Migration Amendment Regulations 2008 (No. 3)1
Select Legislative Instrument 2008 No. 166
I, PHILIP MICHAEL JEFFERY, 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 7 August 2008
P. M. JEFFERY
Governor‑General
By His 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 2
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 Amendments relating to business skills visas 3
Schedule 2 Further amendments relating to business skills visas 3
Schedule 3 Amendments relating to sponsorship 3
Schedule 4 Amendment relating to assurances of support 3
1 Name of Regulations
These Regulations are the Migration Amendment Regulations 2008 (No. 3).
2 Commencement
These Regulations commence on 9 August 2008.
3 Amendment of Migration Regulations 1994 — Schedule 1
(1) Schedule 1 amends the Migration Regulations 1994.
(2) The amendments made by Schedule 1 apply in relation to an application for a visa made on or after 9 August 2008.
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:
(a) an application for a visa made on or after 9 August 2008; and
(b) an application for a visa made, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958), before 9 August 2008.
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 August 2008.
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 9 August 2008; and
(b) an application for a visa made, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958), before 9 August 2008.
Schedule 1 Amendments relating to business skills visas
(regulation 3)
[1] Paragraph 1.15A (2) (d)
after
a permanent visa,
insert
a Business Skills (Provisional) (Class UR) visa,
[2] Schedule 2, clause 132.223
substitute
132.223 (1) The applicant is sponsored by a State or Territory.
(2) Form 1224 is signed by the Premier or Chief Minister, or by a person authorised to do so by the Premier or Chief Minister, of that State or Territory.
[3] Schedule 2, clause 160.311
substitute
160.311 The applicant is a member of the family unit of a person who:
(a) satisfies the primary criteria in Subdivision 160.21; or
(b) holds a Subclass 160 visa.
[4] Schedule 2, clause 161.311
substitute
161.311 The applicant is a member of the family unit of a person who:
(a) satisfies the primary criteria in Subdivision 161.21; or
(b) holds a Subclass 161 visa.
[5] Schedule 2, clause 162.311
substitute
162.311 The applicant is a member of the family unit of a person who:
(a) satisfies the primary criteria in Subdivision 162.21; or
(b) holds a Subclass 162 visa.
[6] Schedule 2, clause 163.222
substitute
163.222 (1) The applicant is sponsored by an appropriate regional authority.
(2) Form 949 is signed by an officer of the authority who is authorised to sign a sponsorship of that kind.
[7] Schedule 2, clause 163.311
substitute
163.311 The applicant is a member of the family unit of a person who:
(a) satisfies the primary criteria in Subdivision 163.21; or
(b) holds a Subclass 163 visa.
[8] Schedule 2, clause 164.222
substitute
164.222 (1) The applicant is sponsored by an appropriate regional authority.
(2) Form 949 is signed by an officer of the authority who is authorised to sign a sponsorship of that kind.
[9] Schedule 2, clause 164.311
substitute
164.311 The applicant is a member of the family unit of a person who:
(a) satisfies the primary criteria in Subdivision 164.21; or
(b) holds a Subclass 164 visa.
[10] Schedule 2, clause 165.223
substitute
165.223 (1) The applicant is sponsored by an appropriate regional authority.
(2) Form 949 is signed by an officer of the authority who is authorised to sign a sponsorship of that kind.
[11] Schedule 2, clause 165.311
substitute
165.311 The applicant is a member of the family unit of a person who:
(a) satisfies the primary criteria in Subdivision 165.21; or
(b) holds a Subclass 165 visa.
[12] Schedule 2, clauses 845.214 and 845.215
substitute
845.214 The assets in Australia of the applicant, or the applicant and his or her spouse together:
(a) have a net value of at least AUD250 000; and
(b) had a net value of at least AUD250 000 throughout the period of 12 months ending immediately before the application is made; and
(c) have been lawfully acquired by the applicant, or the applicant and his or her spouse together.
845.215 The assets owned by the applicant, or by the applicant and his or her spouse together, in the main business or main businesses in Australia:
(a) have a net value of at least AUD100 000; and
(b) had a net value of at least AUD100 000 throughout the period of 12 months ending immediately before the application is made; and
(c) have been lawfully acquired by the applicant, or the applicant and his or her spouse together.
