MIGRATION REGULATIONS (AMENDMENT) 1994 NO. 376
MIGRATION REGULATIONS (AMENDMENT) 1994 NO. 376
EXPLANATORY STATEMENTSTATUTORY RULES 1994 No. 376
Issued by the Authority of the Minister for Immigration and Ethnic Affairs
Migration Act 1958
Migration Regulations (Amendment)
Section 504 of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, to prescribe all matters which are required or permitted to be prescribed by the Act or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. In addition, subsection 31(1) of the Act provides that the regulations are to prescribe classes of visas, and subsection 31(3) of the Act provides that the regulations may prescribe criteria for visas of a specified class.
Without limiting the generality of section 504, particular provision is made for and in relation to the following matters:
- paragraph 504(1)(a) of the Act provides that the regulations may provide for the charging and recovery of fees in respect of any matter under the Act or the regulations;
- paragraph 504(1)(b) of the Act provides that the regulations may make provision for the remission, refund or waiver of fees which may be prescribed by the regulations, and for exempting persons from the payment of such fees;
- paragraph 504(1)(e) of the Act provides that regulations may be made in relation to the giving, lodging and serving of documents for the purposes of the Act on the Minister, the Secretary or any other person or body;
In addition, regulations may be made pursuant to the following powers:
- paragraph 5(2)(b) of the Act provides for prescribing the evidence which a person may provide of English language proficiency to show that the person has functional English for the purposes of the Act;
- subsection 31(1) of die Act provides that the regulations are to prescribe classes of visas;
- subsection 31(3) of the Act provides that the regulations may prescribe criteria for visas of a specified class;
- subsection 31(4) of the Act provides that the regulations may prescribe whether visas are visas to travel to and enter, or to remain in Australia, or both;
- subsection 39(1) of the Act provides that regulations may prescribe criteria for visas of a class which limit the number of visas of that class granted in a particular financial year;
- section 41 of the Act provides that, without limiting the generality of the section, the regulations may provide that visas or visas of a specified class are subject to specified conditions, including but not limited to a condition that a further visa cannot be granted and a condition restricting work rights;
- subsections 45(2) and (3) of the Act provide that the regulations may make provision in relation to applications for visas;
- subsection 71(1) of the Act provides for the regulations to prescribe the way in which evidence of a visa is to be given;
- subsection 93(1) of the Act provides for the qualifications and number of points for each of those qualifications to be prescribed, for the purposes of assessment of the applicant's score under the general points system;
- paragraph 338(2)(d) of the Act provides for decisions reviewable by the Immigration Review Tribunal (IRT) to be prescribed; and
- paragraph 339(1)(b) of the Act provides for the regulations to prescribe the place where, and the period within which, an application for internal review must be lodged.
The purpose of the Regulations is to:
- amend and expand the definition of "spouse" to incorporate criteria in the one definition for the assessment of both legal and de facto marital relationships;
- amend the balance of family test to make it more equitable by excluding certain children of a spouse or former spouse of the applicant;
- qualify the meaning of "main business" in relation to business skills visas to confine the meaning to "active" rather than "passive" businesses;
- allow a visa application to be made at any office of the Department by removing the requirement that an application must be made at an office in the State or Territory in which the applicant is at time of application;
- expand the definition of "trade certificate" in relation to the assessment of an applicant's qualifications, to cover qualifications obtained under training contracts required by State or Territory industrial training legislation or a relevant Federal, State or Territory industrial award, as well as four year indentured apprenticeships;
- allow for the combination of certain points gained by a spouse under the points test with those of the applicant in situations where the combined total of points enables the applicant to reach the pool mark rather than only when the pass mark is reached;
- expand the definition of an IRT-reviewable decision to cover the refusal of an application for a substantive visa by persons to whom section 37 of the pre-1 September 1994 Act applies because of regulation 8 of the Migration Reform (Transitional Provisions) Regulations;
- introduce a new category of prescribed evidence of English language proficiency to allow applicants who have undertaken at least one year's tertiary study in Australia at an institution where the language of instruction was English to be taken to have functional English;
- introduce a single fee for applications in some classes of visa where two or more siblings lodge applications for the same class at the same time;
- correct an oversight by inserting a ceasing event into the Bridging visas A, B and C, and Bridging visa (General) and Bridging visa (Protection visa applicant) where an applicant applies to the AAT under section 501;
- remove the requirement that an applicant for a subclass 105 (Concessional Family) visa must be of working age at the time of decision as well as at the time of application, to reflect the policy intention that the requirement need only be satisfied at time of application;
- introduce a requirement in subclasses 127 and 129 (business visas) that where the relevant business owned by the applicant is a publicly listed company, the applicant, or the applicant and his or her spouse together, must hold at least 10% of the total share issue;
