Migration Amendment Regulations 2005 (No. 10)1 Select Legislative Instrument 2005 No. 275
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 23 November 2005 P. M. JEFFERY Governor-General By His Excellency’s Command AMANDA VANSTONE Minister for Immigration and Multicultural and Indigenous Affairs
Contents 1 Name of Regulations 2 2 Commencement 2 3 Amendment of Migration Regulations 1994 2 4 Transitional — Schedule 1 2 5 Transitional — Schedule 2 3 6 Transitional — Schedule 3 3 Schedule 1 Amendments relating to Bridging F (Class WF) visas 4 Schedule 2 Amendments relating to skilled-independent visas 11 Schedule 3 Amendments relating to security assessment 12
1 Name of Regulations These Regulations are the Migration Amendment Regulations 2005 (No. 10). 2 Commencement These Regulations commence on 1 December 2005. 3 Amendment of Migration Regulations 1994 Schedules 1, 2 and 3 amend the Migration Regulations 1994. 4 Transitional — Schedule 1 The amendments made by Schedule 1 apply to: (a) an application for a visa: (i) made before 1 December 2005; and (ii) not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958), before 1 December 2005; and (b) an application for a visa made on or after 1 December 2005. 5 Transitional — Schedule 2 (1) The amendments made by Schedule 2 apply in relation to an application for a visa made on or after 1 December 2005. (2) Despite the amendments made by Schedule 2, the Migration Regulations 1994 are taken to apply in relation to an application for a visa made, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958), before 1 December 2005, as if those amendments had not been made. 6 Transitional — Schedule 3 (1) The amendment made by item 1 of Schedule 3 applies in relation to a visa granted: (a) before 1 December 2005; or (b) on or after 1 December 2005. (2) The amendment made by item 2 of Schedule 3 applies in relation to: (a) an application for a visa: (i) made before 1 December 2005; and (ii) not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before 1 December 2005; and (b) an application for a visa made on or after 1 December 2005.
Schedule 1 Amendments relating to Bridging F (Class WF) visas (regulation 3) [1] Subregulation 2.20 (1) omit subregulations (2) to (12) insert subregulations (2) to (12) and (14) and (15) [2] After subregulation 2.20 (13) insert (14) This subregulation applies to: (a) a non-citizen: (i) who is outside Australia; and (ii) in relation to whom an officer of: (A) the Australian Federal Police; or (B) a police force of a State or Territory; or (C) the office of the Director of Public Prosecutions of the Commonwealth, a State or a Territory; or (D) a body of the Commonwealth, a State or a Territory that has functions similar to those of an office of a Director of Public Prosecutions; has told Immigration in writing that: (E) the non-citizen is a person of interest in relation to an offence, or alleged offence, involving: (I) people trafficking; or (II) sexual servitude; or (III) deceptive recruiting; and (F) suitable arrangements have been made for the care, safety and welfare of the non-citizen in Australia for the proposed period of the bridging visa; and (b) a non-citizen (a family member): (i) who is outside Australia; and (ii) who is a member of the immediate family of a non-citizen mentioned in paragraph (a); and (iii) in relation to whom the Minister has been told in writing, by an officer of the authority that told Immigration for the purposes of paragraph (a), that suitable arrangements have been made for the care, safety and welfare of the family member in Australia for the proposed period of the bridging visa. (15) This subregulation applies to: (a) a non-citizen: (i) who is in Australia; and (ii) is the subject of a valid criminal justice stay certificate under Division 4 of Part 2 of the Act; and (iii) whom the Minister is satisfied needs to travel outside Australia for compelling and compassionate reasons; and (iv) in relation to whom an officer of: (A) the Australian Federal Police; or (B) a police force of a State or Territory; or (C) the office of the Director of Public Prosecutions of the Commonwealth, a State or a Territory; or (D) a body of the Commonwealth, a State or a Territory that has functions similar to those of an office of a Director of Public Prosecutions; has told Immigration in writing that suitable arrangements have been made for the care, safety and welfare of the non-citizen in Australia for the proposed period of the bridging visa; and (b) a non-citizen (a family member): (i) who is a member of the immediate family of a non-citizen mentioned in paragraph (a); and (ii) in relation to whom the Minister has been told in writing, by an officer of the authority that told Immigration for the purposes of subparagraph (a) (iv), that suitable arrangements have been made for the care, safety and welfare of the family member in Australia for the proposed period of the bridging visa. [3] After regulation 2.20A insert
