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SLI 2015 No. 242 Regulations as made
This regulation amends the Migration Regulations 1958 (the Regulations) to introduce a range of measures to support the new provisions introduced by the Charging for a Migration Outcome Act.
Administered by: Immigration and Border Protection
Registered 11 Dec 2015
Tabling HistoryDate
Tabled HR02-Feb-2016
Tabled Senate02-Feb-2016
Date of repeal 15 Dec 2015
Repealed by Division 1 of Part 5A of the Legislative Instruments Act 2003
Table of contents.

Migration Amendment (Charging for a Migration Outcome and Other Measures) Regulation 2015

 

Select Legislative Instrument No. 242, 2015

I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation.

Dated 10 December 2015

Peter Cosgrove

Governor‑General

By His Excellency’s Command

Peter Dutton

Minister for Immigration and Border Protection

 

  

  


Contents

1............ Name................................................................................................... 1

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

3............ Authority............................................................................................. 1

4............ Schedules............................................................................................ 2

Schedule 1—Amendments                                                                                                3

Migration Regulations 1994                                                                                     3

 


1  Name

                   This is the Migration Amendment (Charging for a Migration Outcome and Other Measures) Regulation 2015.

2  Commencement

             (1)  Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this instrument

The later of:

(a) the start of the day after this instrument is registered; and

(b) immediately after the commencement of Schedule 1 to the Migration Amendment (Charging for a Migration Outcome) Act 2015.

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

14 December 2015

Note:          This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

             (2)  Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

                   This instrument is made under the Migration Act 1958.

4  Schedules

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

Schedule 1Amendments

  

Migration Regulations 1994

1  Regulation 1.03

Insert:

adverse information has the meaning given by regulation 1.13A.

associated entity has the same meaning as in section 50AAA of the Corporations Act 2001.

associated with has the meaning given by regulation 1.13B.

2  After regulation 1.13

Insert:

1.13A  Meaning of adverse information

             (1)  Adverse information is any adverse information relevant to a person’s suitability as:

                     (a)  an approved sponsor; or

                     (b)  a nominator (within the meaning of regulation 5.19); or

                     (c)  a maker of a nomination in accordance with a labour agreement;

and includes information that the person, or a person associated with the person:

                     (d)  has been found guilty by a court of an offence under a Commonwealth, State or Territory law that relates to one or more of the matters referred to in subregulation (2); or

                     (e)  has, to the satisfaction of a competent authority, acted in contravention of such a law; or

                      (f)  has been the subject of administrative action (including being issued with a warning), by a competent authority, for a possible contravention of such a law; or

                     (g)  is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law; or

                     (h)  has become insolvent within the meaning of subsections 5(2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001.

             (2)  The matters are the following:

                     (a)  discrimination;

                     (b)  immigration;

                     (c)  industrial relations;

                     (d)  occupational health and safety;

                     (e)  people smuggling and related offences;

                      (f)  slavery, sexual servitude and deceptive recruiting;

                     (g)  taxation;

                     (h)  terrorism;

                      (i)  trafficking in persons and debt bondage.

             (3)  The conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the previous 3 years.

             (4)  In this regulation:

competent authority has the meaning given by subregulation 2.57(1).

1.13B  Meaning of associated with

             (1)  A person (the associated person) is associated with another person that is a corporation if the associated person is an officer of the corporation, a related body corporate or an associated entity.

             (2)  A person (the associated person) is associated with another person that is a partnership if the associated person is a partner of the partnership.

             (3)  A person (the associated person) is associated with another person that is an unincorporated association if the associated person is a member of the association’s committee of management.

             (4)  A person (the associated person) is associated with another person that is an entity not mentioned in subregulations (1) to (3) if the associated person is an officer of the entity.

             (5)  In this regulation:

entity, in relation to an associated entity, includes:

                     (a)  an entity within the meaning of section 9 of the Corporations Act 2001; and

                     (b)  a body of the Commonwealth, a State or a Territory.

officer:

                     (a)  for a corporation—has the same meaning as in section 9 of the Corporations Act 2001; and

                     (b)  for an entity that is neither an individual nor a corporation—has the same meaning as in section 9 of the Corporations Act 2001.

related body corporate has the same meaning as in section 50 of the Corporations Act 2001.

