Federal Register of Legislation - Australian Government

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SLI 2011 No. 105 Regulations as made
These Regulations amend the Migration Regulations 1994, the Australian Citizenship Regulations 2007 and the Migration Amendment Regulations 2009 (No. 12) to increase fees and charges to reflect regular changes that are made every 1 July to adjust fees and charges in legislation administered by the Minister to strengthen and improve immigration policy.
Administered by: Immigration and Citizenship
Registered 21 Jun 2011
Tabling HistoryDate
Tabled HR22-Jun-2011
Tabled Senate22-Jun-2011
Date of repeal 19 Mar 2014
Repealed by Immigration and Border Protection (Spent and Redundant Instruments) Repeal Regulation 2014

EXPLANATORY Statement

Select Legislative Instrument 2011 No. 105

Issued by the Minister for Immigration and Citizenship

Migration Act 1958

Australian Citizenship Act 2007

Migration Legislation Amendment Regulations 2011 (No. 1)

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the
Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Section 54 of the Australian Citizenship Act 2007 (the Citizenship Act) provides that the Governor-General may make regulations prescribing matters required or permitted by that Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to that Act. 

In addition, regulations may be made pursuant to the provisions listed in Attachment A.

The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) and the Australian Citizenship Regulations 2007 (the Citizenship Regulations) to strengthen and improve immigration policy. 

The Regulations also amend the Principal Regulations to increase fees and charges to reflect regular changes that are made every 1 July to adjust fees and charges in legislation administered by the Minister.

An overview of the Regulations is set out in Attachment B.

Details of the Regulations are set out in Attachment C.

The Regulations commence on 1 July 2011.

The Office of Best Practice Regulation (the OBPR) has been consulted in relation to amendments made by all Schedules to the Regulations and advises that the regulations are not likely to have a direct effect, or substantial indirect effect, on business and are not likely to restrict competition.  The OBPR consultation references are:

·         12049 (Schedule 1);

·         12187 (Schedule 2);

·         12123 (item [1] of Schedule 3) and 12272 (items [2] to [7] of Schedule 3);

·         12353 (Schedule 4);

·         12041 (Schedule 5);

·         12093 (Schedule 6);

·         11789 (Schedule 7);

·         12099 (Schedule 8);

·         12054 (Schedules 9 and 10); and

·         12035 (Schedules 11 to 13).

In relation to the amendments made by Schedules 1 to 7 and 9 to 13 to the Regulations, no further consultation were undertaken, because the amendments do not have any potential implications relating to other government departments or agencies, non-government organisations, or any other organisation or interested party.

In relation to the amendments made by Schedule 8 to the Regulations, Commonwealth Government departments, including the Australian Bureau of Statistics and the Australian Government Actuary, were consulted.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

 


ATTACHMENT A

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the
Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition, the following provisions may apply:

·         subsection 5(1) of the Act, which provides that “prescribed” means prescribed by the regulations;

·         subsection 31(1) of the Act, which provides that the Migration Regulations 1994 (the Principal Regulations) may prescribe classes of visas;

·         subsection 31(3) of the Act, which provides that the regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A);

·         subsection 40(1) of the Act, which provides that the regulations may provide that visas or visas of a specified class may only be granted in specified circumstances;

·         subsection 40(3) of the Act, which provides that without limiting subsection 40(1), if prescribed circumstances exist; and the Minister has not waived the operation of this subsection in relation to granting a visa to the person; the circumstances under subsection 40(1) may be, or may include, that the person has complied with any requirement of an officer to provide one or more personal identifiers in relation to the application for the visa;

·         subsection 40(5) of the Act, which provides that subsection 40(4) (that states a person is taken not to have complied with a requirement referred to in subsection 40(3) unless one or more personal identifiers are provided to an authorised officer by way of one or more identification tests carried out by an authorised officer) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the person:

        provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and

        complies with any further requirements that are prescribed relating to the provision of the personal identifier;

·         subsection 41(1) of the Act, which provides that the regulations may provide that visas, or visas of a specified class, are subject to specified conditions;


·         subsection 41(2) of the Act, which provides that, without limiting subsection 41(1), the regulations may provide that a visa, or visas of a specified class, are subject to:

        a condition that, despite anything else in the Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa or a temporary visa of a specified kind), while he or she remains in Australia; or

        a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be a restriction on doing any work, work other than specified work or work of a specified kind;

·         section 45A of the Act, which provides that a non-citizen who makes an application for a visa is liable to pay a visa application charge if, assuming the charge were paid, the application would be a valid visa application;

·         subsection 45B(1) of the Act, which provides that the amount of the visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application.  The visa application charge limit is determined under the Migration (Visa Application) Charge Act 1997;

·         section 45C of the Act, which deals with regulations about the visa application charge.  In particular:

 

        subsection 45C(1) of the Act, which provides that regulations may provide that the visa application charge may be payable in instalments, specify how those instalments are to be calculated, and specify when instalments are payable; and

 

        subsection 45C(2) of the Act, which provides that the regulations may make provision for and in relation to various matters, including the recovery of visa application charge in relation to visa applications;

·         section 46 of the Act, which provides when an application for a visa is a valid application.  In particular:

        subsection 46(1) of the Act, which provides in part that an application for a visa is valid only if it is for a visa of a class specified in the application and it satisfies the criteria and requirements prescribed under section 46;

        subsection 46(3) of the Act, which provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application;

        subsection 46(4) of the Act, which provides that the regulations may prescribe, without limiting subsection 46(3): the circumstances that must exist for an application for a visa of a specified class to be a valid application; how an application for a visa of a specified class must be made; where an application for a visa of a specified class must be made; and where an applicant must be when an application for a visa of a specified class is made;


·         section 65 of the Act, which provides for the Minister to grant or refuse a visa.  In particular:

         subparagraph 65(1)(a)(ii) of the Act, which provides that after considering a valid application for a visa, the Minister is to grant the visa, if satisfied that the criteria for it prescribed by the Act or the Principal Regulations have been satisfied;

·         subsection 72(1) of the Act, which provides that in Subdivision AF – Bridging visas eligible non‑citizen means a non‑citizen who has been immigration cleared; or is in a prescribed class of persons; or the Minister has determined to be an eligible non‑citizen;

·         paragraph 75(1)(a) of the Act, which provides that the regulations prescribe a class of bridging visas for which an application may be made by an eligible non‑citizen who is in immigration detention;

·         paragraph 75(1)(b) of the Act, which provides that the regulations prescribe the period within which the Minister must make a decision to grant or refuse to grant the bridging visa;

·         paragraph 116(1)(g) of the Act, which provides that the regulations may prescribe grounds for cancellation of a visa under section 116;

·         paragraph 504(1)(e) of the Act, which provides that regulations may be made in relation to the giving of documents to, the lodging of documents with, or the service of documents on, the Minister, the Secretary or any other person or body, for the purposes of the Act;

  • section 505 of the Act, which provides that to avoid doubt, regulations for the purpose of prescribing a criterion for visas of a class may provide that the Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion:

        is to get a specified person or organisation, or a person or organisation in a specified class, to: give an opinion on a specified matter; make an assessment of a specified matter; make a finding about a specified matter; or make a decision about a specified matter; and

        is to have regard to that opinion, assessment, finding or decision in (or to take that opinion, assessment, finding or decision to be correct for the purposes of) deciding whether the applicant satisfies the criterion; and

·         regulation 2.20 in Part 2 of the Principal Regulations, which prescribes classes of persons for the purposes of the definition of eligible non‑citizen in section 72 of the Act.

Section 4 of the Migration (Visa Application) Charge Act 1997 imposes a visa application charge payable under section 45A of the Act.


Section 5 of the Migration (Visa Application) Charge Act 1997 limits the visa application charge and provides the formula to calculate the charge limit for later financial years.  The charge limit is calculated by multiplying the charge limit for the financial year before the later year by the greater of 1.0 or the indexation factor.  This indexation factor is calculated using the index number, which means the All Groups Consumer Price Index number (being the weighted average of the 8 capital cities) published by the Australian Statistician, according to the formula provided in subsection 5(2).

Section 6 of the Migration (Visa Application) Charge Act 1997 sets the charge limit in relation to a visa application for a contributory parent visa and provides a formula to calculate the charge limit for later financial years.  The charge limit is set by reference to the Contributory Parent Visa Composite Index, which is published by the Australian Government Actuary for a financial year.

Section 54 of the Australian Citizenship Act 2007 (the Citizenship Act) provides that the Governor-General may make regulations prescribing matters required or permitted by that Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to that Act.

In addition, the following provisions may apply:

·         paragraph 46(1)(d) of the Citizenship Act, which provides that an application made under a provision of that Act must be accompanied by the fee (if any) prescribed by the Australian Citizenship Regulations 2007 (the Citizenship Regulations); and

·         subsection 46(3) of the Citizenship Act, which provides that the Citizenship Regulations may make provision for and in relation to the remission, refund or waiver of any fees of a kind referred to in paragraph 46(1)(d) of that Act.


ATTACHMENT B

The Regulations amend the Migration Regulations 1994 (the Principal Regulations) to:

  • enable the Minister to specify in an instrument in writing a place that an applicant for a visa who is outside Australia at the time of their application is to provide certain personal identifiers (Schedule 1 to the Regulations refers);
  • enable fingerprints of a person (including those taken using paper and ink or digital livescanning technologies) to be taken to satisfy prescribed criteria for the grant of a visa (Schedule 1 to the Regulations refers);
  • apply the same definition of “step-child” for the purposes of the “Balance of Family” test as it applies generally in the Principal Regulations (Schedule 2 to the Regulations refers);
  • ensure that, for the purposes of a parent’s visa application, the country of residence of a child whose whereabouts is unknown is to be taken as that child’s last known usual country of residence (Schedule 2 to the Regulations refers);
  • ensure that, with limited exceptions, all children and step-children of a visa applicant are counted when using the “Balance of Family” test (Schedule 2 to the Regulations refers);
  • ensure that only children who are Australian citizens, or children who are usually resident in Australia and are Australian permanent residents or eligible New Zealand citizens, count favourably for the purposes of the “Balance of Family” test (Schedule 2 to the Regulations refers);
  • ensure that, if a child is in Australia on a temporary or provisional visa, their country of residence for the purposes of the “Balance of Family” test is taken to be the last overseas country in which the child is usually resident prior to their travelling to Australia (Schedule 2 to the Regulations refers);
  • ensure that, in circumstances where a child in Australia on a temporary or provisional visa no longer has any rights to return to the last overseas country or last overseas country in which the child was usually resident, the child’s residency for the purpose of the “Balance of Family” test is taken to be that of the child’s country of citizenship (Schedule 2 to the Regulations refers);
  • amend the definition of “client number” in regulation 1.03 of the Principal Regulations to ensure the definition includes a client identification number generated under any electronic system maintained by or on behalf of Immigration (Schedule 3 to the Regulations refers);
  • amend the place of lodgement for Business Skills visa applications made by Taiwanese residents from an address in Taipei to an address specified by the Minister in an instrument in writing (Schedule 3 to the Regulations refers);
  • remove outdated references to Gazette Notices in subitems 1104AA(3) and 1202A(3) of Schedule 1 to the Principal Regulations (Schedule 3 to the Regulations refers);
  • ensure the circumstances of certain temporary visa applicants are considered when assessing the potential costs of a disease or condition, which the applicant has, against the health requirement (Schedule 4 to the Regulations refers);
  • provide for the relevant stay period in Australia for the purpose of assessing whether a visa applicant satisfies the health requirement (Schedule 4 to the Regulations refers);
  • require a visa applicant to undertake the relevant medical assessment, and to be assessed by the relevant person, as specified by the Minister in an instrument in writing unless a Medical Officer of the Commonwealth decides otherwise (Schedule 4 to the Regulations refers);
  • require a visa applicant to comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment (Schedule 4 to the Regulations refers);
  • extend the timeframes prescribed under section 75 of the Migration Act 1958 (the Act) in cases where a Bridging visa may be refused on character grounds under section 501 of the Act (Schedule 5 to the Regulations refers);
  • clarify which Bridging E visa subclass would be granted under section 75 of the Act (Schedule 5 to the Regulations refers);
  • clarify that, where clauses 050.612A and 050.614 of Schedule 2 to the Principal Regulations (which set out conditions that must and may be imposed on an applicant’s visa) both apply to an applicant, clause 050.614, which sets out more beneficial conditions, applies (Schedule 5 to the Regulations refers);
  • align the cessation events for Subclass 050 Bridging (General) visas granted on the basis of paragraph 050.212(4)(aa) of Schedule 2 to the Principal Regulations with the cessation events for other Subclass 050 Bridging (General) visas by providing for cessation when any of the events specified in clause 050.212 occur (Schedule 5 to the Regulations refers);
  • provide for the cessation of a Subclass 050 Bridging (General) visa granted to a non‑citizen, whose citizenship decision has been remitted to the Department by a court or review authority, on the day that person becomes a citizen (Schedule 5 to the Regulations refers);
  • clarify the relationship between conflicting clauses 050.613 and 050.613A of Schedule 2 to the Principal Regulations which relate to the working rights of Protection visa applicants (Schedule 5 to the Regulations refers);

  • enable the grant of a Bridging E (Class WE) visa, specifically Subclass 050, using the mechanism available in regulation 2.25 of the Principal Regulations to grant a Bridging E (Class WE) visa without application, to a person who:

        held an enforcement visa that has ceased to be in effect; and

        is an unlawful non-citizen; and

        is in criminal detention as defined in regulation 1.09 of the Principal Regulations (Schedule 6 to the Regulations refers);

  • insert a reference to conditions 8107 and 8501 into clause 010.611 of Schedule 2 to the Principal Regulations, which will impose mandatory visa conditions 8107 and 8501 on a Subclass 010 – Bridging A visa granted to an applicant in association with a valid application for a Subclass 457 visa if the conditions apply to a Subclass 457 visa held by the applicant at the time the valid application for a new Subclass 457 visa is made (Schedule 7 to the Regulations refers);
  • insert a reference to conditions 8107 and 8501 into clause 020.611 of Schedule 2 to the Principal Regulations, which will impose mandatory visa conditions 8107 and 8501 on a Subclass 020 – Bridging B visa granted to an applicant in association with a valid application for a Subclass 457 visa if those conditions apply to a Subclass 457 visa held by the applicant at the time of making the valid application for a new Subclass 457 visa (Schedule 7 to the Regulations refers);
  • insert references to paragraphs 2.43(1)(kb) and 2.43(1)(ia) into subitem 4013(2) of Schedule 4 to the Principal Regulations which ensure that, if a visa is cancelled as a consequence of those paragraphs, the holder of the visa will be affected by a “risk factor” and may be excluded from being granted another visa within three years of the cancellation (Schedule 7 to the Regulations refers);
  • increase some fees and some visa application charges (VACs) by 2.8 percent in line with changes in the Consumer Price Index (CPI) for the 2011– 2012 financial year (Schedule 8 to the Regulations refers);
  • increase the second instalment of the VACs for some Contributory Parent visas by 5.4 percent in accordance with the Contributory Parent Visa Composite Index (CPVCI) for the 2011–2012 financial year (Schedule 8 to the Regulations refers);
  • increase some fees and VACs by 15 percent in accordance with the Government’s decision as outlined in the Portfolio Budget Statements 2011–2012 (Schedule 8 to the Regulations refers);
  • increase the current fees for review applications to the Migration Review Tribunal and Refugee Review Tribunal by 10 percent in accordance with the Government’s decision outlined in the Portfolio Budget Statements 2011–2012 (Schedule 8 to the Regulations refers);

  • provide that if an applicant has been refused a Partner category visa in the last 21 days and holds a Subclass 820 (Partner) visa or a Subclass 309 (Partner (Provisional)) visa, they cannot make a valid application for a Partner (Residence) (Class BS) visa (Schedule 9 to the Regulations refers);
  • provide that for the purposes of a Partner (Residence) (Class BS) visa application, a non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite the travel (Schedule 9 to the Regulations refers);
  • require that an applicant affected by section 48 of the Act, who is applying for a Partner (Residence) (Class BS) visa, must meet the requirements that currently apply to the Partner (Temporary) (Class UK) visa, and the two statutory declarations relating to their partner relationship must be declared no more than 6 weeks before the day on which the Partner (Residence) (Class BS) visa application was made (Schedule 9 to the Regulations refers);
  • remove the note “All applicants must satisfy the primary criteria” from the Subclass 445 – Dependent Child visa (Schedule 9 to the Regulations refers);
  • add a primary criterion for the grant of a Subclass 115 – Remaining Relative visa and a Subclass 116 – Carer visa, which provides that if the applicant has not turned 18, the applicant must satisfy public interest criteria 4017 and 4018 (Schedule 9 to the Regulations refers); and
  • provide that the provisions inserted into the Principal Regulations by the Migration Amendment Regulations 2009 (No. 12) concerning “Division 1.5 Special Provisions Relating to Family Violence” apply to applicants who lodged their application prior to 9 November 2009 and whose first claim of family violence is to the Migration Review Tribunal on or after 1 July 2011 (Schedule 10 to the Regulations refers).

