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Migration Legislation Amendment (Sponsorship Measures) Act 2003

  • - C2004A01183
  • In force - Latest Version
Act No. 99 of 2003 as made
An Act to amend the Migration Act 1958, and for related purposes
Administered by: Immigration and Citizenship
Originating Bill: Migration Legislation Amendment (Sponsorship Measures) Bill 2003
Date of Assent 14 Oct 2003
Table of contents.

 

 

 

 

 

 

Migration Legislation Amendment (Sponsorship Measures) Act 2003

 

No. 99, 2003

 

 

 

 

 

An Act to amend the Migration Act 1958, and for related purposes

  

  


Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Schedule(s).......................................................................................... 1

Schedule 1—The sponsorship system                                                                         1

Migration Act 1958                                                                                                     1

Schedule 2—MRT‑reviewable decisions                                                                  1

Migration Act 1958                                                                                                     1

 


 

 

Migration Legislation Amendment (Sponsorship Measures) Act 2003

No. 99, 2003

 

 

 

An Act to amend the Migration Act 1958, and for related purposes

[Assented to 14 October 2003]

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Migration Legislation Amendment (Sponsorship Measures) Act 2003.

2  Commencement

                   This Act commences on the day on which it receives the Royal Assent.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1The sponsorship system

  

Migration Act 1958

1  Subsection 5(1)

Insert:

approved sponsor, in relation to a visa of a kind (however described) to which Division 3A of Part 2 applies, has the meaning given by section 140D.

2  After Division 3 of Part 2

Insert:

Division 3ASponsorship

Subdivision AApplication of Division

140A  Division applies to prescribed kinds of visa

                   This Division applies to visas of a prescribed kind (however described).

Subdivision BSponsorship system

140B  Sponsorship as a criterion for prescribed visas

             (1)  The regulations may provide that sponsorship by an approved sponsor is a criterion for a visa of a prescribed kind (however described).

             (2)  A criterion prescribed under subsection (1) is in addition to any other criteria for the visa that:

                     (a)  may be prescribed under any other provision of this or any other Act; or

                     (b)  are set out in this or any other Act.

140C  Sponsorship as a criterion for valid visa applications

             (1)  The regulations may provide that it is a criterion for a valid application for a visa of a prescribed kind (however described) that the applicant is sponsored by an approved sponsor.

             (2)  The regulations may provide that it is a criterion for a valid application for a visa of a prescribed kind (however described) that the applicant’s proposed sponsor has applied to be an approved sponsor at, or before, the time the application for the visa is made.

             (3)  A criterion prescribed under subsection (1) or (2) is in addition to any other criteria for a valid application for the visa that:

                     (a)  may be prescribed under any other provision of this or any other Act; or

                     (b)  are set out in this or any other Act.

140D  Approved sponsor

                   A person is an approved sponsor of another person for a visa at a particular time if:

                     (a)  the first person has consented in writing to sponsor the second person for the visa and that consent has not been withdrawn by notice in writing to the Minister; and

                     (b)  the first person has been approved by the Minister before that time as a sponsor of the second person for the visa, whether the second person is named in the approval or otherwise described; and

                     (c)  the approval has not been cancelled by the Minister before that time; and

                     (d)  a bar of a kind mentioned in paragraph 140L(c) or (d) that would affect the sponsorship of the second person is not in force at that time; and

                     (e)  the terms on which the sponsorship was approved are satisfied at that time.

140E  Approving sponsor

             (1)  The Minister must approve a person as a sponsor if prescribed criteria are satisfied.

             (2)  Different criteria may be prescribed for different kinds of visa (however described).

140F  Process for approving sponsors

             (1)  The regulations may establish a process for the Minister to approve a person as a sponsor.

             (2)  Different processes may be prescribed for different kinds of visa (however described).

140G  Terms of approval as a sponsor

             (1)  An approval as a sponsor may be on terms specified in the approval.

             (2)  The terms must be of a kind prescribed by the regulations.

Note:          The following are examples of the kinds of terms that might be set out in the regulations:

(a)           the number of people whom the approved sponsor may sponsor under the approval;

(b)           the duration of the approval.

             (3)  Different kinds of terms may be prescribed for different kinds of visa (however described).

140H  Sponsorship undertakings

             (1)  The regulations may require an applicant for approval as a sponsor of a person for a visa to make prescribed undertakings.