- remove the requirement that certain applicants for Special Assistance visas must report to the Department on settlement progress;
- make the requirements of Special Assistance visa subclasses more uniform by inserting a requirement for a written undertaking by a relative to repay Commonwealth accommodation costs (where not currently required), and insertion of a uniform definition of "near relative";
- amend subclass 300 (Prospective Marriage) so that the criterion that there must be no legal impediment to marriage applies only at the time of decision and may be waived if the only legal impediment is on the grounds of age and the applicant will be of marriageable age by the proposed time of marriage;
- introduce a provision in subclasses 413 (Executive), 414 (Specialist) and 418 (Educational) for waiving a health objection on grounds of costs where there is no danger to public health and the employer undertakes to meet all costs in relation to the applicant's condition;
- extend the operation of subclasses 435 (Sri Lankan (Temporary)) and 443 (Citizens of former Yugoslavia) from 30 November 1994 to 31 March 1995;
- provide for the grant of subclass 560 (Student) visas for 10 Burmese students;
- provide for the grant in Australia of visitor visas with permission to work, to applicants who already hold a visitor visa of the same subclass and meet certain criteria relating to changes in their circumstances and financial situation;
- amend the Employment Qualifications factor of the General Points Test to:
• provide for the award of 60 or 70 points for skill where an applicant has a combination of formal training and experience to meet Australian standards rather than solely either qualifications or experience;
• clarify the appropriate points score in cases where applicants have gained recognition based on work experience only;
• clarify that where an applicant with post-qualification work experience has a short break "immediately before making the application", this should not be regarded as disqualifying the applicant from obtaining points on the skill sub-factor;
- amend the Language Skill factor of the General Points Test to award 10 points to applicants who have successfully completed at least one year of tertiary study in Australia with instruction in English; and
- make a number of clarifying and technical amendments which do not affect the substantive operation of the Migration Regulations.
Details of the Regulations are set out in the Attachment.
The Regulations commence on 12 December 1994 except for the regulations which extend the operation of subclass 435 (Sri Lankan (temporary)) and 443 (Citizens of former Yugoslavia) visas from 30 November 1994 to 31 March 1995. Those regulations commence on 1 December 1994 to ensure continuity.
ATTACHMENT
Regulation 1 - Commencement
This regulation provides for the Migration Regulations (Amendment) to commence on 12 December 1994, except for regulations 39 and 40 which are to commence on 1 December 1994 to ensure continuity of the operation of the subclass 435 (Sri Lankan (Temporary)) visa and the subclass 443 (Citizens of former Yugoslavia) visa.
Regulation 2 - Amendment
This regulation provides for the Migration Regulations to be amended as set out in these Regulations.
Regulation 3 - Regulation 1.03 (Interpretation)
Subregulation 3.1 inserts a definition of "qualifying business". A qualifying business is an "active" as opposed to "passive" business and excludes those operating primarily or substantially for the purpose of speculative or passive investment. The concept of a qualifying business is used in the business related visa subclasses 127 and 129.
Subregulation 3.2 makes an amendment consequential to the amendment to Schedule 5 made by subregulation 58.10 of these Regulations.
Subregulation 3.3 omits the definition of "spouse" and substitutes a cross reference to the new definition of spouse in regulation 1.15A. Regulation 1.15A is inserted into the Migration Regulations by Regulation 7 of these Regulations.
Regulation 4 - Regulation 1.05 (Balance of family test)
Subregulation 4.1 omits subparagraph 1.05(1)(a)(ii) and substitutes subparagraphs 1.05(1)(a)(ii) and 1.05(1)(a)(iii). This subregulation amends the definition of "balance of family test" in the Migration Regulations to expressly exclude a child of a former spouse if the child was born or adopted at or before a time when the relationship between the parent and the former spouse was in existence.
Subregulation 4.2 omits subregulation 1.05(3) and substitutes a new subregulation. This regulation amends the definition of "balance of family test" in the Migration Regulations to expressly exclude a child born to an applicant's former spouse who was aged 18 years and over at the time at which the marital relationship between the applicant and the other parent began, where the other parent is deceased, permanently separated, or divorced when the applicant applies for migration to Australia.
Regulation 5 - Regulation 1.11 (Main business)
Subregulation 5.1 amends subregulation 1.11 (1) of the Migration Regulations to provide that a "main business" be a "qualifying business". Regulation 3 of these Regulations inserts a definition of "qualifying business" into regulation 1.03 of the Migration Regulations.
Subregulation 5.2 omits subregulation 1.11(2) and substitutes a new subregulation. The new subregulation provides that an applicant must not nominate more than 2 qualifying businesses as main businesses.
Regulation 6 - Regulation 1.12 (Member of the family unit)
Subregulation 6.1 omits paragraph 1.12(1)(a) and substitutes a new paragraph which removes the requirement that the relationship with the spouse be "genuine and continuing" as this requirement is included in the new definition of spouse (regulation 1.15A) inserted by regulation 7 of these Regulations.
Subregulation 6.2 makes a minor amendment to subregulation 1.12(2) of the Migration Regulations to insert the words If the person is" which were omitted by oversight when the Migration Regulations were drafted.