Finally, the Regulations amend the Australian Citizenship Regulations 2007 (the Citizenship Regulations) to:

·         update Centrelink Codes referred to in items 9 and 11 of Schedule 3 to the Citizenship Regulations to ensure that they reflect current Centrelink codes (Schedule 11 to the Regulations refers);

·         make minor amendments to rectify cross referencing errors in items 14 and 15A, 15B and 15C of Schedule 3 to the Citizenship Regulations (Schedule 11 to the Regulations refers);

·         allow for additional information to be included, if required, in a notice of evidence of Australian citizenship (Schedule 12 to the Regulations refers); and

·         update the references to instruments made under subregulation 5.36(1) and subregulation 5.36(1A) of the Principal Regulations which relate to the payment of fees in foreign currencies and countries (Schedule 13 to the Regulations refers).


ATTACHMENT C

Details of the Migration Legislation Amendment Regulations 2011 (No. 1)

Regulation 1 – Name of Regulations

Regulation 1 provides that the title of the Regulations is the Migration Legislation Amendment Regulations 2011 (No. 1).

Regulation 2 – Commencement

Regulation 2 provides that the Regulations commence on 1 July 2011.

Regulation 3 – Amendment of Migration Regulations 1994 – Schedule 1

Subregulation 3(1) provides that Schedule 1 amends the Migration Regulations 1994 (the Principal Regulations).

Subregulation 3(2) provides that the amendment made by Schedule 1 applies in relation to an application for a visa made on or after 1 July 2011.

Regulation 4 – Amendment of Migration Regulations 1994 – Schedule 2

Subregulation 4(1) provides that Schedule 2 amends the Principal Regulations.

 

 

Subregulation 4(2) provides that the amendments made by Schedule 2 apply in relation to an application for a visa made on or after 1 July 2011.

Regulation 5 – Amendment of Migration Regulations 1994 – Schedule 3

Subregulation 5(1) provides that Schedule 3 amends the Principal Migrations.

Subregulation 5(2) provides that the amendments made by items [2] to [7] of Schedule 3 apply in relation to an application for a visa made on or after 1 July 2011.

Regulation 6 – Amendment of Migration Regulations 1994 – Schedule 4

Subregulation 6(1) provides that Schedule 4 amends the Principal Regulations.

Subregulation 6(2) provides that the amendments made by Schedule 4 apply in relation to an application for a visa:

  • made, but not finally determined (within the meaning of the subsection 5(9) of the Migration Act 1958), before 1 July 2011 ; or
  • made on or after 1 July 2011.

Regulation 7 – Amendment of Migration Regulations 1994 – Schedule 5

Subregulation 7(1) provides that Schedule 5 amends the Principal Regulations.

Subregulation 7(2) provides that the amendments made by items [1] and [6] to [8] of Schedule 5 apply in relation to an application for a visa made on or after 1 July 2011.

Subregulation 7(3) provides that the amendments made by items [2] to [5] of Schedule 5 apply in relation to all bridging visas that are held at any time on or after 1 July 2011, regardless of whether the bridging visas were granted before, on or after 1 July 2011.  This transitional provision only operates to prospectively extend the period for which the relevant visas are in effect and applies to visas that are in effect on the date the amendment commences, or visas granted on or after that date.

Regulation 8 – Amendment of Migration Regulations 1994 – Schedule 6

Regulation 8 provides that Schedule 6 amends the Principal Regulations.

Regulation 9 – Amendment of Migration Regulations 1994 – Schedule 7

Subregulation 9(1) provides that Schedule 7 amends the Principal Regulations.

 

Subregulation 9(2) provides that the amendments made by Schedule 7 apply in relation to an application for a visa:

  • made, but not finally determined (within the meaning of the subsection 5(9) of the Migration Act 1958), before 1 July 2011 ; or
  • made on or after 1 July 2011.

 Regulation 10 – Amendment of Migration Regulations 1994 – Schedule 8

Subregulation 10(1) provides that Schedule 8 amends the Principal Regulations.

 

Subregulation 10(2) provides that the amendments made by Schedule 8 apply to a matter for which an obligation to pay a fee or charge is incurred on or after 1 July 2011.

Regulation 11 – Amendment of Migration Regulations 1994 – Schedule 9

Subregulation 11(1) provides that Schedule 9 amends the Principal Regulations.

Subregulation 11(2) provides that the amendments made by Schedule 9 apply in relation to an application for a visa made on or after 1 July 2011.

Regulation 12 – Amendment of Migration Amendment Regulations 2009 (No. 12) – Schedule 10

Regulation 12 provides that Schedule 10 amends the Migration Amendment Regulations 2009 (No. 12).

Regulation 13 – Amendment of Australian Citizenship Regulations 2007 – Schedule 11

Subregulation 13(1) provides that Schedule 11 amends the Australian Citizenship Regulations 2007 (the Citizenship Regulations).

Subregulation 13(2) provides that the amendments made by Schedule 11 apply in relation to an application made under section 21 of the Australian Citizenship Act 2007 (the Citizenship Act) on or after 1 July 2011.


Regulation 14 – Amendment of Australian Citizenship Regulations 2007 – Schedule 12

Subregulation 14(1) provides that Schedule 12 amends the Citizenship Regulations.  

Subregulation 14(2) provides that the amendment made by Schedule 12 applies in relation to an application for evidence of Australian citizenship made under section 37 of the Citizenship Act on or after 1 July 2011.

Regulation 15 – Amendment of Australian Citizenship Regulations 2007 – Schedule 13

Subregulation 15(1) provides that Schedule 13 amends the Citizenship Regulations.  

Subregulation 15(2) provides that the amendment made by Schedule 13 applies in relation to an application if:

  • the application is made under a provision of the Citizenship Act; and
  • the application is made on or after 1 July 2011.

Schedule 1 – Amendment of Migration Regulations 1994  relating to personal identifiers

Item [1] – Paragraphs 2.04(1)(a) and (b)

This item omits “subregulation (2) or (4)” and inserts “subregulation (2) or (3)” in existing paragraphs 2.04(1)(a) and (b) of the Migration Regulations 1994 (the Principal Regulations).

This is a consequential amendment to ensure that cross references in current paragraphs 2.04(1)(a) and (b) are updated to reflect the new provisions which apply as result of the amendments made by this Schedule.

Item [2] – Subregulations 2.04(3) to (5)

This item substitutes new subregulations 2.04(3), (4) and (5) and inserts new subregulation 2.04(6) in Division 2.1 of Part 2 of the Principal Regulations.

These amendments re-order the existing subregulations to create a more logical sequence and to better align them with the relevant provisions in the Migration Act 1958 (the Act).  These amendments also insert a new subregulation and add an additional provision to existing subregulation 2.04(4).

Regulation 2.04 of the Principal Regulations prescribes circumstances in which a visa may be granted pursuant to section 40 of the Act.

Currently, subregulation 2.04(3) provides that for subsection 40(5) of the Act, the following types of personal identifier are prescribed for the circumstances mentioned in existing subregulation 2.04(2):

  • a photograph or other image of the applicant’s face or shoulders;
  • the applicant’s signature.

New paragraph 2.04(3)(a) is largely replicating existing subregulation 2.04(4) and clarifies that for paragraph 40(3)(a) and subsection 40(5) of the Act, the circumstance is that a person is an applicant for a class of visa and is not in Australia at the time of application.

New paragraph 2.04(3)(b) is a new provision and provides that the personal identifiers mentioned in new subregulation 2.04(6) are provided at a place specified by the Minister in an instrument in writing for paragraph 2.04(3)(b).

Relevantly, personal identifiers that are mentioned in subregulation 2.04(6) are:

·         fingerprints of the applicant (including those taken using paper and ink or digital livescanning technologies); and

·         a photograph or other image of the applicant’s face and shoulders.

The amendment enables officers to require a visa applicant, who is not in Australia at the time of application, to provide one or more personal identifiers in relation to their visa application at a place specified by the Minister in an instrument in writing for new paragraph 2.04(3)(b).  A visa applicant’s failure to comply with this requirement means that the grant of the visa is prevented by section 40 of the Act and the visa must be refused.

Importantly, the amendment strengthens decision-making processes by providing officers with greater flexibility in requiring personal identifiers from offshore visa applicants as a requirement for visa grant. 

New subregulation 2.04(4) is a new provision and provides that for paragraph 40(3C)(a) of the Act, fingerprints of a person (including those taken using paper and ink or digital livescanning technologies) are prescribed.

Currently, subsection 40(3A) of the Act provides that if a person is not an applicant for a protection visa or a temporary safe haven visa, then the only personal identifiers which may be required under section 40 are: a photograph or other image of the applicant’s face and shoulders, the applicant’s signature, any other personal identifier contained in the applicant’s passport or other travel document, or any other personal identifier prescribed for the purposes of paragraph 40(3C)(a).  There are currently no other personal identifiers prescribed for the purposes of paragraph 40(3C)(a).  The purpose of this amendment is to prescribe fingerprints under 40(3C)(a) to enable them to be taken for the purposes of satisfying prescribed criteria for the grant of a visa, referred to in subparagraph 40(3A)(c)(iv).

Currently, subregulation 2.04(5) provides that for subsection (40)(5) of the Act, the following types of personal identifier are prescribed for the circumstances mentioned in existing subregulation 2.04(4):

·         fingerprints of the applicant (including those taken using paper and ink or digital livescanning technologies);

·         a photograph or other image of the applicant’s face and shoulders.


New subregulation 2.04(5) is the equivalent to existing subregulation 2.04(3) which provides that for subsection 40(5) of the Act, the following types of personal identifier are prescribed for the circumstances mentioned in subregulation 2.04(2):

·         a photograph or other image of the applicant’s face and shoulders

·         the applicant’s signature.

This amendment re-orders the subregulations to create a more logical sequence.

New subregulation 2.04(6) is the equivalent to existing subregulation 2.04(5).  Existing subregulation 2.04(5) provides that for subsection 40(5) of the Act, the following types of personal identifier are prescribed for the circumstance mentioned in current subregulation 2.04(4):

·         fingerprints of the applicant (including those taken using paper and ink or digital livescanning technologies);

·         a photograph or other image of the applicant’s face and shoulders.

This amendment re-numbers this subregulation, which is necessary due to the increased number of provisions which results from the insertion of new subregulation 2.04(4).

The new subregulation 2.04(6) also includes a consequential amendment in cross referencing and therefore provides that for subsection 40(5) of the Act, the following types of personal identifier are prescribed for the circumstances mentioned in subregulation 2.04(3):

·         fingerprints of the applicant (including those taken using paper and ink or digital livescanning technologies);

·         a photograph or other image of the applicant’s face and shoulders.

Schedule 2 – Amendments of Migration Regulations 1994 relating to balance of family test

Item [1] – Subparagraphs 1.05(1)(a)(ii) and (iii)

This item substitutes a new subparagraph 1.05(1)(a)(ii) and omit subparagraph 1.05(1)(a)(iii) in Division 1.2 of Part 1 of the Migration Regulations 1994 (the Principal Regulations).

Subparagraphs 1.05(1)(a)(ii) and (iii) provide that, for the purposes of regulation 1.05 a person is a child of another person (the parent) if the person is a child or step-child of:

·         a spouse or de facto partner of the parent; or

·         a former spouse or former de facto partner of the parent, if the child was born or adopted:

        before the parent became the spouse or de facto partner of the former spouse or former de facto partner; or

        while the parent was the spouse or de facto partner of the former spouse or former de facto partner.

The new subparagraph 1.05(1)(a)(ii) in Division 1.2 of Part 1 of the Principal Regulations inserts “a current spouse or current de facto partner of the parent; and”.

This amendment ensures that a child or step-child of a current spouse or de facto partner of the parent is the child of that parent for the purposes of regulation 1.05.  This clarification limits the application of the term “child” to children of the parent or children of current spouses or de facto partners of the parent unless the circumstances in subregulation 1.05(3) apply.

Item [2] – Paragraph 1.05(1)(b)

This item omits “the usual country of residence of the parent” from paragraph 1.05(1)(b) and insert “the child’s last known usual country of residence” in paragraph 1.05(1)(b) in Division 1.2 of Part 1 of the Principal Regulations.

Paragraph 1.05(1)(b) currently states that if the whereabouts of a child of the parent is unknown, the child is taken to be resident in the usual country of residence of the parent.

This amendment provides that if the whereabouts of a child of the parent are unknown, the child is taken to be resident in the child’s last known country of residence.  This amendment prevents children being taken to be resident in Australia by virtue of their parent(s) residence in Australia where, as a matter of fact, the children are not resident in Australia. 

Item [3] – Subregulation 1.05(2)

This item substitutes a new subregulation 1.05(2) and insert new subregulations 1.05(2A), (2B), (2C) and (2D) in Division 1.2 of Part 1 of the Principal Regulations

Subregulation 1.05(2) currently establishes the criteria for whether or not a parent satisfies the “Balance of Family” test.

New subregulation 1.05(2) in Division 1.2 of Part 1 of the Principal Regulations provides that, for this regulation, a child of the parent is an eligible child if the child is either an Australian citizen, an Australian permanent resident (usually resident in Australia), or an eligible New Zealand citizen usually resident in Australia.  If the child does not fall into any of those categories, they will be an ineligible child for the purposes of the application of the “Balance of Family” test.

New subregulation 1.05(2A) in Division 1.2 of Part 1 of the Principal Regulations provides that an ineligible child is taken to be resident overseas.

New subregulation 1.05(2B) in Division 1.2 of Part 1 of the Principal Regulations provides that an ineligible child’s country of residence is taken to be the overseas country, or the last overseas country, in which the child was usually resident or, if there is no longer a right of return to the country mentioned above, the child’s country of citizenship.

