explanatory statement select legislative instrument 2012
TRANSCRIPT
EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 256
Issued by the Minister for Immigration and Citizenship
Migration Act 1958
Australian Citizenship Act 2007
Migration Legislation Amendment Regulation 2012 (No. 5)
Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the
Governor-General may make regulations, not inconsistent with the Act, prescribing all
matters which by this Act are required or permitted to be prescribed, or which are necessary
or convenient to be prescribed for carrying out or giving effect to this Act.
Section 54 of the Australian Citizenship Act 2007 (the Citizenship Act) provides that the
Governor-General may make regulations prescribing matters required or permitted by the
Citizenship Act to be prescribed or necessary or convenient to be prescribed for carrying out
or giving effect to the Citizenship Act.
In addition, regulations may be made pursuant to the provisions of the Act and the
Citizenship Act in Attachment A.
The purpose of the Regulation is to:
amend the Migration Regulations 1994 (the Principal Regulations) by amending
the criterion for the grant of a visa, which requires that a visa applicant have a
valid passport, to add a requirement that the visa applicant must not hold a
passport or travel document that Australia does not recognise for foreign policy
or integrity reasons. A foreign policy reason might be that a country recognised
by Australia issues a type of passport or travel documents that Australia does
not recognise. For example, the Turkish Government, which Australia does
recognise, issues passports that endorse the Turkish Republic of Northern
Cyprus, which Australia does not recognise. An integrity reason might be that
there are concerns about the passport or travel document issued by a country
that Australia does recognise. For example, concerns about ease of forgery;
amend the Principal Regulations to implement amendments that are consequential to,
and make corrections to, certain amendments made by the Migration Amendment
Regulation 2012 (No. 2) which commenced on 1 July 2012. In particular, the
Regulation would amend the Principal Regulations to:
o make certain minor and technical amendments to clarify amendments made
by the Migration Amendment Regulation 2012 (No. 2)on 1 July 2012 in
relation to the new skilled migrant selection model and the Government‟s
simplification and deregulation agenda; and
Explanatory Statement to F2012L02236
2
o correct minor typographical errors;
amend the Principal Regulations to ensure that integrity measures are in place to
prevent Subclass 676 (Tourist) visa holders becoming resident in Australia if they are
granted a visa with a long validity period because they are the parent of an Australian
citizen or permanent resident. In particular, the Regulation amends the Principal
Regulations to:
o allow two further conditions to be imposed on Subclass 676 (Tourist) visas,
including a new condition preventing the visa holder from staying in
Australia for more than 12 cumulative months in any 18 month period;
amend the Principal Regulations to implement the visa evidence charge which is
created by the Migration (Visa Evidence) Charge Act 2012. In particular, the
Regulation amends the Principal Regulations to prescribe:
o how the grant of a visa is to be notified;
o the amount of the visa evidence charge;
o the types of visa evidence that may be requested;
o the way a request for visa evidence may be made;
o the place for lodging a request for visa evidence;
o the circumstances where the visa evidence charge is nil;
o the circumstances when evidence of a visa may be requested or given; and
o when the visa evidence charge may be refunded.
amend the Principal Regulations to provide more flexibility in the evidence to be
provided by a visa applicant when they wish to include a „non-judicially determined
claim of family violence‟ in their visa application. The amendment is intended to
make it easier for visa applicants who have suffered family violence to provide
evidence of a „non-judicially determined claim of family violence‟ when they apply
for a visa;
amend references in the Australian Citizenship Regulations 2007 (the Citizenship
Regulations) to incorporate by reference the instruments made under subregulations
5.36(1) and 5.36(1A) of the Principal Regulations, which relate to the payment of
fees in foreign currencies and foreign countries. This updates the foreign currencies
and foreign countries in which clients may pay fees required under the Citizenship
Act; and
amend the Citizenship Regulations to prescribe the type of visas required for a
relative who migrated to Australia with the person who was recruited by the
Australian Defence Force, to satisfy the defence service requirement (defined in
section 23 of the Citizenship Act) for the purposes of section 21 of the Citizenship
Act, which sets out the eligibility requirements for applying for Australian
citizenship by conferral.
A Statement of Compatibility with Human Rights has been completed for the Regulation, in
accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement‟s
assessment is that the Regulation does not raise any human rights issues. A copy of the
Statement is at Attachment B.
Explanatory Statement to F2012L02236
3
Details of the Regulation are set out in Attachment C.
The Act and Citizenship Act specify no conditions that need to be satisfied before the power
to make the Regulation may be exercised.
The Office of Best Practice Regulation (the OBPR) has been consulted in relation to the
amendments made by the Regulation and advises that the regulation is not likely to have a
direct effect, or substantial indirect effect, on business and is not likely to restrict
competition. The OBPR consultation references are:
13992 (Schedule 1);
13992 (Schedule 2);
2011/13150, 2012/13021, 2011/13095 and 2010/12021 (Schedule 3);
14258 (Schedule 4);
13083 (Schedule 5);
14089 (Schedule 6);
13924 (Schedule 8); and
13862 (Schedule 9).
In relation to the amendments made by Schedules 1 and 2 to the Regulation, the Department
of Immigration and Citizenship (the Department) consulted the Department of Foreign
Affairs and Trade (DFAT) with regard to the policy intent behind declaring various
passports as unacceptable, whether the most appropriate legislative method for ensuring the
objective was met and which particular passports should be specified in an instrument in
writing for clause 4021. It was not considered necessary to consult further with external
stakeholders about these amendments.
In relation to the amendments made by Schedule 3 to the Regulation, extensive consultations
were undertaken across Federal, State and Territory government agencies during the
development of the new general skilled migration, employer nominated and business skills
visas and associated nomination requirements.
Discussions were held with a range of key affected stakeholders from business and industry
groups, unions and education providers, including the Australian Chamber of Commerce and
Industry, Rural Skills Australia, the Construction, Forestry, Mining and Energy Union,
Universities Australia and the Australian Council for Private Education and Training..
In January 2011, the Department of Immigration and Citizenship published a discussion
paper on the employer nominated component of the skilled visa program. The paper invited
submissions on policy settings in relation to age, skill level and English language
proficiency and opportunities for greater synergy between the permanent and temporary
employer sponsored visas. Over 60 submissions were received. The submissions and
outcomes of discussions with stakeholders were taken into account in developing the
amendments made by Schedule 3 to the Regulation.
Explanatory Statement to F2012L02236
4
In relation to the amendments made by Schedule 4 to the Regulation, consultation was
unnecessary because the amendments are minor in nature and do not substantially alter
existing arrangements.
In relation to the amendments made by Schedule 5 to the Regulation, the Department met
with a range of key stakeholders to provide briefing on the policy aspects of the visa evidence
charge and its potential implications for stakeholders. These issues were discussed as part of
consultations on the broader visa pricing transformation agenda.
The stakeholders with whom the Department met are Austrade, the Commonwealth
Ombudsman, the Department of Human Services, the Department of Education, Employment
and Workplace Relations, the Department of Foreign Affairs and Trade, the Department of
Finance and Deregulation , the Department of Industry, Innovation, Science, Research and
Tertiary Education , the Department of Regional Australia, Local Government, Arts and
Sport , the Department of Resources, Energy and Tourism, the Department of the Prime
Minister and Cabinet , the Department of the Treasury, the Migration Review Tribunal,
Commonwealth State Working Party on Skilled Migration, the Education Visa Consultative
Committee , the Tourism Visa Advisory Group, the United Kingdom Cabinet officer,
Bernard Quinn, the Australian Hotels Association , the Australian Council for Private
Education & Training , the Australian Council of Trade Unions , the Australian Tourism
Export Council, the Board of Airline Representatives of Australia, the Business Events
Council of Australia, the Business Council of Australia, the Council of International Students
Australia, the Council of Private Higher Education, the Ethnic Communities Council of
NSW, the English Australia, the Immigration Advice and Rights Centre, the Independent
Schools Council of Australia, the International Education Association Australia, the Law
Council - Immigration Lawyers Association of Australasia Focus Group, the Legal Aid
Commission of New South Wales Maritime Sector , the Migration Alliance , the Migration
Institute of Australia, the National Tourism Alliance, the NSW Client Reference Group, the
Office of the Migration Agents Registration Authority, Qantas, the Regional Outreach
Officer Network, TAFE Directors Australia, Tourism Visa Advisory Group, the Virgin
Group.
In relation to the amendments made by Schedule 6 to the Regulation, the Department
participated in the interdepartmental Working Committee in considering the implementation
of recommendations made by the Australian Law Reform Commission. The Department also
undertook extensive internal consultation.
No consultation was undertaken in relation to Schedule 7 to the Regulation because the
provisions there are purely machinery in nature.
In relation to the amendments made by Schedule 8 to the Regulation, because the
amendments will not be likely to have a direct, or a substantial indirect, effect on business or
restrict competition, or impact significantly on other government departments, non-
government organisations, businesses or other interested parties, no consultation outside the
Department of Immigration and Citizenship was undertaken.
In relation to the amendments made by Schedule 9 to the Regulation, DIAC consulted with
the Department of Defence as a key stakeholder in changes that affect overseas lateral
recruits to the Australian Defence Force and their families.
Explanatory Statement to F2012L02236
5
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act
2003.
Explanatory Statement to F2012L02236
ATTACHMENT A
POWERS OF DELEGATION
Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the
Governor-General may make regulations, not inconsistent with the Act, prescribing all
matters which by the Act are required or permitted to be prescribed, or which are necessary
or convenient to be prescribed for carrying out or giving effect to the Act.
Section 54 of the Australian Citizenship Act 2007 (the Citizenship Act) provides that the
Governor-General may make regulations prescribing matters required or permitted by the
Citizenship Act to be prescribed, or necessary or convenient to be prescribed for carrying out
or giving effect to the Citizenship Act.
In addition, the following provisions of the Act and Citizenship Act may apply:
subsection 5(1) of the Act, which provides that „prescribed‟ means prescribed by
the regulations;
subsection 31(3) of the Act, which provides that the regulations may prescribe
criteria for a visa or visas of a specified class;
subsection 31(4) of the Act, which provides that the regulations may
prescribe whether visas of a class are visas to travel to and enter Australia,
or to remain in Australia, or both;
subsection 40(1) of the Act, which provides that the regulations may provide
that visas or visas of a specified class may only be granted in specified
circumstances;
subsection 41(1) of the Act, which provides that the regulations may provide that
visas, or visas of a specified class, are subject to specified conditions;
subsection 41(2) of the Act, which provides that without limiting subsection
41(1), the regulations may provide that a visa, or visas of a specified class,
are subject to:
(a) a condition that, despite anything else in this Act, the holder of the visa
will not, after entering Australia, be entitled to be granted a substantive
(other than a protection visa or a temporary visa of a specified kind)
while he or she remains in Australia; or
(b) a condition imposing restrictions about the work that may be done in
Australia by the holder, which, without limiting the generality of this
paragraph, may be restrictions on doing any work, or work other than
specified work, or work of a specified kind;
subsection 41(2A) of the Act, which provides that the Minister may, in
prescribed circumstances, by writing, waive a condition of a kind described
Explanatory Statement to F2012L02236
2
in paragraph 41(2)(a) to which a particular visa is subject under regulations
made for the purposes of that paragraph or under subsection 41(3);
subsection 41(3) of the Act, which provides that, in addition to any conditions
specified under subsection 41(1), the Minister may specify that a visa is subject
to such conditions as are permitted by the regulations for the purposes of that
subsection;
paragraph 46(1)(b) of the Act, which provides that, subject to subsections
46(1A), (2) and (2A), an application for a visa is valid if, and only if, it satisfies
the criteria and requirements prescribed under that section;
subsection 66(1) of the Act, which provides that when the Minister grants or
refuses to grant a visa, he or she is to notify the applicant of the decision in the
prescribed way;
subsection 70(1) of the Act, which provides that certain person may request to be
given a prescribed form of evidence of a visa;
paragraph 70(2)(a) of the Act, which provides that the request for evidence of a
visa must be made in the prescribed way;
paragraph 70(2)(b) of the Act, which provides that the request must be lodged at
the prescribed place;
subsection 71(2) of the Act, which provides that the amount of the visa evidence
charge is the prescribed amount which must not exceed the visa evidence charge
limit for the request. The visa evidence charge limit is defined in subsection 5(1)
of the Act has the meaning given by the Migration (Visa Evidence) Charge Act
2012;
subsection 71(3) of the Act, which deals with the regulations that may be made in
relation to the visa evidence charge, in particular the regulations may specify
circumstances in which the amount of the visa evidence charge is nil;
section 71B of the Act, which deals with regulations that may be made about the
visa evidence charge, in particular the regulations may make provision for:
o the circumstances in which a prescribed form of evidence of a visa may be
requested or given;
o the method of payment (including the currency in which the charge must be
paid);
o the remission, refund or waiver (in whole or in part) of the charge);
section 505 of the Act, which provides that, to avoid doubt, regulations for the
purpose of prescribing a criterion for visas of a class may provide that the
Minister, when required to decide whether an applicant for a visa of the class
satisfies the criterion:
Explanatory Statement to F2012L02236
3
(a) is to get a specified person or organisation, or a person or organisation in a
specified class, to:
(i) give an opinion on a specified matter; or
(ii) make an assessment of a specified matter; or
(iii) make a finding about a specified matter; or
(iv) make a decision about a specified matter; and
(b) is:
(i) to have regard to that opinion, assessment, finding or decision in; or
(ii) to take that opinion, assessment, finding or decision to be correct for the
purposes of;
deciding whether the applicant satisfies the criterion;
subsection 23(2) of the Citizenship Act, which provides that if:
o a person (the defence person) was granted, on or after 1 July 2007, a visa
prescribed by the regulations; and
o the defence person has completed relevant defence service; and
o another person (the relative) was a member of the family unit of the defence
person when the defence person was granted the visa; and
o the relative holds a visa of that kind because the relative is a member of the
family unit of the defence person;
the relative satisfies the defence service requirement for the purposes of section
21;
subsection 23(3) of the Citizenship Act, which provides that if:
o a person (the defence person) was granted, on or after 1 July 2007, a visa
prescribed by the regulations; and
o the defence person dies while undertaking service in the Permanent Forces or
the Reserves; and
o another person (the relative) was a member of the family unit of the defence
person when the defence person was granted the visa; and
o immediately before the death of the defence person, the relative held a visa of
that kind because the relative was a member of the family unit of the defence
person;
the relative satisfies the defence service requirement for the purposes of section
21;
paragraph 46(1)(d) of the Citizenship Act, which relevantly provides that an
application made under a provision of that Act must be accompanied by the fee
(if any) prescribed by the regulations; and
subsection 46(3) of the Citizenship Act, which provides that the regulations may
make provision for and in relation to the remission, refund or waiver of any fees
of a kind referred to in paragraph 46(1)(d) of the Act.
