Migration Amendment Regulations 2009 (No. 13)1
Select Legislative Instrument 2009 No. 289
I, QUENTIN BRYCE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Migration Act 1958.
Dated 29 October 2009
QUENTIN BRYCE
Governor-General
By Her Excellency’s Command
CHRIS EVANS
Minister for Immigration and Citizenship
Contents
1 Name of Regulations 3
2 Commencement 3
3 Amendment of Migration Regulations 1994 — Schedule 1 3
4 Amendment of Migration Regulations 1994 — Schedule 2 3
5 Amendment of Migration Regulations 1994 — Schedule 3 4
6 Amendment of Migration Regulations 1994 — Schedule 4 4
7 Amendment of Migration Regulations 1994 — Schedule 5 4
8 Amendment of Migration Regulations 1994 — Schedule 6 4
Schedule 1 Amendments relating to Subclass 457 (Business (Long Stay)) visas 5
Schedule 2 Amendments relating to Subclass 866 (Protection) visas 7
Schedule 3 Amendments relating to carers 8
Schedule 4 Amendments relating to sponsorship 9
Schedule 5 Amendments relating to Bridging F (Class WF) visas 16
Schedule 6 Amendments relating to visa application charges 17
1 Name of Regulations
These Regulations are the Migration Amendment Regulations 2009 (No. 13).
2 Commencement
These Regulations commence on 9 November 2009.
3 Amendment of Migration Regulations 1994 — Schedule 1
(1) Schedule 1 amends the Migration Regulations 1994.
(2) The amendment made by item [1] of Schedule 1 applies in relation to an application for approval of a nomination under section 140GB of the Act:
(a) made, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958), before 9 November 2009; or
(b) made on or after 9 November 2009.
(3) The amendments made by items [2] and [3] of Schedule 1 apply in relation to an application for a visa:
(a) made, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958), before 9 November 2009; or
(b) made on or after 9 November 2009.
4 Amendment of Migration Regulations 1994 — Schedule 2
(1) Schedule 2 amends the Migration Regulations 1994.
(2) The amendments made by Schedule 2 apply in relation to an application for a visa:
(a) made, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958), before 9 November 2009; or
(b) made on or after 9 November 2009.
5 Amendment of Migration Regulations 1994 — Schedule 3
(1) Schedule 3 amends the Migration Regulations 1994.
(2) The amendments made by Schedule 3 apply in relation to an application for a visa made on or after 9 November 2009.
6 Amendment of Migration Regulations 1994 — Schedule 4
(1) Schedule 4 amends the Migration Regulations 1994.
(2) The amendments made by items [1] to [5] and items [7] and [9] of Schedule 4 apply in relation to an application for a visa made on or after 9 November 2009.
(3) The amendments made by items [6] and [8] and items [10] to [12] of Schedule 4 apply in relation to an application for a visa:
(a) made, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958), before 9 November 2009; or
(b) made on or after 9 November 2009.
7 Amendment of Migration Regulations 1994 — Schedule 5
(1) Schedule 5 amends the Migration Regulations 1994.
(2) The amendments made by Schedule 5 apply in relation to an application for a Bridging F (Class WF) visa:
(a) made, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958), before 9 November 2009; or
(b) made on or after 9 November 2009.
8 Amendment of Migration Regulations 1994 — Schedule 6
Schedule 6 amends the Migration Regulations 1994.
Note There are no transitional arrangements for Schedule 6.