Regulation 7 - New regulation 1.15A
This regulation inserts a new regulation 1.15A (Spouse) into the Migration Regulations. The new regulation is intended to ensure that de jure and de facto spouses are treated equally and that the Marriage Act 1961 requirements for Australian marriages in relation to the parties' sex, relationship and age should also apply to de facto spouses. The definition also contains a requirement that the marital relationship be genuine and continuing and exclusive and prescribes matters which may be considered in assessing these requirements.
Regulation 8 - New regulation 2.07A
This regulation inserts a new regulation 2.07A (Refund of application fee in certain circumstances). This regulation provides where a person holds a Long Stay (Visitor) (Class TN) visa or a Short Stay (Visitor)(Class TR) visa, he or she may apply for a further visa of the same class and, if he or she satisfies certain criteria and is granted a visa, the Minister must refund the application fee. The criteria applicable to an application and the conditions applicable to the grant of a visa are inserted by regulations 42, 43, 44, 45, 46, 47, 48, 49, 50 and 51 of these Regulations.
Regulation 9 - Regulation 2.10 (Where application must be made)
Subregulation 9.1 omits paragraph 2.10(1)(b) and substitutes a new paragraph. This subregulation implements a change in policy regarding where an applicant must make an application. The amendment removes the requirement that an application made in Australia must be made in the State or Territory in which the applicant is at the time of application.
Subregulation 9.2 omits subregulation 2.10(2) as a result of the policy change referred to in subregulation 9.1 above.
Regulation 10 - Regulation 2.18 (Re-evidencing of resident return visas)
This regulation makes a minor amendment to paragraph 2.18(4)(e) of the Migration Regulations to correct a reference from "regulation 8" to the intended reference to "regulation 9" of the Migration Reform (Transitional Provisions) Regulations.
Regulation 11 - Regulation 2.26 (Prescribed qualifications and prescribed number of points)
This regulation omits paragraph (a) of the definition of "trade certificate" in subregulation 2.26(5) and substitutes a new paragraph (a) which amends the definition of "trade certificate" to remove the reference to duration of training and to include trade certificates which are obtained under training contracts. The amendment enables trade qualifications which require less than four years of training to be defined as trade certificates. This has become necessary because the term "indentured apprenticeship" does not cover the full range of apprenticeships available under state licensing requirements, some of which are more correctly termed training contracts and may be of less than four years duration.
Regulation 12 - Regulation 2.27 (Qualification - eligibility of spouse)
This regulation omits regulation 2.27 and substitutes a new regulation 2.27 (Combination of scores -"points system").
Under the Concessional Family category, if the main applicant is unable to meet the pass mark (ie, the "qualifying score", see subsection 94(1) of the Act), the skill and age points of the spouse can be combined with the main applicant's points for family relationship, citizenship, settlement and location of sponsor if tile combination of scores leads to the applicants meeting the pass mark or pool mark. This amendment to regulation 2.27 of the Migration Regulations allows for the combination of scores to enable the applicant to receive the pass mark or pool mark if the combination of the scores is equal to, or exceeds the pass mark or the pool mark as the case requires.
Regulation 13 - Regulation 4,03 (Combined applications for internal review)
This regulation amends paragraph 4.03(1)(a) of the Migration Regulations to correct a reference from "regulation 2.07" to "regulation 2.08". It also amends paragraph 4.03(3)(a) to include a reference to "regulation 2.08" which had been overlooked.
Regulation 14 - Regulation 4.09 (IRT-reviewable decisions)
This regulation amends paragraph 4.09(a) by inserting a new subparagraph 4.09(a)(iv). This amendment is made to include a reference to regulation 8 of the Migration Reform (Transitional Provisions) Regulations. Regulation 8 of those Regulations continues to apply "old" section 37 (ie. pre-1 September 1994) to some applicants. These applicants will be able to apply only for a visa of a class prescribed under "new" section 48 (ie. post-1 September 1994) and their applications are to be directly reviewable by the IRT.
Regulation 15 - Regulation 4,12 (Combined applications for review by the Tribunal)
This regulation amends paragraph 4.12(6)(a) of the Migration Regulations to correct a reference from "regulation 2.07" to "regulation 2.08".
Regulation 16 - Regulation 5.17 (Prescribed evidence of English language proficiency (Act. s.5(2)(b)))
Migrant visa applicants are not required to pay the English Education Charge if they can demonstrate that they have "functional English", either by undertaking an approved test (paragraph 5(2)(a) of the Act) or by providing prescribed evidence (paragraph 5(2)(b) of the Act).
In order to gain admission to a university, overseas students are required to verify English language proficiency. The marking system employed in the test used for university admission purposes equates with that used by the Department.
This regulation inserts a new paragraph (ca) in regulation 5.17 which provides that prescribed evidence of English language proficiency for the purposes of paragraph 5(2)(b) of the Act is that the applicant has successfully completed in Australia at least 1 year of full-time study or equivalent part-time study towards a degree, higher degree, diploma or associate diploma for which the language of instruction was English.
