Migration Amendment Regulations 2009 (No. 14)1
Select Legislative Instrument 2009 No. 331
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 25 November 2009
QUENTIN BRYCE
Governor-General
By Her Excellency’s Command
CHRIS EVANS
Minister for Immigration and Citizenship
Contents
1 Name of Regulations 2
2 Commencement 2
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 3
6 Amendment of Migration Regulations 1994 — Schedule 4 3
Schedule 1 Amendment — partner skill qualification 4
Schedule 2 Amendments — terms and conditions of employment 5
Schedule 3 Amendments — financial requirements for students 8
Schedule 4 Amendments — students affected by college closures 17
1 Name of Regulations
These Regulations are the Migration Amendment Regulations 2009 (No. 14).
2 Commencement
These Regulations commence as follows:
(a) on the day after they are registered — regulations 1 to 3 and Schedule 1;
(b) on 1 January 2010 — regulations 4 to 6 and Schedules 2 to 4.
3 Amendment of Migration Regulations 1994 — Schedule 1
(1) Schedule 1 amends the Migration Regulations 1994.
(2) The amendment made by Schedule 1 applies in relation to an application for a visa:
(a) made on or after the day on which this regulation commences; or
(b) made but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before the day on which these Regulations commence.
4 Amendment of Migration Regulations 1994 — Schedule 2
Schedule 2 amends the Migration Regulations 1994.
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 1 January 2010.
6 Amendment of Migration Regulations 1994 — Schedule 4
(1) Schedule 4 amends the Migration Regulations 1994.
(2) The amendments made by Schedule 4 apply in relation to:
(a) an application for a visa made on or after 1 January 2010; and
(b) a provider default occurring on or after 1 January 2010.
Schedule 1 Amendment — partner skill qualification
(regulation 3)
[1] Schedule 6B, Part 6B.10, item 6B102, column 3
omit
15
insert
5
Schedule 2 Amendments — terms and conditions of employment
(regulation 4)
[1] Subregulation 2.57 (1), definition of ASCO
substitute
ASCO means the 1220.0 Australian Standard Classification of Occupations (ASCO) Second Edition, 1997 released by the Australian Bureau of Statistics on 31 July 1997.
[2] Subregulation 2.57 (1), after definition of government agency
insert
information and communication technology activity means any of the following occupations mentioned in the ASCO:
(a) 1224-11 Information Technology Manager – Computer Services Manager;
(b) 2231-11 Systems Manager;
(c) 2231-13 Systems Designer;
(d) 2231-15 Software Designer;
(e) 2231-17 Applications and Analyst Programmer;
(f) 2231-19 Systems Programmer;
(g) 2231-21 Computer Systems Auditor;
(h) 2231-79 Computing Professionals (not elsewhere classified).
[3] Subparagraph 2.79 (3) (b) (iii)
substitute
(iii) the activity mentioned in subparagraph (ii) is an activity other than an information and communication technology activity; and
(iv) paragraph (d) does not apply.
[4] After paragraph 2.79 (3) (b)
insert
(ba) if:
(i) the person is mentioned in paragraph (1) (a); and
(ii) the nomination by the person of an activity under regulation 1.20GA (as in force immediately before 14 September 2009), in relation to which the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa, was approved under regulation 1.20H (as in force immediately before 14 September 2009); and
(iii) the activity mentioned in subparagraph (ii) is an information and communication technology activity; and
(iv) paragraph (d) does not apply;
the primary sponsored person’s base rate of pay is not less than $55 725.
[5] Subparagraph 2.79 (3) (c) (iii)
substitute
(iii) the activity mentioned in subparagraph (ii) is an activity other than an information and communication technology activity; and
(iv) paragraph (d) does not apply.
[6] After paragraph 2.79 (3) (c)
insert
(ca) if:
(i) the person is mentioned in paragraph (1) (a); and
(ii) the nomination by the person of an activity under regulation 1.20G (as in force immediately before 14 September 2009), in relation to which the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa, was approved under regulation 1.20H (as in force immediately before 14 September 2009); and
(iii) the activity mentioned in subparagraph (ii) is an information and communication technology activity; and
(iv) paragraph (d) does not apply;
the primary sponsored person’s base rate of pay is not less than $61 920.
Schedule 3 Amendments — financial requirements for students
(regulation 5)
[1] Schedule 2, subparagraph 570.223 (2) (b) (ii)
omit
matter.
insert
matter; and
[2] Schedule 2, after paragraph 570.223 (2) (b)
insert
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.