Schedule 1 Amendments relating to Subclass 457 (Business (Long Stay)) visas
(regulation 3)
[1] After subregulation 2.72 (7)
insert
(7A) In addition to subregulation (6):
(a) if:
(i) the person identifies a holder of a Subclass 457 (Business (Long Stay)) visa (the visa holder) for subregulation (5); and
(ii) the Subclass 457 (Business (Long Stay)) visa was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b) if:
(i) the person identifies a holder of a Subclass 457 (Business (Long Stay)) visa (the visa holder) for subregulation (5); and
(ii) the person has listed on the nomination a person described in paragraph (6) (a); and
(iii) the Subclass 457 (Business (Long Stay)) visa was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
[2] Schedule 4, subclause 4006A (2)
omit each mention of
relevant employer
insert
relevant nominator
[3] Schedule 4, subclause 4006A (3)
substitute
(3) In subclause (2), relevant nominator means an approved sponsor who:
(a) has lodged a nomination in relation to a primary applicant; or
(b) has included an applicant who is a member of the family unit of a primary applicant in a nomination for the primary applicant; or
(c) has agreed in writing for an applicant who is a member of the family unit of a primary applicant to be a secondary sponsored person in relation to the approved sponsor.
Schedule 2 Amendments relating to Subclass 866 (Protection) visas
(regulation 4)
[1] Schedule 2, paragraph 866.211 (b)
omit
(the claimant)
[2] Schedule 2, clauses 866.221 and 866.222
substitute
866.221 (1) The Minister:
(a) is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention; or
(b) is satisfied that:
(i) the applicant is a member of the same family unit as an applicant mentioned in paragraph (a); and
(ii) the applicant mentioned in paragraph (a) has been granted a Protection (Class XA) visa.
[3] Schedule 2, clause 866.230
substitute
866.230 If the applicant is a child referred to in paragraph 2.08 (1) (b):
(a) the applicant is a member of the same family unit as an applicant mentioned in paragraph 866.221 (a); and
(b) the applicant mentioned in paragraph 866.221 (a) has been granted a Subclass 866 (Protection) visa.
Schedule 3 Amendments relating to carers
(regulation 5)
[1] After paragraph 1.15AA (1) (b)
insert
(ba) the person mentioned in subparagraph (b) (i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
[2] Paragraph 1.15AA (1) (e)
omit
be obtained:
insert
be:
[3] Subparagraph 1.15AA (1) (e) (i)
omit
from
insert
provided by
[4] Subparagraph 1.15AA (1) (e) (ii)
omit
from
insert
obtained from
Schedule 4 Amendments relating to sponsorship
(regulation 6)
[1] Regulation 1.03, after definition of Australian permanent resident, including the note
insert
Australian relative, for an applicant, means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
[2] Regulation 1.20K
substitute
1.20K Limitation on sponsorships — remaining relative visas
(1) The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if the applicant is sponsored for the visa by a person:
(a) who is an Australian relative for the applicant; and
(b) to whom the Minister has granted any of the following:
(i) a Subclass 104 visa;
(ii) a Subclass 115 (Remaining Relative) visa;
(iii) a Subclass 806 visa;
(iv) a Subclass 835 (Remaining Relative) visa.
(2) The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if the applicant is sponsored for the visa by a person:
(a) who is an Australian relative for the applicant; and
(b) who has sponsored another applicant for any of the following:
(i) a Subclass 104 visa;
(ii) a Subclass 115 (Remaining Relative) visa;
(iii) a Subclass 806 visa;
(iv) a Subclass 835 (Remaining Relative) visa; and
(c) the Minister granted the visa to the other applicant.
(3) The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if:
(a) the applicant is sponsored for the visa by a person who is the spouse or de facto partner of an Australian relative for the applicant; and
(b) the Australian relative for the applicant is a person to whom the Minister has granted any of the following:
(i) a Subclass 104 visa;
(ii) a Subclass 115 (Remaining Relative) visa;
(iii) a Subclass 806 visa;
(iv) a Subclass 835 (Remaining Relative) visa.
(4) The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if:
(a) the applicant is sponsored for the visa by a person who is the spouse or de facto partner of an Australian relative for the applicant; and
(b) the Australian relative for the applicant has sponsored another applicant for any of the following:
(i) a Subclass 104 visa;
(ii) a Subclass 115 (Remaining Relative) visa;
(iii) a Subclass 806 visa;
(iv) a Subclass 835 (Remaining Relative) visa; and
(c) the Minister granted the visa to the other applicant.