New subregulation 1.05(2C) in Division 1.2 of Part 1 of the Principal Regulations provides that, a parent satisfies the “Balance of Family” test if the number of eligible children is greater than or equal to the number of ineligible children.

New subregulation 1.05(2D) in Division 1.2 of Part 1 of the Principal Regulations provides that if the greatest number of ineligible children, or children usually resident in a particular overseas country, is less than the number of eligible children, then the parent satisfies the “Balance of Family” test.

This amendment clarifies which children are to be included in the calculations of the “Balance of Family” test, their countries of residence and how they are to be counted in the “Balance of Family” test.  The clarification ensures that, apart from those children in subregulation 1.05(3), all of a parent’s children are to be counted for the purposes of the “Balance of Family” test.

Item [4] - Paragraphs 1.05(3)(c) and (d)

This item substitutes a new paragraph 1.05(3)(c) and omit paragraph 1.05(3)(d) in Division 1.2 of Part 1 of the Principal Regulations.

Current paragraph 1.05(3)(c) refers to a child who is resident in a refugee camp operated by the United Nations High Commissioner for Refugees or the government of Hong Kong and is registered by the Commissioner as a refugee. 

New paragraph 1.05(3)(c) provides that if the child is resident in a refugee camp operated by the United Nations High Commissioner for Refugees and is registered by the Commissioner as a refugee.

New paragraph 1.05(3)(c) reflects the fact that the reference to refugee camps operated by the government of Hong Kong is no longer accurate and therefore removes reference to them from the paragraph.

Paragraph 1.05(3)(d) provides that, in applying the “Balance of Family” test, no account is taken of a child of the parent if:

  • the child is a step-child of the parent;
  • the child had turned 18 at the time at which the parent became the spouse or de facto partner of the child’s other parent; and

one or more of the following applies:

  • the other parent is deceased; or
  • the parent is not in a married relationship or de facto relationship with the other parent.

This amendment omits paragraph 1.05(3)(d) thereby aligning the consideration of step-children under the “Balance of Family” test with the definition of step-child in regulation 1.03 in Division 1.2 in Part 1 of the Principal Regulations.

Schedule 3 – Amendments of Migration Regulations 1994 relating to definitions and Business Skills visas

Item [1] – Regulation 1.03, definition of client number

This item substitutes a new definition of “client number” in regulation 1.03 of Part 1 of the Migration Regulations 1994 (the Principal Regulations).

The new definition provides that “client number” means a client identification number generated by an electronic system maintained by or on behalf of Immigration.

This amendment enables client numbers generated by any of Immigration’s electronic systems to be referred to by clients when corresponding with the Department of Immigration and Citizenship, rather than being restricted to only client numbers generated by the Integrated Client Services Environment as is currently the case.

Item [2] – Schedule 1, subparagraph 1104AA(3)(a)(i)

This item substitutes a new subparagraph 1104AA(3)(a)(i) of Schedule 1 to the Principal Regulations.

Subitem 1104AA(3) sets out the application procedures applicants must follow in order to validly apply for a Business Skills – Business Talent (Migrant) (Class EA) visa.

This item provides that if the applicant’s residential address, given using form 47BU, is in Taiwan or the People’s Republic of China (PRC), including Hong Kong or Macau, the application must be made at the address specified by the Minister, in an instrument in writing, for subparagraph 1104AA(3)(a)(i).

This item enables the Minister to determine, in an instrument in writing, the address where applicants who are residents of Taiwan or PRC (including Hong Kong or Macau) must lodge their applications for a Business Skills – Business Talent (Migrant) (Class EA) visa. 

The purpose of this item is to facilitate the transfer of processing of these applications made by Taiwanese residents from Taipei to Hong Kong.  Specifying the address in an instrument in writing will also enable greater flexibility in processing arrangements in the future.

Item [3] – Schedule 1, subparagraph 1104AA(3)(a)(ii)

This item omits subparagraph 1104AA(3)(a)(ii) of Schedule 1 to the Principal Regulations.

This item is consequential to amendments made by item [2] to this Schedule, which substitute a new subparagraph 1104AA(3)(a)(i) of Schedule 1 to the Principal Regulations. 

Item [4] – Schedule 1, subparagraph 1104AA(3)(a)(iii)

This item substitutes a new subparagraph 1104AA(3)(a)(iii) of Schedule 1 to the Principal Regulations.

This item substitutes the outdated reference to “Gazette Notice” and insert “instrument in writing”.  Subsection 5(1) of the Legislative Instruments Act 2003 defines a legislative instrument as an instrument in writing that is of a legislative character and that is or was made in the exercise of a power delegated by the Parliament.  Inserting the term “instrument in writing” in place of “Gazette Notice” brings the language of the Regulations in line with the terminology used in the Legislative Instruments Act 2003.

This item also removes the reference to “the address in Perth”.  The amendment instead refers to an “address specified by the Minister, in an instrument in writing, for this subparagraph”.  This enables greater flexibility in the future should it be necessary for the address to be changed from Perth to a different location.


Item [5] – Schedule 1, subparagraph 1202A(3)(a)(i)

This item substitutes a new subparagraph 1202A(3)(a)(i) of Schedule 1 to the Principal Regulations.

Currently, subitem 1202A(3) sets out the application procedures applicants must follow in order to validly apply for a Business Skills (Provisional) (Class UR) visa, which includes the following visa subclasses:

·         Subclass 160 (Business Owner (Provisional));

·         Subclass 161 (Senior Executive (Provisional));

·         Subclass 162 (Investor (Provisional));

·         Subclass 163 (State/Territory Sponsored Business Owner (Provisional));

·         Subclass 164 (State/Territory Sponsored Senior Executive (Provisional)); and

·         Subclass 165 (State/Territory Sponsored Investor (Provisional)).

This item provides that if the applicant’s residential address, given using form 47BT, is in Taiwan or the People’s Republic of China (PRC), including Hong Kong or Macau, the application must be made at the address specified by the Minister, in an instrument in writing, for subparagraph 1202A(3)(a)(i).

This item enables the Minister to determine, in an instrument in writing, the address where applicants who are residents of Taiwan or PRC (including Hong Kong or Macau) must lodge their applications for a Business Skills (Provisional)(Class UR) visa. 

The purpose of this item is to facilitate the transfer of processing of these applications made by Taiwanese residents from Taipei to Hong Kong.  Specifying the address in an instrument in writing will also enable greater flexibility in processing arrangements in the future.

Item [6] – Schedule 1, subparagraph 1202A(3)(a)(ii)

This item omits subparagraph 1202A(3)(a)(ii) of Schedule 1 to the Principal Regulations.

This item is consequential to amendments made by item [5] to this Schedule, which substitute new subparagraph 1202A(3)(a)(i) of Schedule 1 to the Principal Regulations. 

Item [7] – Schedule 1, subparagraph 1202A(3)(a)(iii)

This item substitutes a new subparagraph 1202A(3)(a)(iii) of Schedule 1 to the Principal Regulations.

This item substitutes the outdated reference to “Gazette Notice” and insert “instrument in writing”.  Subsection 5(1) of the Legislative Instruments Act 2003 defines a legislative instrument as an instrument in writing that is of a legislative character and that is or was made in the exercise of a power delegated by the Parliament.  Inserting the term “instrument in writing” in place of “Gazette Notice” brings the language of the Regulations in line with the terminology used in the Legislative Instruments Act 2003.

This item also removes the reference to “the address in Perth”.  The amendment instead refers to an “address specified by the Minister, in an instrument in writing, for this subparagraph”.  This enables greater flexibility in the future should it be necessary for the address to be changed from Perth to a different location.

Schedule 4 – Amendments of Migration Regulations 1994 relating to public interest criteria

Item [1] – Subregulation 2.25A(1)

This item makes a technical amendment to subregulation 2.25A(1) in Part 2 of the Migration Regulations 1994 (the Principal Regulations) by omitting a reference to “4005 (a), 4005 (b), 4005 (c),” and inserting a reference to “4005 (1) (a), 4005 (1) (b), 4005 (1) (c),”.

This item is consequential to the amendment made by item [2] below.

Item [2] – Schedule 4, clause 4005

This item makes a technical amendment to clause 4005 of Schedule 4 to the Principal Regulations by omitting:

“4005        The applicant:”

and then inserting:

“4005        (1)  The applicant:”.

This item is consequential to the insertion of two new subclauses by item [6] of this Schedule.

Item [3] – Schedule 4, before paragraph 4005(a)

This item inserts new paragraphs (aa) and (ab) in clause 4005 of Schedule 4 to the Principal Regulations.

New paragraph (aa)

New paragraph (aa) provides that, if an applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph, then the applicant must undertake any medical assessment specified in the instrument and must be assessed by the person specified in the instrument unless a Medical Officer of the Commonwealth decides otherwise. 

Among other things, clause 4005 currently requires the following:

  • the applicant is free from tuberculosis and free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
  • the applicant is not a person who has a disease or condition such that a person who has it would be likely to require health care or community services during their proposed stay period in Australia; and
  • consideration as to whether the provision of such services would be likely to result in a significant cost to the Australian community in the areas of health care and community services, or prejudice the access of an Australian citizen or permanent resident to health care or community services, regardless of whether the health care or community services will actually be used in connection with the applicant.

However, clause 4005 does not currently provide for medical assessments, such as a chest x-ray, which an applicant must undertake.  Currently, under the Department of Immigration and Citizenship’s policy, most applicants undertake medical assessments by reference to their country of citizenship or residence, intended activities, and their intended stay period in Australia.  The policy also provides that the individual circumstances of an applicant may be considered when determining the relevant medical assessments. 

The purpose of new paragraph (aa) is to clearly provide in the Principal Regulations that, if an applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph, then they must:

·         undertake all medical assessments specified by the Minister in an instrument in writing for this paragraph; and

·         be assessed by the person specified in the instrument. 

The effect of this new paragraph is that an applicant must undertake medical assessments by reference to the instrument. 

The purpose of new paragraph (aa) is also to provide for discretion by a Medical Officer of the Commonwealth to deal with certain circumstances of individual applicants.  Personal circumstances of some applicants would mean, for example, that it is more appropriate for them to undertake other medical assessments.

Another purpose of the amendment is to address the recent decision by the Migration Review Tribunal (MRT) in 0901884 [2010] MRTA 905.  Under the Department of Immigration and Citizenship’s policy, an applicant was to undertake a chest x-ray to determine whether the applicant had active tuberculosis.  In this case, the applicant refused to undertake a chest x-ray and the MRT accepted the applicant’s skin test (Mantoux test) for latent tuberculosis as an alternative test.  The Department of Immigration and Citizenship’s view is that the result of a chest x-ray (as opposed to other tests) should be required as evidence of active tuberculosis status. 

Therefore, the MRT decision has an implication that if an applicant chooses to undertake a medical assessment other than a chest x-ray regarding their tuberculosis status, then public health in Australia may be exposed to an increased threat of tuberculosis.

It is intended that relevant medical assessments such as a chest x-ray would be specified by the Minister in an instrument in writing for new paragraph (aa).

More broadly, this same risk applies to all aspects of the health requirement.  If it is not addressed through regulation amendments, it could have a serious impact on the operation of the immigration health requirement and, through it, the health of the Australian community.


New paragraph (ab)

New paragraph (ab) requires that the applicant must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment.

Among other things, clause 4005 currently requires the following:

  • the applicant is free from tuberculosis and free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
  • the applicant is not a person who has a disease or condition such that a person who has it would be likely to require health care or community services during their proposed stay period in Australia; and
  • consideration as to whether the provision of such services would be likely to result in a significant cost to the Australian community in the areas of health care and community services, or prejudice the access of an Australian citizen or permanent resident to health care or community services, regardless of whether the health care or community services will actually be used in connection with the applicant.

In considering whether the applicant satisfies these requirements, a Medical Officer of the Commonwealth may request the applicant to undertake a medical assessment(s), or a further medical assessment(s). 

The purpose of new paragraph (ab) is to require the applicant to comply with the Medical Officer of the Commonwealth’s request to undertake a medical assessment.  This would help:

·         protect the Australian community from public health and safety risks;

·         contain public expenditure on health care and community services; and

·         safeguard the access of Australian citizens and permanent residents to health care and community services in short supply.

Item [4] – Schedule 4, paragraph 4005(c)

This item substitutes a new paragraph for current paragraph 4005(c) of Schedule 4 to the Principal Regulations.  Consequential to the technical amendment made by item [2] of this Schedule, this new paragraph (c) can also be referred to as new paragraph 4005(1)(c).

This new paragraph provides that an applicant satisfies new subparagraphs 4005(1)(c)(i) and (ii) if the applicant is free from a disease or condition in relation to which:

·         a person who has the disease or condition would be likely to require health care or community services, or meet the medical criteria for the provision of a community service, during the period described in new subclause 4005(2); and

·         the provision of the health care or community services would be likely to result in a significant cost to the Australian community in the areas of health care and community services, or prejudice the access of an Australian citizen or permanent resident to health care or community services, regardless of whether the health care or community services will actually be used in connection with the applicant.

The purpose of this amendment is to replace a reference to “during the period of the applicant’s proposed stay in Australia” in the current subparagraph 4005(c)(i) with a reference to “during the period described in subclause (2)” as a result of the insertion of new subclause 4005(2) by item [6] of this Schedule.

The purpose of this amendment is to also make minor amendments to the wording of the current paragraph 4005(c) to be consistent with the wording in the preceding paragraphs (a) and (b).

Further, the wording of new subparagraph 4005(1)(c)(ii) remains substantially the same as the wording of the current paragraph 4005(c)(ii).  However, new sub-subparagraph 4005(1)(c)(ii)(A) does not apply if the circumstances contained in new subclause 4005(3) exist (see item [6] of this Schedule).

Item [5] Schedule 4, paragraph 4005(d)

This item substitutes a new paragraph for current paragraph 4005(d) in clause 4005 of Schedule 4 to the Principal Regulations. 

The purpose of this amendment is to correct an existing error by replacing the words “the applicant has provided such an undertaking” in the current paragraph (d) with the words “— has provided the undertaking”, because clause 4005 starts with the words “The applicant”.  The new paragraph (d) remains substantially the same as the current paragraph (d).

Item [6] Schedule 4, clause 4005

This item inserts new subclauses 4005(2) and (3) into clause 4005 of Schedule 4 to the Principal Regulations.   

New subclause 4005(2)

New subclause 4005(2) contains new paragraphs 4005(2)(a) and (b), relating to the relevant period for the purpose of new subparagraph 4005(1)(c)(i) inserted by item [4] of this Schedule.

The purpose of this amendment is to provide for the relevant stay period in Australia which an applicant is assessed against when determining whether the applicant satisfies the health requirement in clause 4005. 

Among other things, paragraph 4005(c)(i) currently provides for “the period of the applicant’s proposed stay in Australia” to be taken into account in determining whether the applicant is not a person who has a disease or condition such that a person who has it would be likely to require health care or community services, or meet the medical criteria for the provision of a community service, during that proposed stay period. 

However, it is problematic to determine the applicant’s proposed stay in Australia.  For example, the applicant fails to specify their proposed stay period, or the applicant repeatedly makes changes to their proposed periods of stay in Australia when they do not satisfy the health requirement in relation to their initial proposed periods of stay. 

To deal with these issues, new paragraphs 4005(2)(a) and (b) provide for the relevant stay period in Australia  in relation to applications for permanent and temporary visas for the purpose of assessing the health requirement under clause 4005.