Explanatory Statement to F2012L02236
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
This Legislative Instrument is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Schedules 1 and 2 – Amendments of Migration Regulations 1994 relating to
travel documents
Overview of the Legislative Instrument
These amendments introduce a Public Interest Criterion (PIC) that will require applicants to
present a valid travel document at time of visa grant.
The PIC will strengthen existing provisions that prevent the use of travel documents deemed
unacceptable for foreign policy or integrity reasons by allowing the Minister to declare that
specified travel documents are not to be taken to be passports.
The Department of Foreign Affairs and Trade (DFAT) has provided advice that where
acceptance of travel documents for visa grant would indicate recognition of the issuing
authority contrary to Australian Government foreign policy, or travel documents issued by an
entity that is not recognised by the Australian Government as empowered to issue travel
documents, travel documents should not be accepted or endorsed.
The time of decision requirement for a valid passport in relevant visas in Schedule 2 to the
Migration Regulations 1994 (the Principal Regulations) has been changed to a PIC so that the
Minister may direct in the form of an instrument that a specified document or travel
documents with certain characteristics are not to be taken to be a passport or travel document
for the purpose of visa grant.
Human rights implications
It is already accepted that international law does permit a country to impose restrictions on
who may enter it. The proposed regulations, inasmuch as they require a visa applicant to
present a valid travel document in order to satisfy one of the conditions for a grant of a visa,
reflect that accepted position.
In relation to Australia‟s human rights obligations, the only right contained in the
International Covenant on Civil and Political Rights (ICCPR) relevant to the proposed
amendment is the right to freedom of movement under Article 12 of the ICCPR. Freedom of
movement relates to the right to move freely within a country for those who are lawfully
within a country, the right to leave any country and the right to enter a country of which you
are a citizen.
Article 12(1) provides that „[e]veryone lawfully within the territory of a State shall, within
that territory, have the right to liberty of movement and freedom to choose his residence.‟ To
the extent that a visa applicant is not lawfully in the territory of a State (e.g. for offshore
applicants who have applied for a particular visa which requires satisfying the proposed PIC),
this right is not applicable. For those applicants lawfully in a State at the time of application,
Explanatory Statement to F2012L02236
2
the rights under article 12(1) apply to the visa that they hold at the time of application, but do
not apply for subsequent visa applications which have not been granted because of the failure
to satisfy the proposed PIC. Article 12(1) is correspondingly not engaged in the proposed
regulations, except for persons lawfully in Australia on another basis.
Article 12(4) provides that „[n]o one shall be arbitrarily deprived of the right to enter his own
country.‟ As this provision as stated above only relates to citizens (noting the position of the
Australian Government in the Response of the Australian Government
to the views of the Committee in Communication no. 1557/2007, Nystrom et al v Australia), it
is also not applicable.
The restrictions that will be introduced in the Principal Regulations are for the legitimate,
proportionate and reasonable objective of ensuring that travel documents should not be
endorsed or accepted where to do so would indicate recognition of the issuing authority
contrary to Australian Government foreign policy or where they would pose unacceptable
risks to the integrity of Australia‟s migration programs.
The measures are aimed at the legitimate purpose of managing Australia‟s borders
consistently with Australia‟s foreign policy objectives as well as national security objectives
of ensuring the identity of persons entering Australia. The measures also provide the power to
make exceptions where circumstances warrant special consideration.
Conclusion
The amendments to the Principal Regulations are compatible with human rights because they
do not engage any of the relevant rights.
Schedule 3 – Amendments of Migration Regulations 1994 relating to skilled visas
Overview of the Bill/Legislative Instrument
These measures make a number of minor and technical amendments to the Principal
Regulations in relation to certain skilled migration visas:
The omission of the definition of „Occupations Requiring English List‟ in Regulation
1.03, which was made redundant after Regulation 1.19 was removed on 1 July 2012;
The insertion of a new paragraph 4.02(4)(la) in Division 4.1 of Part 4 of the Principal
Regulations. This rectifies an unintended consequence arising from the introduction
of the new Subclass 489 (Skilled – Regional (Provisional)) visa on 1 July 2012 in
relation to Migration Review Tribunal (MRT) review rights. The new Subclass 489
visa does not distinguish between onshore and offshore applications, with the
unintended consequence that the sponsor does not have a review right if the applicant
is offshore at the time of application. This also affects a secondary applicant who is
offshore and who has not made a combined application with the primary applicant.
The purpose of this item is to ensure that sponsors of these groups of applicants will
have review rights to the MRT if the application is refused;
The insertion of a new provision in subregulation 4.02(5) in Division 4.1 of Part 4 of
the Principal Regulations to reflect the proposed new paragraph 4.02(4)(la). This
amendment is consequential to the proposed amendment above and would specify
that the sponsor or nominator has a review right in the case of a decision to which
paragraph 4.02(4)(la) would relate;
Explanatory Statement to F2012L02236
3
The substitution of paragraph 5.19(3)(c)(i) in Division 5.3 of Part 5 of the Principal
Regulations, which would clarify the policy intention that in the three years
immediately before the nominator made the application, the applicant must both have
held a Subclass 457 visa for at least two years, and have been employed in the
position in respect of which the person holds a Subclass 457 visa for at least two years
(not including any period of unpaid leave);
The omission of the definition of „associated entity‟ from subregulation 5.19(7) of
Division 5.3 of Part 5 of the Principal Regulations. This definition is unnecessary
because the term „associated entity‟ is not used in regulation 5.19;
The amendment of several Schedule 1 provisions to specify the form which must be
used to make a valid application for a visa. The purpose of these amendments is to
include the word „(Internet)‟ after the form number to make it clear to clients that the
form which is required by the relevant Schedule 1 provision is actually an internet-
based form (required for internet applications) rather than a paper form;
The amendment of several Schedule 1 provisions to omit the words „outside of
Australia‟ and insert the words “outside Australia” to maintain consistency of
expression in criteria which are common across certain classes of visa in Schedule 1
to the Principal Regulations;
The inclusion of the words „seeking to satisfy the primary criteria‟ in paragraph
1104BA(3)(c) of Schedule 1 to the Principal Regulations is intended to clarify the
policy intention that only primary applicants for the Subclass 888 (Business
Innovation and Investment (Permanent)) visa are required to be nominated by a State
or Territory government agency. This ensures that the paragraph only applies to
applicants seeking to satisfy the primary criteria for the subclass;
The substitution of paragraphs 132.232(1)(a) to (d) of Schedule 2 to the Principal
Regulations to include the words „in Australia‟ in each paragraph to ensure that
venture capital funding sourced by applicants seeking to satisfy the primary criteria
for the grant of a Subclass 132 visa in the Venture Capital Entrepreneur stream will be
used for a business in Australia. Subdivision 132.23 prescribes the criteria for the
Venture Capital Entrepreneur stream which was inserted into the Subclass 132
(Business Talent) visa on 1 July 2012 by the amending regulation. This stream
implements the policy objective of facilitating entry to Australia for entrepreneurs
who have sourced venture capital funding in Australia;
The substitution of certain clauses in Schedule 2 to the Principal Regulations which
relate to „Circumstances applicable to grant‟. The clauses relate to the location of the
applicant at the time a visa is granted. The wording of the provisions, as inserted by
the amending regulation, is inconsistent with wording of other provisions of this type
in other parts of Schedule 2 to the Principal Regulations. The purpose of these items is
to reword the clause to achieve consistency across the Principal Regulations;
The insertion of the words „At the time of invitation‟ into clause 188.226 of Schedule
2 to the Principal Regulations to clarify that it relates to the value of assets held at the
time of invitation. It is the approved policy intention that the criterion in clause
188.226 must be satisfied at the time the applicant is invited, in writing, by the
Explanatory Statement to F2012L02236
4
Minister to apply for a Subclass 188 (Business Innovation and Investment
(Provisional)) in the Business Innovation stream;
The insertion of a reference to the Business Skills (Residence) (Class DF) visa into
subclause 888.222(2) in Schedule 2 to the Principal Regulations to ensure that the
provision refers to the complete suite of Business Skills visas which is intended to be
covered by the provision. Subclause 888.222(2) is intended to prevent provisional
visa holders from gaining a permanent visa where they have bought and operated a
business which has recently been used by the previous owner to obtain a permanent
visa under the Business Skills program;
The insertion of the words „in Australia‟ into subclause 888.225(4) in Schedule 2 to
the Principal Regulations to reflect the policy intention that the net business and
personal assets of the applicant must be in Australia in order to satisfy the criterion;
and
The substitution of clause 888.226 in Schedule 2 to the Principal Regulations to
reflect the approved policy position. It is the policy intention that, if exceptional
circumstances exist, the applicant need meet only one of the requirements in
subclauses 888.225(2) to (4) or subclause 888.225(5). The purpose of this amendment
is to allow an applicant to meet the exceptional circumstances criterion if they meet
the alternative requirement which is set out in subclause 888.225(5).
Human rights implications
These amendments do not engage any of the applicable rights or freedoms.
The amendments are minor technical amendments that to do not have a substantive impact on
the applicable human rights.
Conclusion
These amendments are compatible with human rights as they does not raise any human rights
issues.
Schedule 4 - Amendments of Migration Regulations 1994 relating to tourist visas
Overview of the Legislative Instrument
These amendments to the Principal Regulations facilitate the grant of longer validity Subclass
676 (Tourist) visas with longer stay periods. This change is intended to benefit parents of
Australian citizens and permanent residents. It recognises the valuable role parents play in
assisting their children and grandchildren and the social benefits such visits provide.
In particular, the amendments:
allow the discretionary imposition of a condition requiring Subclass 676 (Tourist) visa
holders to maintain health insurance while in Australia;
allow the discretionary imposition of a proposed new condition, relating to the length
of stay of the visa holder in Australia. This condition would require the visa holder to
Explanatory Statement to F2012L02236
5
not stay in Australia for more than 12 months in any 18 month period. This is
consistent with the purpose of the Subclass 676 (Tourist) visa which facilitates the
temporary entry of family visitors; and
provide for the new condition in the existing public interest criterion 4013. This
condition will affect applicants who have previously held a Subclass 676 (Tourist)
visa and it has been cancelled due to the applicant not complying with the proposed
new condition above, requiring the visa holder to not stay in Australia for more than
12 months in any 18 month period.
Human rights implications
These amendments aim to streamline visa processes to improve client service and processing
times, while maintaining the integrity of the program. Each of the proposed changes has been
assessed against the seven core international human rights treaties and does not engage
applicable rights and freedoms.
Conclusion
These amendments are compatible with human rights as they do not raise any human rights
issues.
Schedule 5 – Amendments of Migration Regulations 1994 relating to visas and
charges
Overview of the Regulations
These amendments to the Principal Regulations prescribe details relating to a new visa
evidence charge that was introduced in the Migration (Visa Evidence) Charge Act 2012. The
charge is imposed when visa holders (or authorised third parties) request that a visa be
evidenced (or re-evidenced). The evidence may take the form of a visa label or other non-
electronic form, such as letters.
The amendments prescribe:
the types of evidence that may be provided to an applicant;
the types of evidence that the visa evidence charge will apply to;
the circumstances in which the visa evidence charge may be remitted, refunded or
waived;
those applicants who are exempt from the visa evidence charge;
the evidence charge for different types of evidence;
the manner, including the currency, in which the visa evidence charge is to be paid;
the time when the visa evidence charge is to be paid;
who may be paid the visa evidence charge on behalf of the Commonwealth; and
who may apply for and who may receive visa evidence.
Explanatory Statement to F2012L02236
6
Human rights implications
The Department of Immigration and Citizenship (DIAC) has considered the seven key
international treaties. The amendments do not engage any of the applicable rights or freedoms
there under.
However, DIAC notes that the amendments may have some differential impact on citizens of
certain countries who are required to show evidence of a visa in order to meet their own
country‟s exit requirements. Any such differential treatment is the result of the application of
their country‟s migration laws and does not constitute unlawful discrimination by Australia
under Article 26 of the International Covenant on Civil and Political Rights (ICCPR).
Further, the impact of the proposal on any other countries' exit permission requirements will
be mostly, if not wholly, on persons outside Australia‟s jurisdiction, in respect of whom
Australia does not owe obligations under the ICCPR.
Conclusion
These amendments are compatible with human rights as they do not raise any human rights
issues.
Schedule 6 - Amendments of Migration Regulations 1994 relating to evidentiary
requirements for family violence claims
Overview of the Legislative Instrument
The family violence provisions in the Principal Regulations enable certain visa applicants to
apply to remain in Australia if their partner relationship breaks down due to family violence.
These provisions were introduced in response to community concerns that some partners
might feel compelled to remain in abusive relationships rather than end the relationship if this
means they would need to leave Australia.
Claims of family violence are initially considered by DIAC‟s visa processing officers based
on either judicial or non-judicial evidence. The amendments do not seek to change the
provisions relating to judicially determined family violence.
Currently, non-judicial evidence is usually made up of statutory declarations provided by the
applicant and two competent persons qualified to make a determination on whether or not a
person is a victim of family violence. The term „competent person‟ is defined in the Principal
Regulations and includes a number of professions working in particular fields. The statutory
declarations by the two competent persons must meet a number of technical requirements.
The process of obtaining acceptable statutory declarations from competent persons in
circumstances of non-judicially determined family violence can be difficult for some visa
applicants. It can be traumatic for genuine family violence victims to re-tell their story to a
stranger and can also be difficult for victims living in remote geographic locations and small
communities to obtain statutory declarations. These issues were highlighted in a recent
Australian Law Reform Commission report entitled Family Violence and Commonwealth
Laws – Improving Legal Frameworks.
To address the above concerns and to respond partly to the Australian Law Reform
Commission‟s report, DIAC proposed to amend the minimum evidentiary requirements for
making a non-judicial family violence claim. On 17 June 2012, the Minister for Immigration
and Citizenship and the Minister for the Status of Women jointly announced their intent to
Explanatory Statement to F2012L02236
7
pursue these measures to improve the accessibility and operation of the family violence
provisions.
