Migration Amendment Regulation 2013 (No. 5)

Link to law: https://www.comlaw.gov.au/Details/F2013L01248

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Migration Amendment Regulation 2013 (No. 5)
 
Select Legislative Instrument No. 145, 2013
I, Quentin Bryce AC CVO, Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation under the Migration Act 1958.
Dated 28 June 2013
Quentin Bryce
Governor‑General
By Her Excellency’s Command
Brendan O’Connor
Minister for Immigration and Citizenship
 
 
  
  
Contents
1............ Name of regulation.............................................................................. 1
2............ Commencement................................................................................... 1
3............ Authority............................................................................................. 1
4............ Schedule(s)......................................................................................... 1
Schedule 1—Amendments relating to temporary skilled visas                   2
Migration Regulations 1994                                                                                     2
 
1  Name of regulation
                   This regulation is the Migration Amendment Regulation 2013 (No. 5).
2  Commencement
                   This regulation commences on 1 July 2013.
3  Authority
                   This regulation is made under the Migration Act 1958.
4  Schedule(s)
                   Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1—Amendments relating to temporary skilled visas
  
Migration Regulations 1994
1  After regulation 2.60M
Insert:
2.60S  Additional criteria for all classes of sponsor—transfer, recovery and payment of costs
             (1)  For subsection 140E(1) of the Act, the criteria in this regulation are in addition to the criteria in regulations 2.59 to 2.60M.
             (2)  The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a sponsor mentioned in any of regulations 2.59 to 2.60M include a criterion that the Minister is satisfied that:
                     (a)  the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, associated with the applicant becoming an approved sponsor; and
                     (b)  the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, associated with the applicant becoming an approved sponsor; and
                     (c)  the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, that relate specifically to the recruitment of a non‑citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
                     (d)  the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of a non‑citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
                     (e)  if the applicant has agreed to be the sponsor of an applicant for, a proposed applicant for, or a holder of:
                              (i)  a Subclass 402 (Training and Research) visa; or
                             (ii)  a Subclass 416 (Special Program) visa; or
                            (iii)  a Subclass 488 (Superyacht Crew) visa;
                            the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder; and
                      (f)  if the applicant has agreed to be the sponsor of an applicant for, a proposed applicant for, or a holder of:
                              (i)  a Subclass 402 (Training and Research) visa; or
                             (ii)  a Subclass 416 (Special Program) visa; or
                            (iii)  a Subclass 488 (Superyacht Crew) visa;
                            the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder.
             (3)  The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a sponsor mentioned in any of regulations 2.59 to 2.60M include a criterion that the Minister is satisfied that:
                     (a)  the applicant has not recovered from another person some or all of the costs, including migration agent costs:
                              (i)  associated with the person becoming an approved sponsor; or
                             (ii)  that relate specifically to the recruitment of a non‑citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
                     (b)  the applicant has not sought to recover from another person some or all of the costs, including migration agent costs:
                              (i)  associated with the person becoming an approved sponsor; or
                             (ii)  that relate specifically to the recruitment of a non‑citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
                     (c)  if the applicant has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:
                              (i)  a Subclass 402 (Training and Research) visa; or
                             (ii)  a Subclass 416 (Special Program) visa; or
                            (iii)  a Subclass 488 (Superyacht Crew) visa;
                            the applicant has not recovered from another person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder; and
                     (d)  if the applicant has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:
                              (i)  a Subclass 402 (Training and Research) visa; or
                             (ii)  a Subclass 416 (Special Program) visa; or
                            (iii)  a Subclass 488 (Superyacht Crew) visa;
                            the applicant has not sought to recover from another person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder.
             (4)  However, the Minister may disregard a criterion referred to in subregulation (2) or (3) if the Minister considers it reasonable to do so.
2  After regulation 2.68A
Insert:
2.68J  Additional criteria for variation of terms of approval for all classes of sponsor—transfer, recovery and payment of costs
             (1)  For paragraph 140GA(2)(b) of the Act, the criteria in this regulation are in addition to the criteria in regulations 2.68 and 2.68A.
             (2)  The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for a variation of a term of approval as a sponsor mentioned in regulation 2.68 or 2.68A include a criterion that the Minister is satisfied that:
                     (a)  the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, associated with the applicant becoming an approved sponsor; and
                     (b)  the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, associated with the applicant becoming an approved sponsor; and
                     (c)  the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, that relate specifically to the recruitment of a non‑citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
                     (d)  the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of a non‑citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
                     (e)  if the applicant has agreed to be the sponsor of an applicant for, a proposed applicant for, or a holder of:
                              (i)  a Subclass 402 (Training and Research) visa; or
                             (ii)  a Subclass 416 (Special Program) visa; or
                            (iii)  a Subclass 488 (Superyacht Crew) visa;
                            the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder; and
                      (f)  if the applicant has agreed to be the sponsor of an applicant for, a proposed applicant for, or a holder of:
                              (i)  a Subclass 402 (Training and Research) visa; or
                             (ii)  a Subclass 416 (Special Program) visa; or
                            (iii)  a Subclass 488 (Superyacht Crew) visa;
                            the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder.
             (3)  The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for a variation of a term of approval as a sponsor mentioned in regulation 2.68 or 2.68A include a criterion that the Minister is satisfied that:
                     (a)  the applicant has not recovered from another person some or all of the costs, including migration agent costs:
                              (i)  associated with the person becoming an approved sponsor; or
                             (ii)  that relate specifically to the recruitment of a non‑citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
                     (b)  the applicant has not sought to recover from another person some or all of the costs, including migration agent costs:
                              (i)  associated with the person becoming an approved sponsor; or
                             (ii)  that relate specifically to the recruitment of a non‑citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
                     (c)  if the applicant has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:
                              (i)  a Subclass 402 (Training and Research) visa; or
                             (ii)  a Subclass 416 (Special Program) visa; or
                            (iii)  a Subclass 488 (Superyacht Crew) visa;
                            the applicant has not recovered from another person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder; and
                     (d)  if the applicant has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:
                              (i)  a Subclass 402 (Training and Research) visa; or
                             (ii)  a Subclass 416 (Special Program) visa; or
                            (iii)  a Subclass 488 (Superyacht Crew) visa;
                            the applicant has not sought to recover from another person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder.
             (4)  However, the Minister may disregard a criterion referred to in subregulation (2) or (3) if the Minister considers it reasonable to do so.
