Federal Register of Legislation - Australian Government

Primary content

Regulations as made
This regulation amends the Migration Regulations 1994 to create a new permanent visa stream for certain New Zealand citizens, lower the maximum age permitted to apply for a Subclass 189 (Skilled – Independent) visa in the Points-tested stream, and remove the requirement for persons departing Australia to complete a passenger card.
Administered by: Immigration and Border Protection
Made 18 May 2017
Registered 19 May 2017
Tabled HR 22 May 2017
Tabled Senate 13 Jun 2017
Date of repeal 02 Jul 2017
Repealed by Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003
Table of contents.

 

Migration Legislation Amendment (2017 Measures No. 2) Regulations 2017

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 regulations.

Dated 18 May 2017

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...................................................................................................................... 1

Schedule 1—New permanent visa for New Zealand citizens and age requirement for points‑tested Subclass 189 visas                                                                                                               2

Migration Regulations 1994                                                                                                               2

Schedule 2—Outgoing passenger cards                                                                                            10

Migration Regulations 1994                                                                                                             10

Schedule 3—Transitional arrangements                                                                                          11

Migration Regulations 1994                                                                                                             11

 


1  Name

                   This instrument is the Migration Legislation Amendment (2017 Measures No. 2) Regulations 2017.

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

1 July 2017.

1 July 2017

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 1New permanent visa for New Zealand citizens and age requirement for points‑tested Subclass 189 visas

  

Migration Regulations 1994

1  Paragraph 2.26AC(2)(a)

Omit “visa; or”, substitute “visa in the Points‑tested stream; or”.

2  Subitems 1137(2) to (4) of Schedule 1

Repeal the subitems, substitute:

Points‑tested stream

             (2)  Subitems (3) to (4C) set out the requirements for:

                     (a)  an applicant (a primary Points‑tested applicant) seeking to satisfy the primary criteria for the grant of a Subclass 189 (Skilled—Independent) visa in the Points‑tested stream; or

                     (b)  an applicant (a secondary applicant) seeking to satisfy the secondary criteria for the grant of a Subclass 189 (Skilled—Independent) visa, whose application is:

                              (i)  combined with the application of a primary Points‑tested applicant; or

                             (ii)  sought to be combined with such an application before a decision is made in relation to that application.

Note:       A member of the family unit of a primary Points‑tested applicant may apply for the grant of a Subclass 189 (Skilled—Independent) visa, seeking to satisfy the secondary criteria. However, the application by the member of the family unit must be made before a decision is made in relation to the application by the primary Points‑tested applicant.

             (3)  Visa application charge—first instalment (payable at the time the application is made):

 

First instalment—Visas in the Points‑tested stream etc.

Item

Component

Amount

1

Base application charge

$3,600

2

Additional applicant charge for an applicant who is at least 18

$1,800

3

Additional applicant charge for an applicant who is less than 18

$900

Note:          Regulation 2.12C explains the components of the first instalment of visa application charge and specifies the amounts of subsequent temporary application charge and non‑Internet application charge. Not all of the components may apply to a particular application.

                   Additional applicant charge is paid by an applicant who claims to be a member of the family unit of another applicant and seeks to combine the application with that applicant’s application.

             (4)  Visa application charge—second instalment (payable before grant of visa):

 

Second instalment—Visas in the Points‑tested stream etc.

Item

Applicant

Amount

1

Applicant who:

(a) was at least 18 at the time of application; and

(b) is assessed as not having functional English

$4,885

2

Any other applicant

Nil

          (4A)  Other:

                     (a)  An application must be made at the place, and in the manner, (if any) specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).

                     (b)  An applicant may be in or outside Australia, but not in immigration clearance.

                     (c)  An applicant in Australia must hold:

                              (i)  a substantive visa; or

                             (ii)  a Subclass 010 Bridging A visa; or

                            (iii)  a Subclass 020 Bridging B visa; or

                            (iv)  a Subclass 030 Bridging C visa.

                     (d)  An application by a secondary applicant may be made at the same time, and combined with, an application by a primary Points‑tested applicant.