(5) The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if:
(a) the applicant is sponsored for the visa by the spouse or de facto partner of an Australian relative for the applicant; and
(b) the spouse or de facto partner has sponsored another applicant who is a relative of the Australian relative for the applicant for any of the following:
(i) a Subclass 104 visa;
(ii) a Subclass 115 (Remaining Relative) visa;
(iii) a Subclass 806 visa;
(iv) a Subclass 835 (Remaining Relative) visa; and
(c) the Minister granted the visa to the other applicant.
(6) In this regulation:
Subclass 104 visa means a Subclass 104 (Preferential Family) visa that could have been granted by the Minister under these Regulations, as in force immediately before 1 November 1999.
Subclass 806 visa means a Subclass 806 (Family) visa that could have been granted by the Minister under these Regulations, as in force immediately before 1 November 1999.
[3] Schedule 2, clause 100.111, paragraph (a) of definition of sponsoring partner
substitute
(a) an Australian citizen, Australian permanent resident, or eligible New Zealand citizen who was specified as the applicant’s spouse, intended spouse or de facto partner in the application that resulted in the grant of:
(i) the Subclass 309 (Spouse (Provisional)) visa as mentioned in paragraph 100.221 (2) (a), (2A) (a), (3) (a), (4) (a) or (4A) (a); or
(ii) the Subclass 309 (Partner (Provisional)) visa mentioned in subparagraph 100.221 (2) (a) (i), or paragraph (2A) (a), (3) (a), (4) (a) or (4A) (a); or
[4] Schedule 2, clause 115.1
substitute
115.1 Interpretation
Note Australian relative, dependent child, eligible New Zealand citizen and settled are defined in regulation 1.03. Remaining relative is defined in regulation 1.15. De facto partner is defined in section 5CB of the Act (also see regulations 1.09A and 2.03A) and spouse is defined in section 5F of the Act (also see regulation 1.15A).
[5] Schedule 2, clause 115.211
substitute
115.211 The applicant is a remaining relative of an Australian relative for the applicant.
[6] Schedule 2, clause 309.321
substitute
309.321 The applicant:
(a) continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 309 (Partner (Provisional)) visa (the person who satisfies the primary criteria); or
(b) is a person to whom each of the following applies:
(i) the person made a combined application with the person who satisfies the primary criteria;
(ii) subsequent to the combined application being made, the person was found by the Minister not to be a member of the family unit of the person who satisfies the primary criteria;
(iii) subsequent to the person who satisfies the primary criteria being granted a Subclass 309 (Partner (Provisional)) visa and Subclass 100 (Partner) visa — the Migration Review Tribunal found the person to be a member of the family unit of the person who satisfies the primary criteria.
[7] Schedule 2, clause 801.111, definition of sponsoring partner
omit each mention of
the Australian citizen,
insert
an Australian citizen,
[8] Schedule 2, clause 820.321
substitute
820.321 In the case of an applicant referred to in clause 820.311, the applicant:
(a) is a person who is dependent on, or a member of the family unit of, another person who having satisfied the primary criteria, is the holder of a Subclass 820 (Partner) visa (the person who satisfies the primary criteria); or
(b) is a person to whom each of the following applies:
(i) the person made a combined application with the person who satisfies the primary criteria;
(ii) subsequent to the combined application being made, the person was found by the Minister not to be dependent on, or a member of the family unit of, the person who satisfies the primary criteria;
(iii) subsequent to the person who satisfies the primary criteria being granted a Subclass 820 (Partner) visa and a Subclass 801 (Partner) visa — the Migration Review Tribunal found the person to be dependent on, or a member of the family unit of, the person who satisfies the primary criteria.