[13] Schedule 2, subparagraphs 845.222 (2) (c) (i) and (ii)
substitute
(i) assets in Australia that have been lawfully acquired; or
(ii) assets, lawfully acquired, that are available for transfer, and capable of being transferred, to Australia within 2 years of the grant of a business skills visa to the applicant;
[14] Schedule 2, clauses 846.213 and 846.214
substitute
846.213 The assets in Australia of the applicant, or the applicant and his or her spouse together:
(a) have a net value of at least AUD200 000; and
(b) had a net value of at least AUD200 000 throughout the period of 2 years ending immediately before the application is made; and
(c) have been lawfully acquired by the applicant, or the applicant and his or her spouse together.
846.214 The assets owned by the applicant, or by the applicant and his or her spouse together, in 1 or more established main businesses in 1 or more designated areas:
(a) have a net value of at least AUD75 000; and
(b) had a net value of at least AUD75 000 throughout the period of 2 years ending immediately before the application is made; and
(c) have been lawfully acquired by the applicant, or the applicant and his or her spouse together.
[15] Schedule 2, subparagraphs 846.222 (2) (c) (i) and (ii)
substitute
(i) assets in Australia that have been lawfully acquired; or
(ii) assets, lawfully acquired, that are available for transfer, and capable of being transferred, to Australia within 2 years of the grant of a Business Skills — Established Business (Residence) (Class BH) visa to the applicant;
[16] Schedule 2, clause 890.212
substitute
890.212 The assets of the applicant, the applicant’s spouse, or the applicant and his or her spouse together, in the main business or main businesses in Australia:
(a) have a net value of at least AUD100 000; and
(b) had a net value of at least AUD100 000 throughout the period of 12 months ending immediately before the application is made; and
(c) have been lawfully acquired by the applicant, the applicant’s spouse, or the applicant and his or her spouse together.
[17] Schedule 2, paragraphs 892.212 (b) and (c)
substitute
(b) the business and personal assets in Australia of the applicant, the applicant’s spouse, or the applicant and his or her spouse together:
(i) have a net value of at least AUD250 000; and
(ii) had a net value of at least AUD250 000 throughout the period of 12 months ending immediately before the application is made; and
(iii) have been lawfully acquired by the applicant, the applicant’s spouse, or the applicant and his or her spouse together;
(c) the assets owned by the applicant, the applicant’s spouse, or the applicant and his or her spouse together, in the main business or main businesses in Australia:
(i) have a net value of at least AUD75 000; and
(ii) had a net value of at least AUD75 000 throughout the period of 12 months ending immediately before the application is made; and
(iii) have been lawfully acquired by the applicant, the applicant’s spouse, or the applicant and his or her spouse together.
[18] Schedule 2, clause 892.222
substitute
892.222 (1) The applicant is sponsored by an appropriate regional authority.
(2) Form 949 is signed by an officer of the authority who is authorised to sign a sponsorship of that kind.
[19] Schedule 2, clause 893.222
substitute
893.222 (1) The applicant is sponsored by an appropriate regional authority.
(2) Form 949 is signed by an officer of the authority who is authorised to sign a sponsorship of that kind.
Schedule 2 Further amendments relating to business skills visas
(regulation 4)
[1] Schedule 2, clause 845.212
substitute
845.212 One or more of the following circumstances has existed for a total of at least 272 days in the period of 12 months ending immediately before the application is made:
(a) the applicant has been in Australia as the holder of a temporary substantive visa other than a visa referred to in clause 845.211;
(b) the applicant has been in Australia as the holder of a Bridging A (Class WA) visa granted on the basis of a valid application for a Temporary Business Entry (Class UC) visa, and a Subclass 457 visa was subsequently granted on the basis of the applicant, or the spouse or former spouse of the applicant, satisfying subclause 457.223 (7A) of Schedule 2;
(c) the applicant has been in Australia as the holder of a Bridging B (Class WB) visa granted on the basis of a valid application for a Temporary Business Entry (Class UC) visa, and a Subclass 457 visa was subsequently granted on the basis of the applicant, or the spouse or former spouse of the applicant, satisfying subclause 457.223 (7A) of Schedule 2.