[3] Schedule 2, paragraph 570.326 (c)
omit
granted.
insert
granted; and
[4] Schedule 2, after paragraph 570.326 (c)
insert
(d) if the applicant is required to give evidence in accordance with Schedule 5B — while the applicant holds the visa, the applicant or the primary person will have access to the funds demonstrated or declared in accordance with the requirements in that Schedule.
[5] Schedule 2, paragraph 570.613 (3) (b)
substitute
(b) evidence that the applicant has a further amount, specified by the Minister in an instrument in writing for this paragraph, in funds from an acceptable source; and
[6] Schedule 2, sub-subparagraph 571.223 (2) (a) (ii) (B)
omit
matter; or
insert
matter; and
[7] Schedule 2, after subparagraph 571.223 (2) (a) (ii)
insert
(iii) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity; or
[8] Schedule 2, paragraph 571.326 (c)
omit
granted.
insert
granted; and
[9] Schedule 2, after paragraph 571.326 (c)
insert
(d) if the applicant is required to give evidence in accordance with Schedule 5B — while the applicant holds the visa, the applicant or the primary person will have access to the funds demonstrated or declared in accordance with the requirements in that Schedule.
[10] Schedule 2, sub-subparagraph 572.223 (2) (a) (ii) (B)
omit
matter; or
insert
matter; and
[11] Schedule 2, after subparagraph 572.223 (2) (a) (ii)
insert
(iii) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity; or
[12] Schedule 2, paragraph 572.326 (c)
omit
granted.
insert
granted; and
[13] Schedule 2, after paragraph 572.326 (c)
insert
(d) if the applicant is required to give evidence in accordance with Schedule 5B — while the applicant holds the visa, the applicant or the primary person will have access to the funds demonstrated or declared in accordance with the requirements in that Schedule.
[14] Schedule 2, paragraph 572.613 (3) (b)
substitute
(b) evidence that the applicant has a further amount, specified by the Minister in an instrument in writing for this paragraph, in funds from an acceptable source; and
[15] Schedule 2, sub-subparagraph 573.223 (2) (a) (ii) (B)
omit
matter; or
insert
matter; and
[16] Schedule 2, after subparagraph 573.223 (2) (a) (ii)
insert
(iii) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity; or
[17] Schedule 2, paragraph 573.326 (c)
omit
granted.
insert
granted; and
[18] Schedule 2, after paragraph 573.326 (c)
insert
(d) if the applicant is required to give evidence in accordance with Schedule 5B — while the applicant holds the visa, the applicant or the primary person will have access to the funds demonstrated or declared in accordance with the requirements in that Schedule.
[19] Schedule 2, paragraph 573.613 (3) (b)
substitute
(b) evidence that the applicant has a further amount, specified by the Minister in an instrument in writing for this paragraph, in funds from an acceptable source; and
[20] Schedule 2, sub-subparagraph 574.223 (2) (a) (ii) (B)
omit
matter; or
insert
matter; and
[21] Schedule 2, after subparagraph 574.223 (2) (a) (ii)
insert
(iii) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity; or
[22] Schedule 2, paragraph 574.326 (c)
omit
granted.
insert
granted; and
[23] Schedule 2, after paragraph 574.326 (c)
insert
(d) if the applicant is required to give evidence in accordance with Schedule 5B — while the applicant holds the visa, the applicant or the primary person will have access to the funds demonstrated or declared in accordance with the requirements in that Schedule.
[24] Schedule 2, paragraph 574.613 (3) (b)
substitute
(b) evidence that the applicant has a further amount, specified by the Minister in an instrument in writing for this paragraph, in funds from an acceptable source; and
[25] Schedule 2, subparagraph 575.223 (2) (b) (ii)
omit
matter.
insert
matter; and
[26] Schedule 2, after paragraph 575.223 (2) (b)
insert
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.
[27] Schedule 2, paragraph 575.326 (c)
omit
granted.
insert
granted; and
[28] Schedule 2, after paragraph 575.326 (c)
insert
(d) if the applicant is required to give evidence in accordance with Schedule 5B — while the applicant holds the visa, the applicant or the primary person will have access to the funds demonstrated or declared in accordance with the requirements in that Schedule.
[29] Schedule 2, paragraph 575.613 (3) (b)
substitute
(b) evidence that the applicant has a further amount, specified by the Minister in an instrument in writing for this paragraph, in funds from an acceptable source; and
[30] Schedule 2, subparagraph 576.222 (2) (b) (ii)
omit
matter.
insert
matter; and
[31] Schedule 2, after paragraph 576.222 (2) (b)
insert
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.