2.20B Applications for Bridging F (Class WF) visas (1) For subsection 46 (2) of the Act, a Bridging F (Class WF) visa is a prescribed class of visa. (2) Despite regulation 2.07 and Schedule 1, and as an alternative to item 1306 of Schedule 1, an application for a Bridging F (Class WF) visa is taken to have been validly made by a non-citizen to whom subregulation 2.20 (14) or (15) applies, or a non-citizen to whom subregulation 2.20 (15) would have applied if the non-citizen had not been immigration cleared, if: (a) the non-citizen has been given an invitation in writing by the Minister, by one of the methods specified in section 494B of the Act, to apply for the visa; and (b) the non-citizen indicates in writing to Immigration, not later than 7 days after the non-citizen is taken to have received that invitation, that he or she accepts the invitation. Note See section 494C of the Act for when a person is taken to have received a document given by one of the methods specified in section 494B of the Act. [4] Schedule 1, item 1306, at the foot insert Note As an alternative to item 1306, an application for a Bridging F (Class WF) visa will be taken to have been validly made by a non-citizen if the application is made in accordance with subregulation 2.20B (2). [5] Schedule 2, clause 060.222 after welfare of the applicant insert in Australia [6] Schedule 2, clause 060.323 after welfare of the applicant insert in Australia [7] Schedule 2, clause 060.411 substitute 060.411 (1) An applicant: (a) to whom subregulation 2.20 (14) applies; and (b) who applied for the visa using the application process described in subregulation 2.20B (2); must be outside Australia when the visa is granted. (2) An applicant: (a) to whom subregulation 2.20 (15) applies; and (b) who applied for the visa using the application process described in subregulation 2.20B (2); must be in Australia, but not in immigration clearance, when the visa is granted. (3) An applicant: (a) to whom subregulation 2.20 (15) would apply if he or she had not been immigration cleared; and (b) who applied for the visa using the application process described in subregulation 2.20B (2); must be in Australia when the visa is granted. (4) In any other case, an applicant must be in Australia when the visa is granted. [8] Schedule 2, clause 060.511 substitute 060.511 (1) For a person to whom subregulation 2.20 (14) applies, and who made an application in accordance with subregulation 2.20B (2) — bridging visa: (a) coming into effect on grant; and (b) permitting the holder to travel to, and enter, Australia on 1 occasion until a date specified by the Minister; and (c) permitting the holder to remain in Australia until a date specified by the Minister. (2) For a person to whom subregulation 2.20 (15) applies, or to whom subregulation 2.20 (15) would apply if he or she had not been immigration cleared, and who made an application in accordance with subregulation 2.20B (2) — bridging visa: (a) coming into effect on grant; and (b) permitting the holder to travel to, and enter, Australia on 1 occasion until a date specified by the Minister; and (c) permitting the holder to remain in Australia until the earliest of the following: (i) a date specified by the Minister; (ii) the date on which the holder is granted a new criminal justice stay visa in accordance with Division 4 of Part 2 of the Act; (iii) the date on which a criminal justice certificate issued to the holder in accordance with that Division is cancelled. (3) In any other case — bridging visa: (a) coming into effect on grant; and (b) permitting the holder to remain in Australia until the earliest of the following: (i) a date specified by the Minister; (ii) the end of 30 days after the date of the grant; (iii) if: (A) an officer of the Australian Federal Police, or of a police force of a State or Territory, has told Immigration, in writing, under paragraph 1306 (3) (d) of Schedule 1 that the holder is a person of interest in relation to an offence or an alleged offence involving: (I) people trafficking; or (II) sexual servitude; or (III) deceptive recruiting; and (B) an officer of that police force tells Immigration, in writing, that the holder is no longer a person of interest in relation to the offence or the alleged offence; when the Minister gives a written notice to the holder, by one of the methods specified in section 494B of the Act, that the holder is no longer a person of interest; (iv) if: (A) a holder is a member of the immediate family of a person; and (B) an officer of the Australian Federal Police, or of a police force of a State or Territory, has told Immigration, in writing, under paragraph 1306 (3) (d) of Schedule 1 that the person is a person of interest in relation to an offence or an alleged offence involving: (I) people trafficking; or (II) sexual servitude; or (III) deceptive recruiting; and (C) an officer of that police force tells Immigration, in writing, that the person is no longer a person of interest in relation to the offence or the alleged offence; when the Minister gives a written notice to the holder, by one of the methods specified in section 494B of the Act, that the person is no longer a person of interest. [9] Schedule 2, after clause 060.612 insert 060.613 In addition to clauses 060.611 and 060.612, in the case of a visa that has been granted to a person who: (a) made the application for the visa in accordance with subregulation 2.20B (2); and (b) is the holder of the visa on the basis of satisfying the secondary criteria for the grant of the visa; condition 8502 must be imposed.
Schedule 2 Amendments relating to skilled-independent visas (regulation 3) [1] Schedule 1, subparagraph 1218A (5A) (c) (v) omit the applicant must have been in Australia insert the applicant has been in Australia [2] Schedule 2, paragraph 495.216 (d) omit the applicant has held insert the applicant has been in Australia as the holder of [3] Schedule 2, clause 495.218 omit subitem 1218A (6) of Schedule 1 insert paragraph 1218A (6) (b) of Schedule 1
Schedule 3 Amendments relating to security assessment (regulation 3) [1] Paragraph 2.43 (1) (b) substitute (b) that the holder of the visa has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979; [2] Schedule 4, clause 4002 substitute 4002 The applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979.
Note
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