Regulation 17 - Schedule 1 (Classes of visas)
This regulation amends the paragraph noting the fees in certain Items (listed below) in Schedule 1 of the Migration Regulations. The amendments provide that a single fee applies to multiple sibling applications made for the same class of visa at the same time and place. The amendments are made to the following Items:
Item 1101: Adoption (Migrant)
Item 1107: Change in Circumstance (Residence) - Child subclass; and Family subclass in respect of orphan relatives only
Item 1108: Child (Migrant)
Item 1115: Family (Residence) - Child subclass; and Family subclass in respect of orphan relatives only
Item 1125: Preferential Relative (Migrant) - in respect of orphan relatives only
Item 1211: Extended Eligibility (Temporary) - Dependent child subclass only
Regulation 18 - Schedule 2, Part 010 (Bridging visa A)
Subregulation 18.1 amends Division 010.1 by inserting a new clause 010.111 to provide, for the purposes of this Part, an interpretation of "review authority" which includes the Administrative Appeals Tribunal.
Regulation 19 - Schedule 2, Part 020 (Bridging visa B)
Subregulation 19.1 amends Division 020.1 by inserting a new clause 020.111 to provide, for the purposes of this Part, an interpretation of "review authority' which includes the Administrative Appeals Tribunal.
Regulation 20 - Schedule 2, Part 030 (Bridging visa C)
Subregulation 20.1 amends Division 030.1 by inserting a new clause 030.111 to provide, for the purposes of this Part, an interpretation of "review authority" which includes the Administrative Appeals Tribunal.
Regulation 21 - Schedule 2, Part 050 (Bridging visa (General))
Subregulation 21.1 amends Division 050.1 by inserting a new clause 050.111 to provide, for the purposes of this Part, an interpretation of "review authority" which includes the Administrative Appeals Tribunal.
Regulation 22 - Schedule 2, Part 051 (Bridging visa (Protection visa applicant)
Subregulation 22.1 amends Division 051.1 by inserting a new clause 051.111 to provide for the purposes of this Part, an interpretation of "review authority" which includes the Administrative Appeals Tribunal.
Regulation 23 - Schedule 2, Part 100 (Spouse)
This regulation omits clause 100.224 and substitutes a new clause 100.224 which omits the requirement that the marital relationship be "genuine and continuing" as this requirement is included in the new definition of spouse (regulation 1.15A) inserted by regulation 7 of these Regulations.
Subclause 100.224(1) provides that the applicant continues to be the spouse of the sponsoring Australian citizen, Australian permanent resident or eligible New Zealand citizen who was the applicant's spouse at the time of application.
Subclause 100.224(2) provides in the case of an applicant who meets the requirements of subclause 100.211(3), the applicant is the spouse of the intended spouse.
Regulation 24 - Schedule 2, Part 105 (Concessional family)
This regulation omits subclause 105.223(1) as it is intended that the applicant must be of working age the time of application but not necessarily at the time of decision.
Regulation 25 - Schedule 2, Part 127 (Business owner)
Subregulation 25.1 amends clause 127.211 by omitting the word "businesses' and substituting "qualifying businesses". A definition of "qualifying business" is inserted into regulation 1.03 of the Migration Regulations by these Regulations.
Subregulation 25.2 omits subclause 127.212(2) and substitutes a new subclause. The new subclause makes provision that where the qualifying business referred to in that subclause is operated by a publicly listed company, the applicant, or the applicant and his or her spouse together, must hold at least 10% of the total issued capital of the company.
Regulation 26 - Schedule 2, Part 129 (State/Territory sponsored business owner)
Subregulation 26.1 amends clause 129.211 by omitting the words "one or more businesses" and substituting "1 or more qualifying businesses". A definition of "qualifying business" is inserted into regulation 1.03 by these Regulations.
Subregulation 26.2 omits subclause 129.212(2) and substitutes a new subclause. The new subclause makes provision that when a qualifying business referred to in that subclause is operated by a publicly listed company, the applicant, or the applicant and his or her spouse together, must hold at least 10% of the total issued capital of the company.
Regulation 27 - Schedule 2, Part 208 (East Timorese in Portugal)
This regulation omits paragraph 208.215(2)(j) as it is no longer required. This paragraph required the organisation representing the East Timorese Community in Australia to report to Immigration on the progress in the settlement of the applicant where the applicant has been provided with accommodation by the Commonwealth.
Regulation 28 - Schedule 2, Part 209 (Citizens of the former Yugoslavia (Displaced persons))
Subregulation 28.1 amends paragraph 209.213(a) to expand the group of applicants eligible for this subclass by enabling the near relative (who gives an undertaking to provide assistance to the applicant) to be an Australian citizen, Australian permanent resident or eligible New Zealand citizen on 30 June 1993 rather than 1 January 1992.