Under the new framework, subregulation 1.24(1) is amended to refer to a legislative
instrument. This instrument specifies the minimum evidentiary requirement to make a non-
judicially determined claim of family violence being at least two documents from a list of
acceptable evidence specified in the instrument.
In addition, the amended regulation 1.24 also requires the applicant to provide a statutory
declaration pursuant to regulation 1.25 outlining the family violence claim.
This change removes the requirement for an applicant to provide statutory declarations from
two „competent persons‟. Instead, applicants may provide 2 pieces of evidence prescribed in
the instrument in writing. All references to competent persons are also be removed.
It is still be open for applicants to make a non-judicial claim of family violence by providing
a joint undertaking to a court in relation to family violence proceedings.
Human rights implications
The amendments engage a number of international human rights conventions and support
Australia‟s obligations in relation to the treaties and articles highlighted below.
International Covenant on Civil and Political Rights (ICCPR)
The amendments are consistent with Article 23(4) of the ICCPR, which states that
appropriate steps should be made to ensure the equality of rights and responsibilities of
spouses as to marriage, during marriage and at its dissolution, and also for the necessary
protection of any children during dissolution.
International Covenant on Economic, Social and Cultural Rights (ICESCR)
The amendments are consistent with Article 10(1) of the ICESCR, which states that the
widest possible protection and assistance should be accorded to the family, particularly in
relation to the care of dependent children and the free consent of spouses to enter marriage.
The ICESC also recognises the ideal of persons enjoying freedom from fear and want.
International Convention on the Rights of the Child (CROC)
The amendments are consistent with Articles 3(2) and 19(11) of the Convention on the Rights
of the Child (CROC).
Articles 3(2) and 19(1) of the CROC state that state parties undertake to protect the wellbeing
of children and take measures to protect children from violence, abuse or mistreatment. The
family violence provisions can also be enlivened where a child of an applicant has suffered
family violence at the hands of the applicant‟s partner. The changes will widen the potential
scope of evidence of family violence toward children which may be provided to enliven a
claim of non-judicially determined family violence.
Conclusion
The amendments are compatible with human rights because they are consistent with our
obligations under the ICCPR, ICESCR and CROC.
Explanatory Statement to F2012L02236
8
Schedule 8 – Amendments of Australian Citizenship Regulations 2007 relating to
currency
Overview of the Regulation 12A
Regulation 12A of the Australian Citizenship Regulations 2007 (the Citizenship Regulations)
sets out among other things, in which foreign currencies and countries a citizenship
application fee may be paid and how the exchange rate is to be calculated. The acceptable
foreign currencies and countries are set out in legislative instruments made under the
Migration Regulations 1994. The relevant instruments, Places and Currencies for Paying of
Fees and Payment of Visa Application Charges and Fees in Foreign Currencies, are updated
in January and July each year and are given a new instrument number each time.
Consequently, to ensure that citizenship application fees can continue to be paid in foreign
currencies and countries, regulation 12A must be amended to specify the new instrument
numbers.
Human rights implications
The amendments do not engage any of the applicable rights or freedoms.
Conclusion
The amendments are compatible with human rights as they do not raise any human rights
issues.
Schedule 9 – Amendment of Australian Citizenship Regulations 2007 relating to
Defence families
Overview of the Legislative Instrument
The Migration Legislation Amendment Regulation 2012 (No. 5) amends the
Australian Citizenship Regulations 2007 to prescribe the visas pursuant to new section 23 of
the Australian Citizenship Act 2007 („the Citizenship Act‟).
The Australian Citizenship Amendment (Defence Families) Act 2012 extended the residency
discretion in section 23 to family members who have been granted a visa on or after
1 July 2007:
of the kind granted to the person (defence person) who completed relevant service or
who died while undertaking service in the Permanent Forces or the Reserves; and
on the basis of being a member of the family unit (as defined in the Migration Act
1958) of the defence person.
For paragraphs 23(2)(a) and 23(3)(a) of the Citizenship Act, the visas prescribed by the new
regulation are:
Employer Nomination (Permanent) (Class EN);
Labour Agreement (Migrant) (Class AU);
Labour Agreement (Residence) (Class BV);and
Regional Employer Nomination (Permanent) (Class RN).
It is intended that the amendments apply in relation to making of a decision under section 24
of the Australian Citizenship Act 2007 after the commencement of Schedule 1 to the
Explanatory Statement to F2012L02236
9
Australian Citizenship Amendment (Defence Families) Act 2012, whether the application to
which the decision relates was made before or after that commencement.
Human rights implications
The amendment does not engage any of the applicable rights or freedoms as outlined in the
seven core international human rights treaties.
Conclusion
The amendment is compatible with human rights as it does not raise any human rights issues.
Explanatory Statement to F2012L02236
10
ATTACHMENT C
Details of the Migration Legislation Amendment Regulation 2012 (No. 5)
Section 1 – Name of Regulation
This section provides that the title of the Regulation is the Migration Legislation Amendment
Regulation 2012 (No. 5).
Section 2 – Commencement
This section provides that:
sections 1 to 4 and Schedule 1 of the Regulation commence, or are taken to
commence, immediately before the commencement of the Migration Legislation
Amendment Regulation 2012 (No. 4);
Schedules 2 to 7 of the Regulation commence, or are taken to commence, on
24 November 2012; and
Schedules 8 and 9 of the Regulation commence, or are taken to commence, on
1 January 2013.
Sections 1 to 4 and Schedule 1 of this Regulation commence immediately before the
commencement of the Migration Legislation Amendment Regulation 2012 (No. 4) on 24
November 2012. This is because Schedule 1 to this Regulation amends the secondary
criteria for the Subclass 422 (Medical Practitioner) visa, which is being repealed by the
Migration Legislation Amendment Regulation 2012 (No. 4) with effect from 24 November
2012. It is necessary to amend these criteria immediately before that visa is repealed as it
will be possible for some people to apply for, and be granted, that visa on the basis of
satisfying the secondary criteria as they provided immediately prior to the repeal and those
people should satisfy the amended criteria.
Section 3 – Amendment of Migration Regulations 1994
This section provides that Schedules 1 to 7 amend the Migration Regulations 1994 (the
Principal Regulations).
Section 4 – Amendment of Australian Citizenship Regulations 2007
This section provides that Schedules 8 and 9 amend the Australian Citizenship Regulations
2007 (the Citizenship Regulations).
Schedule 1 – Amendments of Migration Regulations 1994 relating to travel documents
Item [1] Schedule 2, paragraph 422.323(a)
This item inserts Public Interest Criterion 4021 into paragraph 422.323(a) of Schedule 2
to the Principal Regulations.
Explanatory Statement to F2012L02236
11
The purpose of this amendment is to replace the valid passport criterion in subclause
422.329 of Schedule 2 with a time of decision criterion that the applicant must satisfy
public interest criterion 4021.
The „valid passport‟ criterion was currently located in individual visa subclasses in
Schedule 2 to the Principal Regulations and provided that:
The Minister is satisfied that:
(a) the applicant is the holder of a valid passport that:
(i) was issued to the applicant by an official source; and
(ii) is in the form issued by the official source; or
(b) it would be unreasonable to require the applicant to be the holder of a
passport.
Public Interest Criterion 4021, which is inserted into the Principal Regulations by
Schedule 2 to this Regulation, replicates the „valid passport‟ criterion and adds a new
requirement that the valid passport must not be in a class of passports specified by the
Minister in an instrument in writing for Public Interest Criterion 4021. It is intended
that the class of passports that may be specified by the Minister in an instrument in
writing are those passports or travel documents that Australia does not recognise for
foreign policy or integrity reasons.
The effect of this amendment is to require applicants who are assessed against the
secondary criteria for the Subclass 422 (Medical Practitioner) visa to also hold a valid
passport that is not a passport in a class of passports that Australia does not recognise
for foreign policy or integrity reasons.
Item [2] Schedule 2, clause 422.329
This item omits clause 422.329 of Schedule 2 to the Principal Regulations.
This amendment is consequential to the amendment at item [1], which inserts Public
Interest Criterion 4021. As the amendment at item [1] replaces the valid passport
criterion for applicants who are assessed against the secondary criteria for the Subclass
422 (Medical Practitioner) visa, clause 422.329 is no longer be required.
Schedule 2 – Amendment of the Migration Regulations 1994 relating to travel
documents
Items [1] – [296]
These items insert or substitute new Public Interest Criterion 4021 into those visa
subclasses to which the current „valid passport‟ criterion applies. These items also omit
the „valid passport‟ criterion in those visa subclasses.
The „valid passport‟ criterion was currently located in individual visa subclasses in
Schedule 2 to the Regulations and provided that:
The Minister is satisfied that:
(a) the applicant is the holder of a valid passport that:
Explanatory Statement to F2012L02236
12
(i) was issued to the applicant by an official source; and
(ii) is in the form issued by the official source; or
(b) it would be unreasonable to require the applicant to be the holder of
a passport.
Public Interest Criterion 4021, which is inserted into the Principal Regulations by
Schedule 2 to this Regulation, replicates the „valid passport‟ criterion and adds a new
requirement that the valid passport must not be in a class of passports specified by the
Minister in writing for Public Interest Criterion 4021. It is intended that the class of
passports that may be specified by the Minister in an instrument in writing are those
passports or travel documents that Australia does not recognise for foreign policy or
integrity reasons.
The effect of these amendments is to require applicants for those visa subclasses to also
hold a valid passport that is not a passport that Australia does not recognise for foreign
policy or integrity reasons. Because the insertion of Public Interest Criterion 4021
replicates the „valid passport‟ criteria in those subclasses, those criteria are unnecessary
and removed.
The amendments insert Public Interest Criterion 4021 into the following provisions in
Schedule 2 to the Principal Regulations. These provisions provide for other Public
Interest Criteria that an application must satisfy to be granted a visa:
100.222(a) 100.322(a) 101.223(a) 101.323(a)
102.223 102.323 103.224(a) 103.323(a)
114.223 114.323(a) 115.223(a) 115.323(a)
116.223(a) 116.323(a) 117.223 117.323
119.322(a) 120.322(a) 121.322(a) 124.221(a)
124.322(a) 132.213(1) 132.312(1) 143.224(a)
143.323(a) 151.221(a) 151.322(a) 160.322(a)
161.322(a) 162.322(a) 163.322(a) 164.322(a)
165.322(a) 173.224(a) 175.322(a) 176.322(a)
186.213(1) 186.313(1) 187.213(1) 187.313(1)
188.213(1) 188.312(1) 189.215(1) 189.312(1)
190.216(1) 190.312(1) 300.223(a) 300.323(a)
303.227 309.225(a) 309.323(a) 401.216(1)
401.316(1) 402.216(1) 402.316(1) 403.214(1)
403.316(1) 405.227(6) 405.228(6) 405.329(3)(a)
405.330(3)(a) 416.223(a) 416.323(a) 420.216(1)
420.316(1) 445.225(a) 445.324(a) 456.323(a)
457.224(1) 457.325(a) 459.226 459.327
461.223(a) 475.322(a) 476.222(a) 476.322(a)
485.224(a) 485.322(a) 487.228(a) 488.223
489.211(1) 489.313(1) 570.323(a) 571.323(a)
Explanatory Statement to F2012L02236
13
572.323(a) 573.323(a) 574.323(a) 575.323(a)
576.323(a) 580.223(3)(a) 580.324 675.221(2)(d)
675.221(3)(c) 675.221(4)(f) 676.221(2)(c)(i) 676.221(2)(c)(ii)
676.221(3)(g) 679.228 771.222 802.223(a)
802.226A(2)(a)(ii) 804.225, table 804.322, table 835.223(a)
835.322(a) 836.223(a) 836.322(a) 837.223
837.322 838.223 838.322(a) 845.322(a)
846.322(a) 855.322(a) 856.322(1)(a) 857.322(1)(a)
858.221(a) 858.322(a) 864.223, table 864.224(a)
864.323(a) 884.224, table 885.224(a) 885.322(a)
886.225(a) 886.322(a) 887.223(a) 887.322(a)
888.215(1) 888.312(1) 890.222(a) 890.322(1)(a)
891.223(a) 891.322(1)(a) 892.223(a) 892.322(1)(a)
893.224(a) 893.322(1)(a) 988.222 988.322
The amendments substitute the following provisions with a new criterion that the
applicant must satisfy the new Public Interest Criterion 4021 in Schedule 2 to the
Principal Regulations. These subclasses do not require the applicant to satisfy any
other Public Interest Criteria and so a straight substitution of the 'valid passport' criteria
in those subclasses is made to provide that the applicant must satisfy Public Interest
Criterion 4021:
020.233 155.222 157.222 159.222
173.328 302.227 302.323 303.325
410.222 410.322 456.223 685.224
801.226 801.325 802.326 808.222
820.226 820.326 884.328 995.222
995.323
The amendments omit the following provisions from Schedule 2 to the Principal
Regulations as they are no longer necessary. These provisions contained only the
„valid passport‟ criterion and, because those measures are incorporated into new Public
Interest Criterion 4021, these clauses are unnecessary and are omitted:
100.227 100.325 101.229 101.327
102.229 102.327 103.230 103.328
114.228 114.327 115.228 115.327
116.228 116.327 117.228 117.326
119.326 120.326 121.326 124.227
124.326 132.215 132.314 143.233
143.330 151.229C 151.329 160.325
Explanatory Statement to F2012L02236
14
161.325 162.325 163.325 164.325
165.325 173.230 175.325 176.325
186.215 186.315 187.215 187.315
188.215 188.314 189.217 189.314
190.218 190.314 300.228 300.327
302.324 303.228 303.326 309.230
309.327 401.218 401.318 402.218
402.318 403.216 403.318 405.229
405.331 416.229 416.327 420.218
420.318 445.229 445.326 456.329
457.228 457.329 459.229 459.330
461.227 475.325 476.227 476.325
485.229 485.325 487.234 488.225
489.213 489.315 570.334 571.334
572.334 573.334 574.334 575.334
576.335 580.230 580.328 675.224
676.225 679.231 771.224 802.227
804.229 804.327 835.228 835.326
836.228 836.326 837.227 837.326
838.228 838.326 845.324 846.324
855.325 856.325 857.325 858.226
858.325 864.231 864.330 884.230
885.230 885.325 886.231 886.325
887.229 887.325 888.217 888.314
890.225 890.324 891.226 891.324
892.226 892.324 893.227 893.324
988.225 988.324
Item [297] – Schedule 4, Part 1, after item 4020
This item inserts new Public Interest Criterion 4021 in Schedule 4 to Principal
Regulations.
