Migration Amendment Regulations 2009 (No. )

Schedule 1 Amendment relating to condition 8201

(regulation 3)

[1] Schedule 8, clause 8201

substitute

8201 For a visa other than:

(a) a Subclass 675 (Medical Treatment (Short Stay)) visa in relation to which the holder:

(i) is under 18; and

(ii) has experienced a change in circumstances while in Australia; and

(iii) has the written permission of the Minister to engage for more than 3 months in any studies or training because of compelling and compassionate circumstances; or

(b) a Subclass 685 (Medical Treatment (Long Stay)) visa in relation to which the holder:

(i) is under 18; and

(ii) has experienced a change in circumstances while in Australia; and

(iii) has the written permission of the Minister to engage for more than 3 months in any studies or training because of compelling and compassionate circumstances;

while in Australia the holder must not engage, for more than 3 months, in any studies or training.

Schedule 2 Amendments relating to Subclass 442 (Occupational Trainee) visas

(regulation 4)

[1] Schedule 1, paragraphs 1208 (3) (a) and (b)

substitute

(a) Application (other than an application by a person seeking to satisfy the criteria for the grant of a Subclass 442 (Occupational Trainee) visa) may be made in or outside Australia, but not in immigration clearance.

(b) Applicant (other than an applicant seeking to satisfy the criteria for the grant of a Subclass 442 (Occupational Trainee) visa) must be in Australia to make an application in Australia.

[2] Schedule 1, after paragraph 1208 (3) (bc)

insert

(bd) Application by a person seeking to satisfy the criteria for the grant of a Subclass 442 (Occupational Trainee) visa must be made:

(i) by posting the application (with the correct pre‑paid postage) to the post office box address specified by the Minister in an instrument in writing for this subparagraph; or

(ii) by delivering the application by courier service to the address specified by the Minister in an instrument in writing for this subparagraph.

[3] Schedule 2, Division 442.21, note

substitute

Note If the applicant is outside Australia, there are no criteria to be satisfied at time of application.

[4] Schedule 2, clause 442.227

omit

If the application is made outside Australia and the applicant

insert

If the applicant is outside Australia at the time of application, and

[5] Schedule 2, clause 442.228

omit

If the application is made in the migration zone

insert

If the applicant is in the migration zone at the time of application

[6] Schedule 2, subclause 442.229 (1)

omit

if the application is made in the migration zone

insert

if the applicant is in the migration zone at the time of application

[7] Schedule 2, clause 442.312

omit

If the application is made outside Australia

insert

If the applicant is outside Australia at the time of application,

[8] Schedule 2, clause 442.324

omit

If the application is made outside Australia and if the applicant

insert

If the applicant is outside Australia at the time of application, and

[9] Schedule 2, clause 442.324A

omit

If the application is made in the migration zone

insert

If the applicant is in the migration zone at the time of application

[10] Schedule 2, Division 442.4

substitute

442.4 Circumstances applicable to grant

442.411 The applicant may be in or outside Australia at the time of grant, but not in immigration clearance.

Schedule 3 Amendment relating to public interest criterion 4001

(regulation 5)

[1] Schedule 4, Part 1, clause 4001

omit each mention of

the applicant

insert

the person

Schedule 4 Amendments relating to family violence

(regulation 6)

[1] Subregulation 1.21 (1), definition of non‑judicially determined claim of family violence

omit

subregulation 1.23 (1A)

insert

subregulations 1.23 (8) and (9)

[2] Subregulation 1.21 (1), definition of relevant family violence

substitute

relevant family violence means conduct, whether actual or threatened, towards:

(a) the alleged victim; or

(b) a member of the family unit of the alleged victim; or

(d) the property of the alleged victim; or

(e) the property of a member of the family unit of the alleged victim; or

(f) the property of a member of the family unit of the alleged perpetrator;

that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.

[3] Regulation 1.23

substitute

1.23 When is a person taken to have suffered or committed family violence?

(1) For these Regulations, this regulation explains when:

(a) a person (the alleged victim) is taken to have suffered family violence; and

(b) another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.

Note Schedule 2 sets out which visas may be granted on the basis of a person having suffered family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have suffered family violence, and how those persons are related to the spouse or de facto partner of the alleged perpetrator mentioned in this regulation.

Circumstances in which family violence is suffered and committed — injunction under Family Law Act 1975

(2) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if, on the application of the alleged victim, a court has granted an injunction under paragraph 114 (1) (a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator.

(3) For subregulation (2), the violence, or part of the violence, that led to the granting of the injunction must have occurred while the married relationship between the alleged perpetrator and the spouse of the alleged perpetrator existed.

Circumstances in which family violence is suffered and committed — court order

(4) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

(a) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and

(b) unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator — that order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.

(5) For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

Circumstances in which family violence is suffered and committed — conviction

(6) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if a court has:

(a) convicted the alleged perpetrator of an offence of violence against the alleged victim; or

(b) recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim.

(7) For subregulation (6), the violence, or part of the violence, that led to the conviction or recording of a finding of guilt must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

Circumstances in which family violence is suffered and committed — non‑judicially determined claim of family violence

(8) For these Regulations, an application for a visa is taken to include a non‑judicially determined claim of family violence if:

(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

(b) the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim.

