An Act to amend the Student and Youth Assistance Act 1973, and for related purposes
[Assented to 4 March 1997]
The Parliament of Australia enacts:
This Act may be cited as the Student and Youth Assistance Amendment (Waiting Period) Act 1997.
2 Commencement
This Act commences on the day on which it receives the Royal Assent.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
1 Subsection 3(1) (definition of permanent resident of Australia)
Repeal the definition.
2 After section 6
Insert:
In this Part, unless the contrary intention appears:
Australian resident means a person who is not an Australian citizen but who resides in Australia and is the holder of:
(a) a permanent visa; or
(b) a special category visa.
exempt resident means an Australian resident who:
(a) was the holder of a subclass 820 visa—Extended eligibility (spouse); or
(b) was the holder of a subclass 826 visa—Interdependency; or
(c) is the holder of a subclass 832 visa—Close ties; or
(d) is the holder of a subclass 833 visa—Certain unlawful non‑citizens; or
(e) is the holder of a visa in a class of visas determined by the Minister for the purposes of this paragraph.
family member, in relation to a person, means:
(a) a partner of the person; or
(b) a dependent child of the person.
holder, in relation to a visa, has the same meaning as in the Migration Act 1958.
parent includes an adoptive parent.
partner, in relation to a person who is a member of a couple, means the other member of the couple.
permanent protection visa has the same meaning as in the Migration Act 1958.
permanent visa has the same meaning as in the Migration Act 1958.
special category visa has the same meaning as in the Migration Act 1958.
visa has the same meaning as in the Migration Act 1958.
(1) A person is not to be treated, for the purposes of this Part, as residing in Australia unless the person intends to remain permanently in Australia.
(2) In deciding whether or not a person intends to remain permanently in Australia, regard must be had to the following:
(a) the nature of the accommodation used by the person in Australia;
(b) the nature and extent of the family relationships the person has in Australia;
(c) the nature and extent of the person’s employment, business or financial ties with Australia;
(d) the nature and extent of the person’s assets located in Australia;
(e) the frequency and duration of the person’s travel outside Australia;
(f) any other matter relevant to determining whether the person intends to remain permanently in Australia.
(1) A person is a refugee for the purposes of this Part if the person is the holder of a permanent protection visa or a permanent visa in any of the following classes of permanent visa referred to in Schedule 1 to the Migration Regulations:
(a) Ahmadi (Special Assistance) (Class BJ);
(b) Burmese in Burma (Special Assistance) (Class AB);
(c) Burmese in Thailand (Special Assistance) (Class AC);
(d) Cambodian (Special Assistance) (Class AE);
(e) Camp Clearance (Migrant) (Class AF);
(f) Citizens of the Former Yugoslavia (Special Assistance) (Class A1);
(g) East Timorese in Portugal, Macau and Mozambique (Special Assistance) (Class AM);
(h) Minorities of Former USSR (Special Assistance) (Class AV);
(i) Refugee and Humanitarian (Migrant) (Class BA);
(j) Sri Lankan (Special Assistance) (Class BF);
(k) Sudanese (Special Assistance) (Class BD);
(l) Territorial Asylum (Residence) (Class BE);
(m) Vietnamese (Special Assistance) (Class BK).
(2) A person is a refugee for the purposes of this Part if the person is the holder of a permanent visa in a class of visas determined by the Minister for the purposes of this subsection.
A person (the child) is, for the purposes of this Part, taken to be a dependent child of another person if the other person is a parent of the child and the child:
(a) is under 18 and wholly or substantially in the parent’s care and control (whether alone or jointly with someone else); or
(b) is 18 or older and financially, psychologically or physically dependent on the parent (whether alone or jointly with someone else).
(1) Subject to subsection (2), a person is a member of a couple for the purposes of this Part if:
(a) the person is legally married to another person and is not living separately and apart from the other person on a permanent or indefinite basis; or
(b) all of the following conditions are met:
(i) the person has a relationship with a person of the opposite sex (in this paragraph called the partner);
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is a marriage-like relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.
(2) For the purposes of subparagraph (1)(b)(iii), 2 people are not in a marriage-like relationship if they are living separately and apart from each other on a permanent or indefinite basis.
(1) For the purposes of this Part a change of circumstances resident is a person to whom subsection (2) applies.