The purpose of this amendment is to make it a criterion for the grant of a visa that the
applicant not hold a passport in a class of passports specified by the Minister. The
intention is that passports that Australia does not recognise for foreign policy or
integrity reasons may be specified under new Public Interest Criterion 4021. If the
applicant cannot satisfy the criterion, the applicant cannot be granted a visa.
Explanatory Statement to F2012L02236
15
Schedule 3 – Amendments of Migration Regulations 1994 relating to skilled visas
Item [1] – Regulation 1.03, definition of Occupations Requiring English List
This item omits the definition of „Occupations Requiring English List‟ in
Regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations.
“Occupations Requiring English List” is currently defined in regulation 1.03 to mean the list
mentioned in regulation 1.19. Regulation 1.19 was omitted by the Migration Amendment
Regulation 2012 (No. 2) (the “amending regulation”) on 1 July 2012 as it referred to the
awards for English proficiency under Schedule 6 which was also omitted on 1 July 2012.
The purpose of this item is to remove a redundant definition.
Item [2] – Paragraph 2.11(1)(a)
This item omits “made: and” and inserts “made; and” into paragraph 2.11(1)(a) of Division
2.2 of Part 2 of the Principal Regulations.
This item rectifies a minor typographical error in paragraph 2.11(1)(a) of the Principal
Regulations by removing the colon after the words “has been made” and replacing it with a
semi-colon.
Item [3] – Subregulation 2.26AC(3)
This item inserts the word “in” after the word “specified” into subregulation 2.26AC(3) of
Division 2.6 of Part 2 of the Principal Regulations.
This item rectifies a minor typographical error in subregulation 2.26AC(3).
Item [4] – After paragraph 4.02(4)(l)
This item inserts a new paragraph 4.02(4)(la) into Division 4.1 of Part 4 of the Principal
Regulations.
New paragraph 4.02(4)(la) provides that a decision to refuse to grant a Subclass 489 (Skilled
– Regional (Provisional) visa to a non-citizen is Migration Review Tribunal (MRT)-
reviewable if the non-citizen is outside Australia at the time of the visa application and the
non-citizen was sponsored or nominated by an Australian citizen or permanent visa holder, a
company or partnership that operates in Australia or a New Zealand citizen who holds a
special category visa.
This item rectifies an unintended consequence arising from the introduction of the new
Subclass 489 (Skilled – Regional (Provisional)) visa on 1 July 2012, whereby the sponsor of
a Subclass 489 visa applicant cannot apply to the MRT for review of a decision to refuse the
Subclass 489 visa if the applicant is outside Australia at the time of application. This is
because the new Subclass 489 visa does not distinguish between applications made in or
outside Australia, with the unintended consequence that the sponsor does not have a review
right if the applicant is offshore at the time of application. This also affects a secondary
applicant who is outside Australia and who has not made a combined application with the
primary applicant.
Explanatory Statement to F2012L02236
16
The purpose of this item is to ensure that sponsors of all applicants for Subclass 489 (Skilled
– Regional (Provisional)) visas will be able to apply for merits review of a decision to refuse
that visa.
Item [5] – After paragraph 4.02(5)(k)
This item inserts a new provision into subregulation 4.02(5) in Division 4.1 of Part 4 of the
Principal Regulations to reflect new paragraph 4.02(4)(la).
This amendment is consequential to the amendment at Item [4] above and specifies that the
sponsor or nominator has a review right in the case of a decision to which paragraph
4.02(4)(la) relates.
Item [6] – Subparagraph 5.19(3)(c)(i)
This item substitutes paragraph 5.19(3)(c)(i) in Division 5.3 of Part 5 to the Principal
Regulations.
This amendment clarifies the policy intention that, in the three years immediately before the
nominator made the application, the applicant must both have held a Subclass 457 visa for at
least two years, and have been employed in the position in respect of which the person holds
a Subclass 457 visa for at least two years (not including any period of unpaid leave).
New subparagraph 5.19(3)(c)(i) is also redrafted to correct a technical error whereby there
was previously no text at the beginning of the subparagraph.
Item [7] – Subregulation 5.19(6), note
This item substitutes the words “reject an application” with the words “refuse an application”
in the note after subregulation 5.19(6) of Division 5.3 of Part 5 of the Principal Regulations.
The purpose of this amendment is to achieve consistency with the wording in
paragraph 4.02(4)(e) (to which the note refers) and with similar wording across the Principal
Regulations generally.
Item [8] – Subregulation 5.19(7), definition of associated entity
This item omits the definition of “associated entity” from subregulation 5.19(7) of Division
5.3 of Part 5 of the Principal Regulations.
This definition is unnecessary because the term “associated entity” is not used in
regulation 5.19.
Item [9] – Schedule 1, subitem 1104AA(1)
This item substitutes subitem 1104AA(1) of Schedule 1 to the Principal Regulations.
Subitem 1104AA(1) specifies the form which must be used to make a valid application for a
Business Skills – Business Talent (Permanent) (Class EA) visa.
Explanatory Statement to F2012L02236
17
The purpose of this item is to include the word “(Internet)” after the form number to make it
clear to clients that the form which is required by the relevant Schedule 1 provision is
actually an internet-based form (required for internet applications) rather than a paper form.
Item [10] - Schedule 1, paragraph 1104AA(3)(b)
This item omits the words “outside of Australia” and inserts the words “outside Australia”
into paragraph 1104AA(3)(b) of Schedule 1 to the Principal Regulations.
Paragraph 1104AA(3)(b) sets out where an applicant may be when making an application for
a Business Skills – Business Talent (Permanent) (Class EA) visa.
The purpose of this item is to maintain consistency of expression in criteria which are
common across certain classes of visa in Schedule 1 to the Principal Regulations.
Item [11] - Schedule 1, subitem 1104BA(1)
This item substitutes subitem 1104BA(1) of Schedule 1 to the Principal Regulations.
Subitem 1104BA(1) specifies the form which must be used to make a valid application for a
Business Skills (Permanent) (Class EC) visa.
The purpose of this item is to include the word “(Internet)” after the form number to make it
clear to clients that the form which is required by the relevant Schedule 1 provision is
actually an internet-based form (required for internet applications) rather than a paper form.
Item [12] - Schedule 1, paragraph 1104BA(3)(b)
This item omits the words “outside of Australia” and inserts the words “outside Australia”
into paragraph 1104BA(3)(b) of Schedule 1 to the Principal Regulations.
Paragraph 1104BA(3)(b) sets out where an applicant may be when making an application for
a Business Skills (Permanent) (Class EC) visa.
The purpose of this item is to maintain consistency of expression in criteria which are
common across certain classes of visa in Schedule 1 to the Principal Regulations.
Item [13] - Schedule 1, paragraph 1104BA(3)(c)
This item includes the words “seeking to satisfy the primary criteria” in
paragraph 1104BA(3)(c) of Schedule 1 to the Principal Regulations.
The purpose of this item is to clarify the policy intention that only primary applicants for the
Subclass 888 (Business Innovation and Investment (Permanent)) visa are required to be
nominated by a State or Territory government agency. This item ensures that the paragraph
only applies to applicants seeking to satisfy the primary criteria for the subclass.
Item [14] - Schedule 1, subitem 1114B(1)
This item substitutes subitem 1114B(1) of Schedule 1 to the Principal Regulations.
Explanatory Statement to F2012L02236
18
Subitem 1114B(1) specifies the form which must be used to make a valid application for an
Employer Nomination (Permanent) (Class EN) visa.
The purpose of this item is to include the word “(Internet)” after the form number to make it
clear to clients that the form which is required by the relevant Schedule 1 provision is
actually an internet-based form (required for internet applications) rather than a paper form.
Item [15] - Schedule 1, paragraph 1114B(3)(b)
This item omits the words “outside of Australia” and inserts the words “outside Australia”
into paragraph 1114B(3)(b) of Schedule 1 to the Principal Regulations.
Paragraph 1114B(3)(b) sets out where an applicant may be when making an application for a
Employer Nomination (Permanent) (Class EN) visa.
The purpose of this item is to maintain consistency of expression in criteria which are
common across certain classes of visa in Schedule 1 to the Principal Regulations.
Item [16] - Schedule 1, subitem 1114C(1)
This item substitutes subitem 1114C(1) of Schedule 1 to the Principal Regulations.
Subitem 1114C(1) specifies the form which must be used to make a valid application for a
Regional Employer Nomination (Permanent) (Class RN) visa.
The purpose of this item is to include the word “(Internet)” after the form number to make it
clear to clients that the form which is required by the relevant Schedule 1 provision is
actually an internet-based form (required for internet applications) rather than a paper form.
Item [17] - Schedule 1, paragraph 1114C(3)(b)
This item omits the words “outside of Australia” and inserts the words “outside Australia”
into paragraph 1114C(3)(b) of Schedule 1 to the Principal Regulations.
Paragraph 1114C(3)(b) sets out where an applicant may be when making an application for a
Regional Employer Nomination (Permanent) (Class RN) visa.
The purpose of this item is to maintain consistency of expression in criteria which are
common across certain classes of visa in Schedule 1 to the Principal Regulations.
Item [18] - Schedule 1, subitem 1137(1)
This item substitutes subitem 1137(1) of Schedule 1 to the Principal Regulations.
Subitem 1137(1) specifies the form which must be used to make a valid application for a
Skilled – Independent (Permanent) (Class SI) visa.
The purpose of this item is to include the word “(Internet)” after the form number to make it
clear to clients that the form which is required by the relevant Schedule 1 provision is
actually an internet-based form (required for internet applications) rather than a paper form.
Explanatory Statement to F2012L02236
19
Item [19] - Schedule 1, paragraph 1137(3)(b)
This item omits the words “outside of Australia” and insert the words “outside Australia” into
paragraph 1137(3)(b) of Schedule 1 to the Principal Regulations.
Paragraph 1137(3)(b) sets out where an applicant may be when making an application for a
Skilled – Independent (Permanent) (Class SI) visa.
The purpose of this item is to maintain consistency of expression in criteria which are
common across certain classes of visa in Schedule 1 to the Principal Regulations.
Item [20] - Schedule 1, subitem 1138(1)
This item substitutes subitem 1138(1) of Schedule 1 to the Principal Regulations.
Subitem 1138(1) specifies the form which must be used to make a valid application for a
Skilled – Nominated (Permanent) (Class SN) visa.
The purpose of this item is to include the word “(Internet)” after the form number to make it
clear to clients that the form which is required by the relevant Schedule 1 provision is
actually an internet-based form (required for internet applications) rather than a paper form.
Item [21] - Schedule 1, paragraph 1138(3)(b)
This item omits the words “outside of Australia” and inserts the words “outside Australia”
into paragraph 1138(3)(b) of Schedule 1 to the Principal Regulations.
Paragraph 1138(3)(b) sets out where an applicant may be when making an application for a
Skilled – Nominated (Permanent) (Class SN) visa.
The purpose of this item is to maintain consistency of expression in criteria which are
common across certain classes of visa in Schedule 1 to the Principal Regulations.
Item [22] - Schedule 1, subitem 1202B(1)
This item substitutes subitem 1202B(1) of Schedule 1 to the Principal Regulations.
Subitem 1202B(1) specifies the form which must be used to make a valid application for a
Business Skills (Provisional) (Class EB) visa.
The purpose of this item is to include the word “(Internet)” after the form number to make it
clear to clients that the form which is required by the relevant Schedule 1 provision is
actually an internet-based form (required for internet applications) rather than a paper form.
Item [23] - Schedule 1, paragraph 1202B(3)(b)
This item omits the words “outside of Australia” and inserts the words “outside Australia”
into paragraph 1202B(3)(b) of Schedule 1 to the Principal Regulations.
Paragraph 1202B(3)(b) sets out where an applicant may be when making an application for a
visa.
Explanatory Statement to F2012L02236
20
The purpose of this item is to maintain consistency of expression in criteria which are
common across certain classes of visa in Schedule 1 to the Principal Regulations.
Item [24] - Schedule 1, subitem 1230(1)
This item substitutes subitem 1230(1) of Schedule 1 to the Principal Regulations.
Subitem 1230(1) specifies the form which must be used to make a valid application for a
Skilled – Regional Sponsored (Provisional) (Class SP) visa.
The purpose of this item is to include the word “(Internet)” after the form number to make it
clear to clients that the form which is required by the relevant Schedule 1 provision is
actually an internet-based form (required for internet applications) rather than a paper form.
Item [25] - Schedule 1, paragraph 1230(3)(b)
This item omits the words “outside of Australia” and inserts the words “outside Australia”
into paragraph 1230(3)(b) of Schedule 1 to the Principal Regulations.
Paragraph 1230(3)(b) sets out where an applicant may be when making an application for a
Skilled – Regional Sponsored (Provisional) (Class SP) visa.
The purpose of this item is to maintain consistency of expression in criteria which are
common across certain classes of visa in Schedule 1 to the Principal Regulations.
Item [26] - Schedule 1, subitem 1301(1)
This item omits certain references to form numbers in subitem 1301(1) of Schedule 1 to the
Principal Regulations and inserts the same form numbers followed by the word “(Internet)”.
This item is consequential to items [9], [11], [14], [16], [18], [20], [22] and [24] of this
Schedule, which include the word “(Internet)” after the form numbers to make it clear to
clients that the form which is required by the relevant Schedule 1 provision for a valid
application is actually an internet-based form (required for internet applications) rather than a
paper form.
Item [27] - Schedule 1, subitem 1303(1)
This item omits certain references to form numbers in subitem 1303(1) of Schedule 1 to the
Principal Regulations and inserts the same form numbers followed by the word “(Internet)”.
This item is consequential to items [9], [11], [14], [16], [18], [20], [22] and [24] of this
Schedule, which includes the word “(Internet)” after the form numbers to make it clear to
clients that the form which is required by the relevant Schedule 1 provision for a valid
application is actually an internet-based form (required for internet applications) rather than a
paper form.
Item [28] - Schedule 2, paragraphs 132.232(1)(a) to (d)
This item substitutes paragraphs 132.232(1)(a) to (d) of Schedule 2 to the Principal
Regulations.
Explanatory Statement to F2012L02236
21
Subdivision 132.23 prescribes the criteria for the Venture Capital Entrepreneur stream which
was inserted into the Subclass 132 (Business Talent) visa on 1 July 2012 by the amending
regulation. This stream implements the policy objective of facilitating entry to Australia for
entrepreneurs who have sourced venture capital funding in Australia.