New paragraph 4005(2)(a)

New paragraph 4005(2)(a) provides that, for new subparagraph 4005(1)(c)(i), if an application is for a permanent visa, then the period is the period commencing when the application is made. 

The effect of this new paragraph, in conjunction with new paragraph 4005(1)(c) inserted by item [4] of this Schedule, is that if an application is for a permanent visa, then the applicant’s health will be assessed for the period commencing when the application is made.

New paragraph 4005(2)(b)

New paragraph 4005(2)(b) contains new subparagraphs 4005(2)(b)(i) and (ii).

New subparagraph 4005(2)(b)(i) provides that for new subparagraph 4005(1)(c)(i), if an application is for a temporary visa, then the period is the period for which the Minister intends to grant the visa. 

The effect of this new subparagraph, in conjunction with new paragraph 4005(1)(c) inserted by item [4] of this Schedule, is that if an application is for a temporary visa, then the applicant’s health will be assessed for the period that the Minister intends to grant the visa for.

New subparagraph 4005(2)(b)(ii) provides that for new subparagraph 4005(1)(c)(i), if an application is for a temporary visa of a subclass specified by the Minister in an instrument in writing for the purpose of new subparagraph 4005(2)(b)(ii), then the period is the period commencing when the application is made.  It is intended that the instrument would specify temporary visas that may lead to a permanent visa.  An example of a temporary visa subclass that may be included is the Subclass 820 (Partner) visa, the grant of which may lead to the grant of a Subclass 801 (Partner) visa, which is a permanent visa.

The effect of this new subparagraph, in conjunction with new paragraph 4005(1)(c) inserted by item [4] of this Schedule, is that if an application is for a temporary visa of a subclass specified in the instrument for the purpose of new subparagraph 4005(2)(b)(ii), then the applicant’s health will be assessed for the same period for which a permanent visa is assessed, that is, a period commencing when the application is made. 

New subclause 4005(3)

This item also inserts new subclause 4005(3) into clause 4005 of Schedule 4 to the Principal Regulations. 

This new subclause provides that new sub-subparagraph 4005(1)(c)(ii)(A) does not apply if:

  • the applicant would not be eligible for the provision of the health care or community services; and
  • the ineligibility would be due to the temporary visa for which the applicant is applying being of a particular subclass; and
  • the subclass is not specified by the Minister in an instrument in writing made under new subparagraph 4005(2)(b)(ii).

The purpose of this amendment is to address the Federal Court’s decision in Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626 (Robinson).  The Federal Court relevantly held at paragraph [43] that:

A proper construction of Public Interest Criterion 4005 of the [Principal Regulations], requires the MOC [Medical Officer of the Commonwealth] to ascertain the form or level of condition suffered by the applicant in question and then apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.  It is not the case that the MOC is to proceed to make the assessment at a higher level of generality by reference to a generic form of the condition.

Therefore, when considering the current paragraph 4005(c) in relation to provision of health care or community services to a person and the potential costs of the disease or condition that the person has, the “hypothetical person” test established in the case of Robinson must be applied.  An interpretation of this test is that the applicant’s individual circumstances must not be taken into account.  For example, although certain applicants would not be eligible for a particular service in Australia (due to the type of visa they are applying for and would hold if granted), this could not be taken into account for the purpose of deciding whether the provision of the service would be likely to result in a significant cost to the Australian community in the areas of health care and community services.

The Federal Court decision is problematic for temporary visa applicants because in most cases, the applicants (due to the type of visa they are applying for and would hold if granted) would not have access to the same range of publicly-funded services available to an Australian resident such as a permanent visa holder.  Hence, despite having a significant medical condition, the costs of this condition would not be passed on to the Australian community, as the person would not be eligible for the services and therefore would be expected to pay for any services required either personally or through a health insurance scheme, for example.

It certainly would not seem fair or reasonable, for example, to refuse to grant a temporary visa to an applicant with a disability, or an elderly applicant, on the basis of services that they would not be eligible for when in Australia (due to the type of visa they are applying for and would hold if granted).

Further, the purpose of new paragraph 4005(3)(c) is that new sub-subparagraph 4005(1)(c)(ii)(A) does not apply if an applicant applies for a temporary visa being of a particular subclass that is not specified in the instrument made under new subparagraph 4005(2)(b)(ii).  It is intended that this instrument would specify temporary visas that may lead to a permanent visa, and persons who hold this type of temporary visa would be eligible for health care or community services when they are granted a permanent visa in Australia. 

Therefore, the effect of new paragraph 4005(3)(c) is that if an applicant applies for a visa subclass that is not specified in that instrument, then new sub-subparagraph 4005(1)(c)(ii)(A) does not apply because such an applicant would not be eligible for health care or community services when they are in Australia.


Item [7] – Schedule 4, before paragraph 4006A(1)(a)

This item inserts new paragraphs 4006A(1)(aa) and (ab) into subclause 4006A(1) of Schedule 4 to the Principal Regulations.

New paragraph 4006A(1)(aa)

New paragraph 4006A(1)(aa) provides that, if an applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph, then the applicant must undertake any medical assessment specified in the instrument and must be assessed by the person specified in the instrument unless a Medical Officer of the Commonwealth decides otherwise. 

Among other things, clause 4006A currently requires the following:

  • the applicant is free from tuberculosis and free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
  • the applicant is not a person who has a disease or condition such that a person who has it would be likely to require health care or community services during their proposed stay period in Australia; and
  • consideration as to whether the provision of such services would be likely to result in a significant cost to the Australian community in the areas of health care and community services, or prejudice the access of an Australian citizen or permanent resident to health care or community services, regardless of whether the health care or community services will actually be used in connection with the applicant.

However, clause 4006A does not currently provide for medical assessments, such as a chest x-ray, which an applicant must undertake.  Currently, under the Department of Immigration and Citizenship’s policy, most applicants undertake medical assessments by reference to their country of citizenship or residence, intended activities, and their intended stay period in Australia.  The policy also provides that the individual circumstances of an applicant may be considered when determining the relevant medical assessments. 

The purpose of new paragraph 4006A(1)(aa) is to clearly provide in the Principal Regulations that, if an applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph, then they must:

·         undertake all medical assessments specified by the Minister in an instrument in writing for this paragraph; and

·         be assessed by the person specified in the instrument. 

The effect of this new paragraph is that an applicant must undertake medical assessments by reference to the instrument. 

The purpose of new paragraph 4006A(aa) is also to provide for discretion by a Medical Officer of the Commonwealth to deal with certain circumstances of individual applicants.  Personal circumstances of some applicants will mean, for example, that it is more appropriate for them to undertake other medical assessments.

Another purpose of the amendment is to address the recent decision by the Migration Review Tribunal (MRT) in 0901884 [2010] MRTA 905.  Under the Department of Immigration and Citizenship’s policy, an applicant was to undertake a chest x-ray to determine whether the applicant had active tuberculosis.  In this case, the applicant refused to undertake a chest x-ray, and the MRT accepted the applicant’s skin test (Mantoux test) for latent tuberculosis as an alternative test.  The Department of Immigration and Citizenship’s view is that the result of a chest x-ray (as opposed to other tests) should be required as evidence of active tuberculosis status. 

Therefore, the MRT decision has an implication that if an applicant chooses to undertake a medical assessment other than a chest x-ray regarding their tuberculosis status, then public health in Australia may be exposed to an increased threat of tuberculosis.

It is intended that relevant medical assessments such as a chest x-ray would be specified by the Minister in an instrument in writing for new paragraph 4006A(aa).

More broadly, this same risk applies to all aspects of the health requirement.  If it is not addressed through regulation amendments, it could have a serious impact on the operation of the immigration health requirement and, through it, the health of the Australian community.

New paragraph 4006A(1)(ab)

New paragraph 4006A(1)(ab) requires that the applicant must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment.

Among other things, clause 4006A currently requires the following:

  • the applicant is free from tuberculosis and free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
  • the applicant is not a person who has a disease or condition such that a person who has it would be likely to require health care or community services during their proposed stay period in Australia; and
  • consideration as to whether the provision of such services would be likely to result in a significant cost to the Australian community in the areas of health care and community services, or prejudice the access of an Australian citizen or permanent resident to health care or community services, regardless of whether the health care or community services will actually be used in connection with the applicant.

In considering whether the applicant satisfies these requirements, a Medical Officer of the Commonwealth may request the applicant to undertake a medical assessment(s), or a further medical assessment(s). 

The purpose of new paragraph 4006A(1)(ab) is to require the applicant to comply with the Medical Officer of the Commonwealth’s request to undertake a medical assessment.  This would help:

·          protect the Australian community from public health and safety risks;

·         contain public expenditure on health care and community services; and

·         safeguard the access of Australian citizens and permanent residents to health care and community services in short supply.

Item [8] – Schedule 4, paragraph 4006A(1)(c)

This item substitutes new paragraph 4006A(1)(c) in subclause 4006A(1) of Schedule 4 to the Principal Regulations. 

This new paragraph provides that an applicant satisfies new subparagraphs 4006A(1)(c)(i) and (ii) if, subject to subclause 4006A(2), the applicant is free from a disease or condition in relation to which:

  • a person who has the disease or condition would be likely to require health care or community services, or meet the medical criteria for the provision of a community service, during the period described in new subclause 4006A(1A); and
  • the provision of the health care or community services would be likely to result in a significant cost to the Australian community in the areas of health care and community services, or prejudice the access of an Australian citizen or permanent resident to health care or community services, regardless of whether the health care or community services will actually be used in connection with the applicant.

The purpose of this amendment is to replace a reference to “during the period of the applicant’s proposed stay in Australia” in the current subparagraph 4006A(1)(c)(i) with a reference to “during the period described in subclause (1A)” as a result of the insertion of new subclause 4006A(1A) by item [10] of this Schedule.

The purpose of this amendment is to also make minor amendments to the wording of the current paragraph 4006A(1)(c) to be consistent with the wording in the preceding paragraphs 4006A(a) and (b).

Further, the wording of new subparagraph 4006A(1)(c)(ii) remains substantially the same as the wording of the current subparagraph 4006A(1)(c)(ii).  However, new sub-subparagraph 4006A(1)(c)(ii)(A) does not apply if the circumstances contained in new subclause 4006A(1B) exist (see item [10] of this Schedule).

Item [9] Schedule 4, paragraph 4006A(1)(d)

This item substitutes a new paragraph 4006A(1)(d) in subclause 4006A(1) of Schedule 4 to the Principal Regulations. 

The purpose of this amendment is to correct an existing error by replacing the words “the applicant has provided such an undertaking” in the current paragraph (d) with the words “— has provided the undertaking”, because subclause 4006A(1) starts with the words “The applicant”.  The new paragraph 4006A(1)(d) remains substantially the same as the current paragraph 4006A(1)(d).


Item [10] Schedule 4, after subclause 4006A(1)

This item inserts new subclauses 4006A(1A) and (1B) into clause 4006A of Schedule 4 to the Principal Regulations.   

New subclause 4006A(1A)

New subclause 4006A(1A) contains new paragraphs 4006A(1A)(a) and (b), relating to the relevant period for the purpose of new subparagraph 4006A(1)(c)(i) inserted by item [8] of this Schedule.

The purpose of this amendment is to provide for the relevant stay period in Australia which an applicant is assessed against when determining whether the applicant satisfies the health requirement in clause 4006A. 

Among other things, paragraph 4006A(1)(c)(i) currently provides for “the period of the applicant’s proposed stay in Australia” to be taken into account in determining whether the applicant is not a person who has a disease or condition such that a person who has it would be likely to require health care or community services, or meet the medical criteria for the provision of a community service, during that proposed stay period. 

However, it is problematic to determine the applicant’s proposed stay in Australia.  For example, the applicant fails to specify their proposed stay period, or the applicant repeatedly makes changes to their proposed periods of stay in Australia when they do not satisfy the health requirement in relation to their initial proposed periods of stay. 

To deal with these issues, new paragraphs 4006A(1A)(a) and (b) provide for the relevant stay period in Australia in relation to applications for permanent and temporary visas for the purpose of assessing the health requirement under clause 4006A.

New paragraph 4006A(1A)(a)

New paragraph 4006A(1A)(a) provides that, for new subparagraph 4006A(1)(c)(i), if an application is for a permanent visa, then the period is the period commencing when the application is made. 

The effect of this new paragraph, in conjunction with new paragraph 4006A(1)(c) inserted by item [8] of this Schedule, is that if an application is for a permanent visa, then the applicant’s health will be assessed for the period commencing when the application is made.

New paragraph 4006A(1A)(b)

New paragraph 4006A(1A)(b) contains new subparagraphs 4006A(1A)(b)(i) and (ii).

New subparagraph 4006A(1A)(b)(i) provides that for new subparagraph 4006A(1)(c)(i), if an application is for a temporary visa, then the period is the period for which the Minister intends to grant the visa.

The effect of this new paragraph, in conjunction with new paragraph 4006A(1)(c) inserted by item [8] of this Schedule, is that if an application is for a temporary visa, then the applicant’s health will be assessed for the period that the Minister intends to grant the visa for.

New subparagraph 4006A(1A)(b)(ii) provides that for new subparagraph 4006A(1)(c)(i), if an application is for a temporary visa of a subclass specified by the Minister in an instrument in writing for the purpose of new subparagraph 4006A(1A)(b)(ii), then the period is the period commencing when the application is made.  It is intended that the instrument would specify temporary visas that may lead to a permanent visa.  An example of a temporary visa subclass that may be included is the Subclass 820 (Partner) visa, the grant of which may lead to the grant of a Subclass 801 (Partner) visa, which is a permanent visa.

The effect of this new subparagraph, in conjunction with new paragraph 4006A(1)(c) inserted by item [8] of this Schedule, is that if an application is for a temporary visa of a subclass specified in the instrument for the purpose of new subparagraph 4006A(1A)(b)(ii), then the applicant’s health will be assessed for the period for which a permanent visa is assessed, that is, a period commencing when the application is made.. 

New subclause 4006A(1B)

This item also inserts new subclause 4006A(1B) of Schedule 4 to the Principal Regulations.  This new subclause provides that new sub-subparagraph 4006A(1)(c)(ii)(A) does not apply if:

  • the applicant would not be eligible for the provision of the health care or community services; and
  • the ineligibility would be due to the temporary visa for which the applicant is applying being of a particular subclass; and
  • the subclass is not specified by the Minister in an instrument in writing made under new subparagraph 4006A(1A)(b)(ii).

The purpose of this amendment is to address the Federal Court’s decision in Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626 (Robinson).  The Federal Court relevantly held at paragraph [43] that:

A proper construction of Public Interest Criterion 4005 of the [Principal Regulations], requires the MOC [Medical Officer of the Commonwealth] to ascertain the form or level of condition suffered by the applicant in question and then apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.  It is not the case that the MOC is to proceed to make the assessment at a higher level of generality by reference to a generic form of the condition.

Although the case of Robinson deals with paragraph 4005(c), the decision is relevant to the interpretation of paragraph 4006A(1)(c) because the two paragraphs are significantly similar. 

Therefore, when considering the current paragraph 4006A(1)(c) in relation to provision of health care or community services to a person and the potential costs of the disease or condition that the person has, the “hypothetical person” test established in the case of Robinson must be applied.  An interpretation of this test is that the applicant’s individual circumstances must not be taken into account.  For example, although certain applicants would not be eligible for a particular service in Australia (due to the type of visa they are applying for and would hold if granted), this could not be taken into account for the purpose of deciding whether the provision of the service would be likely to result in a significant cost to the Australian community in the areas of health care and community services.