3  At the end of subregulation 2.72(10)
Add:
            ; and (h)  either:
                              (i)  the person will:
                                        (A)  engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457 (Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
                                        (B)  give a copy of that contract to the Minister; or
                             (ii)  the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub‑subparagraph (e)(iii)(B).
4  At the end of subregulation 2.82(3)
Add:
             ; and (f)  a copy of the written contract of employment under which the primary sponsored person is employed.
5  Paragraph 2.86(2A)(c)
Omit “if the person is, or was, a standard business sponsor who lawfully operates a business in Australia”, substitute “if the person is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the person’s approval as a standard business sponsor, or at the time of the last approval of a variation to the person’s term of approval as a standard business sponsor”.
6  Paragraph 2.86(2A)(d)
Omit “if the person is or was a standard business sponsor who does not lawfully operate a business in Australia”, substitute “if the person is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the person’s approval as a standard business sponsor, or at the time of the last approval of a variation to the person’s term of approval as a standard business sponsor”.
7  After subregulation 2.86(2A)
Insert:
       (2AA)  In addition to subregulation (2A), if the person is, or was, a standard business sponsor, the person must ensure that, if the nominated occupation is not an occupation specified by the Minister in an instrument in writing for sub‑subparagraph 2.72(10)(e)(iii)(B):
                     (a)  the primary sponsored person is employed under a written contract of employment; and
                     (b)  if the person is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the person’s approval as a standard business sponsor, or at the time of the last approval of a variation to the person’s term of approval as a standard business sponsor:
                              (i)  the person does not engage in activities that relate to the recruitment of a visa holder, an applicant for a visa or a proposed applicant for a visa for the purpose of supplying the holder, applicant or proposed applicant to a business that is not associated with the person; and
                             (ii)  the person does not engage in activities that relate to the hire of a visa holder to a business that is not associated with the person; and
                     (c)  if the person is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the person’s approval as a standard business sponsor, or at the time of the last approval of a variation to the person’s term of approval as a standard business sponsor:
                              (i)  the person does not engage in activities that relate to the recruitment of a visa holder, an applicant for a visa or a proposed applicant for a visa for the purpose of supplying the holder, applicant or proposed applicant to any other business; and
                             (ii)  the person does not engage in activities that relate to the hire of a visa holder to any other business.
       (2AB)  The person’s obligation in subregulation (2AA) applies only in relation to:
                     (a)  a primary sponsored person:
                              (i)  who holds a Subclass 457 (Temporary Work (Skilled)) visa; or
                             (ii)  whose last substantive visa held was a Subclass 457 (Temporary Work (Skilled)) visa; and
                     (b)  a primary sponsored person:
                              (i)  who holds a Subclass 457 (Temporary Work (Skilled)) visa on the basis of satisfying the criteria in subclause 457.223(4) of Schedule 2; or
                             (ii)  whose last substantive visa was a Subclass 457 (Temporary Work (Skilled)) visa held on the basis of satisfying the criteria in subclause 457.223(4) of Schedule 2.
8  Regulation 2.87 (heading)
Repeal the heading, substitute:
2.87  Obligation not to recover, transfer or take actions that would result in another person paying for certain costs
9  Subregulations 2.87(1) and (2)
Repeal the subregulations, substitute:
             (1)  This regulation applies to a person who is or was an approved sponsor.
          (1A)  The person:
                     (a)  must not take any action, or seek to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs:
                              (i)  associated with the person becoming an approved sponsor; or
                             (ii)  associated with the person being an approved sponsor; or
                            (iii)  associated with the person being a former approved sponsor; or
                            (iv)  that relate specifically to the recruitment of a non‑citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
                     (b)  must not take any action, or seek to take any action, that would result in another person paying to the person some or all of the costs, including migration agent costs:
                              (i)  associated with the person becoming an approved sponsor; or
                             (ii)  associated with the person being an approved sponsor; or
                            (iii)  associated with the person being a former approved sponsor; or
                            (iv)  that relate specifically to the recruitment of a non‑citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
                     (c)  if the person has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:
                              (i)  a Subclass 402 (Training and Research) visa; or
                             (ii)  a Subclass 416 (Special Program) visa; or
                            (iii)  a Subclass 488 (Superyacht Crew) visa;
                            must not take any action, or seek to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder; and
                     (d)  if the person has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:
                              (i)  a Subclass 402 (Training and Research) visa; or
                             (ii)  a Subclass 416 (Special Program) visa; or
                            (iii)  a Subclass 488 (Superyacht Crew) visa;
                            must not take any action, or seek to take any that would result in another person paying to the person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder.
          (1B)  The person:
                     (a)  must not recover from another person some or all of the costs, including migration agent costs:
                              (i)  associated with the person becoming an approved sponsor; or
                             (ii)  associated with the person being an approved sponsor; or
                            (iii)  associated with the person being a former approved sponsor; or
                            (iv)  that relate specifically to the recruitment of the primary sponsored person, or a non‑citizen, for the purposes of a nomination under subsection 140GB(1) of the Act; and
                     (b)  must not seek to recover from another person some or all of the costs, including migration agent costs:
                              (i)  associated with the person becoming an approved sponsor; or
                             (ii)  associated with the person being an approved sponsor; or
                            (iii)  associated with the person being a former approved sponsor; or
                            (iv)  that relate specifically to the recruitment of the primary sponsored person, or a non‑citizen, for the purposes of a nomination under subsection 140GB(1) of the Act; and
                     (c)  if the person has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:
                              (i)  a Subclass 402 (Training and Research) visa; or
                             (ii)  a Subclass 416 (Special Program) visa; or
                            (iii)  a Subclass 488 (Superyacht Crew) visa;
                            must not recover from another person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder; and
                     (d)  if the person has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:
                              (i)  a Subclass 402 (Training and Research) visa; or
                             (ii)  a Subclass 416 (Special Program) visa; or
                            (iii)  a Subclass 488 (Superyacht Crew) visa;
                            must not seek to recover from another person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder.
10  Paragraph 8107(3)(a) of Schedule 8
Repeal the paragraph, substitute:
                     (a)  the holder:
                              (i)  must work only in the occupation listed in the most recently approved nomination for the holder; and
                             (ii)  unless the circumstances in subclause (3A) apply:
                                        (A)  must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or
                                        (B)  if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor—must work only in a position in the business of the sponsor or an associated entity of the sponsor; or
                                        (C)  if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor—must work only in a position in the business of the sponsor.
11  At the end of Schedule 13
Add:
Part 20  Amendments made by the Migration Amendment Regulation 2013 (No. 5)
  