The purpose of this item is to include the words “in Australia” in each paragraph to ensure
that venture capital funding sourced by applicants seeking to satisfy the primary criteria for
the grant of a Subclass 132 visa in the Venture Capital Entrepreneur stream will be used for a
business in Australia.
Item [29] - Schedule 2, clause 132.411, including the note
This item substitutes clause 132.411 in Schedule 2 to the Principal Regulations.
Clause 132.411 relates to the location of the applicant at the time a Subclass 132 (Business
Talent) visa is granted. The wording of the provision, as inserted by the amending regulation,
is inconsistent with wording of other provisions of this type in other parts of Schedule 2 to
the Principal Regulations.
The purpose of this item is to reword the clause to achieve consistency across the Principal
Regulations.
Item [30] - Schedule 2, clause 186.411, including the note
This item substitutes clause 186.411 in Schedule 2 to the Principal Regulations.
Clause 186.411 relates to the location of the applicant at the time a Subclass 186 (Employer
Nomination Scheme) visa is granted. The wording of the provision, as inserted by the
amending regulation, is inconsistent with wording of other provisions of this type in other
parts of Schedule 2 to the Principal Regulations.
The purpose of this amendment is to reword the clause to achieve consistency across the
Principal Regulations.
Item [31] - Schedule 2, clause 187.411, including the note
This item substitutes clause 187.411 in Schedule 2 to the Principal Regulations.
Clause 187.411 relates to the location of the applicant at the time a Subclass 187 (Regional
Sponsored Migration Scheme) visa is granted. The wording of the provision, as inserted by
the amending regulation, is inconsistent with wording of other provisions of this type in other
parts of Schedule 2 to the Principal Regulations.
The purpose of this amendment is to reword the clause to achieve consistency across the
Principal Regulations.
Item [32] - Schedule 2, paragraphs 188.222(2)(a) to (c)
This item substitutes paragraphs 188.222(2)(a) to (c) in Schedule 2 to the Principal
Regulations.
Explanatory Statement to F2012L02236
22
The Subclass 188 (Business Innovation and Investment (Provisional)) visa was inserted into
the Principal Regulations on 1 July 2012 by the amending regulation. Applicants seeking to
satisfy the primary criteria for the Business Innovation stream must satisfy the points test in
Schedule 7A to the Principal Regulations. The correct way to refer to a part in
Schedule 7A is, using the second part as an example, “Part 7A.2”.
The purpose of this item is to change the references to the respective parts of Schedule 7A so
that they appear in the correct form.
Item [33] - Schedule 2, clause 188.226
This item inserts the words “At the time of invitation” into clause 188.226 of
Schedule 2 to the Principal Regulations.
It is the policy intention that the criterion in clause 188.226 must be satisfied at the time the
applicant is invited, in writing, by the Minister to apply for a Subclass 188 (Business
Innovation and Investment (Provisional)) visa in the Business Innovation stream. The
purpose of the item is to amend the criterion so that it relates to the value of assets held at the
time of invitation.
Item [34] - Schedule 2, paragraphs 188.242(2)(a) to (c)
This item substitutes paragraphs 188.242(2)(a) to (c) in Schedule 2 to the Principal
Regulations.
The Subclass 188 (Business Innovation and Investment (Provisional)) visa was inserted into
the Principal Regulations on 1 July 2012 by the amending regulation. Applicants seeking to
satisfy the primary criteria for the Business Innovation stream must satisfy the points test in
Schedule 7A to the Principal Regulations. The correct way to refer to a part in
Schedule 7A is, using the second part as an example, “Part 7A.2”.
The purpose of this item is to change the references to the respective parts of Schedule 7A so
that they appear in the correct form.
Item [35] - Schedule 2, clause 188.411, including the note
This item substitutes clause 188.411 in Schedule 2 to the Principal Regulations.
Clause 188.411 relates to the location of the applicant at the time a Subclass 188 (Business
Innovation and Investment (Provisional)) visa is granted. The wording of the provision, as
inserted by the amending regulation, is inconsistent with wording of other provisions of this
type in other parts of Schedule 2 to the Principal Regulations.
The purpose of this amendment is to reword the clause to achieve consistency across the
Principal Regulations.
Item [36] - Schedule 2, clause 189.411, including the note
This item substitutes clause 189.411 in Schedule 2 to the Principal Regulations.
Clause 189.411 relates to the location of the applicant at the time a Subclass 189 (Skilled –
Independent) visa is granted. The wording of the provision, as inserted by the amending
Explanatory Statement to F2012L02236
23
regulation, is inconsistent with wording of other provisions of this type in other parts of
Schedule 2 to the Principal Regulations.
The purpose of this amendment is to reword the clause to achieve consistency across the
Principal Regulations.
Item [37] - Schedule 2, clause 190.411, including the note
This item substitutes clause 190.411 in Schedule 2 to the Principal Regulations.
Clause 190.411 relates to the location of the applicant at the time a Subclass 190 (Skilled –
Nominated) visa is granted. The wording of the provision, as inserted by the amending
regulation, is inconsistent with wording of other provisions of this type in other parts of
Schedule 2 to the Principal Regulations.
The purpose of this amendment is to reword the clause to achieve consistency across the
Principal Regulations.
Item [38] - Schedule 2, clause 489.411, including the note
This item substitutes clause 489.411 in Schedule 2 to the Principal Regulations.
Clause 489.411 relates to the location of the applicant at the time a Subclass 489 (Skilled –
Regional (Provisional)) visa is granted. The wording of the provision, as inserted by the
amending regulation, is inconsistent with wording of other provisions of this type in other
parts of Schedule 2 to the Principal Regulations.
The purpose of this amendment is to reword the clause to achieve consistency across the
Principal Regulations.
Item [39] - Schedule 2, subclause 888.222(2)
This item inserts a reference to the Business Skills (Residence) (Class DF) visa into subclause
888.222(2) in Schedule 2 to the Principal Regulations.
Subclause 888.222(2) is intended to prevent provisional visa holders from gaining a
permanent visa where they have bought and operated a business which has recently been used
by the previous owner to obtain a permanent visa under the Business Skills program.
The purpose of the item is to ensure that the provision refers to the complete suite of Business
Skills visas which is intended to be covered by the provision.
Item [40] - Schedule 2, subclause 888.225(4)
This item inserts the words “in Australia” into subclause 888.225(4) in Schedule 2 to the
Principal Regulations.
The purpose of this item is to reflect the policy intention that the net business and personal
assets of the applicant must be in Australia in order to satisfy the criterion.
Explanatory Statement to F2012L02236
24
Item [41] - Schedule 2, clause 888.226
This item substitutes clause 888.226 in Schedule 2 to the Principal Regulations.
It is the policy intention that, if exceptional circumstances exist, the applicant need meet only
one of the requirements in subclauses 888.225(2) to (4) or subclause 888.225(5).
The purpose of the item is to allow an applicant to meet the exceptional circumstances
criterion if they meet the alternative requirement which is set out in subclause 888.225(5).
Item [42] - Schedule 2, clause 888.411, including the note
This item substitutes clause 888.411 in Schedule 2 to the Principal Regulations.
Clause 888.411 relates to the location of the applicant at the time a Subclass 888 (Business
Innovation and Investment (Permanent)) visa is granted. The wording of the provision, as
inserted by the amending regulation, is inconsistent with wording of other provisions of this
type in other parts of Schedule 2 to the Principal Regulations.
The purpose of this amendment is to reword the clause to achieve consistency across the
Principal Regulations.
Schedule 4 – Amendments of Migration Regulations 1994 relating to tourist visas
Item [1] – Schedule 2, paragraph 676.613(b)
This item substitutes paragraph 676.613(b) of Schedule 2 to the Principal Regulations.
The amendment provides that, in addition to condition 8503 which may currently be imposed
on a Subclass 676 (Tourist) visa, condition 8501 and new condition 8558 may be also be
imposed. Condition 8501 provides that the visa holder must maintain adequate arrangements
for health insurance while the holder is in Australia. New condition 8558 is inserted by item
[3] below and provides that the visa holder must not stay in Australia for more than 12
months in any period of 18 months.
The purpose of this amendment is to ensure the integrity of the visitor visa program while
facilitating longer stays in Australia for parents of Australian citizens and Australian
permanent residents who meet the requirements for the grant of a Subclass 676 visa. Longer
visa validity and stay periods will be implemented for this cohort of visa applicant under
policy in accordance with existing legislative provisions. Allowing new condition 8558 to be
imposed on holders of this more generous visa product is intended to prevent the holder from
establishing “de facto” residence in Australia. Allowing condition 8501 to be imposed
mitigates the health risks that may arise with older visitors staying in Australia for extended
periods.
It is intended that these two discretionary conditions may be imposed on Subclass 676 visas
granted with a longer visa validity and stay period on the basis that the holder is the parent of
an Australian citizen or permanent resident.
Explanatory Statement to F2012L02236
25
Item [2] – Schedule 4, item 4065A, column 3
This item substitutes “8101, 8201 and 8558” in item 4065A of column 3 of the table in Part 2
of Schedule 4 to the Principal Regulations.
Schedule 4 contains the public interest criteria that may form part of the criteria in Schedule 2
to the Principal Regulations for the grant of a visa. This includes Public Interest Criterion
(PIC) 4013, which provides for applicants affected by a risk factor in certain circumstances.
Paragraph 4013(2)(b) provides that a person is affected by a risk factor if a visa previously
held by the person was cancelled under section 116 or 128 of the Migration Act 1958 (the
Act) because the person did not comply with a condition specified in Part 2 of Schedule 4 in
relation to a subclass specified in that Part. A consequence of not satisfying PIC 4013 is that
the applicant cannot be granted a visa to which that PIC applies.
The amendment lists new condition 8558 in relation to the Subclass 676 (Tourist) visa in Part
2 of Schedule 4, with the effect that an applicant for a visa may be affected by a risk factor if
the Subclass 676 visa previously held by the person was cancelled because the person did not
comply with condition 8558. This is in addition to conditions 8101 and 8201 which are
currently listed.
This is consistent with the treatment of applicants who previously had a Subclass 676 visa
cancelled because they did not have a genuine intention to visit Australia temporarily as a
visitor, as provided for in paragraph 2.43(1)(j) of the Principal Regulations. These applicants
are also affected by a risk factor in accordance with paragraph 4103(2)(d) of Schedule 4 to
the Principal Regulations.
Item [3] – Schedule 8, after clause 8557
This item inserts new condition 8558 in Schedule 8 to the Principal Regulations.
New condition 8558 provides that the visa holder must not stay in Australia for more than 12
months in any period of 18 months.
New condition 8558 may be imposed on Subclass 676 (Tourist) visa applicants who are
granted a more generous visa product because they are the parent of an Australian citizen or
an Australian permanent resident, for the purpose stated in relation to item [1] of this
Schedule.
Schedule 5 – Amendments of Migration Regulations 1994 relating to visas and charges
The purpose of the amendments made by Schedule 5 is to implement the new visa evidence
charge.
The visa evidence charge is imposed by the Migration (Visa Evidence) Charge Act 2012,
which enables a charge to be payable for the production of prescribed evidence of a visa. The
Migration (Visa Evidence) Charge (Consequential Amendments) Act 2012 amends the Act to
implement this new charge and to provide a framework within which the visa evidence
charge will operate. This framework includes powers to prescribe regulations relating to
various aspects of the new scheme. This schedule would make regulations under these new
powers, as well as making a number of consequential amendments.
Explanatory Statement to F2012L02236
26
As outlined in the explanatory memorandum to the Migration (Visa Evidence) Charge
(Consequential Amendments) Bill 2012, the visa evidence charge is designed to encourage
clients to reconsider their need to have visa evidence. The amendments in this schedule give
effect to this policy intention.
Item [1] – Subregulation 2.16(2), including the subheading and note
This item substitutes subregulation 2.16(2) of Division 2.3 of Part 2 to the Principal
Regulations and inserts new subregulations 2.16(2A), 2.16(2B), 2.16(2C) and 2.16(2D) and a
note.
Previous subregulation 2.16(2) provided that the Minister must notify the applicant of the
grant of the visa in one of the following ways:
if the visa is a bridging visa granted at the same time as a substantive visa – by:
o notifying the applicant of the grant of the substantive visa; or
o giving the applicant evidence of the substantive visa;
if the visa:
o is a special category visa; and
o has been granted using an authorised system in accordance with an
arrangement made under subsection 495A(1) of the Act – by a general notice
in immigration clearance;
in any other case – by:
o telling the applicant orally that the visa has been granted; or
o notifying the applicant by one of the methods specified in section 494B of the
Act; or
o giving the applicant evidence of the visa.
In addition, there was a note following subregulation 2.16(2) which states that if the Minister
gives a person a document by a method specified in section 494B of the Act, the person is
taken to have received the document at the time specified in section 494C of the Act in
respect of that method.
Section 494B of the Act lists the methods by which the Minister is to give documents to a
person, where a provision of the Act or Principal Regulations requires or permits the Minister
to give a document to a person and states that the Minister must do so by one of the methods
specified in section 494B of the Act.
Previous subregulation 2.16(2) of the Principal Regulations allowed, in some circumstances,
the option to notify the applicant of the grant of the visa by giving the applicant evidence of
the visa.
Explanatory Statement to F2012L02236
27
The effect of the amendments in Item [1] of Schedule 6 to the Regulation is to remove the
option of notifying the applicant of the grant of the visa by giving the applicant evidence of
the visa. The purpose of this amendment is to ensure that a person receives notification of the
grant of a visa without having to pay the visa evidence charge. This is a consequential
amendment as a result of the amendments made by Item [2] below, which substitute Division
2.4 of Part 2 of the Principal Regulations to insert regulations for the purpose of
implementing the new visa evidence charge scheme.
New subregulation 2.16(2) of the Principal Regulations provides that if the visa is a bridging
visa granted at the same time as a substantive visa, the Minister must notify the applicant of
the grant of bridging visa by notifying the applicant of the grant of the substantive visa.
The purpose of new subregulation 2.16(2) is to preserve the effect of current subparagraph
2.16(2)(a)(i) of Division 2.3 of Part 2 of the Principal Regulations.
New subregulation 2.16(2A) of the Principal Regulations provides that if the visa:
is a special category visa; and
has been granted using an authorised system in accordance with an arrangement made
under subsection 495A(1) of the Act;
the Minister must notify the applicant of the grant of the visa by a general notice in
immigration clearance.