          (4B)  A primary Points‑tested applicant must meet the further requirements in the table.

 

Item

Further requirements—Visas in the Points‑tested stream

1

The applicant must have been invited, in writing, by the Minister to apply for a Subclass 189 (Skilled—Independent) visa

2

The applicant must apply for that visa within the period stated in the invitation

3

The applicant must not have turned 45 at the time of invitation to apply for the visa

4

The applicant must nominate a skilled occupation:

(a) that is specified by the Minister, in an instrument under subitem (4C), as a skilled occupation at the time of invitation to apply for the visa; and

(b) that is specified in the invitation as the skilled occupation which the applicant may nominate; and

(c) for which the applicant declares in the application that the applicant’s skills have been assessed as suitable by the relevant assessing authority and that the assessment is not for a Subclass 485 (Temporary Graduate) visa

5

The applicant must not nominate the New Zealand stream

          (4C)  The Minister may, by legislative instrument, specify skilled occupations for the purposes of item 4 of the table in subitem (4B).

New Zealand stream

          (4D)  Subitems (4E) to (4G) set out the requirements for:

                     (a)  an applicant (a primary NZ applicant) seeking to satisfy the primary criteria for the grant of a Subclass 189 (Skilled—Independent) visa in the New Zealand stream; or

                     (b)  an applicant (a secondary applicant) seeking to satisfy the secondary criteria for the grant of a Subclass 189 (Skilled—Independent) visa, whose application is:

                              (i)  combined with the application of a primary NZ applicant; or

                             (ii)  sought to be combined with such an application before a decision is made in relation to that application.

Note:       A member of the family unit of a primary NZ applicant may apply for the grant of a Subclass 189 (Skilled—Independent) visa, seeking to satisfy the secondary criteria. However, the application by the member of the family unit must be made before a decision is made in relation to the application by the primary NZ applicant.

          (4E)  Visa application charge—first instalment (payable at the time the application is made):

 

First instalment—Visas in the New Zealand stream etc.

Item

Component

Amount

1

Base application charge

$720

2

Additional applicant charge for an applicant who is at least 18

$360

3

Additional applicant charge for an applicant who is less than 18

$180

 

Note:          Regulation 2.12C explains the components of the first instalment of visa application charge and specifies the amounts of subsequent temporary application charge and non‑Internet application charge. Not all of the components may apply to a particular application.

                   Additional applicant charge is paid by an applicant who claims to be a member of the family unit of another applicant and seeks to combine the application with that applicant’s application.

           (4F)  Visa application charge—second instalment (payable before grant of visa):

 

Second instalment—Visas in the New Zealand stream etc.

Item

Applicant

Amount

1

Applicant who satisfies the primary criteria

$2,880

2

Applicant who was at least 18 at the time of the application, and satisfies the secondary criteria

$1,440

3

Applicant who was under 18 at the time of the application, and satisfies the secondary criteria

$720

 

          (4G)  Other:

                     (a)  An application must be made at the place, and in the manner, (if any) specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).

                     (b)  The applicant must not nominate the Points‑tested stream.

                     (c)  A primary NZ applicant must hold a Subclass 444 (Special Category) visa.

                     (d)  A secondary applicant in Australia must hold:

                              (i)  a substantive visa; or

                             (ii)  a Subclass 010 Bridging A visa; or

                            (iii)  a Subclass 020 Bridging B visa; or

                            (iv)  a Subclass 030 Bridging C visa.

                     (e)  An application by a secondary applicant may be made at the same time, and combined with, an application by a primary NZ applicant.

Subclasses

3  Divisions 189.2 and 189.3 of Schedule 2

Repeal the Divisions, substitute:

189.2—Primary criteria

Note:          The primary criteria for the grant of a Subclass 189 visa include criteria set out in streams.

                   For a Subclass 189 visa in the Points‑tested stream, the criteria in Subdivisions 189.21 and 189.22 are the primary criteria.

                   For a Subclass 189 visa in the New Zealand stream, the criteria in Subdivisions 189.21 and 189.23 are the primary criteria.