(2) This subsection applies to an Australian resident who is 21 or younger and:
(a) who became an orphan after entering Australia; or
(b) whose parents, or whose only parent, began serving a sentence of imprisonment for life, or for a term of at least 10 years, after the person entered Australia; or
(c) whose parents, or whose only parent, became mentally incapacitated after the person entered Australia, and are likely to remain so for an indefinite period; or
(d) whose parents, or whose only parent, started living in a nursing home after the person entered Australia, and are likely to continue living in a nursing home for an indefinite period; or
(e) whose parents, or whose only parent, went missing after the person entered Australia; or
(f) who is unable to live with his or her parents, or with his or her only parent, because of extreme family breakdown or because to do so would seriously endanger the person’s physical or mental well-being due, for example, to actual or threatened violence, sexual abuse or other similar behaviour; or
(g) who does not live with his or her parents, or with his or her only parent, but who is in the lawful custody, control or guardianship of another person; or
(h) who does not live with his or her parents, or with his or her only parent, and who, only because of reaching a particular age, stopped being in the lawful custody, control or guardianship of another person.
(3) Subsection (2) ceases to apply to a person if:
(a) where paragraph (2)(b) applied to a person—the person’s parents are, or parent is, released from gaol; or
(b) where paragraph (2)(c) applied to a person—the person’s parents, or parent, ceases to be mentally incapacitated; or
(c) where paragraph (2)(d) applied to a person—the person’s parents, or parent, ceases living in a nursing home; or
(d) where paragraph (2)(e) applied to a person—the person’s parents are, or parent is, located; or
(e) where paragraph (2)(f) applied to a person—the person recommences living with his or her parents or parent.
For the purposes of this Part, a person is taken to be a post-1996 Australian resident if he or she:
(a) first entered Australia as an Australian resident or as the holder of a permanent visa on or after 1 January 1997; or
(b) last entered Australia on or after 1 January 1997 and subsequently became an Australian resident.
(1) For the purposes of this Part, an Australian resident (other than a New Zealand citizen) who is not a post-1996 Australian resident is taken to be a pre-1997 Australian resident.
(2) For the purposes of this Part, an Australian resident who is a New Zealand citizen and who is not a post-1996 Australian resident is taken to be a pre-1997 Australian resident provided he or she has lived in Australia continuously for the last 26 weeks, or has, during the last 52 weeks, not been absent from Australia for a period of, or periods totalling, more than 8 weeks.
A determination by the Minister for the purposes of paragraph (e) of the definition of exempt resident in section 6A, or for the purposes of subsection 6C(2), is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
3 Subsection 7(1)
After “section”, insert “, sections 8 and 9”.
4 Paragraph 7(1)(a)
Repeal the paragraph, substitute:
(a) is an Australian citizen, a pre-1997 Australian resident or a post-1996 Australian resident;
5 After subsection 7(1)
Insert:
(1A) The Secretary must not grant a benefit under this Part to a person who is subject to a waiting period if that period has not ended (see sections 8 and 9).
6 After section 7
Insert:
(1) A post-1996 Australian resident is subject to a waiting period.
(2) Subsection (1) does not apply to the following:
(a) a refugee;
(b) a person who was a family member of a refugee when the refugee arrived in Australia;
(c) an exempt resident;
(d) a person while the person is a change of circumstances resident.
(1) If a person is not a New Zealand citizen and is subject to a waiting period, the period:
(a) starts on the day on which the person:
(i) entered Australia; or
(ii) was granted a permanent visa;
whichever last occurs; and
(b) ends when the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.
(2) If a person is a New Zealand citizen and is subject to a waiting period, the period:
(a) starts on the day on which the person became an Australian resident; and
(b) ends when the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.
(3) For the purposes of subsection (1), the day on which a permanent visa is granted to a person is:
(a) if an initial decision maker decides to grant a visa to the person—that day; or
(b) if:
(i) an initial decision maker decides not to grant a visa to the person; and
(ii) on a review of the decision referred to in subparagraph (i), that decision is set aside (however described) and a visa is granted to the person;
the day on which the initial decision maker decided not to grant the visa to the person.
[Minister’s second reading speech made in—
House of Representatives on 30 October 1996
Senate on 7 November 1996]
I HEREBY CERTIFY that the above is a fair print of the Student and Youth Assistance Amendment (Waiting Period) Bill 1997 which originated in the House of Representatives as the Student and Youth Assistance Amendment (Waiting Period) Bill 1996 and has been finally passed by the Senate and the House of Representatives.
Clerk of the House of Representatives
IN THE NAME OF HER MAJESTY, I assent to this Act.
Governor-General
1997