provided at item [50] of item [159] to this Schedule, as it relates to the policy rationale that a superyacht crew sponsor is not barred from sponsoring the applicant in relation to a Subclass 448 visa.

New paragraph 488.222(c) provides that the Minister is satisfied that, either:

there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 488.222(a) or a person associated with that person; or
it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph 488.222(a) or a person associated with that person.

Item [156] - Schedule 2, subparagraph 571.223(2)(b)(i)

This item substitutes subparagraph 571.223(2)(b)(i) for new subparagraph 571.223(2)(b)(i) of clause 571.223 in Subdivision 571.22 of Division 571.2 in Part 571 of Schedule 2 to the Principal Regulations.

Subparagraph 571.223(2)(b)(i) provides that the Minister is satisfied that the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant:

has access to sufficient funds of the person's own or provided by a relative; or
is sponsored by an approved special student sponsor under Division 1.4D of these Regulations, with a sponsorship that is in force.

New subparagraph 571.223(2)(b)(i) provides that the Minister is satisfied that the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant has access to sufficient funds of the person’s own or provided by a relative.

This amendment is consequential to the removal of Division 1.4D from the Principal Regulations by item [8] the Amendment Regulations.

Item [157] - Schedule 2, subparagraph 572.223(2)(b)(i)

This item substitutes subparagraph 572.223(2)(b)(i) with new subparagraph 572.223(2)(b)(i) of clause 572.223 in Subdivision 572.22 of Division 572.2 in Part 572 of Schedule 2 to the Principal Regulations.

Subparagraph 572.223(2)(b)(i) provides that the Minister is satisfied that the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant:

has access to sufficient funds of the person's own or provided by a relative; or
is sponsored by an approved special student sponsor under Division 1.4D of these Regulations, with a sponsorship that is in force.

New subparagraph 572.223(2)(b)(i) provides that the Minister is satisfied that the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant has access to sufficient funds of the person’s own or provided by a relative.

This amendment is consequential to the removal of Division 1.4D from the Principal Regulations by item [8] the Amendment Regulations.

Item [158] - Schedule 2, subparagraph 573.223(2) (b)(i) substitute

This item substitutes subparagraph 573.223(2)(b)(i) with new subparagraph 573.223(2)(b)(i) of clause 573.223 in Subdivision 573.22 of Division 573.2 in Part 573 of Schedule 2 to the Principal Regulations.

Subparagraph 573.223(2)(b)(i) provides that the Minister is satisfied that the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant:

has access to sufficient funds of the person's own or provided by a relative; or
is sponsored by an approved special student sponsor under Division 1.4D of these Regulations, with a sponsorship that is in force.

New subparagraph 573.223(2)(b)(i) provides that the Minister is satisfied that the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant has access to sufficient funds of the person’s own or provided by a relative.

This amendment is consequential to the removal of Division 1.4D from the Principal Regulations by item [8] the Amendment Regulations.

Item [159] - Schedule 2, subparagraph 574.223 (2) (b) (i)

This item substitutes subparagraph 574.223(2)(b)(i) with new subparagraph 574.223(2)(b)(i) of clause 575.223 in Subdivision 574.22 of Division 574.2 in Part 574 of Schedule 2 to the Principal Regulations.

Subparagraph 574.223(2)(b)(i) provides that the Minister is satisfied that the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant:

has access to sufficient funds of the person's own or provided by a relative; or
is sponsored by an approved special student sponsor under Division 1.4D of these Regulations, with a sponsorship that is in force.

New subparagraph 574.223(2)(b)(i) provides that the Minister is satisfied that the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant has access to sufficient funds of the person’s own or provided by a relative.

This amendment is consequential to the removal of Division 1.4D from the Principal Regulations by item [8] the Amendment Regulations.

Item [160] Schedule 8, condition 8107

This item substitutes clause 8107 with new clause 8107 of Schedule 8 to the Principal Regulations.

At the time of visa grant, dependent on the Schedule 2 criteria applicable for the visa subclass clause 8170 may be imposed on the visa.

Clause 8107 provides that if the visa was granted to enable the holder to be employed in Australia the holder must not:

· cease to be employed by the employer relation to which the visa was granted; or

· work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or

· engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.

In any other case the holder must not:

cease to undertake the activity in relation to which the visa was granted; or
engage in an activity inconsistent with the activity in relation to which the visa was granted; or
engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.

New clause 8107 provides that a visa holder who has been granted a visa subject to clause 8107 must maintain compliance with the circumstances listed in the condition throughout the validity of the visa grant.

New subclauses 8107(1) and 8107(2) are substantially the same as existing subclauses 8107(a) and 8107(b), however the amendments clarify that subclauses 8107(1) and 8107(2) do not apply, if the visa is a visa listed in subclause 8107(3) or 8107(4).