[2] Schedule 2, clause 890.214
substitute
890.214 In the period of 12 months ending immediately before the application is made, the main business in Australia, or main businesses in Australia, of the applicant, the applicant’s spouse, or the applicant and his or her spouse together:
(a) provided an employee, or employees, with a total number of hours of employment at least equivalent to the total number of hours that would have been worked by 2 full‑time employees over that period of 12 months; and
(b) provided those hours of employment to an employee, or employees, who:
(i) were not the applicant or a member of the family unit of the applicant; and
(ii) were Australian citizens, Australian permanent residents or New Zealand passport holders.
[3] Schedule 2, paragraph 892.212 (a)
substitute
(a) in the period of 12 months ending immediately before the application is made, the main business in Australia, or main businesses in Australia, of the applicant, the applicant’s spouse, or the applicant and his or her spouse together:
(i) provided an employee, or employees, with a total number of hours of employment at least equivalent to the total number of hours that would have been worked by 1 full‑time employee over that period of 12 months; and
(ii) provided those hours of employment to an employee, or employees, who:
(A) were not the applicant or a member of the family unit of the applicant; and
(B) were Australian citizens, Australian permanent residents or New Zealand passport holders;
[4] Schedule 2, clause 892.215
substitute
892.215 If the applicant is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa, one or more of the following circumstances has existed for a total of at least 1 year in the period of 2 years ending immediately before the application is made:
(a) the applicant has been in Australia as the holder of one of the visas mentioned in paragraph 1104B (3) (f) of Schedule 1;
(b) the applicant has been in Australia as the holder of a Bridging A (Class WA) visa granted on the basis of a valid application for a Temporary Business Entry (Class UC) visa, and a Subclass 457 visa was subsequently granted on the basis of the applicant, or the spouse or former spouse of the applicant, satisfying subclause 457.223 (7A) of Schedule 2;
(c) the applicant has been in Australia as the holder of a Bridging B (Class WB) visa granted on the basis of a valid application for a Temporary Business Entry (Class UC) visa, and a Subclass 457 visa was subsequently granted on the basis of the applicant, or the spouse or former spouse of the applicant, satisfying subclause 457.223 (7A) of Schedule 2.
[5] Schedule 7, Part 1
substitute
Part 1 Business attributes
Column 1
Column 2
Column 3
Item
Attributes
Number of points
Division 1.4 Established business in Australia (Subclass 845 visas)
7170
In the period of 12 months ending immediately before the application is made:
60
(a) the total number of hours of employment provided by the main business (or businesses) of the applicant (or the applicant and the applicant’s spouse) was at least equivalent to the total number of hours that would have been worked by 3 full‑time employees over that period of 12 months, each of those hours having been worked by an employee, or employees, who:
(i) were not the applicant or a member of the family unit of the applicant; and
(ii) were Australian citizens, Australian permanent residents or eligible New Zealand citizens; and
(b) the main business (or businesses) of the applicant (or the applicant and the applicant’s spouse) either:
(i) had a turnover of not less than AUD200 000; or
(ii) exported goods or services of a value of not less than AUD100 000
Division 1.5 State/Territory sponsored established main business(es) in designated area(s) (Subclass 846 visas)
7180
In the period of 2 years ending immediately before the application is made, the total number of hours of employment provided by the established main business (or businesses) of the applicant (or the applicant and the applicant’s spouse) in a designated area (or areas) was at least equivalent to the total number of hours that would have been worked by 3 full‑time employees over that period of 2 years, each of those hours having been worked by an employee, or employees, who:
(a) were not the applicant or a member of the family unit of the applicant; and
(b) were Australian citizens, Australian permanent residents or eligible New Zealand citizens
60
7181
In the period of 2 years ending immediately before the application is made, the total number of hours of employment provided by the established main business (or businesses) of the applicant (or the applicant and the applicant’s spouse) in a designated area (or areas) was at least equivalent to the total number of hours that would have been worked by 2 full‑time employees over that period of 2 years, each of those hours having been worked by an employee, or employees, who:
(a) were not the applicant or a member of the family unit of the applicant; and
(b) were Australian citizens, Australian permanent residents or eligible New Zealand citizens
40
Schedule 3 Amendments relating to sponsorship
(regulation 5)
[1] Paragraph 1.20 (2) (b)
omit
the sponsor accepts responsibility for
insert
the sponsor undertakes to accept responsibility for
[2] After regulation 1.20
insert
1.20AA Approval of sponsor — specified temporary visa applicants
(1) This regulation applies to the following subclasses of visa:
(a) a Subclass 415 (Foreign Government Agency) visa;
(b) a Subclass 418 (Educational) visa;
(c) a Subclass 420 (Entertainment) visa;
(d) a Subclass 421 (Sport) visa;
(e) a Subclass 422 (Medical Practitioner) visa;
(f) a Subclass 423 (Media and Film Staff) visa;
(g) a Subclass 427 (Domestic Worker (Temporary) — Executive) visa;
(h) a Subclass 428 (Religious Worker) visa.