3  Subregulation 2.57(1)

Repeal the following definitions:

                     (a)  definition of associated entity;

                     (b)  definition of entity;

                     (c)  definition of officer;

                     (d)  definition of related body corporate.

4  Subregulations 2.57(2) and (3)

Repeal the subregulations.

5  Regulation 2.59 (note 1)

Omit “Note 1”, substitute “Note”.

6  Regulation 2.59 (note 2)

Repeal the note.

7  Subregulation 2.60(1) (note)

Repeal the note.

8  Regulation 2.68 (note)

Repeal the note.

9  After subregulation 2.72(8A)

Insert:

          (8B)  The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.

10  Subregulation 2.72(9) (note)

Repeal the note.

11  After subregulation 2.72A(8)

Insert:

          (8A)  If the person made the nomination in relation to:

                     (a)  a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or

                     (b)  a Subclass 420 (Temporary Work (Entertainment)) visa;

the Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.

12  After subregulation 2.73(4A)

Insert:

          (4B)  The person must provide, as part of the nomination, the certification mentioned in subregulation 2.72(8B).

13  After subregulation 2.73A(3B)

Insert:

          (3C)  If the person identifies in the nomination the holder of, or an applicant or proposed applicant for, a Subclass 401 (Temporary Work (Long Stay Activity)) visa, the person must provide, as part of the nomination, the certification mentioned in subregulation 2.72A(8A).

14  After subregulation 2.73B(3)

Insert:

          (3A)  The person must provide, as part of the nomination, the certification mentioned in subregulation 2.72A(8A).

15  After paragraph 5.19(2)(a)

Insert:

                    (aa)  include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

16  Subregulation 5.19(7) (definitions of adverse information and associated with)

Repeal the definitions.

17  After Division 5.3A of Part 5

Insert:

Division 5.3BOffences and civil penalties in relation to sponsored visas

5.19L  Classes of sponsor

                   For the definition of sponsor class in section 245AQ of the Act, the following classes of sponsor are prescribed:

                     (a)  a standard business sponsor;

                     (b)  an entertainment sponsor;

                     (c)  a superyacht crew sponsor;

                     (d)  a long stay activity sponsor;

                     (e)  a training and research sponsor;

                      (f)  an exchange sponsor;

                     (g)  a religious worker sponsor;

                     (h)  a sport sponsor.

5.19M  Kinds of sponsored visa

                   For the definition of sponsored visa in section 245AQ of the Act, the following kinds of visa are prescribed:

                     (a)  a Subclass 186 (Employer Nomination Scheme) visa;

                     (b)  a Subclass 187 (Regional Sponsored Migration Scheme) visa;

                     (c)  a Subclass 401 (Temporary Work (Long Stay Activity)) visa;

                     (d)  a Subclass 402 (Training and Research) visa in the Research stream;

                     (e)  a Subclass 420 (Temporary Work (Entertainment)) visa;

                      (f)  a Subclass 457 (Temporary Work (Skilled)) visa;

                     (g)  a Subclass 488 (Superyacht Crew) visa.

5.19N  Sponsorship‑related events

                   For paragraph (l) of the definition of sponsorship‑related event in section 245AQ of the Act, each of the following is a prescribed event:

                     (a)  a person becoming, or not ceasing to be, a party to a labour agreement that is not a work agreement;

                     (b)  a person nominating a position in accordance with such a labour agreement in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination;

                     (c)  a person not withdrawing a nomination of a position made in accordance with such a labour agreement in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa.

18  After subregulation 5.20A(3)

Insert:

          (3A)  For subsection 506A(1) of the Act, a person who is alleged to have contravened subsection 245AR(1) or 245AS(1) of the Act may pay a penalty to the Commonwealth as an alternative to proceedings for a civil penalty order against the person.