2001  Operation of Schedule 1
             (1)  The amendments of these Regulations made by item 1 of Schedule 1 to the Migration Amendment Regulation 2013 (No. 5) apply in relation to:
                     (a)  an application for approval as a sponsor that:
                              (i)  was made before 1 July 2013; and
                             (ii)  had not been finally determined before 1 July 2013; and
                     (b)  an application for approval as a sponsor made on or after 1 July 2013.
             (2)  The amendments of these Regulations made by item 2 of Schedule 1 to the Migration Amendment Regulation 2013 (No. 5) apply in relation to:
                     (a)  an application for variation of a term of approval as a sponsor that:
                              (i)  was made before 1 July 2013; and
                             (ii)  had not been finally determined before 1 July 2013; and
                     (b)  an application for variation of a term of approval as a sponsor made on or after 1 July 2013.
             (3)  The amendments of these Regulations made by item 3 of Schedule 1 to the Migration Amendment Regulation 2013 (No. 5) apply in relation to:
                     (a)  a nomination under subsection 140GB(1) of the Act:
                              (i)  made before 1 July 2013; and
                             (ii)  not finally determined before 1 July 2013; and
                     (b)  a nomination under subsection 140GB(1) of the Act made on or after 1 July 2013.
             (4)  The amendments of these Regulations made by item 4 of Schedule 1 to the Migration Amendment Regulation 2013 (No. 5) apply in relation to a standard business sponsor on and after 1 July 2013.
             (5)  The amendments of these Regulations made by item 5 of Schedule 1 to the Migration Amendment Regulation 2013 (No. 5) apply in relation to a standard business sponsor, or a former standard business sponsor, on and after 1 July 2013.
             (6)  The amendments of these Regulations made by items 6, 7 and 9 of Schedule 1 to the Migration Amendment Regulation 2013 (No. 5) apply in relation to a standard business sponsor, or a former standard business sponsor, on and after 1 July 2013.
             (7)  The amendments of these Regulations made by item 8 of Schedule 1 to the Migration Amendment Regulation 2013 (No. 5) apply on and after 1 July 2013.
             (8)  The amendments of these Regulations made by item 10 of Schedule 1 to the Migration Amendment Regulation 2013 (No. 5) apply in relation to a visa that is:
                     (a)  in effect on 1 July 2013; or
                     (b)  granted on or after 1 July 2013.