The Federal Court decision is problematic for temporary visa applicants because in most cases, the applicants (due to the type of visa they are applying for and would hold if granted) would not have access to the same range of publicly-funded services available to an Australian resident such as a permanent visa holder.  Hence, despite having a significant medical condition, the costs of this condition would not be passed on to the Australian community, as the person would not be eligible for the services and therefore would be expected to pay for any services required either personally or through a health insurance scheme, for example.

It certainly would not seem fair or reasonable, for example, to refuse to grant a temporary visa to an applicant with a disability, or an elderly applicant, on the basis of services that they would not be eligible for when in Australia (due to the type of visa they are applying for and would hold if granted).

Further, the purpose of new paragraph 4006A(1B)(c) is that new sub-subparagraph 4006A(1)(c)(ii)(A) does not apply if an applicant applies for a temporary visa being of a particular subclass that is not specified in the instrument made under new subparagraph 4006A(1A)(b)(ii).  It is intended that this instrument would specify temporary visas that may lead to a permanent visa, and persons who hold this type of temporary visa would be eligible for health care or community services when they are granted a permanent visa in Australia. 

Therefore, the effect of new paragraph 4006A(1B)(c) is that if an applicant applies for a visa subclass that is not specified in that instrument, then new sub-subparagraph 4006A(1)(c)(ii)(A) does not apply because such an applicant would not be eligible for health care or community services when they are in Australia.

Item [11] – Schedule 4, before paragraph 4007(1)(a)

This item inserts new paragraphs 4007(1)(aa) and (ab) in clause 4007(1) of Schedule 4 to the Principal Regulations.

New paragraph 4007(1)(aa)

New paragraph (aa) provides that, if an applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph, then the applicant must undertake any medical assessment specified in the instrument and must be assessed by the person specified in the instrument unless a Medical Officer of the Commonwealth decides otherwise. 

Among other things, clause 4007 currently requires the following:

  • the applicant is free from tuberculosis and free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
  • the applicant is not a person who has a disease or condition such that a person who has it would be likely to require health care or community services during their proposed stay period in Australia; and
  • consideration as to whether the provision of such services would be likely to result in a significant cost to the Australian community in the areas of health care and community services, or prejudice the access of an Australian citizen or permanent resident to health care or community services, regardless of whether the health care or community services will actually be used in connection with the applicant.

However, clause 4007 does not currently provide for medical assessments, such as a chest x-ray, which an applicant must undertake.  Currently, under the Department of Immigration and Citizenship’s policy, most applicants undertake medical assessments by reference to their country of citizenship or residence, intended activities, and their intended stay period in Australia.  The policy also provides that the individual circumstances of an applicant may be considered when determining the relevant medical assessments. 

The purpose of new paragraph 4007(1)(aa) is to clearly provide in the Principal Regulations that, if an applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph, then they must:

·         undertake all medical assessments specified by the Minister in an instrument in writing for this paragraph; and

·         be assessed by the person specified in the instrument. 

The effect of this new paragraph is that an applicant must undertake medical assessments by reference to the instrument. 

The purpose of new paragraph 4007(1)(aa) is also to provide for discretion by a Medical Officer of the Commonwealth to deal with certain circumstances of individual applicants.  Personal circumstances of some applicants will mean, for example, that it is more appropriate for them to undertake other medical assessments.

Another purpose of the amendment is to address the recent decision by the Migration Review Tribunal (MRT) in 0901884 [2010] MRTA 905.  Under the Department of Immigration and Citizenship’s policy, an applicant was to undertake a chest x-ray to determine whether the applicant had active tuberculosis.  In this case, the applicant refused to undertake a chest x-ray, and the MRT accepted the applicant’s skin test (Mantoux test) for latent tuberculosis as an alternative test.  The Department of Immigration and Citizenship’s view is that the result of a chest x-ray (as opposed to other tests) should be required as evidence of active tuberculosis status. 

Therefore, the MRT decision has an implication that if an applicant chooses to undertake a medical assessment other than a chest x-ray regarding their tuberculosis status, then public health in Australia may be exposed to an increased threat of tuberculosis.

It is intended that relevant medical assessments such as a chest x-ray would be specified by the Minister in an instrument in writing for new paragraph 4007(1)(aa).

More broadly, this same risk applies to all aspects of the health requirement.  If it is not addressed through regulation amendments, it could have a serious impact on the operation of the immigration health requirement and, through it, the health of the Australian community.


New paragraph 4007(1)(ab)

New paragraph 4007(1)(ab) requires that the applicant must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment.

Among other things, clause 4007 currently requires the following:

  • the applicant is free from tuberculosis and free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
  • the applicant is not a person who has a disease or condition such that a person who has it would be likely to require health care or community services during their proposed stay period in Australia; and
  • consideration as to whether the provision of such services would be likely to result in a significant cost to the Australian community in the areas of health care and community services, or prejudice the access of an Australian citizen or permanent resident to health care or community services, regardless of whether the health care or community services will actually be used in connection with the applicant.

In considering whether the applicant satisfies these requirements, a Medical Officer of the Commonwealth may request the applicant to undertake a medical assessment(s), or a further medical assessment(s). 

The purpose of new paragraph 4007(1)(ab) is to require the applicant to comply with the Medical Officer of the Commonwealth’s request to undertake a medical assessment.  This would help:

·         protect the Australian community from public health and safety risks;

·         contain public expenditure on health care and community services; and

·         safeguard the access of Australian citizens and permanent residents to health care and community services in short supply.

Item [12] – Schedule 4, paragraph 4007(1)(c)

This item substitutes new paragraph 4007(1)(c) in clause 4007(1) of Schedule 4 to the Principal Regulations. 

This new paragraph provides that an applicant satisfies new subparagraphs 4007(1)(c)(i) and (ii) if, subject to subclause 4007(2), the applicant is free from a disease or condition in relation to which:

·         a person who has the disease or condition would be likely to require health care or community services, or meet the medical criteria for the provision of a community service, during the period described in new subclause 4007(1A); and

·         the provision of the health care or community services would be likely to result in a significant cost to the Australian community in the areas of health care and community services, or prejudice the access of an Australian citizen or permanent resident to health care or community services, regardless of whether the health care or community services will actually be used in connection with the applicant.

The purpose of this amendment is to replace a reference to “during the period of the applicant’s proposed stay in Australia” in the current subparagraph 4007(1)(c)(i) with a reference to “during the period described in subclause (1A)” as a result of the insertion of new subclause 4007(1A) by item [14] of this Schedule.

The purpose of this amendment is to also make minor amendments to the wording of the current paragraph 4007(1)(c) to be consistent with the wording in the preceding paragraphs 4007(1)(a) and (b).

Further, the wording of new subparagraph 4007(1)(c)(ii) remains substantially the same as the wording of the current paragraph 4007(1)(c)(ii).  However, new sub-subparagraph 4007(1)(c)(ii)(A) does not apply if the circumstances contained in new subclause 4007(1B) exist (see item [14] of this Schedule).

Item [13] Schedule 4, paragraph 4007(1)(d)

This item substitutes new paragraph 4007(1)(d) in subclause 4007 (1) of Schedule 4 to the Principal Regulations. 

The purpose of this proposed amendment is to correct an existing error by replacing the words “the applicant has provided such an undertaking” in the current paragraph 4007(1)(d) with the words “— has provided the undertaking”, because subclause 4007(1) starts with the words “The applicant”.  The new paragraph 4007(1)(d) remains substantially the same as the current paragraph 4007(1)(d).

Item [14] Schedule 4, after subclause 4007(1)

This item inserts new subclauses 4007(1A) and (1B) into clause 4007 of Schedule 4 to the Principal Regulations.   

New subclause 4007(1A)

New subclause 4007(1A) contains new paragraphs 4007(1A)(a) and (b), relating to the relevant period for the purpose of new subparagraph 4007(1)(c)(i) inserted by item [12] of this Schedule.

The purpose of this amendment is to provide for the relevant stay period in Australia which an applicant is assessed against when determining whether the applicant satisfies the health requirement in clause 4007. 

Among other things, paragraph 4007(1)(c)(i) currently provides for “the period of the applicant’s proposed stay in Australia” to be taken into account in determining whether the applicant is not a person who has a disease or condition such that a person who has it would be likely to require health care or community services, or meet the medical criteria for the provision of a community service, during that proposed stay period. 

However, it is problematic to determine the applicant’s proposed stay in Australia.  For example, the applicant fails to specify their proposed stay period or the applicant repeatedly makes changes to their proposed periods of stay in Australia when they do not satisfy the health requirement in relation to their initial proposed periods of stay. 

To deal with these issues, new paragraphs 4007(1A)(a) and (b) provide for the relevant period in Australia in relation to applications for permanent and temporary visas for the purpose of assessing the health requirement under clause 4007.

New paragraph 4007(1A)(a)

New paragraph 4007(1A)(a) provides that, for new subparagraph 4007(1)(c)(i), if an application is for a permanent visa, then the period is the period commencing when the application is made. 

The effect of this new paragraph, in conjunction with new paragraph 4007(1)(c) inserted by item [12] of this Schedule, is that if an application is for a permanent visa, then the applicant’s health will be assessed for the period commencing when the application is made.

New paragraph 4007(1A)(b)

New paragraph 4007(1A)(b) contains new subparagraphs 4007(1A)(b)(i) and (ii).

New subparagraph 4007(1A)(b)(i) provides that for new subparagraph 4007(1)(c)(i), if an application is for a temporary visa, then the period is the period for which the Minister intends to grant the visa. 

The effect of this new paragraph, in conjunction with new paragraph 4007(1)(c) inserted by item [12] of this Schedule, is that if an application is for a temporary visa, then the applicant’s health will be assessed for the period that the Minister intends to grant the visa for.

New subparagraph 4007(1A)(b)(ii) provides that for new subparagraph 4007(1)(c)(i), if an application is for a temporary visa of a subclass specified by the Minister in an instrument in writing for the purpose of new subparagraph 4007(1A)(b)(ii), then the period is the period commencing when the application is made.  It is intended that the instrument would specify temporary visas that may lead to permanent visas.  An example of a temporary visa subclass that may be included is the Subclass 820 (Partner) visa, the grant of which may lead to the grant of a Subclass 801 (Partner) visa, which is a permanent visa.

The effect of this new paragraph, in conjunction with new paragraph 4006A(1)(c) inserted by item [8] of this Schedule, is that if an application is for a temporary visa of a subclass specified in the instrument for the purpose of new subparagraph 4007(1A)(b)(ii), then the applicant’s health will be assessed for the same period for which a permanent visa is assessed, that is, a period commencing when the application is made. 

New subclause 4007(1B)

This item inserts new subclause 4007(1B) into clause 4007 of Schedule 4 to the Principal Regulations.  This new subclause provides that new sub-subparagraph 4007(1)(c)(ii)(A) does not apply if:

  • the applicant would not be eligible for the provision of the health care or community services; and
  • the ineligibility would be due to the temporary visa for which the applicant is applying being of a particular subclass; and
  • the subclass is not specified by the Minister in an instrument in writing made under new subparagraph 4007(1A)(b)(ii).

The purpose of this amendment is to address the Federal Court’s decision in Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626 (Robinson).  The Federal Court relevantly held at paragraph [43] that:

A proper construction of Public Interest Criterion 4005 of the [Principal Regulations], requires the MOC [Medical Officer of the Commonwealth] to ascertain the form or level of condition suffered by the applicant in question and then apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.  It is not the case that the MOC is to proceed to make the assessment at a higher level of generality by reference to a generic form of the condition.

Although the case of Robinson deals with paragraph 4005(c), the decision is relevant to the interpretation of paragraph 4007(1)(c) because the two paragraphs are significantly similar. 

Therefore, when considering the current paragraph 4007(1)(c) in relation to provision of health care or community services to a person and the potential costs of the disease or condition that the person has, the “hypothetical person” test established in the case of Robinson must be applied.  An interpretation of this test is that the applicant’s individual circumstances must not be taken into account.  For example, although certain applicants would not be eligible for a particular service in Australia (due to the type of visa they are applying for and would hold if granted), this could not be taken into account for the purpose of deciding whether the provision of the service would be likely to result in a significant cost to the Australian community in the areas of health care and community services.

The Federal Court decision is problematic for temporary visa applicants because in most cases, the applicants (due to the type of visa they are applying for and would hold if granted) would not have access to the same range of publicly-funded services available to an Australian resident such as a permanent visa holder.  Hence, despite having a significant medical condition, the costs of this condition would not be passed on to the Australian community, as the person would not be eligible for the services and therefore would be expected to pay for any services required either personally or through a health insurance scheme, for example.

It certainly would not seem fair or reasonable, for example, to refuse to grant a temporary visa to an applicant with a disability, or an elderly applicant, on the basis of services that they would not be eligible for when in Australia (due to the type of visa they are applying for and would hold if granted).

Further, the purpose of new paragraph 4007(1B)(c) is that new sub-subparagraph 4007(1)(c)(ii)(A) does not apply if an applicant applies for a temporary visa being of a particular subclass that is not specified in the instrument made under new subparagraph 4007(1A)(b)(ii).  It is intended that this instrument would specify temporary visas that may lead to a permanent visa, and persons who hold this type of temporary visa would be eligible for health care or community services when they are granted a permanent visa in Australia. 

Therefore, the effect of new paragraph 4007(1B)(c) is that if an applicant applies for a visa subclass that is not specified in that instrument, then new sub-subparagraph 4007(1)(c)(ii)(A) does not apply because such an applicant would not be eligible for health care or community services when they are in Australia.

Schedule 5 – Amendments of Migration Regulations 1994 relating to Bridging E
(Class WE) visas

Item [1] – Regulation 2.24

This item substitutes a new regulation 2.24 in Division 2.5 of Part 2 of the Migration Regulations 1994 (the Principal Regulations).

New subregulation 2.24(1)

This item prescribes, for the purposes of paragraph 75(1)(a) of the Migration Act 1958 (the Act), the classes of bridging visa that may be granted to a non‑citizen in immigration detention.  The prescribed classes are Bridging E (Class WE) visa; and Bridging F (Class WF) visa.

This item is the same as the current subregulation 2.24(1).

New subregulation 2.24(2)

This item provides which subclass of Bridging E (Class WE) visa should be granted to an applicant.  Specifically, if the applicant is an eligible non‑citizen of the kind mentioned in subregulation 2.20(7), (8), (9), (10), or (11), paragraph 2.24(2)(a) provides that the subclass to be granted is a Subclass 051 Bridging (Protection Visa Applicant) visa.  Paragraph 2.24(2)(b) provides that, if paragraph 2.24(2)(a) does not apply, the subclass to be granted is a Subclass 050 Bridging (General) visa.

The purpose of this item is to clarify which subclass of Bridging E (Class WE) visa should be granted to bridging visa applicants under subsection 75(1) of the Act.  The current drafting of regulation 2.24 provides no guidance as to which subclass of the Bridging E (Class WE) visa is to be granted in circumstances where the period prescribed under paragraph 75(1)(b) of the Act has expired.  This item removes the risk that an applicant may be granted a Subclass 051 (Protection Visa Applicant) visa in circumstances when the applicant has not applied for a Protection visa.

New subregulation 2.24(3)

This item prescribes, for the purposes of paragraph 75(1)(b) of the Act, if the application is for a Bridging E (Class WE) visa, the period within which the Minister must make a decision on a bridging visa application.  The subregulation sets out a table of items, the circumstances under which they apply, and the prescribed period.