          (3B)  If the person has previously been issued an infringement notice for an alleged contravention of subsection 245AR(1) or 245AS(1) of the Act, or has been ordered by a Court to pay a pecuniary penalty for a contravention of either of those subsections, the penalty is:

                     (a)  in the case of a natural person—48 penalty units; or

                     (b)  in the case of a body corporate—240 penalty units.

          (3C)  If subregulation (3B) does not apply, the penalty is:

                     (a)  in the case of a natural person—24 penalty units; or

                     (b)  in the case of a body corporate—120 penalty units.

19  Regulation 5.21 (at the end of the definition of civil penalty provision)

Add:

                    ; (i)  subsection 245AR(1);

                      (j)  subsection 245AS(1).

20  Subregulations 5.23(3) and (4)

After “provision”, insert “, or subsection 245AR(1) or 245AS(1) of the Act,”.

21  After paragraph 1114B(3)(d) of Schedule 1

Insert:

                   (da)  An applicant seeking to satisfy the primary criteria must declare in the application (the primary application) whether or not either:

                              (i)  the applicant; or

                             (ii)  any person who has made a combined application with the applicant;

                            has engaged in conduct, in relation to the primary application or the combined application, that constitutes a contravention of subsection 245AS(1) of the Act.

22  After paragraph 1114C(3)(d) of Schedule 1

Insert:

                   (da)  An applicant seeking to satisfy the primary criteria must declare in the application (the primary application) whether or not either:

                              (i)  the applicant; or

                             (ii)  any person who has made a combined application with the applicant;

                            has engaged in conduct, in relation to the primary application or the combined application, that constitutes a contravention of subsection 245AS(1) of the Act.

23  At the end of subitem 1223A(3) of Schedule 1

Add:

                     (e)  An applicant seeking to satisfy the primary criteria for the grant of a Subclass 457 (Temporary Work (Skilled)) visa must declare in the application (the primary application) whether or not either:

                              (i)  the applicant; or

                             (ii)  any person who has made a combined application with the applicant;

                            has engaged in conduct, in relation to the primary application or the combined application, that constitutes a contravention of subsection 245AS(1) of the Act.

24  At the end of subitem 1227A(3) of Schedule 1

Add:

                     (e)  An applicant must declare in the application whether or not the applicant has engaged in conduct, in relation to the application, that constitutes a contravention of subsection 245AS(1) of the Act.

25  After paragraph 1232(3)(d) of Schedule 1

Insert:

                   (da)  An applicant seeking to satisfy the primary criteria must declare in the application (the primary application) whether or not either:

                              (i)  the applicant; or

                             (ii)  any person who has made a combined application with the applicant;

                            has engaged in conduct, in relation to the primary application or the combined application, that constitutes a contravention of subsection 245AS(1) of the Act.

26  Subitem 1233(5) of Schedule 1 (at the end of the table)

Add:

3

An applicant must declare in the application (the primary application) whether or not either:

(a) the applicant; or

(b) any person who has made a combined application with the applicant;

has engaged in conduct, in relation to the primary application or the combined application, that constitutes a contravention of subsection 245AS(1) of the Act

27  After paragraph 1235(3)(c) of Schedule 1

Insert:

                    (ca)  An applicant seeking to satisfy the primary criteria must declare in the application (the primary application) whether or not either:

                              (i)  the applicant; or

                             (ii)  any person who has made a combined application with the applicant;

                            has engaged in conduct, in relation to the primary application or the combined application, that constitutes a contravention of subsection 245AS(1) of the Act.

28  After clause 186.212 of Schedule 2

Insert:

186.212A

                   Either:

                     (a)  the Minister is satisfied that the applicant has not, in the previous 3 years, engaged in conduct that constitutes a contravention of subsection 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act; or

                     (b)  both of the following apply:

                              (i)  the Minister is satisfied that the applicant has engaged in such conduct in that period;

                             (ii)  the Minister considers that it is reasonable to disregard the conduct.

29  After subclause 186.223(3) of Schedule 2

Insert:

          (3A)  Either:

                     (a)  there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

                     (b)  it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

30  Subclause 186.233(2) of Schedule 2

Omit “was the nominator in the application for approval”, substitute “made the nomination”.