New subclause 8107(3) provides:

· that if the visa is a Subclass 457 (Business (Long Stay)) visa the holder must only:

o work in the occupation listed in the most recently approved nomination for the holder; and

o work only for the standard business sponsor, former standard business sponsor, party to a labour agreement or former party to a labour agreement (the sponsor) who nominated the holder in the most recently approved nomination or associated entity of the sponsor;

unless:

o the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or

o the holder is continuing to work for the sponsor, former sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice; and

· if the holder of a Subclass 457 (Business (Long Stay)) visa ceases employment, the period during which the holder ceases employment must not exceed 28 consecutive days.

New subparagraph 8107(3)(a)(i) is similar to current subparagraph 8107(a)(ii). New subparagraph 8107(3)(a)(i) clarifies that the Subclass 457 (Business (Long Stay)) visa holder must only work in the occupation listed in the most recently approved nomination.

New subparagraph 8107(3)(a)(ii) is similar to current subparagraph 8107(a)(iii). New subparagraph 8107(3)(a)(ii) clarifies that the Subclass 457 (Business (Long Stay)) visa holder may work for the person who has most recently nominated the Subclass 457 (Business (Long Stay)) visa holder or associated entity of that person.

New subparagraph 8107(3)(a)(iii) provides an exception to the limitation of a Subclass 457 (Business (Long Stay)) visa holder only working for their sponsor or an associated entity of the sponsor. The exception is when the visa holder’s occupation is an occupation specified in an instrument in writing made for paragraphs 2.72(10)(e)(ii) and 2.72(10)(e)(iii), which provides the exception to the nomination approval criteria which require the nominated occupation to be performed in a position that is with the business of the sponsor or the business of an associated entity of the sponsor.

The purpose of this amendment is to provide consistency with what was approved at the nomination stage.

New subparagraph 8107(3)(iv) provides a further exception to the limitation of a Subclass 457 (Business (Long Stay)) visa holder only working for their sponsor or an associated entity of the sponsor. The exception is when the Subclass 457 (Business (Long Stay)) visa holder is continuing to work for a previous sponsor or an associated entity of the previous sponsor while fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.

The purpose of this amendment is to ensure that a Subclass 457 (Business (Long Stay)) visa holder will not breach a law relating to industrial relations while attempting to comply with clause 8107.

New paragraph 8107(3)(b) is similar to current subparagraph 8107(a)(i). New paragraph 8107(3)(b) is different in that it provides that the Subclass 457 (Business (Long Stay)) visa holder may cease employment for a period of 28 consecutive days without being in breach of clause 8107.

The purpose of this amendment is to explicitly provide a Subclass 457 (Business (Long Stay)) visa holder with 28 days to find a new standard business sponsor or party to a labour agreement to work for on cessation of employment with an old sponsor, without the concern that their visa may be cancelled before the 28 days has ceased.

New subclause 8107(4)(a) provides that if the visa is a:

· Subclass 411 (Exchange) visa; or

· Subclass 419 (Visiting Academic) visa; or

· Subclass 420 (Entertainment) visa; or

· Subclass 421 (Sport) visa; or

· Subclass 423 (Media and Film Staff) visa; or

· Subclass 427 (Domestic Worker (Temporary) Executive) visa; or

· Subclass 428 (Religious Worker) visa; or

· Subclass 442 (Occupational Trainee) visa;

the holder must comply with circumstances listed in paragraphs 8107(4)(c), (d) and (e).

New paragraph 8107(4)(b) provides that in the case of a Subclass 442 (Occupational Trainee) visa the holder must comply with the circumstances listed in paragraphs 8107(4)(c), (d) and (e) if the occupational training is not provided by the Commonwealth.

New paragraph 8107(4)(c) provides that the holder must not cease to engage in the most recent nominated occupation, program or activity in which the holder is identified.

New paragraph 8107(4)(d) provides that the holder must not engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in which the holder is identified.

New paragraph 8107(4)(e) provides that the holder must not engage in work or an activity for an employer (within the meaning of subregulation 2.72A(8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified.

New subclause 8107(4) preserves the policy intention as contained in subclauses 8107(1) and 8107(2), which currently apply to the visas subclasses listed in paragraph 8107(4)(a).

In addition to the policy contained in subclauses 8107(1) and 8107(2), which relate to the occupation or activity in relation to which the visa was granted, new subclause 8107(4) provides that in circumstances where the visa holder is later identified in a approved nomination made by a different approved sponsor, which may relate to a different occupation, program or activity than that in relation to which the visa was granted, the visa holder will not be in breach of condition 8107.

Item [161] – Schedule 10, after Form 3

This item inserts new Form 4 after Form 3 of Schedule 10 to the Principal Regulations. This is the prescribed form for an inspector’s identity card referred to in subparagraph 2.102B(1)(a)(i) inserted by item [160].

Commonwealth Numbered Regulations - Explanatory Statements