Note:          The following are examples of the kinds of undertakings that might be set out in the regulations:

(a)           to pay debts for medical or hospital treatment incurred by a visa holder sponsored by the sponsor;

(b)           to pay to the Commonwealth the costs of locating, detaining and removing from Australia a visa holder sponsored by the sponsor;

(c)           to pay the costs of the departure from Australia of a visa holder sponsored by the sponsor;

(d)           to comply with the Department’s requirements to provide information to the Department;

(e)           to notify the Department of changes in the circumstances of the sponsor or of a visa holder sponsored by the sponsor;

(f)            to cooperate with the Department’s monitoring of the sponsor or of a visa holder sponsored by the sponsor.

             (2)  The undertakings only have effect if the applicant consents in writing to sponsor that person. The applicant’s consent may be given either at the time the application for approval is made, or at a later date.

             (3)  The undertakings do not have effect until the visa is granted.

             (4)  Different undertakings may be prescribed for different kinds of visa (however described).

140I  Amounts payable to the Commonwealth

             (1)  Without limiting the generality of subsection 140H(1), the regulations may prescribe an undertaking to pay to the Commonwealth:

                     (a)  an amount of a kind prescribed in the regulations; or

                     (b)  an amount in relation to the costs of the Commonwealth worked out in accordance with a method prescribed by reference to a determination by the Minister.

             (2)  The Minister may make a determination for the purposes of paragraph (1)(b) by notice in the Gazette.

             (3)  An undertaking to pay an amount to the Commonwealth is not enforceable against the person who made it to the extent that the amount which the person has undertaken to pay exceeds the costs of the Commonwealth in relation to which the undertaking is made.

             (4)  If a person (the sponsor) makes an undertaking in relation to the costs of the Commonwealth in locating and detaining another person, the undertaking is not enforceable against the sponsor to the extent that the amount which the sponsor has undertaken to pay in relation to those costs exceeds a limit prescribed in the regulations, as in force when the undertaking is made.

140J  Cancelling or barring approval as a sponsor if undertakings breached

             (1)  This section applies if:

                     (a)  an approved sponsor of a person for a temporary visa breaches an undertaking; or

                     (b)  a person who is no longer an approved sponsor of a person for a temporary visa, but remains bound by an undertaking, breaches the undertaking.

             (2)  The regulations may prescribe:

                     (a)  circumstances in which the Minister may take one or more of the actions mentioned in section 140L (cancelling or barring approval as a sponsor) as a result of the breach of the undertaking; and

                     (b)  the criteria to be taken into account by the Minister in determining what action to take under that section.

             (3)  The regulations may prescribe circumstances in which the Minister must take one or more of the actions mentioned in section 140L (cancelling or barring approval as a sponsor) as a result of the breach of the undertaking.

             (4)  Different circumstances and different criteria may be prescribed for different kinds of temporary visa (however described).

             (5)  This section does not deal with the cancellation of approval as a business sponsor (as defined in section 137A).

Note:          The cancellation of that kind of approval is dealt with by Subdivision GA of Division 3.

140K  Cancelling or barring approval as a sponsor in other circumstances

             (1)  The regulations may prescribe:

                     (a)  other circumstances in which the Minister may take one or more of the actions mentioned in section 140L (cancelling or barring approval as a sponsor); and

                     (b)  the criteria to be taken into account by the Minister in determining what action to take under that section.

             (2)  The regulations may prescribe other circumstances in which the Minister must take one or more of the actions mentioned in section 140L (cancelling or barring approval as a sponsor).

             (3)  No action is to be taken in relation to a person under regulations made under this section unless the person is:

                     (a)  an approved sponsor of a person for a temporary visa; or

                     (b)  a former approved sponsor of a person for a temporary visa.

             (4)  Different circumstances and different criteria may be prescribed for different kinds of temporary visa (however described).

             (5)  This section does not deal with the cancellation of approval as a business sponsor (as defined in section 137A).

Note:          The cancellation of that kind of approval is dealt with by Subdivision GA of Division 3.