31  After subclause 186.233(4) of Schedule 2

Insert:

          (4A)  Either:

                     (a)  there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

                     (b)  it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

32  After subclause 186.242(4) of Schedule 2

Insert:

          (4A)  Either:

                     (a)  there is no adverse information known to Immigration about the employer who made the nomination or a person associated with the employer; or

                     (b)  it is reasonable to disregard any adverse information known to Immigration about the employer who made the nomination or a person associated with the employer.

33  After clause 186.312 of Schedule 2

Insert:

186.312A

                   Either:

                     (a)  the Minister is satisfied that the applicant has not, in the previous 3 years, engaged in conduct that constitutes a contravention of subsection 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act; or

                     (b)  both of the following apply:

                              (i)  the Minister is satisfied that the applicant has engaged in such conduct in that period;

                             (ii)  the Minister considers that it is reasonable to disregard the conduct.

34  After clause 187.212 of Schedule 2

Insert:

187.212A

                   Either:

                     (a)  the Minister is satisfied that the applicant has not, in the previous 3 years, engaged in conduct that constitutes a contravention of subsection 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act; or

                     (b)  both of the following apply:

                              (i)  the Minister is satisfied that the applicant has engaged in such conduct in that period;

                             (ii)  the Minister considers that it is reasonable to disregard the conduct.

35  After subclause 187.223(3) of Schedule 2

Insert:

          (3A)  Either:

                     (a)  there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

                     (b)  it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

36  Subclause 187.233(2) of Schedule 2

Omit “was the nominator in the application for approval”, substitute “made the nomination”.

37  After subclause 187.233(4) of Schedule 2

Insert:

          (4A)  Either:

                     (a)  there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

                     (b)  it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

38  After subclause 187.242(4) of Schedule 2

Insert:

          (4A)  Either:

                     (a)  there is no adverse information known to Immigration about the employer who made the nomination or a person associated with the employer; or

                     (b)  it is reasonable to disregard any adverse information known to Immigration about the employer who made the nomination or a person associated with the employer.

39  After clause 187.312 of Schedule 2

Insert:

187.312A

                   Either:

                     (a)  the Minister is satisfied that the applicant has not, in the previous 3 years, engaged in conduct that constitutes a contravention of subsection 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act; or

                     (b)  both of the following apply:

                              (i)  the Minister is satisfied that the applicant has engaged in such conduct in that period;

                             (ii)  the Minister considers that it is reasonable to disregard the conduct.

40  Clause 401.111 of Schedule 2 (definitions of adverse information and associated with)

Repeal the definitions.

41  After clause 401.212 of Schedule 2

Insert:

401.212A

                   Either:

                     (a)  the Minister is satisfied that the applicant has not, in the previous 3 years, engaged in conduct that constitutes a contravention of subsection 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act; or

                     (b)  both of the following apply:

                              (i)  the Minister is satisfied that the applicant has engaged in such conduct in that period;

                             (ii)  the Minister considers that it is reasonable to disregard the conduct.

42  After clause 401.312 of Schedule 2

Insert:

401.312A

                   Either:

                     (a)  the Minister is satisfied that the applicant has not, in the previous 3 years, engaged in conduct that constitutes a contravention of subsection 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act; or

                     (b)  both of the following apply:

                              (i)  the Minister is satisfied that the applicant has engaged in such conduct in that period;

                             (ii)  the Minister considers that it is reasonable to disregard the conduct.

43  Clause 402.111 of Schedule 2 (definitions of adverse information and associated with)

Repeal the definitions.

44  After clause 402.231 of Schedule 2

Insert:

402.231A

                   Either:

                     (a)  the Minister is satisfied that the applicant has not, in the previous 3 years, engaged in conduct that constitutes a contravention of subsection 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act; or

                     (b)  both of the following apply:

                              (i)  the Minister is satisfied that the applicant has engaged in such conduct in that period;

                             (ii)  the Minister considers that it is reasonable to disregard the conduct.