(9) For these Regulations, an application for a visa is taken to include a non‑judicially determined claim of family violence if:

(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

(b) the alleged victim is:

(i) a spouse or de facto partner of the alleged perpetrator; or

(ii) a dependent child of:

(A) the alleged perpetrator; or

(B) the spouse or de facto partner of the alleged perpetrator; or

(iii) a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and

(c) the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:

(i) the alleged victim has suffered relevant family violence; and

(ii) the alleged perpetrator committed that relevant family violence.

(10) If an application for a visa includes a non‑judicially determined claim of family violence:

(a) the Minister must consider whether the alleged victim has suffered relevant family violence; and

(b) if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and

(i) the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and

(ii) the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.

(11) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

(a) an application for a visa includes a non‑judicially determined claim of family violence; and

(b) the Minister is satisfied under paragraph (10) (b) that the alleged victim has suffered relevant family violence.

(12) For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

(13) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

(a) an application for a visa includes a non‑judicially determined claim of family violence; and

(b) the Minister is required by subparagraph (10) (c) (ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.

(14) For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

[4] Subregulation 1.24 (1)

omit

subparagraph 1.23 (1A) (b) (ii)

insert

paragraph 1.23 (9) (c)

[5] Subregulation 1.25 (2)

omit

paragraph 1.23 (2) (b)

insert

subregulation 1.21 (1)

[6] Subregulation 1.25 (3)

omit

paragraph 1.23 (2) (b)

insert

subregulation 1.21 (1)

[7] Paragraph 1.26 (c)

omit

paragraph 1.23 (2) (b)

insert

subregulation 1.21 (1)

[8] Regulation 1.27

omit

paragraph 1.23 (1B) (b)

insert

subparagraph 1.23 (10) (c) (i)

Schedule 5 Amendments relating to de facto relationships

(regulation 7)

[1] Subregulation 2.03A (3)

omit

subregulation (4)

insert

subregulations (4) and (5)

[2] After subregulation 2.03A (4)

insert

(5) Subregulation (3) does not apply if the de facto relationship is a relationship that is registered under a law of a State or Territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those Regulations.

Schedule 6 Amendments relating to 400 series visas

(regulation 8)

[1] Regulation 2.12BC

omit

1205 (3) (c)

insert

1205 (3) (ca)

[2] After paragraph 2.72I (4) (c)

insert

(ca) the occupational training is workplace based; and

[3] Paragraph 2.80 (5) (a)

substitute

(a) starts to apply:

(i) if the primary sponsored person or secondary sponsored person holds a Subclass 416 (Special Program) visa — on the day on which the primary sponsored person or secondary sponsored person is granted the visa; or

(ii) if the primary sponsored person or secondary sponsored person holds a Subclass 428 (Religious Worker) visa or a Subclass 457 (Business (Long Stay)) visa:

(A) on the day on which the Minister approves a nomination by the person that identifies the primary sponsored person; or

(B) if the primary sponsored person does not hold the visa on the day the Minister approves the nomination — on the day on which the primary sponsored person is granted the visa on the basis of being identified in an approved nomination by the person; and

[4] Subparagraph 2.85 (4) (a) (ii)

after

a Subclass 420 (Entertainment) visa,

insert

a Subclass 421 (Sport) visa,

[5] Schedule 1, sub‑subparagraph 1205 (2) (a) (ii) (B)

substitute

(B) the applicant has been identified in a nomination under section 140GB of the Act by a person mentioned in sub‑sub‑subparagraph 1205 (3) (cb) (ii) (B) (I) or (II), and that person is an organisation that is:

(I) funded wholly or in part by the Commonwealth; and

(II) is approved by the Secretary for this sub‑sub‑subparagraph.

[6] Schedule 1, paragraph 1205 (3) (ba)

omit each mention of

a Gazette Notice

insert

an instrument in writing

[7] Schedule 1, paragraph 1205 (3) (c) including the note

substitute

(c) Application by a person seeking to satisfy the primary criteria for the grant of a Subclass 420 (Entertainment) visa must be accompanied by a completed form 1379.

(ca) Application by a person seeking to satisfy the criteria for the grant of a Subclass 420 (Entertainment) visa must be made by:

(i) posting the application (with the correct pre‑paid postage) to the post office box address specified in an instrument in writing for this subparagraph; or

(ii) having the application delivered by a courier service, or otherwise by hand, to the address specified in an instrument in writing for this subparagraph; or

(iii) having the application sent by fax to the fax number specified in an instrument in writing for this subparagraph.

Note Regulation 2.12BC sets out special arrangements for the making of applications by persons designated under regulation 2.07AO. The arrangements in paragraph 1205 (3) (ca) do not apply to those persons.

[8] Schedule 1, paragraph 1205 (3) (ca)

reletter as paragraph 1205 (3) (cb)

[9] Schedule 1, paragraph 1205 (3) (cb)

reletter as paragraph 1205 (3) (cc)

[10] Schedule 1, subparagraph 1223A (3) (b) (ii)

omit

spouse

insert

spouse, de facto partner