Subregulation 28.2 adds subparagraph (ix) to paragraph 209.213(d) to require the written undertaking provided by the near relative of an applicant to include reimbursing the Commonwealth for its costs if the Commonwealth provides accommodation services for the applicant. This reflects the policy intention and brings subclass 209 into line with the requirements of the other Special Assistance subclasses.
Regulation 29 - Schedule 2, Part 210 (Minorities of former USSR)
This regulation omits paragraph 210.215(b) and substitutes a new paragraph. The new paragraph results in the deletion of subparagraph 210.215(b)(x) as it is no longer required. This subparagraph required the Federation of Australian Jewish Welfare Societies or an organisation representing the Molokan community in Australia, to report to Immigration on the progress in settlement of the applicant where the applicant has been provided with accommodation by the Commonwealth.
Regulation 30 - Schedule 2, Part 211 (Burmese in Burma)
Subregulation 30.1 omits paragraph 211.213(2)(j) as it is no longer required. This paragraph required the organisation which provides a written undertaking of assistance to the applicant to report to Immigration on the progress in settlement of the applicant where the applicant has been provided with accommodation by the Commonwealth.
Subregulation 30.2 omits subclause 211.222(1) and substitutes a new subclause. The effect of the new subclause is to change the terminology from "relevant family links" to "near relative" for the sake of consistency with the terminology used in other Parts of Schedule 2 and internal consistency in Part 211.
Subregulation 30.3 amends subclause 211.222(2) to change the terminology from "relevant family links" to "a near relative". This amendment has no policy implications.
Subregulation 30.4 omits subclause 211.222(3) and substitutes a new subclause which changes the terminology from "relevant family links" to "a near relative". This amendment has no other effect and does not involve any substantive change in policy.
Regulation 31 - Schedule 2, Part 212 (Sudanese)
Subregulation 31.1 adds an extra subparagraph (ix) to paragraph 212.213(d), to require the written undertaking provided by the near relative to include reimbursing the Commonwealth for its costs if the Commonwealth provides accommodation services for the applicant. Ibis reflects the policy intention and brings subclass 212 into line with the requirements of the other Special Assistance subclasses.
Regulation 32 - Schedule 2, Part 213 (Burmese in Thailand)
Subregulation 32.1 omits paragraph 213.213(2)G) as it is no longer required. This paragraph required the organisation which provides a written undertaking of assistance to the applicant to report to Immigration on the progress in settlement of the applicant where the applicant has been provided with accommodation by the Commonwealth.
Regulation 33 - Schedule 2, Part 214 (Cambodian)
Subregulations 33.1, 33.2 and 33.3 make stylistic changes to paragraph 214.111(1)(d) and subclauses 214.111(2) and 214.111(3), respectively, by substituting the word "meets" for the word "satisfies".
Subregulation 33.4 inserts a new clause 214.112 in Part 214. The new clause introduces the term "near relative" in Part 214 to simplify the Part and make its terminology consistent with that used in the other Special Assistance subclasses. This amendment does not involve any substantive change in policy.
Subregulation 33.5 omits clause 214.211 and substitutes a new clause. The only effect of the new clause is to replace the words "close links with Australia" with the words "a near relative in Australia". The term "near relative" is defined in the new clause 214.112 inserted by subregulation 33.4 of these Regulations.
Subregulation 33.6 corrects a drafting error in subclause 214.212(2).
Subregulation 33.7 omits paragraph 214.212(2)(j) as it is no longer required. This paragraph required the relative or organisation which provides a written undertaking of assistance to the applicant to report to Immigration on the progress in settlement of the applicant where the applicant has been provided with accommodation by the Commonwealth.
Regulation 34 - Schedule 2, Part 300 (Prospective marriage)
Subregulation 34.1 omits clause 300.212. The effect of this subregulation is to omit as a criterion to be met at the time of application the requirement that there must be no impediment in Australian law to the applicant's proposed marriage. The criterion is retained as one to be met at the time of decision. The effect of this amendment is to enable an applicant to apply for a subclass 300 visa although there is a legal impediment to marriage (eg, the applicant's divorce from another spouse might not yet be finalised) provided that impediment is removed by the time a decision is made on the application.
Subregulation 34.2 omits clause 300.216 and substitutes a new clause. This clause removes the requirement that the relationship be "genuine and continuing" as this requirement is included in the new definition of spouse (regulation 1.15A) inserted by regulation 7 of these Regulations.
Subregulation 34.3 omits clause 300.221 and substitutes a new clause which has no reference to clause 300.212 (omitted by these Regulations) and inserts new clauses 300.221A and 300.221B. New clause 300.221A requires that at the time of decision on the application there must be no impediment in Australian law to the applicant's proposed marriage in Australia. New clause 300.221B clarifies that there is considered to be no legal impediment to marriage in Australia if the applicant or the prospective spouse has not yet turned 18 but will do so by the time of the intended marriage as stated in the visa application, or if the marriage has been authorised by the order of a Judge or magistrate under section 12 of the Marriage Act 1961.