Item 1 of the table prescribes a period of 90 days for circumstances when:

·         the application is made by a non‑citizen who has been immigration cleared; and

·         an officer appointed under subregulation 2.10A(2) as a detention review officer for the State or Territory in which the applicant is detained (a detention review officer) has signed a declaration, within 2 working days after the application is made, that the detention review officer believes that the applicant may not pass the character test under subsection 501(6) of the Act.


Item 2 of the table prescribes a period of 2 working days for circumstances when:

·         the application is made by a non‑citizen who has been immigration cleared; and

·         a detention review officer has not signed a declaration within 2 working days after the application is made.

Item 3 of the table prescribes a period of 90 days for circumstances when:

·         the application is made by a non‑citizen who is an eligible non‑citizen mentioned in subregulation 2.20(6); and

·         a detention review officer has signed a declaration, within 2 working days after the application is made, that the detention review officer believes that the applicant may not pass the character test under subsection 501(6) of the Act.

Item 4 of the table prescribes a period of 2 working days for circumstances when:

·         the application is made by a non‑citizen is who is an eligible non‑citizen mentioned in subregulation 2.20(6); and

·         a detention review officer has not signed a declaration mentioned in item 3 within 2 working days after the application is made.

Item 5 of the table prescribes a period of 90 days for circumstances when:

·         the applicant is not described in items 1 to 4; and

·         a detention review officer has signed a declaration, within 28 days after the application is made, that the detention review officer believes that the applicant may not pass the character test under subsection 501(6) of the Act.

Item 6 of the table prescribes a period of 28 days for circumstances when:

·         the applicant is not described in items 1 to 4; and

·         a detention review officer has not signed a declaration mentioned in item 5 within 28 days after the application is made.

The purpose of the item is to extend the Bridging E visa decision-making period when the Minister, or his or her delegate, is considering refusing to grant the visa on character grounds.  Extension of the prescribed timeframes to 90 days would allow sufficient time for the character decision-maker to give full consideration to all relevant factors and to ensure an applicant is afforded natural justice by allowing a reasonable period of time for the applicant to consider and respond to information that is, or may be, relevant to the decision.

This item provides for a clear and objective triggering event to extend the decision‑making period for applicants of character concern.  Specifically, this would be in the form of a detention review officer signing a declaration to the effect that they reasonably suspect that the applicant may fail the character test in section 501 of the Act.  A detention review officer is an officer of Immigration who has been appointed by the Secretary to be a detention review officer in the State or Territory in which the applicant is detained (see subregulation 2.10A(2) of the Principal Regulations).

This item allows natural justice to be provided to applicants where a decision‑maker is considering cancelling or refusing a Bridging E visa under section 501 of the Act.  This is a fairer and more reasonable approach for Bridging visa applicants who are in detention, giving the applicant the opportunity to comment on any specific adverse information.  It also allows the decision‑maker more time to take into account all relevant information in making their decision and avoids the possibility of releasing into the community non‑citizens who may present a risk to the community.

New subregulation 2.24(4)

This item prescribes, for the purposes of paragraph 75(1)(b) of the Act, if the application is for a Bridging F (Class WF) visa, the period within which the Minister must make a decision on a bridging visa application.  The subregulation sets out a table of items, the circumstances under which they apply, and the prescribed period.

Item 1 of the table prescribes a period of 2 working days for circumstances when the application is made by a non‑citizen who has been immigration cleared.

Item 2 of the table prescribes a period of 2 working days for circumstances when the application is made by a non‑citizen who is an eligible non‑citizen referred to in subregulation 2.20(6).

Item 3 of the table prescribes a period of 28 days for circumstances when the applicant is not described in items 1 or 2.

Note

This item amends the note at the end of subregulation 2.24.  The note provides that the prescribed conditions for the purposes of section 75 are set out in:

·         clause 050.612 in Schedule 2 (for a Subclass 050 – Bridging (General) visa); and

·         clause 051.611 in Schedule 2 (for a Subclass 051 – Bridging (Protection Visa Applicant) visa); and

·         clause 060.611 in Schedule 2 (for a Subclass 060 – Bridging F visa).

The amendment to the note ensures readers of the Principal Regulations are directed to the correct clauses for the conditions of these visa subclasses.

Item [2] – Schedule 2, subparagraph 050.511C(b)(iv)

This item omits “struck out.” and insert “struck out; and” in subparagraph 050.511C(b)(iv) of Schedule 2 to the Principal Regulations.

This item is consequential to amendments made by item [3] to this Schedule, which insert a new paragraph 050.511C(c) in clause 050.511C of Schedule 2 to the Principal Regulations.

Item [3] – Schedule 2, after paragraph 050.511C(b)

This item inserts a new paragraph 050.511C(c) in clause 050.511C of Schedule 2 to the Principal Regulations.

This item permits the holder of a Subclass 050 Bridging (General) visa, if a court remits a citizenship decision to the Minister for reconsideration and the Minister approves the person becoming an Australian citizen, to remain in Australia as a lawful non‑citizen until the day on which the non‑citizen becomes an Australian citizen.

The purpose of this item is to allow for cessation of a Subclass 050 Bridging (General) visa on the day the holder becomes an Australian citizen.  Currently, this Bridging visa ceases to be in effect 28 days after the day the visa holder is notified of the Minister’s decision.  This is problematic if the visa holder does not acquire Australian citizenship until after that period as the non‑citizen would be an unlawful non‑citizen during the period between the cessation of the Bridging visa and acquisition of Australian citizenship.  This item ensures that non‑citizens on the path to citizenship do not become unlawful through cessation of their Bridging visa before they become Australian citizens.

Item [4] – Schedule 2, subparagraph 050.511D(b)(iii)

This item omits “withdrawn.” and insert “withdrawn; and” in subparagraph 050.511D(b)(iii) of Schedule 2 to the Principal Regulations.

This item is consequential to amendments made by item [5] to this Schedule, which insert a new paragraph 050.511D(c) in clause 050.511D of Schedule 2 to the Principal Regulations.

Item [5] – Schedule 2, after paragraph 050.511D(b)

This item inserts a new paragraph 050.511D(c) in clause 050.511D of Schedule 2 to the Principal Regulations.

This item permits the holder of a Subclass 050 Bridging (General) visa, if a review authority remits a citizenship decision to the Minister for reconsideration and the Minister approves the person becoming an Australian citizen, to remain in Australia as an lawful non‑citizen until the day on which the non‑citizen becomes an Australian citizen.

The purpose of this item is to allow for cessation of a Subclass 050 Bridging (General) visa on the day the holder becomes an Australian citizen. Currently, this Bridging visa ceases to be in effect 28 days after the day the visa holder is notified of the Minister’s decision.  This is problematic if the visa holder does not acquire Australian citizenship until after that period as the non‑citizen would be an unlawful non‑citizen during the period between the cessation of the Bridging visa and acquisition of Australian citizenship.  This item ensures that non‑citizens on the path to citizenship do not become unlawful through cessation of their Bridging visa before they become Australian citizens.

Item [6] – Schedule 2, clause 050.512

This item omits the reference to “paragraph 050.212(4)(a) or (d)” in clause 050.512 of Schedule 2 to the Principal Regulations and insert “paragraph 050.212(4)(a), (aa) or (d)”.

This item provides that Subclass 050 Bridging (General) visas granted under paragraph 050.212(4)(aa) of Schedule 2 to the Principal Regulations (which is applicable when the Minister has applied for judicial review of a decision in relation to a substantive visa, other than a refusal decision) ceases to be in effect when any of the events specified in clause 050.512 of Schedule 2 to the Principal Regulations occurs.

Currently, the cessation events for visas granted under paragraph 050.212(4)(aa) are not in line with the cessation events for visas granted under analogous circumstances.  That is, Bridging E visas granted to applicants whose substantive visa application decision is the subject of judicial review proceedings (including other instances where the review has been initiated by the Minister).  A Bridging E visa granted under paragraph 050.212(4)(aa) ceases on a date specified by the Minister for that purpose (see clause 050.517).  All other Bridging E visas granted in analogous circumstances cease on occurrence of an event, in accordance with clause 050.512, 050.511A or 050.511C.  This item rectifies this discrepancy by aligning the cessation events for visas granted under paragraph 050.212(4)(aa) with other similar provisions in Division 050.5 of Schedule 2 to the Principal Regulations.

This item brings the cessation events for visas granted under paragraph 050.212(4)(aa) of Schedule 2 to the Principal Regulations in line with other similar provisions in Division 050.5 of that Schedule. 

Item [7] – Schedule 2, subclause 050.612A(1)

This item substitutes a new subclause 050.612A(1) in Schedule 2 to the Principal Regulations.  The difference between the current clause and the proposed clause is the addition of paragraph 050.612A(1)(c).

This item provides that clause 050.612A applies to a visa that is granted to an applicant who meets the requirements of one or more of a list of provisions in clause 050.212, and who does not meet the requirements of subclause 050.212(5B), (6), or (6A) and to whom subclause 050.614(1) does not apply.

Currently, subclauses 050.612A(1) and 050.614(1) could both apply to protection visa applicants seeking judicial review.  Specifically applicants who have applied for a Protection (Class AZ or XA) visa and who meet the requirements of subclause 050.212(3A), 050.212(4AA) or paragraphs 050.212(4)(a), (aa) or (d) may fall within the operation of both subclauses 050.612A(1) and 050.614(1).  This amendment clarifies which clause should be applied to Bridging visas granted for applicants in this cohort.

This item relevantly provides that the new subclause 050.612A(1) applies only to visas granted to an applicant to whom subclause 050.614(1) does not apply.  This clarifies for decision‑makers which clause, and therefore which mandatory and discretionary conditions may be attached to a visa, should apply to applicants who have applied for a Protection (Class AZ or XA) visa and who meet the other requirements of the clause.

Item [8] – Schedule 2, subclause 050.613A(1)

This item omits “(whether or not the applicant is an applicant to which any other clause in this Division applies)” and insert “(whether or not the applicant is an applicant to which any other clause in this Division applies, other than clause 050.613)”, in the chapeau to subclause 050.613A(1).

The purpose of this item is to rectify conflicting clauses relating to the conditions imposed on Bridging E visas granted to protection visa applicants.  Currently, both clause 050.613 and 050.613A may apply to an applicant (including a protection visa applicant) who is granted a Bridging E visa under subclause 050.212(8).

Specifically, applicants who have conditions imposed on their visa under clause 050.613 have permission to work in Australia.  Conversely, certain applicants who have made an application for a protection visa and are not in a class of persons specified by the Minister, and who have conditions imposed on their visa under clause 050.613A, must be subject to condition 8101 which prevents them from engaging in work in Australia.

This item clarifies the relationship between clauses 050.613 and 050.613A.  Specifically, it clarifies that applicants who are subject to clause 050.613 are not subject to clause 050.613A and therefore will not have condition 8101 imposed on their visa.

Schedule 6 – Amendments of Migration Regulations 1994 relating to eligible non-citizens

Item [1] – Subregulation 2.20(1)

This item omits the reference to subregulations “(14) and (15)” in subregulation 2.20(1) of Part 2 of the Migration Regulations 1994 (the Principal Regulations), and insert “(14) to (16)”.

This amendment is consequential to the amendment proposed in item [2] which inserts a new subregulation (16) in regulation 2.20 of Part 2 of the Principal Regulations. 

This amendment ensures that subregulation 2.20(1), which prescribes classes of persons for the purposes of the definition of “eligible non‑citizen” in section 72 of Part 2 of the Migration Act 1958 (the Act), applies to subregulation 2.20(16) as proposed by item [2].

Item [2] – After subregulation 2.20(15)

This item inserts a new subregulation 2.20(16) after subregulation 2.20(15) of Part 2 of the Principal Regulations. 

This item prescribes a new class of persons for the purposes of the definition of eligible non‑citizen in section 72 of Part 2 of the Act.

The subregulation applies to a non‑citizen:

·         who held an enforcement visa that has ceased to be in effect; and

·         who is an unlawful non‑citizen; and

·         who is in criminal detention.

This purpose of this amendment is to ensure that a Bridging E (Class WE) visa, specifically a Subclass 050 visa, can be granted to former holders of enforcement visas who are unlawful non‑citizens and are in criminal detention because of breaches of Australian laws, including fisheries offences.  This ensures that these persons are lawful non-citizens while they are in criminal detention. 

This amendment also has the effect that persons within the class of persons will not be in immigration detention during the time of their criminal detention, as they will be a lawful non-citizen for the duration of their criminal detention.


Schedule 7 – Amendments of Migration Regulations 1994 relating to bridging visas

Item [1] – Schedule 2, after subclause 010.611 (3B)

This item inserts a new subclause 010.611(3C) in clause 010.611 of Schedule 2 to the Migration Regulations 1994 (the Principal Regulations). 

New subclause 010.611(3C) provides that, when a visa is granted to a person who meets the requirements of subclauses 010.211(2) or (3) on the basis of making a valid application for a Subclass 457 (Business (Long Stay)) visa and who held a Subclass 457 visa (the first visa) at the time they made the application, condition 8107 applies (if the first visa is subject to that condition) and condition 8501 applies (if the first visa is subject to that condition).

The effect of new subclause 010.611(3C) is to impose conditions 8107 and 8501 on a Subclass 010 – Bridging A visa granted to an applicant in association with a valid application for a Subclass 457 visa if those conditions applied to a Subclass 457 visa held by the applicant at the time of making the valid application for a new Subclass 457 visa.

Condition 8501 provides that the visa holder must maintain adequate arrangements for health insurance while the holder is in Australia.

Condition 8107 is a condition that attaches to all Subclass 457 visa holders who satisfied the primary criteria for the grant of the visa other than service sellers and persons accorded certain privileges and immunities.  Therefore, these visa holders are required to continue to work for the sponsor who most recently nominated them and to work in the nominated occupation.

Currently, when the holder of a Subclass 457 visa lodges an application in Australia for a further Subclass 457 visa, they also apply for a Bridging visa while the application is being considered.  If that Bridging visa is granted, there is no requirement for a visa applicant to maintain adequate health insurance arrangements because condition 8501 is not imposed on Subclass 010 – Bridging A visas.

A Subclass 457 visa holder (who was granted the visa on or after 14 September 2009) who has condition 8501 attached to their existing visa, should also have condition 8501 attached to any Bridging visa associated with the new application for a Subclass 457 visa.

The purpose of this amendment is that a Subclass 457 visa holder who has lodged an application for a new Subclass 457 visa is subject to condition 8501 for the interim period between the cessation of their current Subclass 457 visa and the grant of a new Subclass 457 visa while they hold a Subclass 010 – Bridging A visa.

The purpose of the insertion of condition 8107 is to ensure that this condition continues to apply to the particular cohort of Subclass 457 visa applicants covered under 010.611(3B), as condition 8107 already applies to a Bridging A visa applicant if that condition applied to the Subclass 457 visa held by the applicant when they applied for the Bridging A visa.   


Item [2] – Schedule 2, after subclause 020.611(4)

This item inserts a new subclause 020.611(4A) in clause 020.611 of Schedule 2 to the Principal Regulations. 

New subclause 020.611(4A) provides that, when a visa is granted to a person on the basis of making a valid application for a Subclass 457 visa and who held a Subclass 457 visa (the first visa) at the time they made the application, conditions 8107 and 8501 apply if the first visa is subject to those conditions.