140L  Actions under sections 140J and 140K

                   The actions the Minister may (or must) take under section 140J or 140K in relation to a person (the sponsor) are:

                     (a)  cancelling the approval of the sponsor for specified kinds of temporary visas (however described);

                     (b)  cancelling the approval of the sponsor for all temporary visas;

                     (c)  barring the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing specified approvals for temporary visas;

                     (d)  barring the sponsor, for a specified period, from sponsoring more people under the terms of all existing approvals for temporary visas;

                     (e)  barring the sponsor, for a specified period, from making future applications for approval as a sponsor for specified kinds of temporary visa (however described) for which sponsorship is a criterion;

                      (f)  barring the sponsor, for a specified period, from making future applications for approval as a sponsor for all temporary visas for which sponsorship is a criterion;

                     (g)  barring the sponsor, for a specified period, from nominating a person or activity in relation to a temporary visa where the sponsor would otherwise be entitled to make the nomination under the regulations.

140M  Right to take security under section 269 etc. not affected

                   Nothing in section 140J or 140K affects the right to require or take security under section 269, or the right to enforce such a security.

140N  Process for cancelling or barring approval as a sponsor

             (1)  The regulations may establish a process for the Minister to cancel the approval of a person as a sponsor under section 140J or 140K.

             (2)  The regulations may establish a process for the Minister to place a bar on a person under section 140J or 140K.

             (3)  Different processes may be prescribed for different kinds of temporary visa (however described).

140O  Waiving a bar

             (1)  This section applies to temporary visas of a prescribed kind (however described).

             (2)  The Minister may, in prescribed circumstances, waive a bar placed on a person under section 140J or 140K in relation to a visa to which this section applies.

             (3)  The regulations may prescribe the criteria to be taken into account by the Minister in determining whether to waive the bar.

             (4)  Different circumstances and different criteria may be prescribed for different kinds of temporary visa (however described).

140P  Process for waiving a bar

             (1)  The regulations may establish a process for the Minister to waive a bar placed on a person under section 140J or 140K.

             (2)  Different processes may be prescribed for different kinds of temporary visa (however described).

140Q  Consequences if the visa holder or the sponsor changes status

             (1)  The regulations may prescribe the circumstances in which, and for how long, an undertaking arising out of the sponsorship of a particular temporary visa holder remains enforceable against the sponsor concerned if:

                     (a)  the visa holder ceases to hold the visa for which he or she was sponsored; or

                     (b)  the sponsor ceases to be an approved sponsor of the visa holder for the visa (whether because the approval is cancelled or for any other reason).

             (2)  Different circumstances and periods may be prescribed for different kinds of temporary visa (however described).

140R  Joint and several liability for debts

             (1)  This section applies if:

                     (a)  an approved sponsor for a temporary visa is bound by an undertaking to pay debts of another person (the primary debtor) that are of a kind specified in the undertaking; or

                     (b)  a person who is no longer an approved sponsor for a temporary visa remains bound by an undertaking to pay debts of another person (the primary debtor) that are of a kind specified in the undertaking.

             (2)  The person bound by the undertaking is jointly and severally liable to pay the debts with the primary debtor.

             (3)  Without limiting any other provision of this Act, debts payable to a person under the undertaking may be recovered by the person as a debt due to the person in a court of competent jurisdiction.

140S  Liability to pay other amounts

             (1)  This section does not apply to a debt dealt with in section 140R.

             (2)  Subject to subsection (1), this section applies if:

                     (a)  an approved sponsor for a temporary visa is bound by an undertaking to pay an amount of a kind specified in the undertaking; or

                     (b)  a person who is no longer an approved sponsor for a temporary visa remains bound by an undertaking to pay an amount of a kind specified in the undertaking.

             (3)  Without limiting any other provision of this Act, amounts payable to a person under the undertaking may be recovered by the person as a debt due to the person in a court of competent jurisdiction.

140T  Notice regarding amount of debt or other amount

             (1)  Where a debt, or other amount, that a person has undertaken to pay to the Commonwealth becomes payable, the Minister may issue a notice in writing stating the amount of the debt or other amount.

             (2)  In any proceedings a notice under this section is prima facie evidence that the amount of the debt or other amount is that stated in the notice.

140U  Liability is in addition to any other liability

                   Any liability created under this Division is in addition to any liability created under:

                     (a)  this or any other Act; or

                     (b)  regulations made under this or any other Act.

140V  Disclosure of personal information in prescribed circumstances etc.

             (1)  The Minister may disclose to an approved sponsor or former approved sponsor personal information of a prescribed kind about a visa holder or former visa holder sponsored.

             (2)  The regulations may prescribe circumstances in which the Minister may disclose the personal information.

             (3)  The regulations may prescribe circumstances in which the approved sponsor, or former approved sponsor, may use or disclose personal information disclosed under subsection (1).