Regulation 35 - Schedule 2, Part 413 (Executive)
Subregulations 35.1 and 35.2 amend clause 413.224 and paragraph 413.324(a), respectively, to omit the requirement to satisfy public interest criterion 4005 and replace it with a requirement to satisfy the new public interest criterion 4005A inserted by regulation 57 of these Regulations.
The new public interest criterion 4005A is identical to existing public interest criterion 4005 but with an additional provision that a health objection on the grounds that the applicant's disease or condition would result in undue costs to Australian community resources and public funds may be waived where the proposed employer, or the family head's proposed
employer, has provided a written undertaking to meet all costs related to the applicant, 8 disease or condition. The waiver is available only where the applicant's disease or condition is not a public health risk or a danger to the Australian community.
Regulation 36 - Schedule 2, Part 414 (Specialist)
This regulation amends Part 414 with the same effect as the amendment made to Part 413 by regulation 35 of these Regulations. See the notes on that regulation, above.
Regulation 37 - Schedule 2, Part 418 (Educational)
This regulation amends Part 418 with the same effect as the amendment made to Part 413 by regulation 35 of these Regulations. See the notes on that regulation, above.
Regulation 38 - Schedule 2, Part 432 (Expatriate (Temporary))
Subregulation 38.1 amends clause 432.612 to correct a typographical error by omitting a reference to condition 8222 and substituting the intended reference to condition 8522.
Regulation 39 - Schedule 2, Part 435 (Sri Lankan (Temporary))
Subregulation 39.1 amends an error in the heading to Part 435.
Subregulations 39.2 and 39.3 amend clauses 435.214 and 435.511, respectively, to extend the operation of the subclass 435 visa from 30 November 1994 to 31 March 1995.
Regulation 40 - Schedule 2, Part 443 (Citizens of former Yugoslavia)
Subregulations 40.1 and 40.2 amend clauses 443.214 and 443.511, respectively, to extend the operation of the subclass 443 visa from 30 November 1994 to 31 March 1995.
Regulation 41 - Schedule 2, Part 560 (Student)
Subregulation 41.1 amends subclause 560.224(1) to insert a reference to the new clause 560.224A, inserted in the Migration Regulations by the next subregulation of these Regulations.
Subregulation 41.2 inserts a new clause 560.224A. The new clause facilitates the entry of 10 Burmese students under an AIDAB program to study in Australia. These students will not be required to meet the usual bona fides criteria (as there is no certainty that they will be able to depart Australia on completion of their studies) or financial assessment, where the Minister for Immigration and Ethnic Affairs and the Minister for Foreign Affairs and Trade determine that it is in the public interest for them to enter Australia as students. This provision will cease to have effect on 30 June 1995.
Subregulation 41.3 omits subclause 560.324(2) and substitutes a new subclause. The new subclause makes provision for the entry of any members of the family unit of the Burmese students referred to in the new clause 560.224A (inserted by these Regulations), under the same amended criteria.
Subregulation 41.4 corrects a drafting error in subparagraph 560.613(1)(d)(i) by omitting an unintended reference to condition 9104.
Regulation 42 - Schedule 2, Part 670 (Tourist (short stay))
Subregulation 42.1 amends subclause 670.221(1) to insert a reference to the new subclause 670.221(4), inserted in the Migration Regulations by the following subregulation of these Regulations.
Subregulation 42.2 inserts a new subclause 670.221(4) to make a new provision for the grant of a subclass 670 visa to an applicant in Australia. A visa granted under this provision will not he subject to any work restrictions. The applicant must meet the following criteria:
• he or she is suffering financial hardship as a result of changed circumstances after arrival in Australia;
• he or she is likely, or an immediate family member is likely, to become a charge on public funds;
• he or she, or a member of the immediate family of the applicant, is unable to leave Australia for reasons beyond his or her control; and
• the Minister is satisfied that the applicant has compelling personal reasons to work in Australia.
The applicant must also meet public interest criterion 4005 and satisfy the Minister that he or she is a genuine visitor and intends to comply with any conditions subject to which the visa is granted.
Subregulation 42.3 omits clause 670.611 and inserts a new clause. The new clause provides that a subclass 670 visa granted to an applicant meeting the criteria of the new subclause 670.221(4), inserted by these Regulations, is not subject to any condition restricting work rights. Subclass 670 visas granted under the existing provisions continue to be subject to the existing conditions, including the condition that the holder must not engage in work in Australia.
Regulation 43 - Schedule 2, Part 672 (Business visitor (short stay))
This regulation amends Part 672 to make provision for the grant of a subclass 672 visa in Australia with unrestricted work rights in certain circumstances. The amendments have the same effect as those made to Part 670 by regulation 42 of these Regulations. For further details, please see the notes above on that regulation.
Regulation 44 - Schedule 2, Part 673 (Close family visitor (short stay))
This regulation amends Part 673 to make provision for the grant of a subclass 673 visa in Australia with unrestricted work rights in certain circumstances. The amendments have the same effect as those made to Part 670 by regulation 42 of these Regulations. For further details, please see the notes above on that regulation.