The effect of a new subclause 020.611(4A) is to impose conditions 8107 and 8501 on a Subclass 020 – Bridging B visa granted to an applicant in association with a valid application for a Subclass 457 visa if those conditions applied to a Subclass 457 visa held by the applicant at the time of making the valid application for a new Subclass 457 visa.

Condition 8501 provides that the holder of a visa must maintain adequate arrangements for health insurance while the holder is in Australia.

Condition 8107 is a condition that attaches to all Subclass 457 visa holders who satisfied the primary criteria for the grant of the visa other than service sellers and persons accorded certain privileges and immunities.  Therefore, these visa holders are required to work only for the sponsor who most recently nominated them and to work in the nominated occupation.

Currently, a Bridging B visa held by an applicant who has applied for that visa while holding a Subclass 010 – Bridging A visa granted on the basis of having made a valid application for a Subclass 457 visa does not require adequate health insurance arrangements because condition 8501 is not imposed on Subclass 020 – Bridging B visas.

The purpose of this amendment is to ensure that a Subclass 457 visa holder who makes a valid application for a new Subclass 457 visa and is granted a Subclass 020 – Bridging B visa on the basis of having made that application will continue to be subject to condition 8501 if that Subclass 020 – Bridging B visa comes into effect.

The purpose of the insertion of condition 8107 is to ensure that this condition continues to apply to the particular cohort of Subclass 457 visa applicants covered under 020.611(4A).  Condition 8107 currently applies under subclause 020.611(5) to a Bridging B visa granted to a visa holder in this cohort if condition 8107 applied to the Bridging visa held at the time they applied for the Bridging B visa.       

Item [3] – Schedule 4, Part 1, paragraph 4013(2)(d)

This item omits references to paragraphs 2.43(1)(i), (j), (k) and (ka) and substitute references to paragraphs 2.43(1)(i), (ia), (k), (ka) and (kb) into paragraph 4013(2)(d) of Schedule 4 to the Principal Regulations. 

The effect of the substitution is to include a reference to paragraphs 2.43(1)(ia) and (kb) in subitem 4013(2).  This brings these visa cancellation grounds within the scope of a “risk factor” in clause 4013, meaning that a person whose visa was cancelled under those grounds may be excluded from being granted another visa within three years of cancellation.


Where it is a criterion for the grant of a visa, clause 4013 in Schedule 4 to the Principal Regulations operates to prevent a visa applicant affected by a “risk factor” from being granted that visa for three years after the event identified in the relevant “risk factor” unless the Minister is satisfied that compassionate and/or compelling circumstances apply (see subclause 4013(1)).  The “risk factors” are set out in subclauses 4013(1A), (2), (2A), (3), (4) and (5).

Subclause 4013(2) provides that a person is affected by a “risk factor” if they previously held a visa that was cancelled under section 116 or section 128 of the Migration Act 1958 (the Act) for one of the reasons specified in paragraphs 4013(2)(a) to (2)(d).  Relevantly, paragraph 116(1)(g) provides that the Minister may cancel a visa if a prescribed ground for cancelling the visa applies to the holder of the visa.  Regulation 2.43 of the Principal Regulations prescribes grounds for cancelling a visa under paragraph 116(1)(g) of the Act. 

Relevantly, paragraph 4013(2)(d) lists as a “risk factor” that the Minister was satisfied that a ground prescribed by paragraph 2.43(1) (i), (j), (k), (ka), (m) or (o) applied to the person.  The grounds in paragraphs 2.43(1)(i), (j), (k) and (ka) all turn on the Minister’s satisfaction that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, a genuine intention to visit and stay in Australia temporarily for the purpose of the visa.  The grounds in paragraphs 2.43(1)(m) and (o) turn on the Minister’s suspicion that the visa holder has committed a specified offence or that the visa was obtained through the fraudulent conduct of any person.

Other grounds for cancellation under paragraph 116(1)(g) of the Act include those prescribed in paragraphs 2.43(1)(ia) and (kb).

Paragraph 2.43(1)(ia) and subregulation 2.43(1A) together prescribe the classes of visas where, despite the grant of the visa, the Minister is satisfied the visa holder did not have, at the time of grant of the visa, or has ceased to have, a genuine intention to stay temporarily in Australia to carry out the work or activity in relation to which the visa holder was nominated or the visa granted.

Similarly, paragraph 2.43(1)(kb) of the Principal Regulations provides “… in the case of a subclass 457 visa that was granted on the basis that the applicant met the requirements of subregulation 457.223(4) – that, despite the grant of the visa, the Minister is satisfied that:

·         the holder did not have a genuine intention to perform the occupation mentioned in paragraph 457.223(4)(d) at the time of grant of the visa; or

·         the holder has ceased to have a genuine intention to perform that occupation; or

·         the position associated with the nominated occupation is not genuine.”

The cancellation grounds in paragraphs 2.43(1)(i), (j), (k) and (ka) are “risk factors” in paragraph 4013(2)(d) because those grounds turn on the Minister’s satisfaction regarding the applicant’s genuine intention.  It is inconsistent that the cancellation grounds in paragraphs 2.43(1)(ia) and (kb), which turn on a similar basis, are not also “risk factors” in paragraph 4013(2)(d).  This amendment rectifies this inconsistency.


Schedule 8 – Amendments of Migration Regulations 1994 relating to fees and charges

Item [1] – Subregulation 4.13(1)

This amendment omits “$1,400” and insert “$1,540” in subregulation 4.13(1) in Part 4 of the Migration Regulations 1994 (the Principal Regulations).

The purpose of this amendment is to increase by ten percent the fee that an applicant must pay to the Migration Review Tribunal for review of a decision.  The increase is in accordance with the Government’s decision outlined in the Portfolio Budget Statements 2011–2012.

Item [2] – Paragraph 4.31B(1)(b)

This amendment substitutes a new paragraph 4.31B(1)(b) and insert new paragraph 4.31B(1)(c) in Part 4 of the Principal Regulations.

Paragraph 4.31B(1)(b) provides that the fee for review by the Tribunal of an Refugee Review Tribunal reviewable decision is $1,400 if the application for review was made on or after 1 July 2003.

The effect of new paragraphs 4.31B(1)(b) and 4.31B(1)(c) is that:

  • the fee is $1,400 if the application for review was made on or after 1 July 2003 and before 1 July 2011; or
  • the fee is $1,540 if the application for review was made on or after 1 July 2011 .

The purpose of this amendment is to increase by ten percent the fee that an applicant may be required to pay to the Refugee Review Tribunal for review of a decision.  The increase is in accordance with the Government’s decision outlined in the Portfolio Budget Statements 2011–2012.  The amendment also preserves the current fee for applications for review of decision where the application was made on or after 1 July 2003 but before 1 July 2011.

Item [3] – Further Amendments

The amendments in this item amend Parts 2A and 5, and Schedule 1 to the Principal Regulations to provide for the annual indexation of the fees and charges set out in item [1]. 

These amendments result in an increase to most fees and charges of 15 percent in accordance with the Government’s decision as outlined in the Portfolio Budget Statements 2011–2012.

The remainder of the changes to the fees and visa application charges (VACs) are:

·         increases to fees and some VACs by 2.8 percent in line with changes in the Consumer Price Index for the 2011-2012 financial year;

·         increases to the second instalment of the VACs for Contributory Parent visas by 5.4 percent in accordance with the Contributory Parent Visa Composite Index for the 2011-2012 financial year;


All increases are rounded to a multiple of $5.00 according to the following methodology:

  • if the amount of the charge calculated under this formula is not a multiple of $5.00, and if the amount exceeds the nearest lower multiple of $5.00 by $2.50 or more, the amount is rounded up to the nearest $5.00;
  • in any other case, where the charge calculated under the formula is not a multiple of $5.00, the amount is rounded down to the nearest lower multiple of $5.00.

The amount of the increase in these items does not exceed the applicable charge limit set out in the Migration (Visa Application) Charge Act 1997.

Schedule 9 – Amendments of Migration Regulations 1994 relating to family stream visas

Item [1] – Schedule 1, after paragraph 1124B(3)(c)

This item inserts new paragraphs 1124B(3)(d) and 1124B(3)(e) of Schedule 1 to the Migration Regulations 1994 (the Principal Regulations).

New paragraph 1124B(3)(d) provides that an applicant for a Partner (Residence)           (Class BS) visa who holds a Subclass 820 (Partner) visa or a Subclass 309 (Partner (Provisional)) visa at the time of making the application for the Partner (Residence) (Class BS) visa, must not have had any of the following visas refused in the 21 days immediately before making the application for the Partner (Residence) (Class BS) visa:

  • a Subclass 100 (Spouse) visa;
  • a Subclass 100 (Partner) visa;
  • a Subclass 110 (Interdependency) visa;
  • a Subclass 309 (Spouse (Provisional)) visa;
  • a Subclass 309 (Partner (Provisional)) visa;
  • a Subclass 310 (Interdependency (Provisional)) visa;
  • a Subclass 801 (Spouse) visa;
  • a Subclass 801 (Partner) visa;
  • a Subclass 814 (Interdependency) visa;
  • a Subclass 820 (Spouse) visa;
  • a Subclass 820 (Partner) visa; or
  • a Subclass 826 (Interdependency) visa.

This amendment prevents a person who holds a Subclass 820 (Partner) visa or a Subclass 309 (Partner (Provisional)) visa from making another application for a Partner (Residence) (Class BS) visa during the period when a decision has been made to refuse a partner visa application but before the person is taken to have been notified of that decision as provided for in section 494C of the Migration Act 1958 (the Act).  A Subclass 820 (Partner) visa or a Subclass 309 (Partner (Provisional)) visa will not cease until a person is taken to have been notified under the Act that their partner visa has been refused.  The time period of 21 days corresponds with the longest period of time provided for in section 494C of the Act.

The purpose of this amendment is to ensure that a person is not able to circumvent section 48 of the Act or the requirements of new paragraph 1124B(3)(e) of Schedule 1 to the Principal Regulations by applying for a Partner (Residence) (Class BS) visa after they find out their partner visa application has been refused but while their Subclass 820 (Partner) visa or Subclass 309 (Partner (Provisional)) visa is still in effect.

Section 48 of the Act limits the classes of visa which certain persons in the migration zone may apply for.  Section 48 of the Act provides that:

  • a non-citizen who is in the migration zone, who does not hold a substantive visa; and

        either

§  after last entering Australia was refused a visa, other than a refusal of a bridging visa or refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the applicant had been finally determined); or

§  held a visa that was cancelled under sections 109, 116, 134, 137J or 137Q of the Act;

  • may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.

Regulation 2.12 of Division 2.2 of Part 2 of the Principal Regulations prescribes the visas for section 48 of the Act and includes the Partner (Residence) (Class BS) visa.

New paragraph 1124B(3)(e) provides that subject to subitem 1124B(3A) if an applicant for a Partner (Residence) (Class BS) visa is a person to whom section 48 of the Act applies, the applicant:

  • must not have been refused any of the following visas since last entering Australia:

        a Subclass 100 (Spouse) visa;

        a Subclass 100 (Partner) visa;

        a Subclass 110 (Interdependency) visa;

        a Subclass 309 (Spouse (Provisional)) visa;

        a Subclass 309 (Partner (Provisional)) visa;

        a Subclass 310 (Interdependency (Provisional)) visa;

        a Subclass 801 (Spouse) visa;

        a Subclass 801 (Partner) visa;

        a Subclass 814 (Interdependency) visa;

        a Subclass 820 (Spouse) visa;

        a Subclass 820 (Partner) visa; or

        a Subclass 826 (Interdependency) visa; and

  • must provide, at the same time and place as making the application, an approved form 40SP that has been completed and signed by an Australian citizen, Australian permanent resident or eligible New Zealand citizen who claims to be the spouse or de facto partner of the applicant (the partner); and
  • must provide, at the same time and place as making the application, two statutory declarations each of which:

        is made by an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is not the partner; and

        declares that the applicant and the partner are in a married relationship or de facto relationship; and

        was declared no more than 6 weeks before the day on which the application for the Partner (Residence) (Class BS) visa was made.

The amendments insert the current requirements for applicants affected by section 48 of the Act who seek to apply for a Partner (Temporary) (Class UK) into the Partner (Residence) (Class BS) visa.  The amendments ensure that applicants who have already made an unsuccessful partner visa application onshore cannot re-apply and require the applicant to produce certain evidence indicating their ability to meet the requirements for the granting of a Partner (Residence) (Class BS) visa.  The amendments also introduce a new requirement that the two statutory declarations are declared no more than 6 weeks before the day on which the application for the Partner (Residence) (Class BS) visa was made.

The purpose of these amendments is to prevent frivolous or serial claims from applicants who have no substantive claims, or chance of being granted a partner visa and to ensure that the onshore restrictions imposed by section 48 of the Act is only not applicable for certain applicants who will have a realistic prospect of satisfying the prescribed criteria for a partner visa.

Item [2] – Schedule 1, after subitem 1124B(3)

This item inserts new subitem 1124B(3A) of Schedule 1 to the Principal Regulations.

New paragraph 1124B(3A)(a) provides that an applicant for a Partner (Residence) (Class BS) visa is taken to have met the requirements of paragraph 1124B(3)(e) if the applicant:

  • is a person to whom section 48 of the Act applies; and
  • claims to be a dependent child of a person who has met the requirements of paragraph 1124B(3)(e).

The purpose of this amendment is to ensure that a dependent child who is affected by section 48 of the Act and applies for a Partner (Residence) (Class BS) visa is not required to meet the requirements of paragraph 1124B(3)(e) if their parent has met those requirements.

New paragraph 1124B(3A)(b) provides that if the applicant leaves and re-enters the migration zone while holding a bridging visa, the applicant is taken to have been continuously in the migration zone despite the travel.  This amendment achieves the same effect as subsection 48(3) of the Act.

Subsection 48(3) of the Act provides that for the purposes of section 48, a non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite that travel.

The purpose of this amendment is to ensure that an applicant affected by section 48 of the Act is not able to circumvent the requirements of new paragraph 1124B(3)(e) of Schedule 1 to the Principal Regulations by leaving and re-entering Australia on a bridging visa.

Item [3] – Schedule 1, paragraphs 1214C(h) and (i)

This item omits paragraphs 1214C(h) and 1214C(i) of Schedule 1 to the Principal Regulations.

This amendment is made as it will not be necessary for additional requirements for an applicant affected by section 48 of the Act, who is applying for a Partner (Temporary) (Class UK) visa, to be in item 1214C of Schedule 1 to the Principal Regulations.  This is because to make a valid application for a Partner (Temporary) (Class UK) visa, a person must also make a valid application for a Partner (Residence) (Class BS) visa.  The additional requirements for an applicant affected by section 48 of the Act are contained in item 1124B of Schedule 1 to the Principal Regulations, as outlined in items 1 and 2 above.

Item [4] – Schedule 2, after clause 115.228

This item inserts new clause 115.229 after clause 115.228 in Part 115 of Schedule 2 to the Principal Regulations.

New clause 115.229 of Schedule 2 to the Principal Regulations provides that if the applicant has not turned 18, Public Interest Criteria 4017 and 4018 are satisfied in relation to the applicant.

Public Interest Criterion 4017 of Schedule 4 to the Principal Regulations requires the Minister to be satisfied of 1 of the following:

  • the law of the applicant’s home country permits the removal of the applicant;
  • each person who can lawfully determine where the applicant is to live consents to the grant of the visa;
  • the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

Public Interest Criterion 4018 of Schedule 4 to the Principal Regulations provides that the Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.