             (4)  If the Minister discloses personal information about a visa holder or former visa holder under subsection (1), the Minister must notify him or her in writing of the disclosure and of the details of the personal information disclosed.

             (5)  In this section:

personal information has the same meaning as in the Privacy Act 1988.

140W  Other regulation making powers not limited etc.

             (1)  Regulations made for the purposes of this Division do not limit the power to make regulations under any other provision of this or any other Act.

             (2)  To avoid doubt, nothing in this Division is intended to affect:

                     (a)  regulations in force before or after the commencement of this Division that were or are made under any other provision of this or any other Act; or

                     (b)  anything done under those regulations.

             (3)  Nothing in paragraph (2)(a) affects the power to amend or repeal regulations mentioned in that paragraph.

Subdivision CApplication of the sponsorship system to partnerships and unincorporated associations

140X  Application to partnerships

                   Subdivision B, and regulations made under it, apply to a partnership as if it were a person, but with the changes set out in sections 140Y to 140ZB.

140Y  Sponsorship obligations and rights of partnership

             (1)  Subject to section 140ZA, a sponsorship obligation that would otherwise be imposed on a partnership is instead imposed on each person who is a partner:

                     (a)  where the obligation arises before the sponsorship is approved—at the time the obligation arises; or

                     (b)  where the obligation arises at any other time—at the time the sponsorship is approved.

             (2)  Subject to section 140ZA, a sponsorship right that would otherwise be exercisable by a partnership is instead a right exercisable by each person who is a partner:

                     (a)  where the right arises before the sponsorship is approved—at the time the right arises; or

                     (b)  where the right arises at any other time—at the time the sponsorship is approved.

             (3)  Subject to sections 140Z and 140ZA, the following persons are jointly and severally liable to pay an amount that would otherwise be payable by a partnership in relation to sponsorship or as a result of sponsorship:

                     (a)  where the liability arises before the sponsorship is approved—each person who is a partner at the time the obligation arises;

                     (b)  where the liability arises at any other time—each person who is a partner at the time the sponsorship is approved.

140Z  New partners

             (1)  If a person becomes a partner in a partnership after it is approved as a sponsor, the new partner may elect to accept each sponsorship obligation that:

                     (a)  would, but for subsection 140Y(1) or any previous application of this section, be imposed on the partnership; and

                     (b)  arises after the new partner makes the election.

             (2)  If the new partner accepts an obligation:

                     (a)  the obligation is imposed on the new partner instead of on the partnership; and

                     (b)  the obligation is imposed on the new partner regardless of whether it is also imposed on any other partner or retired partner.

             (3)  If:

                     (a)  a sponsorship right would, but for subsection 140Y(2) or any previous application of this section, be exercisable by a partnership; and

                     (b)  the right arises after the new partner makes an election under subsection (1) and does not arise because of a sponsorship obligation that existed before the election was made;

the right is:

                     (c)  exercisable by the new partner instead of by the partnership; and

                     (d)  exercisable by the new partner regardless of whether it is also exercisable by any other partner or retired partner.

             (4)  If:

                     (a)  a new partner accepts a sponsorship obligation by election under subsection (1); and

                     (b)  a liability to pay an amount arises from the obligation;

then the new partner is jointly and severally liable to pay the amount together with:

                     (c)  any other partner on whom the liability is also imposed under this section or section 140Y; and

                     (d)  any retired partner who remains liable for the amount under section 140ZA.

140ZA  Retiring partners

             (1)  If a partner leaves a partnership after it is approved as a sponsor, then, despite section 140Y, the regulations may prescribe:

                     (a)  the circumstances in which, and for how long, a sponsorship obligation remains enforceable against the retiring partner; and

                     (b)  the circumstances in which, and for how long, a sponsorship right is exercisable by the retiring partner; and

                     (c)  which debts remain payable by the retiring partner.

             (2)  Different matters may be prescribed for different kinds of visa (however described).

140ZB  Discharging sponsorship obligations and exercising sponsorship rights—partnerships

             (1)  A sponsorship obligation may be discharged by any of the partners in a partnership on whom the obligation is imposed under this Subdivision.

             (2)  A sponsorship right exercised by one of the partners in a partnership is taken to have been exercised on behalf of all of the partners who are entitled to exercise the right under this Subdivision.

140ZC  Application to unincorporated associations

                   Subdivision B, and regulations made under it, apply to an unincorporated association as if it were a person, but with the changes set out in sections 140ZD to 140ZG.