The purpose of new subregulation 2.16(2A) is to preserve the effect of paragraph 2.16(2)(aa)
of the Principal Regulations.
New subregulation 2.16(2B) of the Principal Regulations provides that if the visa:
is a special category visa; and
has not been granted using an authorised system in accordance with an arrangement
made under subsection 495(1) of the Act;
the Minister must notify the applicant of the grant of the visa by an imprint stamped in the
applicant‟s passport by an officer.
The effect of new subregulation 2.16(2B) is to provide that the Minister must notify the grant
of a special category visa that has not been granted using an authorised system in accordance
with an arrangement made under subsection 495(1) of the Act by way of an imprint stamped
in the applicant‟s passport by an officer.
Previous subparagraph 2.17(1)(b)(ii) of Division 2.4 of Part 2 of the Principal Regulations
and clause 444.712 of Schedule 2 to the Principal Regulations provided that evidence of a
special category visa may be provided by way of an imprint stamped in the applicant‟s
passport by an officer.
Subparagraph 2.17(1)(b)(ii) is substituted by Item [2] of Schedule 6 to Regulation and clause
444.712 is omitted by Item [5] of Schedule 6 to the Regulation.
Explanatory Statement to F2012L02236
28
The purpose of new subregulation 2.16(2B) is to continue the notification of special category
visas that have not been granted using an authorised system in accordance with an
arrangement made under subsection 495(1) of the Act by way of an imprint stamped in the
applicant‟s passport by an officer. However, an imprint stamped in the applicant‟s passport
by an officer will not be evidence of a visa. New regulation 2.19A in Item [2] of Schedule 6
to the Regulation does not prescribe an imprint stamped in the applicant‟s passport by an
officer as evidence of a visa.
New subregulation 2.16(2C) of the Principal Regulations provides that if the visa is a
Subclass 834 (Permanent Resident of Norfolk Island) visa, the Minister must notify the
applicant of the grant of the visa by an imprint stamped in the applicant‟s passport by an
officer.
The effect of new subregulation 2.16(2C) is to provide that if the visa is a Subclass 834
(Permanent Resident of Norfolk Island) visa, the Minister must notify the applicant of the
grant of the visa by an imprint stamped in the applicant‟s passport by an officer.
Previous subparagraph 2.17(1)(b)(ii) of Division 2.4 of Part 2 of the Principal Regulations
and clause 834.712 of Schedule 2 to the Principal Regulations provided that evidence of a
Subclass 834 (Permanent Resident of Norfolk Island) visa may be provided by way of an
imprint stamped in the applicant‟s passport by an officer.
Subparagraph 2.17(1)(b)(ii) is substituted by Item [2] of Schedule 6 to the Regulation and
clause 834.712 is omitted by Item [5] of Schedule 6 to the Regulation.
The purpose of new subregulation 2.16(2C) is to continue the notification of Subclass 834
(Permanent Resident of Norfolk Island) visas by way of an imprint stamped in the applicant‟s
passport by an officer. However, an imprint stamped in the applicant‟s passport by an officer
will not be evidence of a visa. New regulation 2.19A in Item [2] of Schedule 6 to the
Regulation does not prescribe an imprint stamped in the applicant‟s passport by an officer as
evidence of a visa.
New subregulation 2.16(2D) of the Principal Regulations provides that if none of
subregulations 2.16(2) to 2.16(2C) applies, the Minister must notify the applicant of the grant
of the visa by:
telling the applicant orally that the visa has been granted; or
notifying the applicant by one of the methods specified in section 494B of the Act.
The purpose of new subregulation 2.16(2D) is to preserve current subparagraphs 2.16(2)(b)(i)
and 2.16(2)(b)(ii) of the Principal Regulations.
A new note is inserted following subregulation 2.16(2) of Part 2 of the Principal Regulations.
The new note provides that if the Minister gives a person a document by a method specified
in section 494B of the Act, the person would be taken to have received the document at the
time specified in section 494C of the Act in respect of the method.
The new note maintains the current note following current subregulation 2.16(2) of the
Principal Regulations.
Explanatory Statement to F2012L02236
29
Item [2] – Division 2.4
This item substitutes Division 2.4 of Part 2 of the Principal Regulations.
Division 2.4 previously provided the ways of giving evidence of a visa and the cases in which
evidence of a visa need not be given. The intention of substituting this Division is to replace
the previous provisions relating to visa evidence with regulations which implement the new
visa evidence charge.
Previous Division 2.4 of Part 2 of the Principal Regulations contained regulations 2.17 and
2.19.
New Division 2.4 of Part 2 of the Principal Regulations contains regulations 2.17, 2.18, 2.19,
2.19A, 2.19B and 2.19C.
Previous Regulation 2.17 Ways of giving evidence of a visa
Previous regulation 2.17 regulated the way evidence of the grant of a visa was given and the
contents of the evidence of the grant of a visa.
Previous Regulation 2.19 Evidence of visa need not be given in certain cases
Previous regulation 2.19 provided that no evidence of the grant of a visa needed to be given:
if the relevant Part of Schedule 2 so provided; or
if the relevant Part of Schedule 2 required the evidence to be placed in a passport, and
the holder of the visa:
o did not produce a passport to an officer; or
o produced to an officer a document that the Minister had directed, under
subsection 71(3) of the Act, was not to be taken to be a passport for the
purposes of the clause of Schedule 2 under which evidence is to be given of
the visa;
until the holder produces a passport to an officer; or
if the visa:
o was not a Return (Residence) (Class BB) visa; and
o was granted on the basis of an oral application.
New Regulation 2.17 Form of evidence
New subregulation 2.17(1) of the Principal Regulations provides that, for subsection 70(1) of
the Act, the form of evidence of a visa granted to a non-citizen is a label affixed to the non-
citizen‟s valid passport by an officer. A note following new subregulation 2.17(1) states that,
under subsection 70(1) of the Act, the label is a prescribed form of evidence of the visa.
Explanatory Statement to F2012L02236
30
Subsection 70(1) of the Act provides that certain persons may request to be given a
prescribed form of evidence of a visa at any time while the visa is in effect.
The purpose of new subregulation 2.17(1) is to prescribe a label as a form of evidence of a
visa for subsection 70(1) of the Act.
New subregulation 2.17(2) of Division 2.4 of Part 2 of the Principal Regulations provides that
if the visa is a substantive visa (other than a transitional visa), the label must include:
a statement of the period for which the visa is in effect; and
the class to which the visa belongs, identified by the 2-letter code specified in the
heading of the relevant item of Schedule 1; and
the subclass to which the visa belongs, identified by the 3-digit code of the relevant
Part of Schedule 2; and
if the visa allows the holder to travel to and enter Australia – a statement of that fact.
The purpose of new subregulation 2.17(2) is to specify what must be included on a label that
is provided as evidence of a visa. This maintains the intention of subregulation 2.17(2) of the
Principal Regulations.
New subregulation 2.17(3) of the Principal Regulations provides that if the Minister has
given to the non-citizen a written statement of the conditions (if any) to which the grant of the
visa is subject, it is not necessary for the label to set out those conditions.
The purpose of new subregulation 2.17(3) is to make it clear that the label is not required to
contain the conditions to which the grant of the visa is subject provided the person has been
given a written statement of the conditions. This maintains the intention of subregulation
2.17(5) of the Principal Regulations.
New Regulation 2.18 Way of requesting evidence of a visa
New subregulation 2.18(1) of the Principal Regulations provides that for paragraph 70(2)(a)
of the Act, this regulation sets out ways in which a person may make a request to be given a
prescribed form of evidence of a visa. A note following new subregulation 2.18(1) provides
that, under paragraph 70(2)(c) of the Act, the request must be accompanied by the amount of
the visa evidence charge payable in relation to the request.
Paragraph 70(2)(a) of the Act provides that the request for evidence of a visa must be made in
the prescribed way.
New subregulation 2.18(2) of the Principal Regulations provides that a request for evidence
of a visa may be made in writing.
A note following new subregulation 2.18(2) provides that Forms 1405 or 1405E are available
for this purpose.
The purpose of new subregulation 2.18(2) is to specify that a request for evidence of a visa
may be made in writing and Forms 1405 and 1405E may be used to request evidence of a
visa.
Explanatory Statement to F2012L02236
31
New subregulation 2.18(3) of the Principal Regulations provides that, if the person is at an
office of Immigration in Australia, the request may be made orally.
The purpose of new subregulation 2.18(3) is to provide that a request for evidence of a visa
may be made orally if the person is at an office of Immigration in Australia.
New subregulation 2.18(4) of the Principal Regulations provides that, if the person is outside
Australia at a diplomatic, consular or migration office maintained by or on behalf of the
Commonwealth, the request may be made orally.
The purpose of new subregulation 2.18(4) is to provide that a request for evidence of a visa
may be made orally if the person is outside Australia and at a diplomatic, consular or
migration office maintained by or on behalf of the Commonwealth.
New subregulation 2.18(5) of the Principal Regulations provides that, if the person is outside
Australia, but not at a diplomatic, consular or migration office maintained by or on behalf of
the Commonwealth, the request may be made orally by contacting a diplomatic, consular or
migration office maintained by or on behalf of the Commonwealth outside Australia.
The purpose of new subregulation 2.18(5) is to provide that a request for evidence of a visa
may be made orally by contacting a diplomatic, consular or migration office maintained by or
on behalf of the Commonwealth outside Australia, if the person is outside Australia but not at
a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth,
provided all other requirements for making the request are satisfied.
New Regulation 2.19 Place for lodging request for evidence of a visa
New subregulation 2.19(1) of the Principal Regulations provides that, for paragraph 70(2)(b)
of the Act, this regulation sets out the places at which a person may lodge a request to be
given a prescribed form of evidence of a visa. A note following new subregulation 2.19(1)
provides that under paragraph 70(2)(c) of the Act, the request must be accompanied by the
amount of the visa evidence charge payable in relation to the request.
Paragraph 70(2)(b) of the Act provides that the request for evidence of a visa must be lodged
at the prescribed place.
New subregulation 2.19(2) of the Principal Regulations provides that, if the person proposes
to lodge the request for evidence of a visa in Australia, the places are an office of
Immigration in Australia and another place specified by the Minister in an instrument in
writing made for this subregulation that relates to the person. A note following new
subregulation 2.19(2) would provide that the instrument may specify a place by reference to
the person‟s location in Australia, by reference to the kind of visa, or by reference to another
matter.
The purpose of new subregulation 2.19(2) is to provide that a request for evidence of a visa in
Australia may be lodged at either an office of Immigration in Australia or additional places
specified by the Minister in an instrument in writing. This is to ensure that any future changes
to lodgement options may be easily updated in line with business requirements.
New subregulation 2.19(3) of the Principal Regulations provides that, if the person proposes
to lodge the request for evidence of a visa outside Australia, the place is a diplomatic,
Explanatory Statement to F2012L02236
32
consular or migration office maintained by or on behalf of the Commonwealth outside
Australia.
The purpose of new subregulation 2.19(3) is to provide that a request for evidence of a visa
may be lodged outside Australia at a diplomatic, consular or migration office maintained by
or on behalf of the Commonwealth outside Australia.
New Regulation 2.19A Visa evidence charge
New subregulation 2.19A(1) of the Principal Regulations provides that, for subsection 71(2)
of the Act, this regulation sets out the amount of visa evidence charge that must accompany a
request by a person to be given a prescribed form of evidence of a visa.
Subsection 71(2) of the Act provides that the amount of the visa evidence charge is the
prescribed amount which must not exceed the visa evidence charge limit for the request. The
visa evidence charge limit is provided in the Migration (Visa Evidence) Charge Act 2012.
New subregulation 2.19A(2) of the Principal Regulations provides that the amount of the visa
evidence charge is $70.
Paragraph 71(3)(f) of the Act provides that regulations made for the purposes of subsection
71(2) of the Act may specify the circumstances where the amount of the visa evidence charge
is nil.
New subregulation 2.19A(3) of the Principal Regulations provides that, despite subregulation
2.19A(2), if:
the request relates to a visa mentioned in the table that the person holds; and
the request is the first made by or for the person in relation to the particular visa the
person holds;
the amount is nil.
A note following new subregulation 2.19A provides that a person may hold 2 or more visas
of the same subclass over time. This subregulation applies to the first request in relation to
each individual visa in the series.
New subregulation 2.19A(3) includes a table that sets out the visa subclasses for which the
visa evidence charge is nil under the subregulation. The visa evidence charge for these visa
subclasses is nil because humanitarian, emergency, bilateral foreign relations or Australian
interests apply. The visa subclasses listed in that table are set out below.
Visa
Subclass 050 (Bridging (General)) visa
Subclass 051 (Bridging (Protection Visa Applicant)) visa
Subclass 060 (Bridging F) visa
Explanatory Statement to F2012L02236
33
Subclass 070 (Bridging (Removal Pending)) visa
Subclass 200 (Refugee) visa
Subclass 201 (In-country Special Humanitarian) visa
Subclass 202 (Global Special Humanitarian) visa
Subclass 203 (Emergency Rescue) visa
Subclass 204 (Woman at risk) visa
Subclass 302 (Emergency (Permanent Visa Applicant)) visa
Subclass 303 (Emergency (Temporary Visa Applicant)) visa
Subclass 403 (Temporary Work (International Relations)) visa for which the holder:
satisfied the requirements of Subdivision 403.22, 403.23 or 403.24 of Schedule
2; or
was a member of the family unit of a person who satisfied the requirements of
Subdivision 403.22 or 403.23 of Schedule 2.
Subclass 406 (Government Agreement) visa
Subclass 415 (Foreign Government Agency) visa
Subclass 416 (Special Program) visa for which the holder satisfied the requirements of
paragraph 416.222(d) of Schedule 2
Subclass 426 (Domestic worker (Temporary) – Diplomatic or Consular) visa
Subclass 448 (Kosovar Safe Haven (Temporary)) visa
Subclass 449 (Humanitarian Stay (Temporary)) visa
Subclass 574 (Postgraduate Research Sector) visa
Subclass 773 ( Border)
Subclass 786 (Temporary (Humanitarian Concern)) visa
Subclass 800 (Territorial Asylum) visa
Subclass 851 (Resolution of Status) visa
Subclass 852 (Witness Protection (Trafficking) (Permanent)) visa
Subclass 866 (Protection) visa
Explanatory Statement to F2012L02236
34
A criminal justice entry visa
A criminal justice stay visa
A student visa for which the amount of visa application charge was nil on the basis that
the requirement in sub-subparagraphs 1222(2)(a)(i)(A), 1222(2)(a)(i)(D) or
1222(2)(a)(i)(E) of Schedule 1 was satisfied
New subregulation 2.19A(4) of the Principal Regulations provides that despite subregulation
2.19A(2), if the request relates to a visa mentioned in the table that the person holds, the
amount is nil. New subregulation 2.19A(4) includes a table that sets out the visa subclasses
for which the visa evidence charge is nil under this subregulation.