                   The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a Subclass 189 visa need satisfy only the secondary criteria in Division 189.3.

                   All criteria must be satisfied at the time a decision is made on the application.

189.21—Common criteria

Note:          These criteria are for all applicants seeking to satisfy the primary criteria for a Subclass 189 visa.

189.211 

Requirements for applicant

             (1)  The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4020 and 4021.

             (2)  If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

Requirements for family unit members who are also applicants

             (3)  Each member of the family unit of the applicant who is an applicant for a Subclass 189 visa satisfies public interest criteria 4001, 4002, 4003, 4004 and 4020.

             (4)  Each member of the family unit of the applicant who:

                     (a)  is an applicant for a Subclass 189 visa; and

                     (b)  had turned 18 at the time of application;

satisfies public interest criterion 4019.

             (5)  Each member of the family unit of the applicant who:

                     (a)  is an applicant for a Subclass 189 visa; and

                     (b)  has not turned 18;

satisfies public interest criteria 4015 and 4016.

Requirements for family unit members who are not themselves applicants

             (6)  Each member of the family unit of the applicant who is not an applicant for a Subclass 189 visa satisfies public interest criteria 4001, 4002, 4003 and 4004.

189.212 

             (1)  The applicant satisfies special return criteria 5001 and 5002.

             (2)  Each member of the family unit of the applicant who is an applicant for a Subclass 189 visa satisfies special return criteria 5001 and 5002.

189.22—Criteria for Points‑tested stream

Note:          These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 189 visa in the Points‑tested stream.

189.221 

                   The applicant was invited, in writing, by the Minister to apply for the visa.

189.222 

             (1)  At the time of invitation to apply for the visa:

                     (a)  the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation; and

                     (b)  the assessment was not for a Subclass 485 (Temporary Graduate) visa; and

                     (c)  if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment—the period had not ended; and

                     (d)  if paragraph (c) did not apply—not more than 3 years had passed since the date of the assessment.

             (2)  If the assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.

189.223 

                   At the time of invitation to apply for the visa, the applicant had competent English.

189.224 

             (1)  The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the score stated in the invitation to apply for the visa.

             (2)  The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the qualifying score for that Subdivision.

Note:          Subdivision B of Division 3 of Part 2 of the Act provides for the application of a points system under which applicants for relevant visas are given an assessed score based on a prescribed number of points for particular attributes, assessed against the relevant pool mark and pass mark: see sections 92 to 96 of the Act.

                   The prescribed points and the manner of their allocation are provided for in Division 2.6 and Schedule 6D of these Regulations. Pool marks and pass marks are set from time to time by the Minister by instrument: see section 96 of the Act.

189.225 

             (1)  The applicant satisfies public interest criteria 4005 and 4010.

             (2)  Each member of the family unit of the applicant who is an applicant for a Subclass 189 visa satisfies public interest criteria 4005 and 4010.

             (3)  Each member of the family unit of the applicant who is not an applicant for a Subclass 189 visa satisfies public interest criterion 4005, unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.

189.226 

             (1)  The applicant satisfies special return criterion 5010.

             (2)  Each member of the family unit of the applicant who is an applicant for a Subclass 189 visa satisfies special return criterion 5010.

189.23—Criteria for New Zealand stream

Note:          These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 189 visa in the New Zealand stream.

189.231 

             (1)  The applicant had been usually resident in Australia for a continuous period of at least 5 years immediately before the date of the application.

             (2)  That continuous period of usual residence in Australia started on or before 19 February 2016.

189.232 

             (1)  The applicant has provided copies of notices of assessment, and of any notices of amended assessments, given to the applicant by the Commissioner of Taxation, of the applicant’s income tax liability in relation to the 4 most recently completed income years before the date of the application (during the period of 5 years immediately before that date).

             (2)  The requirement in subclause (1) is satisfied in relation to a copy of a notice even if the copy does not include the applicant’s tax file number within the meaning of Part VA of the Income Tax Assessment Act 1936.