The purpose of requiring an applicant who seeks to satisfy the primary criteria for the grant of a Subclass 115 – Remaining Relative visa and has not turned 18 to satisfy Public Interest Criteria 4017 and 4018 is to ensure that when the visa applicant is under 18:

  • issues of lawful custody of and access to the visa applicant are taken into account; and
  • Australia’s obligations under the Hague Convention on the Civil Aspects of International Child Abduction and the Convention on the Rights of the Child are met.

Item [5] – Schedule 2, after clause 116.228

This item inserts new clause 116.229 after clause 116.228 of Part 116 of Schedule 2 to the Principal Regulations.

New clause 116.229 of Schedule 2 to the Principal Regulations provides that if the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.

Public Interest Criterion 4017 of Schedule 4 to the Principal Regulations requires the Minister to be satisfied of 1 of the following:

  • the law of the applicant’s home country permits the removal of the applicant;
  • each person who can lawfully determine where the applicant is to live consents to the grant of the visa;
  • the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

Public Interest Criterion 4018 of Schedule 4 to the Principal Regulations provides that the Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.

The purpose of requiring an applicant who seeks to satisfy the primary criteria for the grant of a Subclass 116 – Carer visa and has not turned 18 to satisfy Public Interest Criteria 4017 and 4018 is to ensure that when the visa applicant is under 18:

  • issues of lawful custody of and access to the visa applicant are taken into account; and
  • Australia’s obligations under the Hague Convention on the Civil Aspects of International Child Abduction and the Convention on the Rights of the Child are met.

Item [6] – Schedule 2, clause 445.2, note

This item omits the note following clause 445.2 of Part 445 of Schedule 2 to the Principal Regulations.

The note following clause 445.2 of Schedule 2 to the Principal Regulations states that all applicants must satisfy the primary criteria.  The amendment omits the note as it is no longer accurate.

The Migration Amendment Regulations 2002 (No. 2) inserted secondary criteria into the Subclass 445 – Dependent Child visa.  This made it possible for a dependent child of a person who satisfied the primary criteria for the grant of a Subclass 445 – Dependent Child visa to be granted a Subclass 445 – Dependent Child visa at the same time as the person who satisfied the primary criteria.

Schedule 10 – Amendment of Migration Amendment Regulations 2009 (No. 12)

Item [1] – Subparagraph 6(2)(a)(iii)

This item substitutes subparagraph 6(2)(a)(iii) of the Migration Amendment Regulations 2009 (No. 12) with new subparagraph 6(2)(a)(iii).

Current subparagraph 6(2)(a)(iii) of the Migration Amendment Regulations 2009 (No. 12) provides that the amendments made by Schedule 4 to the Migration Amendment Regulations 2009 (No. 12) will apply if:

  • the applicant made an application for a visa before 9 November 2009; and
  • the application was not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958) before 9 November 2009; and
  • the applicant claims to Immigration, on or after 9 November 2009 but before the application is finally determined, that family violence (within the meaning of regulation 1.23 of the Migration Regulations 1994 as in force on or after 9 November 2009) has been committed.

New subparagraph 6(2)(a)(iii) of the Migration Amendment Regulations 2009 (No. 12) provides that the amendments made by Schedule 4 to the Migration Amendment Regulations 2009 (No. 12)  applies if:

  • the applicant made an application for a visa before 9 November 2009; and
  • the application was not finally determined (within the meaning of subsection 5(9) of the Act) before 9 November 2009; and
  • the applicant claims to Immigration, on or after 9 November 2009 but before the application is finally determined, that family violence (within the meaning of regulation 1.23 of the Migration Regulations 1994 as in force on or after 9 November 2009) has been committed; or

  • the applicant claims to the Migration Review Tribunal, on or after 1 July 2011 but before the application is finally determined, that family violence (within the meaning of regulation 1.23 of the Migration Regulations 1994 as in force on or after 9 November 2009) has been committed.

The amendment provides that the changes to the meaning of family violence made by Schedule 4 to the Migration Amendment Regulations 2009 (No. 12) apply to visa applications made before 9 November 2009 but not finally determined before 9 November 2009 where the applicant makes a claim of family violence to either:

  • Immigration on or after 9 November 2009; or
  • the Migration Review Tribunal on or after 1 July 2011.

This item would not amend paragraph 6(2)(b) of Schedule 4 to the Migration Amendment Regulations 2009 (No. 12).  Paragraph 6(2)(b) will continue to provide that the amendments made by Schedule 4 to the Migration Amendment Regulations 2009 (No. 12) apply to all visa applications made on or after 9 November 2009.

Schedule 11 – Amendments of Australian Citizenship Regulations 2007 relating to Centrelink concession codes

Item [1] – Schedule 3, item 9, paragraph (a)

This item substitutes a new paragraph 9(a) of Schedule 3 to the Australian Citizenship Regulations 2007 (the Citizenship Regulations).

Current paragraph 9(a) of Schedule 3 to the Citizenship Regulations provides that a person who applies for Australian citizenship under section 21 of the Australian Citizenship Act 2007 (the Citizenship Act) may be eligible for a concession fee of $20, if they hold a pensioner concession card or health care card endorsed by Centrelink with one of the following codes: AGE; AGE BLIND; CAR; DSP; DSP BLIND; MAA; NSA; PPP; PTA; SAL; SPL; WDA; WFA; WFD; WFW.

New paragraph 9(a) of Schedule 3 to the Citizenship Regulations substitutes the current codes with the following: AGB; AGE; CAR; DSB; DSP; NS; PA; PPP; SA; SL; WA; WFA; WFD; WID.

The purpose of this item is to update Centrelink Codes in Schedule 3 of the Citizenship Regulations.  Schedule 3 to the Citizenship Regulations provides for the fees which must accompany an application made under the Citizenship Act.  The Schedule provides for a concession fee to apply in certain circumstances, including where an applicant is a holder of a pensioner concession card or health care card.  Eligibility for concession fees are determined, among other things, on the basis of the type of concession card held by the applicant and the code which appears on that card.

Centrelink has changed a number of these codes and, as a result, some of the codes referred to in the current Schedule have become obsolete.  An additional code (“WID”) is also included in new paragraph 9(a) of Schedule 3 to the Citizenship Regulations.


Item [2] – Schedule 3, item 11, subparagraph (b)(i)

This item substitutes a new subparagraph 11(b)(i) of Schedule 3 to the Citizenship Regulations.

Current subparagraph 11(b)(i) of Schedule 3 to the Citizenship Regulations provides that a person who applies for Australian citizenship under section 21 of the Citizenship Act may be eligible for a concession fee of $20, if they are the partner of a holder of a pensioner concession card, endorsed by Centrelink with one of the following codes: AGE; AGE BLIND; CAR; DSP; DSP BLIND; MAA; WFA; WFD; WFW.

New paragraph 11(b)(i) of Schedule 3 to the Citizenship Regulations substitutes the current codes with the following: AGB; AGE; CAR; DSB; DSP; WFA; WFD; WID.

The purpose of this item is to update Centrelink Codes in Schedule 3 of the Citizenship Regulations.  Schedule 3 to the Citizenship Regulations provides for the fees which must accompany an application made under the Citizenship Act.  The Schedule provides for a concession fee to apply in certain circumstances, including where an applicant is a holder of a pensioner concession card or health care card.  Eligibility for concession fees are determined, among other things, on the basis of the type of concession card held by the applicant and the code which appears on that card.

Centrelink has changed a number of these codes and, as a result, some of the codes referred to in the current Schedule have become obsolete.  An additional code (“WID”) is also included in new subparagraph 11(b)(i) of Schedule 3 to the Citizenship Regulations.

Item [3] – Schedule 3, item 14, subparagraph (b)(ii)

This item omits subparagraph 14(b)(ii) of Schedule 3 to the Citizenship Regulations.

The purpose of this item is to correct a cross referencing error in paragraph 14(b) of Schedule 3 to the Citizenship Regulations.

Item 14 of Schedule 3 to the Citizenship Regulations refers to fees for applicants who apply for Australian citizenship under the general eligibility criteria set out in subsection 21(2) of the Citizenship Act.  Persons claiming eligibility under this section are required by subsection 21(2A) of the Citizenship Act to sit a test.

Persons aged 60 and over may be eligible to become a citizen under subsection 21(4).  There is no requirement to sit a test under this provision.

There is currently an error in the drafting of subparagraph 14(b)(ii) of Schedule 3 to the Citizenship Regulations as it cross references another item (item 10 of Schedule 3 to the Citizenship Regulations) that only relates to persons aged 60 and over.  This is incorrect as item 14 of Schedule 3 to the Citizenship Regulations is not relevant to applicants over the age of 60.

 Item [4] – Schedule 3, items 15A and 15B, subparagraph (c)(ii)

This item omits subparagraphs 15A(c)(ii) and 15B(c)(ii) of Schedule 3 to the Citizenship Regulations.


The purpose of this item is to correct cross referencing errors.  Items 15A and 15B of Schedule 3 to the Citizenship Regulations refer to fees for applicants who apply for Australian citizenship under the general eligibility criteria set out in subsection 21(2) of the Citizenship Act.  People claiming eligibility under this section are required by subsection 21(2A) to sit a test.

Persons aged 60 and over may be eligible to become a citizen under subsection 21(4).  There is no requirement to sit a test under this provision.

There is currently an error in the drafting of subparagraphs 15A(c)(ii) and 15B(c)(ii) of Schedule 3 to the Citizenship Regulations as they cross reference another item (item 10 of Schedule 3 to the Citizenship Regulations) that only relates to persons aged 60 and over.  This is incorrect as items 15A and 15B of Schedule 3 to the Citizenship Regulations are not relevant to applicants over the age of 60.

Item [5] – Schedule 3, item 15C, subparagraph (d)(ii)

This item omits subparagraph 15C(d)(ii) of Schedule 3 to the Citizenship Regulations.

The purpose of this item is to correct a cross referencing error.  Item 15C of Schedule 3 to the Citizenship Regulations refers to fees for applicants who apply for Australian citizenship under the general eligibility criteria set out in subsection 21(2) of the Citizenship Act.  People claiming eligibility under this section are required by subsection 21(2A) to sit a test.

Persons aged 60 and over may be eligible to become a citizen under subsection 21(4).  There is no requirement to sit a test under this provision.

There is currently an error in the drafting of subparagraph 15C(d)(ii) of Schedule 3 to the Citizenship Regulations as it cross references another item (item 10 of Schedule 3 to the Citizenship Regulations) that only relates to persons aged 60 and over.  This is incorrect as item 15C of Schedule 3 to the Citizenship Regulations is not relevant to applicants over the age of 60.

Schedule 12 – Amendment of Australian Citizenship Regulations 2007 relating to
evidence of citizenship

Item [1] – Schedule 2, after Note 2

This item adds new Note 3 after Note 2 in Schedule 2 to the Australian Citizenship Regulations 2007 (the Citizenship Regulations).

Schedule 2 to the Citizenship Regulations sets out the form and content of a notice of evidence of Australian citizenship.  New Note 3 enables additional information about a person’s identity to be included on the notice of evidence of Australian citizenship.

Note 3 provides that, if relevant, the following information may be listed on the back of a notice of evidence of Australian citizenship, along with the signature, or printed or stamped signature, of the Minister:

  • the applicant’s legal name at the time of acquisition of Australian citizenship, if different to the applicant’s current legal name;
  • any other name in which a notice of evidence of citizenship has previously been given;
  • any other dates of birth in which a notice of evidence has previously been given.

A notice of evidence of Australian citizenship can be used to access a range of Government services including social security payments, student loans, first home owner schemes and Australian passports.  Most financial institutions require evidence of citizenship to access loans.  It is not uncommon for a person to apply for several notices of evidence of Australian citizenship after first acquiring it.  This can occur when a person claims that their notice has been lost or stolen, or if they have changed their legal identity.

The purpose of this amendment is to address concerns of identity fraud where an applicant has been issued with several notices of evidence of Australian citizenship under different legal names.

It is intended that the inclusion of this information be discretionary, as there will be instances where it is not appropriate to include a citizen’s former name (for example, where a person has been placed in a witness protection program).

Schedule 13 – Amendment of Australian Citizenship Regulations 2007

Item [1] – Subregulation 12A(7)

This item substitutes new definitions of “conversion instrument” and “places and currencies instrument” in subregulation 12A(7) of the Australian Citizenship Regulations 2007 (the Citizenship Regulations). 

New definition of “conversion instrument”

This item provides that “conversion instrument” means the instrument titled Payment of Visa Application Charges and Fees in Foreign Currencies, (IMMI 11/007), that would commence on 1 July 2011.

The definition of “conversion instrument” is relevant to provisions in the Citizenship Regulations which allow a person who makes an application under the Australian Citizenship Act 2007 (the Citizenship Act) to pay the prescribed fee in a foreign currency specified in the conversion instrument.

This item replaces a reference to the current instrument in the definition of “conversion instrument” with a reference to a new instrument that is proposed to be made under subregulation 5.36(1A) of the Migration Regulations 1994 (the Principal Regulations).  The new instrument would commence on 1 July 2011 and would set out visa application charge and fee amounts in foreign currencies which correspond to amounts payable in Australian dollars.  If the amount of the application fee is mentioned in the conversion instrument, then payment can be made in the corresponding amount in the foreign currency.

By referring to the new instrument made under subregulation 5.36(1A) of the Principal Regulations, application fees and refunds made under the Citizenship Act can continue to be paid in foreign currencies.  Without this amendment, it would create hardship for clients making applications at overseas posts.

Due to the operation of section 14 of the Legislative Instruments Act 2003, it is not possible to incorporate by reference the instrument made under subregulation 5.36(1A) of the Principal Regulations as in force from time to time.  Rather, the new instrument would need to be incorporated by reference at the time of commencement of the Regulations.

Instruments made under the Principal Regulations are incorporated in the Citizenship Regulations because the Citizenship Act does not currently permit the Minister for Immigration and Citizenship to make instruments under the Citizenship Regulations.

New definition of “places and currencies instrument”

This item provides that “places and currencies instrument” means the instrument titled Places and Currencies for Paying of Fees, (IMMI 11/008), that would commence on 1 July 2011.

The definition of “places and currencies instrument” is relevant to provisions in the Citizenship Regulations which allow a person who makes an application under the Citizenship Act to pay the prescribed fee in a foreign country and a foreign currency specified in the “places and currencies instrument.”

This item replaces a reference to the current instrument in the definition of “places and currencies instrument” with a reference to a new instrument that is proposed to be made under subregulation 5.36(1) of the Principal Regulations.  The new instrument would commence on 1 July 2011 and would set out the places and currencies for paying fees.

By referring to the new instrument made under subregulation 5.36(1) of the Principal Regulations, application fees and refunds made under the Citizenship Act can continue to be paid in foreign countries and foreign currencies.  Without this amendment, it would create hardship for clients making applications at overseas posts.

Due to the operation of section 14 of the Legislative Instruments Act 2003, it is not possible to incorporate by reference the instrument made under subregulation 5.36(1) of the Principal Regulations as in force from time to time.  Rather, the new instrument would need to be incorporated by reference at the time of commencement of the Regulations.

Instruments made under the Principal Regulations are incorporated in the Citizenship Regulations because the Citizenship Act does not currently permit the Minister for Immigration and Citizenship to make instruments under the Citizenship Regulations.