(2) The Minister may approve or refuse to approve a person or an organisation (including a school, foreign government agency or an unincorporated association) as a sponsor of:
(a) an applicant for the visa; or
(b) multiple applicants for the same subclass of visa.
(3) In considering an application for approval of a proposed sponsor:
(a) the Minister must have regard to the capacity of the proposed sponsor to comply with the undertakings mentioned in paragraph 1.20 (2) (b); and
(b) the Minister may have regard to any other matter that the Minister considers relevant.
(4) Nothing in this regulation limits or affects in any way the matters to which the Minister may have regard in considering an application for the approval of a proposed sponsor in relation to any other kind of visa application to which regulation 1.20 applies.
[3] Sub‑subparagraph 4.02 (4) (l) (ii) (E)
omit
visa.
insert
visa;
[4] After paragraph 4.02 (4) (l)
insert
(m) a decision under subregulation 1.20AA (2) to refuse to approve a person or an organisation as a sponsor of a temporary visa applicant.
[5] Schedule 2, paragraph 415.224 (a)
substitute
(a) the Minister has approved a foreign government agency as a sponsor of the applicant under subregulation 1.20AA (2); and
[6] Schedule 2, paragraph 418.224 (a)
substitute
(a) the Minister has approved an institution, a school or a college as a sponsor of the applicant under subregulation 1.20AA (2); and
[7] Schedule 2, clause 420.224
substitute
If sponsorship is required under clause 420.223:
(a) the Minister has approved a person or an organisation as a sponsor of the applicant under subregulation 1.20AA (2); and
(b) the sponsorship fee prescribed in regulation 5.38 has been paid.
[8] Schedule 2, after clause 421.224
insert
421.224A If the applicant is required to be sponsored:
(a) the Minister has approved a person or an organisation as a sponsor of the applicant under subregulation 1.20AA (2); and
(b) the sponsorship fee prescribed in regulation 5.38 has been paid.
[9] Schedule 2, paragraph 422.222 (d)
substitute
(d) the Minister has approved a person or an organisation as a sponsor of the applicant under subregulation 1.20AA (2) and the sponsorship fee prescribed in regulation 5.38 has been paid.
[10] Schedule 2, paragraph 423.223 (a)
substitute
(a) the Minister has approved a person or an organisation as a sponsor of the applicant under subregulation 1.20AA (2); and
[11] Schedule 2, paragraph 427.231 (a)
substitute
(a) the Minister has approved a person or an organisation as a sponsor of the applicant under subregulation 1.20AA (2); or
[12] Schedule 2, clause 428.222
substitute
428.222 Each of the following applies:
(a) the applicant is sponsored by a religious organisation in Australia to undertake work in Australia that directly serves the religious objectives of the organisation;
(b) the Minister has approved a religious organisation as a sponsor of the applicant under subregulation 1.20AA (2);
(c) the sponsorship fee prescribed in regulation 5.38 has been paid.
Schedule 4 Amendment relating to assurances of support
(regulation 6)
[1] Omission of clauses in Schedule 2
The following clauses in Schedule 2 are omitted:
(a) clause 119.224;
(b) clause 119.324;
(c) clause 120.223;
(d) clause 120.324;
(e) clause 121.225;
(f) clause 121.324;
(g) clause 124.223;
(h) clause 124.324;
(i) clause 855.224;
(j) clause 855.323;
(k) clause 856.224;
(l) clause 856.323;
(m) clause 857.224;
(n) clause 857.323;
(o) clause 858.222;
(p) clause 858.323.
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.