45  After clause 402.312 of Schedule 2

Insert:

402.312A

                   If the applicant is an applicant for a Subclass 402 visa in the Research stream, either:

                     (a)  the Minister is satisfied that the applicant has not, in the previous 3 years, engaged in conduct that constitutes a contravention of subsection 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act; or

                     (b)  both of the following apply:

                              (i)  the Minister is satisfied that the applicant has engaged in such conduct in that period;

                             (ii)  the Minister considers that it is reasonable to disregard the conduct.

46  After clause 420.212 of Schedule 2

Insert:

420.212A

                   Either:

                     (a)  the Minister is satisfied that the applicant has not, in the previous 3 years, engaged in conduct that constitutes a contravention of subsection 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act; or

                     (b)  both of the following apply:

                              (i)  the Minister is satisfied that the applicant has engaged in such conduct in that period;

                             (ii)  the Minister considers that it is reasonable to disregard the conduct.

47  After clause 420.312 of Schedule 2

Insert:

420.312A

                   Either:

                     (a)  the Minister is satisfied that the applicant has not, in the previous 3 years, engaged in conduct that constitutes a contravention of subsection 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act; or

                     (b)  both of the following apply:

                              (i)  the Minister is satisfied that the applicant has engaged in such conduct in that period;

                             (ii)  the Minister considers that it is reasonable to disregard the conduct.

48  Division 457.1 of Schedule 2

Repeal the Division, substitute:

457.1—Interpretation

Note 1:       For AUD, labour agreement, ownership interest and standard business sponsor, see regulation 1.03.

Note 2:       There are no interpretation provisions specific to this Part.

49  After clause 457.223 of Schedule 2

Insert:

457.223A

                   Either:

                     (a)  the Minister is satisfied that the applicant has not, in the previous 3 years, engaged in conduct that constitutes a contravention of subsection 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act; or

                     (b)  both of the following apply:

                              (i)  the Minister is satisfied that the applicant has engaged in such conduct in that period;

                             (ii)  the Minister considers that it is reasonable to disregard the conduct.

50  After clause 457.324B of Schedule 2

Insert:

457.324C

                   Either:

                     (a)  the Minister is satisfied that the applicant has not, in the previous 3 years, engaged in conduct that constitutes a contravention of subsection 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act; or

                     (b)  both of the following apply:

                              (i)  the Minister is satisfied that the applicant has engaged in such conduct in that period;

                             (ii)  the Minister considers that it is reasonable to disregard the conduct.

51  After clause 488.222 of Schedule 2

Insert:

488.222A

                   Either:

                     (a)  the Minister is satisfied that the applicant has not, in the previous 3 years, engaged in conduct that constitutes a contravention of subsection 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act; or

                     (b)  both of the following apply:

                              (i)  the Minister is satisfied that the applicant has engaged in such conduct in that period;

                             (ii)  the Minister considers that it is reasonable to disregard the conduct.

52  Schedule 13

Insert in its appropriate numerical position:

Part 51Amendments made by the Migration Amendment (Charging for a Migration Outcome and Other Measures) Regulation 2015

  

5101  Operation of Schedule 1

             (1)  The amendments of these Regulations made by items 9 and 11 to 14 of Schedule 1 to the Migration Amendment (Charging for a Migration Outcome and Other Measures) Regulation 2015 apply in relation to a nomination made after the commencement of those items.

             (2)  The amendment of these Regulations made by item 15 of Schedule 1 to the Migration Amendment (Charging for a Migration Outcome and Other Measures) Regulation 2015 applies in relation to an application for approval of a nomination made after the commencement of that item.

             (3)  The amendments of these Regulations made by items 21 to 27 of Schedule 1 to the Migration Amendment (Charging for a Migration Outcome and Other Measures) Regulation 2015 apply in relation to an application for a visa made after the commencement of those items.

             (4)  The amendments of these Regulations made by items 28, 29, 31 to 35, 37 to 39, 41, 42, 44 to 47 and 49 to 51 of Schedule 1 to the Migration Amendment (Charging for a Migration Outcome and Other Measures) Regulation 2015 apply in relation to:

                     (a)  an application for a visa made, but not finally determined, before the commencement of those items; and

                     (b)  an application for a visa made after the commencement of those items.