The visa evidence charge has been specified as nil for the Diplomatic temporary visa and a
range of visa subclasses where the International Organisations (Privileges and Immunities)
Act 1963 or the Overseas Missions (Privileges and Immunities) Act 1995 applies. The visas
for which the visa evidence charge is nil under subregulation 2.19A(4) are listed in the table
below.
Visa
Subclass 995 (Diplomatic (Temporary)) visa
A visa for which the amount of visa application charge was nil on the basis that:
the applicant was:
o acting as a representative of a foreign government; or
o a person to whom privileges and immunities are accorded under the
International Organisations (Privileges and Immunities) Act 1963 or the
Overseas Missions (Privileges and Immunities) Act 1995 and the Foreign
Minister recommended the applicant for the grant of the visa.
A visa for which the amount of visa application charge was nil on the basis that the
applicant was a spouse, de facto partner or dependent child of a person where:
the applicant was:
o acting as a representative of a foreign government; or
o a person to whom privileges and immunities are accorded under the
International Organisations (Privileges and Immunities) Act 1963 or the
Overseas Missions (Privileges and Immunities) Act 1995 and the Foreign
Minister recommended the applicant for the grant of the visa.
Explanatory Statement to F2012L02236
35
New subregulation 2.19B Circumstances in which prescribed form of evidence of a visa may
be requested
New subregulation 2.19B(1) of the Principal Regulations provides that, for paragraph
71B(1)(a) of the Act, a circumstance in which a prescribed form of evidence of a visa may be
requested is that the visa is not:
a Subclass 834 (Permanent Resident of Norfolk Island) visa: or
a Subclass 956 Electronic Travel Authority (Business Entrant – Long Validity) visa;
or
a Subclass 976 (Electronic Travel Authority (Visitor)) visa; or
a Subclass 977 (Electronic Travel Authority (Business Entrant – Short Validity)) visa;
or
a special category visa.
Paragraph 71B(1)(a) of the Act provides that the regulations may make provision for, or in
relation to, the circumstances in which a prescribed form of evidence of a visa may be
requested or given. The circumstances may include that, to be able to request evidence of a
visa, a person holds a visa other than a prescribed visa.
Evidence of a visa is not provided for a Subclass 834 (Permanent Resident of Norfolk Island)
visa, a Subclass 956 Electronic Travel Authority (Business Entrant – Long Validity) visa, a
Subclass 976 (Electronic Travel Authority (Visitor)) visa, a Subclass 977 (Electronic Travel
Authority (Business Entrant – Short Validity)) visa or a special category visa. The purpose of
imposing the visa evidence charge is to reduce the volume of visa evidence that is provided to
visa holders. Introducing new visas for which evidence of a visa can be requested and given
would go against the policy of reducing visa evidence by introducing new visas for which a
visa evidence can be issued.
New regulation 2.19C Refund of visa evidence charge
New subregulation 2.19C(1) of the Principal Regulations provides that, for paragraph
71B(1)(d) of the Act, this regulation sets out arrangements for the refund to a person (in
whole or in part) of an amount of visa evidence charge.
Paragraph 71B(1)(d) of the Act provides that the regulations may make provision for, or in
relation to, the remission, refund or waiver (in whole or in part) of the charge.
New subregulation 2.19C(2) of the Principal Regulations provides that the person must be:
the person who has paid the visa evidence charge (the payer); or
the personal representative of a payer who has died or has a serious physical or mental
incapacity; or
the trustee of the estate of a payer who is a bankrupt within the meaning of the
Bankruptcy Act 1966.
Explanatory Statement to F2012L02236
36
The purpose of new subregulation 2.19C(2) is to specify the person who the refund of the
visa evidence charge can be paid to.
New subregulation 2.19C(3) of the Principal Regulations provides that for subregulation
2.19C(2):
if a payment of visa evidence charge is made by cheque, the drawer of the cheque is
the payer; and
if a payment of visa evidence charge is made by a credit or debit card, the person
named on the card is the payer; and
if a payment of visa evidence charge is made in cash, the person presenting the cash is
the payer; and
if a payment of visa evidence charge is made by bank cheque, bank draft, money
order, or other similar instrument, the purchaser of the instrument is the payer.
The purpose of new subregulation 2.19C(3) is to specify who the payer is for new
subregulation 2.19C(2).
New subregulation 2.19C(4) of the Principal Regulations provides that, for subregulation
2.19C(2), a person is taken to be the personal representative of a payer if:
the person provides satisfactory evidence to the Minister that the person is the
personal representative of the payer; and
the Minister is satisfied, on the basis of the evidence provided by the person, that the
person is the personal representative of the payer.
The purpose of new subregulation 2.19C(4) of the Principal Regulations is to specify who the
personal representative of a payer is for new subregulation 2.19C(2).
New subregulation 2.19C(5) of the Principal Regulations provides that the Minister must:
receive a request in writing from the person for a refund; or
consider it is reasonable in the circumstances to refund the amount on a request that is
not in writing.
The purpose of new subregulation 2.19C(5) is to provide that the request for a refund of the
visa evidence charge must be in writing unless the Minister considers it reasonable in the
circumstances to refund the amount on a request that is not in writing.
Situations where it may be reasonable in the circumstances to refund the amount on a request
that is not in writing would include where an officer considers that the particular
circumstances applying to the request do not warrant the imposition of a requirement for a
written request.
New subregulation 2.19C(6) of the Principal Regulations provides that the Minister must
refund an amount of visa evidence charge:
Explanatory Statement to F2012L02236
37
if the visa ceased to be in effect before the evidence was given; or
if the request for the evidence was withdrawn before the evidence was given; or
if:
o the evidence that was requested was a visa label; and
o the visa label was to be affixed to a passport or other travel document to which
a direction under subsection 71B(2) of the Act applied; or
if the amount was paid by mistake or otherwise should not have been paid.
The purpose of new subregulation 2.19C(6) is to provide the circumstances where a refund
must be provided.
The reason for a refund being provided where the visa has ceased to be in effect before the
evidence was given is that subsection 70(1) of the Act provides that a request to be given a
prescribed form of evidence of a visa at any time while the visa is in effect.
The reason for a refund being provided where the request was withdrawn before the evidence
was given is because an officer is no longer required to give that person evidence under
subsection 71A(2) of the Act and the person should therefore not have to pay for evidence
that will not be provided.
The reason for a refund being provided where the evidence that was requested was a visa
label and the visa label was to be affixed to a passport or other travel document to which a
direction under subsection 71B(2) of the Act applied is that a visa label cannot be provided
for a passport or other travel document to which a direction under subsection 71B(2) of the
Act applies.
Subsection 71B(2) of the Act provides that if the regulations provide that a prescribed form
of evidence of a visa may be given by endorsing a valid passport, or other valid travel
document, that has been issued to:
a non-citizen; or
another non-citizen associated with that non-citizen;
the Minister may direct, in writing, that a specified document is not to be taken to be a
passport or travel document for the purposes of the regulations.
Subsection 71B(2) of the Act provides that if the regulations provide that a prescribed form
of evidence of a visa may be given by endorsing a valid passport, or other valid travel
document, that has been issued to:
a non-citizen; or
another non-citizen associated with that non-citizen;
the Minister may direct, in writing, that a specified document is not to be taken to be a
passport or travel document for the purposes of the regulations. The documents that would be
the subject of this direction would be those passports or travel documents that Australia does
not recognise for foreign policy or integrity reasons.
Explanatory Statement to F2012L02236
38
The reason for providing a refund where the amount was paid by mistake or otherwise should
not have been paid is to allow a refund to be paid where the Commonwealth was not entitled
to the payment.
New subregulation 2.19C(7) of the Principal Regulations provides that the Minister must pay
a refund in:
Australian currency; or
if the amount to which the refund relates was paid in another currency – the other
currency.
The purpose of new subregulation 2.19C(7) is to provide for the currencies in which the
Minister must pay the refund.
New subregulation 2.19C(8) of the Principal Regulations provides that if:
in the opinion of the Minister, there is no doubt about the identity of the payer; and
the Minister pays the amount of the refund to the payer or a person mentioned in
paragraph 2.19C(2)(b) or 2.19C(2)(c);
a receipt that is given by the person to whom the refund is paid is, for all purposes, a valid
discharge of any liability of the Commonwealth in relation to the payment of the amount of
the refund.
The purpose of new subregulation 2.19C(8) is to provide that if in the opinion of the Minister,
there is no doubt about the identity of the payer and the Minister pays the amount of the
refund to the payer or a person mentioned in paragraph 2.19C(2)(b) or 2.19C(2)(c), a receipt
that is given by the person to whom the refund is paid is, for all purposes, a valid discharge of
any liability of the Commonwealth in relation to the payment of the amount of the refund.
Item [3] – Subregulation 5.36(4)
This item would substitute subregulation 5.36(4) of Division 5.7 of Part 5 of the Principal
Regulations.
Previous subregulation 5.36(4) provided that, in regulation 5.36, „fee‟ means:
an instalment of visa application charge; or
a fee payable under these Regulations.
New subregulation 5.36(4) provides that, in regulation 5.36, „fee‟ means:
an instalment of visa application charge; or
an amount of visa evidence charge; or
a fee payable under these Regulations.
Explanatory Statement to F2012L02236
39
The purpose of new subregulation 5.36(4) is to preserve previous subregulation 5.36(4) and
also to provide that an amount of visa evidence charge is a fee for the purposes of regulation
5.36.
Item [4] – Schedule 8, clause 8403
This item would omit clause 8403 of Schedule 8 to the Principal Regulations.
Clause 8403 provided that the holder must visit an office of Immigration specified by the
Minister, within the time specified by the Minister, for the purpose of having evidence of the
visa placed in the holder‟s passport.
Clause 8403 was a condition that could be attached to a visa at the time the visa is granted.
The purpose of imposing the visa evidence charge is to reduce the volume of visa evidence
that is provided to visa holders. As clause 8403 required a visa holder to have evidence of the
visa placed in the holder‟s passport, it is not consistent with the policy of reducing the
volume of visa evidence that is provided visa holders and so that clause is removed.
Item [5] – Further amendments – omissions
Item 5 of Schedule 6 to the Regulation omits a number of Divisions from Schedule 2 to the
Principal Regulations.
This amendment is consequential to the amendment in Item [2] of Schedule 6 to the
Regulation which substitutes a new Division 2.4 of Part 2 of the Principal Regulations.
The Divisions omitted from Schedule 2 to the Principal Regulations all provided for the
evidence, if any, that may be provided for the grant of a visa of the subclass in which the
Division is currently located.
Because new Division 2.4 provides for the evidence of the grant of a visa, it is no longer
necessary for provisions in Schedule 2 to the Principal Regulations to specify a way of giving
evidence or if no evidence need be given. For that reason, these Divisions are omitted.
The Divisions omitted are:
010.7 020.7 030.7 040.7 041.7
050.7 051.7 060.7 070.7 100.7
101.7 102.7 103.7 114.7 115.7
116.7 117.7 118.7 119.7 120.7
121.7 124.7 143.7 151.7 155.7
157.7 159.7 160.7 161.7 162.7
163.7 164.7 165.7 173.7 175.7
Explanatory Statement to F2012L02236
40
176.7 200.7 201.7 202.7 203.7
204.7 300.7 302.7 303.7 309.7
405.7 406.7 410.7 411.7 415.7
416.7 417.7 419.7 420.7 421.7
422.7 423.7 426.7 427.7 428.7
442.7 444.7 445.7 448.7 449.7
450.7 456.7 457.7 459.7 461.7
462.7 470.7 475.7 476.7 485.7
487.7 488.7 570.7 571.7 572.7
573.7 574.7 575.7 576.7 580.7
651.7 675.7 676.7 679.7 685.7
771.7 773.7 786.7 800.7 801.7
802.7 804.7 808.7 820.7 834.7
835.7 836.7 837.7 838.7 845.7
846.7 850.7 851.7 852.7 855.7
856.7 857.7 858.7 859.7 864.7
866.7 884.7 885.7 886.7 887.7
890.7 891.7 892.7 893.7 956.7
976.7 977.7 988.7 995.7
Item [6] – Further amendments – omission of condition 8403
Item 6 of Schedule 6 to the Regulation omits references to condition 8403 in a number of
provisions in Schedule 2 to the Principal Regulations.
This amendment is consequential to the amendment in item [4] of Schedule 6 to the
Regulation which omits clause 8403 of Schedule 8 to the Principal Regulations.
As clause 8403 is omitted from Schedule 8 to the Principal Regulations references to clause
8403 in Schedule 2 to the Principal Regulations are also omitted. Those references are in the
following provisions:
Explanatory Statement to F2012L02236
41
050.612A(3) 050.613 050.613A(2)
050.614(2) 050.615(2) 050.615A(2)
050.616(2) 050.617 051.611A(3)
051.612 060.612(b) 416.612
417.612 422.612
Schedule 6 – Amendments of Migration Regulations 1994 relating to evidentiary
requirements for family violence claims
Item [1] – Subregulation 1.21(1)
This item omits „(1) In this Division:‟ in subregulation 1.21(1) and replaces it with „In this
Division‟. This is a technical amendment that is consequential to the removal of
subregulation 1.21(2) in item [3] below.
Item [2] – Subregulation 1.21(1), definition of competent person
This item omits the definition of „competent person‟ from subregulation 1.21(1) of Division
1.5 of Part 1 of the Principal Regulations.
This amendment is consequential to the amendment in item [7] below, which omits
regulation 1.26. As regulation 1.26, which is about statutory declarations by „competent
persons‟, is omitted, it is no longer necessary to define the term „competent person‟.
Item [3] – Subregulation 1.21(2)
This item omits subregulation 1.21(2), which sets out positions referred to in subparagraph
1.21(a)(vi) of the definition of „competent person‟. This amendment is consequential to the
amendment in item [2], which omits the definition of „competent person‟.