[9] Schedule 2, subclause 835.111
substitute
Note Australian relative, dependent child, eligible New Zealand citizen and settled are defined in regulation 1.03. Remaining relative is defined in regulation 1.15. De facto partner is defined in section 5CB of the Act (also see regulations 1.09A and 2.03A) and spouse is defined in section 5F of the Act (also see regulation 1.15A).
[10] Schedule 2, paragraph 864.212 (b)
substitute
(b) a person:
(i) who is the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa; and
(ii) who is no longer the parent of the child because the child has died; and
(iii) who is not the parent of another child; or
(c) a person:
(i) who is the holder of a substituted Subclass 676 visa; and
(ii) who was, before he or she was granted the substituted Subclass 676 visa, the holder of a Subclass 884 (Contributory) Aged Parent (Temporary)) visa that ceased to be in effect; and
(iii) who is no longer the parent of the child because the child has died; and
(iv) who is not the parent of another child; or
(d) a person:
(i) who is the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa; and
(ii) who, immediately before he or she was granted the Subclass 884 (Contributory Aged Parent (Temporary)) visa, was the holder of a substituted Subclass 676 visa.
[11] Schedule 2, clause 864.222, including the note
omit each mention of
subclause 864.212 (2) or (3)
insert
subclause 864.213 (2) or (3)
[12] Schedule 2, paragraph 864.222A (c)
omit
subclause 864.212 (2) or (3)
insert
subclause 864.213 (2) or (3)
Schedule 5 Amendments relating to Bridging F (Class WF) visas
(regulation 7)
[1] Subregulation 2.20B (2)
omit
or (15) applies, or a non-citizen to whom subregulation 2.20 (15) would have applied if the non‑citizen had been immigration cleared,
insert
applies, or a non-citizen to whom subregulation 2.20 (15) applies regardless of whether the non-citizen has been immigration cleared,
[2] Schedule 2, paragraph 060.411 (3) (a)
substitute
(a) to whom subregulation 2.20 (15) applies except that he or she has been immigration cleared; and
[3] Schedule 2, subclause 060.511 (2)
omit
applies, or to whom subregulation 2.20 (15) would apply if he or she had been immigration cleared,
insert
applies regardless of whether the person has been immigration cleared,
Schedule 6 Amendments relating to visa application charges
(regulation 8)
[1] Subregulation 2.12F (1), including the note
substitute
(1) The Minister must refund the amount paid by way of the first instalment of the visa application charge in relation to an application for a visa if:
(a) either of the following circumstances exists:
(i) a circumstance mentioned in subregulation (2);
(ii) a circumstance specified by the Minister in an instrument in writing for this subparagraph; and
(b) the Minister:
(i) receives a written request for a refund from a person mentioned in subregulation (2A); or
(ii) considers it is reasonable in the circumstances to refund the amount to a person mentioned in subregulation (2A) without receiving a written request for a refund.
[2] Subregulation 2.12F (2)
omit
paragraph (1) (a)
insert
subparagraph (1) (a) (i)
[3] Paragraph 2.12F (2) (a)
substitute
(a) the application is unnecessary at the time that it is made;
[4] Paragraph 2.12F (2) (e)
omit
paragraph.
insert
paragraph;
[5] After paragraph 2.12F (2) (e)
insert
(f) the applicant’s application for a class of visa mentioned in subregulation (2B) was refused because there was not an approved nomination that identified the applicant;
(g) in relation to an application for a class of visa mentioned in subregulation (2B), the applicant’s application was refused because the applicant:
(i) was not required to be identified in an approved nomination; and
(ii) did not have an approved sponsor.
[6] After subregulation 2.12F (2)
insert
(2A) For subparagraph (1) (b) (i), the written request must be from:
(a) the person who paid the amount (the payer); or
(b) if the payer has died, or the payer has a serious physical or mental incapacity, the payer’s legal personal representative; or
(c) if the payer is a bankrupt within the meaning of the Bankruptcy Act 1966, the trustee of the estate of the payer.