189.233 

             (1)  For each of the 4 completed income years mentioned in subclause 189.232(1):

                     (a)  the applicant’s taxable income (within the meaning of the Income Tax Assessment Act 1997) is no less than the minimum amount specified by the Minister for the year under subclause (2); or

                     (b)  the applicant:

                              (i)  satisfies the Minister that he or she was a member of a class of exempt applicants specified by the Minister under subclause (2) during the whole, or a specified period, of that year; and

                             (ii)  provides evidence specified by the Minister under subclause (2) in relation to that class of applicants.

             (2)  The Minister may, by legislative instrument:

                     (a)  for the purposes of paragraph (1)(a), specify a minimum amount of income for an income year; and

                     (b)  for the purposes of paragraph (1)(b), specify a class of exempt applicants, and evidence in relation to that class.

189.234 

             (1)  The applicant satisfies public interest criterion 4007.

             (2)  Each member of the family unit of the applicant who is an applicant for a Subclass 189 visa satisfies public interest criterion 4007.

             (3)  Each member of the family unit of the applicant who is not an applicant for a Subclass 189 visa satisfies public interest criterion 4007, unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.

189.3—Secondary criteria

Note:          These criteria are for applicants who are members of the family unit of a person who satisfies the primary criteria. All criteria must be satisfied at the time a decision is made on the application.

189.31—Criteria

189.311 

                   The applicant:

                     (a)  is a member of the family unit of a person (the primary applicant) who holds a Subclass 189 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

                     (b)  made a combined application with the primary applicant.

189.312 

             (1)  The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4020 and 4021.

             (2)  If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

             (3)  If the applicant has not turned 18, the applicant satisfies public interest criteria 4017 and 4018.

             (4)  If the primary applicant holds a Subclass 189 visa in the Points‑tested stream, the applicant satisfies public interest criteria 4005 and 4010.

             (5)  If the primary applicant holds a Subclass 189 visa in the New Zealand stream, the applicant satisfies public interest criterion 4007.

189.313 

             (1)  If the primary applicant holds a Subclass 189 visa in the Points‑tested stream, the applicant satisfies public interest criteria 5001, 5002 and 5010.

             (2)  If the primary applicant holds a Subclass 189 visa in the New Zealand stream, the applicant satisfies special return criteria 5001 and 5002.

Schedule 2Outgoing passenger cards

  

Migration Regulations 1994

1  Subregulation 3.01(3)

After “A person to whom this regulation applies”, insert “who is arriving in Australia”.

2  Paragraphs 3.01(3)(b) and (c)

Repeal the paragraphs, substitute:

                     (b)  provide the completed passenger card to an officer.

Schedule 3Transitional arrangements

  

Migration Regulations 1994

1  In the appropriate position in Schedule 13

Insert:

Part 63Amendments made by Migration Legislation Amendment (2017 Measures No. 2) Regulations 2017

  

6301  Amendments relating to Subclass 189 (Skilled—Independent) visas

             (1)  The amendments to these Regulations made by Schedule 1 to the Migration Legislation Amendment (2017 Measures No. 2) Regulations 2017 apply in relation to an application for a Subclass 189 (Skilled—Independent) visa made on or after 1 July 2017, subject to subclause (2).

Note:          Schedule 1 to the Migration Legislation Amendment (2017 Measures No. 2) Regulations 2017 commences on 1 July 2017.

             (2)  However, the amendments do not apply in relation to an application for a Subclass 189 (Skilled—Independent) visa, if:

                     (a)  both:

                              (i)  the application is made in response to an invitation given by the Minister before 1 July 2017; and

                             (ii)  the application is made on or after 1 July 2017; or

                     (b)  both:

                              (i)  the applicant claims to be a member of the family unit of an applicant (the primary applicant) to whom paragraph (a) applies; and

                             (ii)  the application is combined with the application made by the primary applicant.

6302  Operation of Schedule 2

                   The amendments made by Schedule 2 to the Migration Legislation Amendment (2017 Measures No. 2) Regulations 2017 apply in relation to departures from Australia occurring on or after 1 July 2017.