140ZD  Sponsorship obligations and rights of unincorporated associations

             (1)  Subject to section 140ZF, a sponsorship obligation that would otherwise be imposed on an unincorporated association is instead imposed on each person who is a member of the association’s committee of management:

                     (a)  where the obligation arises before the sponsorship is approved—at the time the obligation arises; or

                     (b)  where the obligation arises at any other time—at the time the sponsorship is approved.

             (2)  Subject to section 140ZF, a sponsorship right that would otherwise be exercisable by an unincorporated association is instead a right exercisable by each person who is a member of the association’s committee of management:

                     (a)  where the right arises before the sponsorship is approved—at the time the right arises; or

                     (b)  where the right arises at any other time—at the time the sponsorship is approved.

             (3)  Subject to sections 140ZE and 140ZF, the following persons are jointly and severally liable to pay an amount that would otherwise be payable by an unincorporated association in relation to sponsorship or as a result of sponsorship:

                     (a)  where the liability arises before the sponsorship is approved—each person who is a member of the association’s committee of management at the time the obligation arises;

                     (b)  where the liability arises at any other time—each person who is a member of the association’s committee of management at the time the sponsorship is approved.

140ZE  New members of committees of management

             (1)  If a person becomes a member of the committee of management of an unincorporated association after it is approved as a sponsor, the new member may elect to accept each sponsorship obligation that:

                     (a)  would, but for subsection 140ZD(1) or any previous application of this section, be imposed on the association; and

                     (b)  arises after the new member makes the election.

             (2)  If the new member accepts an obligation:

                     (a)  the obligation is imposed on the new member instead of on the association’s committee of management; and

                     (b)  the obligation is imposed on the new member regardless of whether it is also imposed on any other member or former member.

             (3)  If:

                     (a)  a sponsorship right would, but for subsection 140ZD(2) or any previous application of this section, be exercisable by an unincorporated association; and

                     (b)  the right arises after the new member makes an election under subsection (1) and does not arise because of a sponsorship obligation that existed before the election was made;

the right is:

                     (c)  exercisable by the new member instead of by the association’s committee of management; and

                     (d)  exercisable by the new member regardless of whether it is also exercisable by any other member or former member.

             (4)  If:

                     (a)  a new member of the committee of management of an unincorporated association accepts a sponsorship obligation by election under subsection (1); and

                     (b)  a liability to pay an amount arises from the obligation;

then the new member is jointly and severally liable to pay the amount together with:

                     (c)  any other member on whom the liability is also imposed under this section or section 140ZD; and

                     (d)  any former member who remains liable for the amount under section 140ZF.

140ZF  Former members of committees of management

             (1)  If a member of the committee of management of an unincorporated association leaves the committee after the association is approved as a sponsor, then, despite section 140ZD, the regulations may prescribe:

                     (a)  the circumstances in which, and for how long, a sponsorship obligation remains enforceable against the former member; and

                     (b)  the circumstances in which, and for how long, a sponsorship right is exercisable by the former member; and

                     (c)  which debts remain payable by the former member.

             (2)  Different matters may be prescribed for different kinds of visa (however described).

140ZG  Discharging sponsorship obligations and exercising sponsorship rights—unincorporated associations

             (1)  A sponsorship obligation may be discharged by any of the members of the committee of management of an unincorporated association on whom the obligation is imposed under this Subdivision.

             (2)  A sponsorship right exercised by one of the members of the committee of management of an unincorporated association is taken to have been exercised on behalf of all of the members who are entitled to exercise the right under this Subdivision.

140ZH  Definitions

                   In this Subdivision:

committee of management of an unincorporated association means a body (however described) that governs, manages or conducts the affairs of the association.

sponsorship obligation means an obligation in relation to sponsorship or as a result of sponsorship.

sponsorship right means a right in relation to sponsorship or as a result of sponsorship.


 

Schedule 2MRT‑reviewable decisions

  

Migration Act 1958

1  At the end of subsection 338(2)

Add:

             ; and (d)  where it is a criterion for the grant of the visa that the non‑citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

                              (i)  the non‑citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

                             (ii)  an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

2  Application

The amendment made by item 1 applies to decisions to refuse to grant a visa made on or after the commencement of the item.

(88/03)

 

 

[Minister’s second reading speech made in—

House of Representatives on 4 June 2003

Senate on 25 June 2003]