Item [4] – Regulation 1.24
This item substitutes a new regulation 1.24 of Division 1.5 of Part 1 of the Principal
Regulations.
Previous regulation 1.24 provided for the evidence that an alleged victim or another person
on the alleged victim‟s behalf had presented under paragraph 1.23(9)(c). That evidence is
required before an application for a visa can be taken to include a „non-judicially determined
claim of family violence‟ under subregulation 1.23(9). For some visa classes, applicants may
be granted a visa if they have suffered family violence.
Previous subregulation 1.24(1) provided that that evidence must be:
a statutory declaration under regulation 1.25 (which deals with statutory declarations by
or on behalf of alleged victims) together with:
Explanatory Statement to F2012L02236
42
o a statutory declaration under regulation 1.26 (which deals with statutory
declarations by competent persons); and
a copy of a record of an assault, allegedly committed by the alleged
perpetrator, on:
the alleged victim; or
a member of the family unit of the alleged victim; or
a member of the family unit of the alleged perpetrator;
that is a record kept by a police service of a State or Territory
(other than a statement by the alleged victim or by the person
allegedly assaulted); or
o two statutory declarations under regulation 1.26 (which deals with statutory
declarations by competent persons).
New regulation 1.24 provides that the evidence mentioned in paragraph 1.23(9)(c) is a
statutory declaration under regulation 1.25 and the type and number of items of evidence
specified by the Minister, by instrument in writing. The type and number of documents are to
be specified by the Minister in an instrument in writing. Examples of these types of
documents could include medical reports, hospital reports or statutory declarations by persons
specified under the instrument.
The purpose of these amendments is to provide greater access to those genuine family
violence victims who are not able to obtain the prescribed evidence due to logistical, financial
and other reasons. Due to the detailed requirements in regulation 1.26 for statutory
declarations, the visa applicant is often required to make multiple visits to a competent person
if the statutory declaration does not comply with those requirements. The visa applicants are
often required to relay their story several times to strangers and the experience can exacerbate
the trauma for genuine family violence victims.
The removal of the requirement for a valid statutory declaration from two competent persons
increases the range and quality of evidence provided by the applicant.
The effect of these amendments is that the person now need only provide a statutory
declaration under regulation 1.25 and a specified number of specified types of documents
rather than a number of statutory declarations.
Items [5] and [6] – Subregulation 1.25(2) and subregulation 1.25(3)
These items omit from subregulation 1.25(2) and subregulation 1.25(3) of Division 1.5 of
Part 1 of the Principal Regulations references to „subregulation 1.21(1)‟ and replace them
with „regulation 1.21‟. This amendment is consequential to the renumbering of regulation
1.21 proposed in item [1] above.
Item [7] – Regulation 1.26
This item omits subregulation 1.26 of Division 1.5 of Part 1 of the Principal Regulations.
Explanatory Statement to F2012L02236
43
Previous regulation 1.26 provided the requirements for a statutory declaration made by a
competent person.
As a statutory declaration made by a competent person is no longer be a form of evidence
that may be provided under paragraph 1.23(9)(c) in support of a „non-judicially determined
claim of family violence‟, previous regulation 1.26 is no longer necessary and therefore
should be omitted. This amendment is consequential to the amendment proposed in item [4]
above, to substitute a new regulation 1.24 under which a statutory declaration under
regulation 1.26 is no longer evidence of a non-judicially determined claim of family violence.
Item [8] – Regulation 1.27
This item substitutes regulation 1.27 of Division 1.5 of Part 1 of the Principal Regulations.
Previous regulation 1.27 provided that a statutory declaration made under regulation 1.25 or
1.26, or an opinion of an independent expert in subparagraph 1.23(10)(c)(i), was not
admissible in evidence before a court or tribunal otherwise than in:
an application for judicial review or merits review of a decision to refuse to grant a
visa the application for which included the non-judicially determined claim of family
violence to which the statutory declaration or opinion relates; or
a prosecution of the maker of the statutory declaration under section 11 of the
Statutory Declarations Act 1959.
New regulation 1.27 provides that, except in the situations mentioned in the two dot points
above, the following documents are not admissible in evidence before a court or tribunal:
a statutory declaration that is a type of evidence specified by the Minister under
paragraph 1.24(b);
a statutory declaration under regulation 1.25; and
an opinion of an independent expert in subparagraph 1.23(10)(c)(i).
The purpose of this item is to amend regulation 1.27 to omit the reference to regulation 1.26
and to include, in addition to a statutory declaration made under regulation 1.25 and the
opinion of an independent expert mentioned in subparagraph 1.23(10)(c)(i), a statutory
declaration that is a type of evidence specified by the Minister in an instrument under
paragraph 1.24(b) is not admissible before a court or tribunal. This amendment is
consequential to the amendment proposed in item [4] above.
Schedule 7 – Amendment of Migration Regulations 1994 relating to transitional
arrangements
Item [1] – Schedule 13, after Part 5
This item inserts new Part 6 after Part 5 in Schedule 13 to the Principal Regulations to deal
with transitional arrangements in respect of amendments to the Principal Regulations.
The heading for new Part 6 is „Amendments made by Migration Legislation Amendment
Regulation 2012 (No. 5)‟.
Explanatory Statement to F2012L02236
44
The purpose of this amendment is to clarify to whom the amendments in Schedules 1 to 6 of
the Regulation apply.
In relation to Schedule 1, new subitem 601(1) provides that the amendments of the Principal
Regulations made by Schedule 1 to the Regulation apply in relation to an application made
on or after 24 November 2012 for a visa by a person seeking to satisfy the secondary criteria
for the grant of a Subclass 422 (Medical Practitioner) visa.
In relation to Schedule 2, new subitem 601(2) provides that the amendments of the Principal
Regulations made by Schedule 2 to the Regulation apply in relation to an application for a
visa made on or after 24 November 2012.
In relation to Schedule 3, new subitem 601(3) provides that the amendments of the Principal
Regulations made by Schedule 3 to the Regulation apply in relation to an application for a
visa made on or after 24 November 2012.
In relation to Schedule 4, new subitem 601(4) provides that the amendments of the Principal
Regulations made by Schedule 4 to the Regulation apply in relation to an application for a
visa made, but not finally determined, before 24 November 2012, or made on or after 24
November 2012.
The effect of this transitional provision is to allow condition 8501 or new condition 8558 to
be imposed on a Subclass 676 (Tourist) visa that is granted after the commencement date, on
the basis of a visa application made before, on or after the commencement date.
In relation to Schedule 5, new subitem 601(5) provides that the amendments of the Principal
Regulations made by Schedule 5 to the Regulation apply in relation to a request to be given a
prescribed form of evidence of a visa made on or after 24 November 2012.
The purpose of new subitem 601(5) is to make it clear that the amendments of the Principal
Regulations made by Schedule 5 to the Regulation apply in relation to a request to be given a
prescribed form of evidence of a visa made on or after 24 November 2012. This means that
if a person holds a visa that is in effect on or after 24 November 2012 and makes a request for
evidence of that visa under section 70 of the Act, the requirements prescribed in these
regulations apply to that request. As long as the visa is in effect on this date, it does not
matter whether the visa is granted before or after 24 November 2012.
In relation to Schedule 6, new subitem 601(6) provides that the amendments of the Principal
Regulations made by Schedule 6 to the Regulation apply in relation to an application for a
visa made, but not finally determined, before 24 November 2012 if:
on or after 24 November 2012, the alleged victim, or another person on the alleged
victim‟s behalf, has provided a statutory declaration under regulation 1.25; and
the alleged victim or another person on the alleged victim‟s behalf has not previously
provided a statutory declaration under regulation 1.25 in relation to that application.
Subitem 601(7) of new Part 6 also provides that the amendments of the Principal Regulations
made by Schedule 6 to the Regulation apply in relation to an application for a visa made on
or after 24 November 2012.
Explanatory Statement to F2012L02236
45
Schedule 8 – Amendments of Australian Citizenship Regulations 2007 relating to
currency
Item [1] – Subregulation 12A(7), definition of conversion instrument
This item amends the definition of “conversion instrument” currently in subregulation 12A(7)
of the Citizenship Regulations by omitting the reference to the instrument numbered IMMI
12/008, which commenced on 1 July 2012, and substituting a reference to the instrument
numbered IMMI 12/076 that will commence on 1 January 2013.
New definition of ‘conversion instrument’
The definition of „conversion instrument‟ is relevant to provisions in the Citizenship
Regulations which allow a person who makes an application under the Citizenship Act to pay
the prescribed fee in a foreign currency specified in the conversion instrument.
The new definition of „conversion instrument‟ incorporates, by reference, a new instrument
titled „Payment of Visa Application Charges and Fees in Foreign Currencies‟, (IMMI12/008)
that is made under subregulation 5.36(1A) of the Principal Regulations. The new instrument
commences on 1 January 2013 and sets out application fee amounts in foreign currencies
which correspond to amounts payable in Australian dollars.
Amending the definition of „conversion instrument‟ allows a person to pay the fee for an
application made under the Citizenship Act in a foreign currency. Without this amendment,
it is possible that clients making applications at overseas posts would suffer hardship, as there
is no provision in the Principal Regulations to indicate how much application fee is payable
in a currency other than the Australian dollar.
Due to the operation of section 14 of the Legislative Instruments Act 2003, it is not possible
to incorporate, by reference, the instrument made under subregulation 5.36(1A) of the
Principal Regulations as in force from time to time. Rather, the new instrument is
incorporated, by reference, at the time of commencement of the Regulation.
Instruments made under the Principal Regulations are incorporated in the Citizenship
Regulations because the Citizenship Act does not currently permit the Minister for
Immigration and Citizenship to make instruments under the Citizenship Regulations.
Item [2] – Subregulation 12A(7), definition of places and currencies instrument
This item amends the definition of „places and currencies instrument‟, currently in
subregulation 12A(7) of the Citizenship Regulations, by omitting the reference to the
instrument numbered IMMI12/009, which commenced on 1 July 2012, and substituting a
reference to the instrument numbered IMMI12/077 that commences on 1 January 2013.
New definition of ‘places and currencies instrument’
The definition of „places and currencies instrument‟ is relevant to provisions in the
Citizenship Regulations which allow a person, who makes an application under the
Citizenship Act, to pay the prescribed fee in a foreign country and a foreign currency
specified in the places and currencies instrument.
Explanatory Statement to F2012L02236
46
The new definition of „places and currencies instrument‟ incorporates, by reference, a new
instrument titled „Places and Currencies for Paying of Fees‟ (IMMI12/077) made under
subregulation 5.36(1) of the Principal Regulations. The new instrument commences on 1
January 2013 and sets out the places and currencies for the payment of fees.
Amending the definition of „places and currencies instrument‟ allows a person to pay the fee
for an application made under the Citizenship Act in a foreign country and using a foreign
currency. Without this amendment, clients making applications at overseas posts may suffer
hardship, since they would not be able to pay application fees in the country they are in, or in
a currency other than the Australian dollar.
Due to the operation of section 14 of the Legislative Instruments Act 2003, it is not possible
to incorporate, by reference, the instrument made under subregulation 5.36(1) of the Principal
Regulations as in force from time to time. Rather, the new instrument is incorporated, by
reference, at the time of commencement of the Regulation.
The Instrument made under the Principal Regulations is incorporated in the Citizenship
Regulations to achieve the objective set out at item [1], with regard to the definition of
„Places and Currencies for Paying of Fees‟.
Item [3] – Transitional arrangements
This item provides that the amendments made by Schedule 1 apply in relation to an
application made under Division 2, 3 or 4 of Part 2 of the Australian Citizenship Act 2007
(the Citizenship Act) on or after 1 January 2013.
Schedule 9 – Amendment of Australian Citizenship Regulations 2007 relating to Defence
families
Item [1] – After regulation 6
This item inserts a new regulation 6A in Part 2 of the Citizenship Regulations.
New regulation 6A prescribes the following visas for the purposes of paragraphs 23(2)(a)
and 23(3)(a) of the Citizenship Act:
Employer Nomination (Permanent) (Class EN);
Labour Agreement (Migrant) (Class AU);
Labour Agreement (Residence) (Class BV);
Regional Employer Nomination (Permanent) (Class RN).
Section 23 of the Citizenship Act provides for the defence service requirement. The defence
service requirement was introduced into the Citizenship Act by the Australian Citizenship
(Defence Families) Act 2012 (the Defence Families Act) and is one means by which an
applicant for Australian citizenship may satisfy the criterion in paragraph 21(2)(c) of the
Citizenship Act. Subsection 21(2) of the Citizenship Act, more generally, provides for how a
person may become eligible to become an Australian citizen.
This new regulation is consequential to the amendments to the Citizenship Act by the
Defence Families Act.
Explanatory Statement to F2012L02236
47
Section 23 of the Citizenship Act provides for how a person satisfies the defence service
requirement.
Subsection 23(1) provides that a person satisfies the defence service requirement if the person
has completed relevant defence service, which is defined in subsection 23(4) of the
Citizenship Act.
Subsection 23(2) provides that, if:
a person („the defence person‟) was granted, on or after 1 July 2007, a visa
prescribed under the regulations; and
the defence person has completed relevant defence service; and
another person (the relative) was a member of the family unit of the defence person
when the defence person was granted the visa; and
the relative holds a visa of that kind because the relative is a member of the family
unit of the defence person;
the relative satisfied the defence service requirement.
Subsection 23(3) provides that, if
a person (the defence person) was granted, on or after 1 July 2007, a visa prescribed
by the regulations; and
the defence person dies while undertaking service in the Permanent Forces or the
Reserves; and
another person (the relative) was a member of the family unit of the defence person
when the defence person was granted the visa; and
immediately before the death of the defence person, the relative held a visa of that
kind because the relative was a member of the family unit of the defence person;
the relative satisfied the defence service requirement.
The amendments made by the Defence Families Act enable certain family members of a
defence person to satisfy the relevant defence service residence requirement and be eligible
for conferral of Australian citizenship at the same time as the defence person or as a result of
the death of that defence person.
Regulation 6A in Schedule 9 to this Regulation prescribes visas under paragraphs 23(2)(a)
and 23(3)(a) in the Citizenship Regulations.
The purpose of this amendment is to prescribe the type of visa required to be granted on or
after 1 July 2007 to a person who has completed relevant defence service, or has died while
undertaking service in the Permanent Forces or Reserves, in order for certain members of
their family unit to satisfy the defence service requirement for the purposes of section 21 of
the Citizenship Act.
Explanatory Statement to F2012L02236