Regulation 45 - Schedule 2, Part 674 (Visitor other (short stay))
This regulation amends Part 674 to make provision for the grant of a subclass 674 visa in Australia with unrestricted work rights in certain circumstances. The amendments have the same effect as those made to Part 670 by regulation 42 of these Regulations. For further details, please see the notes above on that regulation.
Regulation 46 - Schedule 2, Part 675 (Medical treatment (short stay))
This regulation amends Part 675 to make provision for the grant of a subclass 675 visa in Australia with unrestricted work rights in certain circumstances. The amendments have the same effect as those made to Part 670 by regulation 42 of these Regulations. For further details, please see the notes above on that regulation.
Regulation 47 - Schedule 2, Part 680 (Tourist (long stay))
This regulation amends Part 680 to make provision for the grant of a subclass 680 visa in Australia with unrestricted work rights in certain circumstances. The amendments have the same effect as those made to Part 670 by regulation 42 of these Regulations. For further details, please see the notes above on that regulation.
Regulation 48 - Schedule 2, Part 682 (Business visitor Gong stay))
This regulation amends Part 682 to make provision for the grant of a subclass 682 visa in Australia with unrestricted work rights in certain circumstances. The amendments have the same effect as those made to Part 670 by regulation 42 of these Regulations. For further details, please see the notes above on that regulation.
Regulation 49 - Schedule 2, Part 683 (Close family visitor (lone stay))
This regulation amends Part 683 to make provision for the grant of a subclass 683 visa in Australia with unrestricted work rights in certain circumstances. The amendments have the same effect as those made to Part 670 by regulation 42 of these Regulations. For further details, please see the notes above on that regulation.
Regulation 50 - Schedule 2, Part 684 (Visitor other (long stay))
This regulation amends Part 684 to make provision for the grant of a subclass 684 visa in Australia with unrestricted work rights in certain circumstances. The amendments have the same effect as those made to Part 670 by regulation 42 of these Regulations. For further details, please see the notes above on that regulation.
Regulation 51 - Schedule 2, Part 685 (Medical treatment (long stay))
This regulation amends Part 685 to make provision for the grant of a subclass 685 visa in Australia with unrestricted work rights in certain circumstances. The amendments have the same effect as those made to Part 670 by regulation 42 of these Regulations. For further details, please see the notes above on that regulation.
Regulation 52 - Schedule 2, Part 801 (Spouse)
Subregulation 52.1 omits paragraph 801.221(2)(c) and substitutes a new paragraph which omits the requirement that the marital relationship be "genuine and continuing" as this requirement is included in the new definition of spouse (regulation 1.15A) inserted by regulation 7 of these Regulations.
Subregulation 52.2 omits paragraph 801.221(5)(c) and substitutes a new paragraph. It omits the requirement that the marital relationship "was genuine and would have continued if the nominating spouse had not died" and substitutes the requirement that "the applicant would have continued to be the spouse of the nominating spouse if the nominating spouse had not died".
Subregulation 52.3 omits paragraph 801.221(6)(b) and substitutes a new paragraph. The effect of the amendment is to make the wording of the paragraph consistent with the terms of the new definition of spouse (regulation 1.15A).
Regulation 53 - Schedule 2, Part 805 (Skilled)
Subregulation 53.1 amends paragraph 805.221(2)(a) by omitting references included by oversight and substituting the intended references to criteria in Schedule 3.
Subregulation 53.2 omits subparagraphs 805.212(2)(a)(viii) and (ix) and substitutes a new subparagraph (viii). The effect of this amendment is to remove a reference to the visa class "Change in Circumstance (Temporary)". This visa class does not exist.
Subregulations 53.3, 53.4 and 53.5 correct cross-referencing errors in subclauses 805.212(9) and 805.213(3), and paragraph 805.222(a) respectively.
Regulation 54 - Schedule 2, Part 820 (Spouse)
Subregulation 54.1 omits paragraph 820.211(2)(b). This paragraph is no longer required as the requirement that the relationship between the two parties be "genuine and continuing" is included in the new definition of "spouse" (new regulation 1.15A inserted by regulation 7 of these Regulations). Existing paragraph 820.211(2)(a) requires the applicant to be the spouse of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Subregulation 54.2 corrects a typographical error in subparagraph 820.211(2)(d)(ii).
Subregulations 54.3, 54.4 and 54.5 omit paragraphs 820.211(3)(e), 820.211(4)(e) and 820.211(5)(e), respectively, and substitute new paragraphs. The omitted paragraphs required the relationship between the parties to be "genuine and continuing". The substituted paragraphs require the applicant to be spouse of the nominating spouse. The requirement that the relationship between the two parties be "genuine and continuing" is included in the new definition of "spouse" (new regulation 1.15A inserted by regulation 7 of these Regulations).