[32] Schedule 2, subclause 576.333 (2)
substitute
(2) If the applicant meets subclause (1), the Minister must also be satisfied that:
(a) the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual; and
(b) while the applicant holds the visa, the applicant or the primary person will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5B.
[33] Schedule 2, clause 580.111, definition of living costs, paragraph (a)
omit
$12 000 per year
insert
an amount specified by the Minister in an instrument in writing for this paragraph
[34] Schedule 2, subclause 580.226 (1)
substitute
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student guardian because the applicant meets the requirements of subclause (1A) or (1B).
(1A) An applicant meets the requirements of this subclause if:
(a) the applicant is not a person designated under regulation 2.07AO; and
(b) the applicant gives to the Minister evidence relating to the applicant’s financial capacity in accordance with subclause (2), (3), (4) or (5); and
(c) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student guardian, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(d) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with subclause (2), (3), (4) or (5).
(1B) An applicant meets the requirements of this subclause if:
(a) the applicant is a person designated under regulation 2.07AO; and
(b) the Minister is satisfied that the applicant has access to sufficient funds to meet:
(i) the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii) the costs and expenses required to support each family applicant; and
(c) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student guardian, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter.
[35] Schedule 2, subclauses 580.226 (2), (3), (4) and (5)
omit
paragraph (1) (a)
insert
paragraph (1A) (b)
[36] Schedule 5A, subclause 5A104 (1), table
omit each mention of
$12 000 per year
insert
an amount specified by the Minister in an instrument in writing for this clause
[37] Schedule 5A, paragraph 5A302 (b)
omit
$12 000;
insert
amount specified by the Minister in an instrument in writing for this paragraph;
[38] Schedule 5B, paragraph 5B102 (1) (a)
omit
$12 000 per year
insert
an amount specified by the Minister in an instrument in writing for this paragraph
Schedule 4 Amendments — students affected by college closures
(regulation 6)
[1] Regulation 1.03, after definition of aged parent
insert
agreed starting day, for a registered course, means:
(a) the day on which the course was scheduled to start; or
(b) a later day agreed between the education provider and a student.
[2] Regulation 1.03, after definition of proliferation of weapons of mass destruction
insert
provider default, in relation to a registered course, means the occurrence of 1 of the following events because a sanction has been imposed on the education provider under Division 1 or 2 of Part 6 of the Education Services for Overseas Students Act 2000:
(a) the course does not start on the agreed starting day;
(b) the course ceases to be provided at any time after it starts, but before it is completed;
(c) the course not being provided in full to a student.
provider default day, in relation to a registered course for which provider default has occurred, means:
(a) if the default occurred because of the event mentioned in paragraph (a) of the definition of provider default — the agreed starting day; or
(b) if the default occurred because of the event mentioned in paragraph (b) or (c) of the definition of provider default — the day on which the course ceased to be provided.
[3] Schedule 1, sub-subparagraph 1222 (2) (a) (i) (G)
omit
a student visa: Nil.
insert
a student visa; or
[4] Schedule 1, after sub-subparagraph 1222 (2) (a) (i) (G)
insert
(H) is a student to whom paragraph (aa) applies; or
(I) is an applicant for a Subclass 580 visa to whom paragraph (ab) applies: Nil.
[5] Schedule 1, after paragraph 1222 (2) (a)
insert
(aa) This paragraph applies to a student if:
(i) the student was not able to complete a registered course due to provider default; and
(ii) there is satisfactory evidence that the student was enrolled in that course on the provider default day; and
(iii) either:
(A) the student holds a student visa; or
(B) the student’s last substantive visa was a student visa; and
(iv) the student requires a student visa to allow him or her to complete:
(A) an alternative registered course; or
(B) 1 or more registered courses after an alternative registered course; and
(v) the student’s visa application is made no later than 12 months after the provider default day; and
(vi) the student has not made a previous application to which this paragraph applied because of the same provider default.
(ab) This paragraph applies to a person if:
(i) the nominating student was not able to complete a registered course due to provider default; and
(ii) there is satisfactory evidence that the nominating student was enrolled in that course on the provider default day; and
(iii) either:
(A) the nominating student holds a student visa; or
(B) the nominating student’s last substantive visa was a student visa; and
(iv) the nominating student requires a student visa to allow him or her to complete:
(A) an alternative registered course; or
(B) 1 or more registered courses after an alternative registered course; and
(v) the person’s visa application is made no later than 12 months after the provider default day; and
(vi) the person has not made a previous application to which this paragraph applied because of the same provider default.
[6] Schedule 1, subclause 1222 (5), before definition of relevant visa
insert
nominating student, for an applicant, means a person who nominates the applicant on form 157N.
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.
