Commonwealth Numbered Acts

STUDENT AND YOUTH ASSISTANCE AMENDMENT (WAITING PERIOD) ACT 1997 No. 6, 1997 - SCHEDULE 1

Schedule 1-Amendment of the Student and Youth Assistance Act 1973 1 Subsection
3(1) (definition of permanent resident of Australia) Repeal the definition. 2
After section 6 Insert: 6A Definitions
In this Part, unless the contrary intention appears:
Australian resident means a person who is not an Australian citizen but who
resides in Australia and is the holder of:

   (a)  a permanent visa; or

   (b)  a special category visa.
exempt resident means an Australian resident who:

   (a)  was the holder of a subclass 820 visa-Extended eligibility (spouse);
        or

   (b)  was the holder of a subclass 826 visa-Interdependency; or

   (c)  is the holder of a subclass 832 visa-Close ties; or

   (d)  is the holder of a subclass 833 visa-Certain unlawful non- citizens;
        or

   (e)  is the holder of a visa in a class of visas determined by the Minister
        for the purposes of this paragraph.
family member, in relation to a person, means:

   (a)  a partner of the person; or

   (b)  a dependent child of the person.
holder, in relation to a visa, has the same meaning as in the
Migration Act 1958.
parent includes an adoptive parent.
partner, in relation to a person who is a member of a couple, means the other
member of the couple.
permanent protection visa has the same meaning as in the Migration  Act 1958 .
permanent visa has the same meaning as in the Migration Act 1958.
special category visa has the same meaning as in the Migration Act  1958 .
visa has the same meaning as in the Migration Act 1958. 6B Deciding whether a
person resides in Australia

(1) A person is not to be treated, for the purposes of this Part, as residing
in Australia unless the person intends to remain permanently in Australia.

(2) In deciding whether or not a person intends to remain permanently in
Australia, regard must be had to the following:

   (a)  the nature of the accommodation used by the person in Australia;

   (b)  the nature and extent of the family relationships the person has in
        Australia;

   (c)  the nature and extent of the person's employment, business or
        financial ties with Australia;

   (d)  the nature and extent of the person's assets located in Australia;

   (e)  the frequency and duration of the person's travel outside Australia;

   (f)  any other matter relevant to determining whether the person intends to
        remain permanently in Australia. 6C Refugees

(1) A person is a refugee for the purposes of this Part if the person is the
holder of a permanent protection visa or a permanent visa in any of the
following classes of permanent visa referred to in Schedule 1 to the Migration
Regulations:

   (a)  Ahmadi (Special Assistance) (Class BJ);

   (b)  Burmese in Burma (Special Assistance) (Class AB);

   (c)  Burmese in Thailand (Special Assistance) (Class AC);

   (d)  Cambodian (Special Assistance) (Class AE);

   (e)  Camp Clearance (Migrant) (Class AF);

   (f)  Citizens of the Former Yugoslavia (Special Assistance) (Class A1);

   (g)  East Timorese in Portugal, Macau and Mozambique (Special Assistance)
        (Class AM);

   (h)  Minorities of Former USSR (Special Assistance) (Class AV);

   (i)  Refugee and Humanitarian (Migrant) (Class BA);

   (j)  Sri Lankan (Special Assistance) (Class BF);

   (k)  Sudanese (Special Assistance) (Class BD);

   (l)  Territorial Asylum (Residence) (Class BE);

   (m)  Vietnamese (Special Assistance) (Class BK).

(2) A person is a refugee for the purposes of this Part if the person is the
holder of a permanent visa in a class of visas determined by the Minister for
the purposes of this subsection. 6D Dependent child
A person (the child) is, for the purposes of this Part, taken to be a
dependent child of another person if the other person is a parent of the child
and the child:

   (a)  is under 18 and wholly or substantially in the parent's care and
        control (whether alone or jointly with someone else); or

   (b)  is 18 or older and financially, psychologically or physically
        dependent on the parent (whether alone or jointly with someone else).
        6E Member of a couple

(1) Subject to subsection (2), a person is a member of a couple for the
purposes of this Part if:

   (a)  the person is legally married to another person and is not living
        separately and apart from the other person on a permanent or
        indefinite basis; or

   (b)  all of the following conditions are met:

        (i)    the person has a relationship with a person of the opposite sex
               (in this paragraph called the partner);

        (ii)   the person is not legally married to the partner;

        (iii)  the relationship between the person and the partner is a
               marriage-like relationship;

        (iv)   both the person and the partner are over the age of consent
               applicable in the State or Territory in which they live;

        (v)    the person and the partner are not within a prohibited
               relationship for the purposes of section 23B of the Marriage
               Act 1961.

(2) For the purposes of subparagraph (1)(b)(iii), 2 people are not in a
marriage-like relationship if they are living separately and apart from each
other on a permanent or indefinite basis. 6F Meaning of change of
circumstances resident

(1) For the purposes of this Part a change of circumstances resident is a
person to whom subsection (2) applies.