Subregulation 54.6 amends paragraph 820.221(2)(a) by omitting the word "applicant's" and substituting "nominating", for consistency of terminology in this subclass.
Subregulation 54.7 omits paragraph 820.221(2)(b) and substitutes a new paragraph. The new paragraph adopts the term "nominating spouse", for consistency in this subclass. The new paragraph also omits references to the relationship being genuine and continuing as these factors are an element of the new definition of "spouse" (new regulation 1.15A inserted by regulation 7 of these Regulations).
Subregulation 54.8 omits paragraph 820.221(3)(a) and substitutes a new paragraph. The new paragraph omits the words "marital relationship is no longer continuing" and substitutes the words "relationship between the applicant and the nominating spouse has ceased". This is for consistency with the terminology used in this subclass and reflects the new definition of "spouse" (new regulation 1.15A inserted by regulation 7 of these Regulations).
Regulation 55 - Schedule 2, Part 826 (Interdependency)
Subregulation 55.1 omits the word "valid" from clause 826.711. It is not the intention that evidence of a visa of this subclass is required to be attached to a valid passport.
Regulation 56 - Schedule 2, Part 831 (Prospective marriage spouse)
Subregulations 56.1, 56.2, 56.3 and 56.4 amend clause 831.211 and paragraphs 831.221(2)(b), 831.221(3)(c) and 831.221(4)(b) respectively, to omit the requirement that the marital relationship be "genuine and continuing" as this requirement is included in the new definition of spouse (regulation 1.15A) inserted by regulation 7 of these Regulations.
Subregulation 56.5 omits paragraph 831.221(4)(c) for the same reason as the other amendments made by this regulation.
Regulation 57 - Schedule 4 (Public interest criteria)
Subregulation 57.1 inserts a new clause 4005A in Schedule 4 (Public interest criteria).
The new public interest criterion 4005A is identical to existing public interest criterion 4005 but with an additional provision that a health objection on the grounds that the applicant's disease or condition would result in undue costs to Australian community resources and public funds may be waived where the proposed employer, or the family head's proposed employer, has provided a written undertaking to meet all costs related to the applicant's disease or condition. The waiver is available only where the applicant's disuse or condition is not a public health risk or a danger to the Australian community.
The new public interest criterion is prescribed as a criterion for subclasses 413, 414 and 418 by regulations 35, 36 and 37 of these Regulations.
Regulation 58 - Schedule 5 (Special return criteria)
Subregulations 58.1 to 58.7 inclusive simplify the terminology in Schedule 5 by dividing it into two Parts. The second Part was previously entitled "The table referred to in subclauses 5004(2) and 5005(2)" and can now be referred to as "Part 2".
Subregulations 58.8 and 58.9 correct drafting errors by the insertion of "or" at the end of subsubparagraph (b)(ii)(B) of clause 5006 and at the end of sub-subparagraph (b)(ii)(B) of clause 5007.
Subregulation 58.10 omits the Table in Schedule 5 and substitutes a new Part 2. The effect of this amendment is to change the heading of the Table, which then becomes "Part 2 Conditions applicable to certain subclasses of visas for the purposes of clauses 5004 and 5005". The substituted Part 2 has a revised Column 4 because the conditions listed in Column 4 of the previous Table were, by oversight, conditions from Schedule 9 of the Migration (1993) Regulations. They are replaced with the intended equivalent conditions from Schedule 8 of the Migration Regulations.
Regulation 59 - Schedule 6 (General points test - qualifications and points)
In some cases, applicants may have a combination of formal training and work experience which, taken together, are assessed as meeting Australian standards for recognition of qualifications in the occupation. Neither the formal training nor the experience taken alone, however, would be acceptable for the award of the relevant points under the current provisions.
Subregulations 59.1, 59.3, and 59.5 amend subparagraph 6101(a)(iv) and paragraphs 6102(c) and 6104(c) respectively, so that experience may include a combination of academic study or trade training and work experience.
Subregulations 59.1 to 59.6 inclusive also amend items 6101, 6102 and 6104 to reflect policy. These amendments implement the policy intention that the applicant could be on a break at the time he or she applied, by changing the formula for experience to a requirement that the applicant have worked in the occupation or a closely related occupation for a total period of 2 years in the preceding 3 years. These amendments also correct an imbalance between the amount of experience required for those who have formal qualifications and those who have experience assessed as equivalent.
Subregulations 59.7 amends item 6105 as a consequence of the amendment made to item 6104(c) by subregulation 59.5 of these Regulations.
Subregulation 59.8 inserts a new item 6311A into Part 3 of Schedule 6 of the Migration Regulations. This item awards 10 points for language skills to applicants who demonstrate the prescribed evidence of English language proficiency introduced by the amendment to regulation 5.17 of the Migration Regulations made by these Regulations. ie. that the applicant has successfully completed in Australia at least 1 year of full-time study or equivalent part-time study towards a degree, higher degree, diploma or associate diploma for which instruction was conducted in English.