Note See regulation 2.12K in relation to who is the person who pays an amount by way of an instalment of visa application charge.
(2B) For paragraphs (2) (f) and (g), the classes or subclasses of visa are as follows:
(a) 1205 Cultural/Social (Temporary) (Class TE);
(b) 1208 Educational (Temporary) (Class TH);
(c) 1214AA Medical Practitioner (Temporary) (Class UE);
(d) 1223A Temporary Business Entry (Class UC);
(e) 1227A Superyacht Crew (Temporary) (Class UW);
(f) Subclass 427 Domestic Worker (Temporary) – Executive.
[7] Subregulations 2.12F (4), (5) and (6)
substitute
(4) The Minister must not make a refund on the basis that the applicant has died unless the request for the refund is accompanied by satisfactory evidence of the applicant’s death.
(5) The Minister must not make a refund to the legal personal representative of a payer who has died unless the request for the refund is accompanied by satisfactory evidence of the payer’s death.
(6) A refund under this regulation must be:
(a) paid to the person who made the request for the refund; or:
(b) if the refund is to be paid under subparagraph (1) (b) (ii) — paid to a person mentioned in subregulation (2A); or
(c) provided to a person mentioned in paragraph (a) or (b) for payment to the applicant’s deceased estate.
[8] Subparagraph 2.12F (7) (b) (ii)
omit
subparagraph (1) (b) (ii) or (iii);
insert
paragraph (2A) (b) or (c);
[9] Paragraph 2.12H (2) (e)
omit
visa.
insert
visa;
[10] After paragraph 2.12H (2) (e)
insert
(f) the applicant dies before commencing a course of English language tuition to which the applicant is entitled under section 4C of the Immigration (Education) Act 1971;
(g) the visa is granted, and later cancelled, before the applicant commences a course of English language tuition to which the applicant is entitled under section 4C of the Immigration (Education) Act 1971;
(h) subject to subregulation (2A), the visa is granted, and ceases to have effect, before the applicant commences a course of English language tuition to which the applicant is entitled under section 4C of the Immigration (Education) Act 1971;
(i) the obligation of the Commonwealth to the applicant under section 4C of the Immigration (Education) Act 1971 has ceased, by operation of paragraph 4D (1) (a) of that Act, without the applicant receiving any English language tuition in an approved English course provided under that Act.
[11] After subregulation 2.12H (2)
insert
(2A) Paragraph (2) (h) does not apply if, before the visa ceases to have effect, the Commonwealth’s obligation under section 4C of the Immigration (Education) Act 1971, in relation to the applicant, has ceased by operation of paragraph 4D (1) (b) or (c) or subsection 4D (2) of that Act.
[12] Subregulations 2.12H (4), (5) and (6)
substitute
(4) If the request for a refund is made on the basis that:
(a) the applicant died before first entering Australia as the holder of the visa; or
(b) the applicant died before commencing a course of English language tuition to which the applicant was entitled under section 4C of the Immigration (Education) Act 1971;
the request must be accompanied by satisfactory evidence of the applicant’s death.
(5) If the request for the refund is made by the legal personal representative of a payer who has died, the request must be accompanied by satisfactory evidence of the payer’s death.
[13] Regulation 2.12I
omit
[14] Subregulation 2.12J (2)
substitute
(2) If the request for the refund is made by the legal personal representative of a payer who has died, the request must be accompanied by satisfactory evidence of the payer’s death.
[15] Regulation 2.12K
omit
2.12H, 2.12I
insert
2.12H
[16] After regulation 2.12K
insert
2.12L Legal personal representative
For regulations 2.12F, 2.12H and 2.12J, a person is taken to be the legal personal representative of a payer if:
(a) the person provides satisfactory evidence to the Minister that the person is the legal personal representative of the payer; and
(b) the Minister is satisfied, on the basis of the evidence provided by the person, that the person is the legal personal representative of the payer.
[17] Schedule 8A
omit
Note
1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.