(2) This subsection applies to an Australian resident who is 21 or younger
and:

   (a)  who became an orphan after entering Australia; or

   (b)  whose parents, or whose only parent, began serving a sentence of
        imprisonment for life, or for a term of at least 10 years, after the
        person entered Australia; or

   (c)  whose parents, or whose only parent, became mentally incapacitated
        after the person entered Australia, and are likely to remain so for an
        indefinite period; or

   (d)  whose parents, or whose only parent, started living in a nursing home
        after the person entered Australia, and are likely to continue living
        in a nursing home for an indefinite period; or

   (e)  whose parents, or whose only parent, went missing after the person
        entered Australia; or

   (f)  who is unable to live with his or her parents, or with his or her only
        parent, because of extreme family breakdown or because to do so would
        seriously endanger the person's physical or mental well-being due, for
        example, to actual or threatened violence, sexual abuse or other
        similar behaviour; or

   (g)  who does not live with his or her parents, or with his or her only
        parent, but who is in the lawful custody, control or guardianship of
        another person; or

   (h)  who does not live with his or her parents, or with his or her only
        parent, and who, only because of reaching a particular age, stopped
        being in the lawful custody, control or guardianship of another
        person.

(3) Subsection (2) ceases to apply to a person if:

   (a)  where paragraph (2)(b) applied to a person-the person's parents are,
        or parent is, released from gaol; or

   (b)  where paragraph (2)(c) applied to a person-the person's parents, or
        parent, ceases to be mentally incapacitated; or

   (c)  where paragraph (2)(d) applied to a person-the person's parents, or
        parent, ceases living in a nursing home; or

   (d)  where paragraph (2)(e) applied to a person-the person's parents are,
        or parent is, located; or

   (e)  where paragraph (2)(f) applied to a person-the person recommences
        living with his or her parents or parent. 6G Meaning of post-1996
        Australian resident
For the purposes of this Part, a person is taken to be a post-1996 Australian
resident if he or she:

   (a)  first entered Australia as an Australian resident or as the holder of
        a permanent visa on or after 1 January 1997; or

   (b)  last entered Australia on or after 1 January 1997 and subsequently
        became an Australian resident. 6H Meaning of pre-1997 Australian
        resident

(1) For the purposes of this Part, an Australian resident (other than a New
Zealand citizen) who is not a post-1996 Australian resident is taken to be a
pre-1997 Australian resident.

(2) For the purposes of this Part, an Australian resident who is a New Zealand
citizen and who is not a post-1996 Australian resident is taken to be a
pre-1997 Australian resident provided he or she has lived in Australia
continuously for the last 26 weeks, or has, during the last 52 weeks, not been
absent from Australia for a period of, or periods totalling, more than 8
weeks. 6J Certain determinations disallowable instruments
A determination by the Minister for the purposes of paragraph (e) of the
definition of exempt resident in section 6A, or for the purposes of subsection
6C(2), is a disallowable instrument for the purposes of section 46A of the
Acts Interpretation Act 1901. 3 Subsection 7(1) After "section", insert ",
sections 8 and 9". 4 Paragraph 7(1)(a) Repeal the paragraph, substitute:

   (a)  is an Australian citizen, a pre-1997 Australian resident or a
        post-1996 Australian resident; 5 After subsection 7(1) Insert:

(1A) The Secretary must not grant a benefit under this Part to a person who is
subject to a waiting period if that period has not ended (see sections 8 and
9). 6 After section 7 Insert: 8 Waiting period

(1) A post-1996 Australian resident is subject to a waiting period.

(2) Subsection (1) does not apply to the following:

   (a)  a refugee;

   (b)  a person who was a family member of a refugee when the refugee arrived
        in Australia;

   (c)  an exempt resident;

   (d)  a person while the person is a change of circumstances resident. 9
        Duration of waiting period

(1) If a person is not a New Zealand citizen and is subject to a waiting
period, the period:

   (a)  starts on the day on which the person:

        (i)    entered Australia; or

        (ii)   was granted a permanent visa; whichever last occurs; and

   (b)  ends when the person has been in Australia for a period of, or periods
        totalling, 104 weeks after that day.

(2) If a person is a New Zealand citizen and is subject to a waiting period,
the period:

   (a)  starts on the day on which the person became an Australian resident;
        and

   (b)  ends when the person has been in Australia for a period of, or periods
        totalling, 104 weeks after that day.

(3) For the purposes of subsection (1), the day on which a permanent visa is
granted to a person is:

   (a)  if an initial decision maker decides to grant a visa to the
        person-that day; or

   (b)  if:

        (i)    an initial decision maker decides not to grant a visa to the
               person; and

        (ii)   on a review of the decision referred to in subparagraph (i),
               that decision is set aside (however described) and a visa is
               granted to the person; the day on which the initial decision
               maker decided not to grant the visa to the person.

[Minister's second reading speech made in-
House of Representatives on 30 October 1996
Senate on 7 November 1996]