Migration Amendment Regulations 2009 (No. 5)

Schedule 1 (items 1–14 commenced on 9 September 2009]

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra

1 Name of Regulations

These Regulations are the Migration Amendment Regulations 2009 (No. 5).

2 Commencement

These Regulations commence on 14 September 2009.

3 Amendment of Migration Regulations 1994

(1) Schedule 1 amends the Migration Regulations 1994.

(2) The amendments made by Schedule 1 apply in relation to:

(a) a work agreement:

(i) entered into before 14 September 2009 and continuing in effect on 14 September 2009; or

(ii) entered into on or after 14 September 2009; and

(b) an application for approval as:

(i) a sponsor under section 140E of the Migration Act 1958, as in force immediately before 14 September 2009, made but not finally determined (within the meaning of subsection 5 (9) of that Act) before 14 September 2009, in relation to an applicant for a Subclass 457 (Business (Long Stay)) visa or a Subclass 470 (Professional Development) visa; or

(ii) a standard business sponsor or a professional development sponsor made on or after 14 September 2009; and

(c) an application for approval as a temporary work sponsor (within the meaning given in regulation 1.03 of the Migration Regulations 1994) made on or after 14 September 2009; and

(d) an application for approval of a nomination of an activity made under regulation 1.20G or 1.20GA of the Migration Regulations 1994 as in force immediately before 14 September 2009, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before 14 September 2009; and

(e) a nomination of an occupation, a program or an activity made on or after 14 September 2009; and

(f) an application made on or after 14 September 2009 for 1 of the following visas:

(ii) a Subclass 415 (Foreign Government Agency) visa;

(iii) a Subclass 416 (Special Program) visa;

(iv) a Subclass 419 (Visiting Academic) visa;

(v) a Subclass 420 (Entertainment) visa;

(vi) a Subclass 421 (Sport) visa;

(vii) a Subclass 422 (Medical Practitioner) visa;

(viii) a Subclass 423 (Media and Film Staff) visa;

(ix) a Subclass 427 (Domestic Worker (Temporary) — Executive) visa;

(x) a Subclass 428 (Religious Worker) visa;

(xi) a Subclass 442 (Occupational Trainee) visa;

(xii) a Subclass 470 (Professional Development) visa;

(xiii) a Subclass 488 (Superyacht Crew) visa;

(xiv) a Subclass 571 (Schools Sector) visa;

(xv) a Subclass 572 (Vocational Education and Training Sector) visa;

(xvi) a Subclass 573 (Higher Education Sector) visa;

(xvii) a Subclass 574 (Postgraduate Research Sector) visa.

(2A) The amendments made by Schedule 1 do not apply in relation to an application for approval as a sponsor under regulation 1.20AA made on or after 14 September 2009 if the sponsorship is in relation to a visa application made before 14 September 2009.

(3) If item [45] or [46] of Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008 applies to a person, a sponsorship obligation imposed by the amendments made by Schedule 1 starts to apply to the person on the later of:

(a) the date on which the obligation commences for the person; and

(b) 14 September 2009.

(4) The amendments made by items [10] to [21] of Schedule 1 apply in relation to a decision subject to merit review made by the Minister on or after 14 September 2009.

(5) The amendment made by item [160] of Schedule 1 applies in relation to:

(a) a Subclass 457 (Business (Long Stay)) visa:

(i) that is in force on 14 September 2009; and

(ii) on which condition 8107 is imposed; and

(b) a visa:

(i) that is granted on or after 14 September 2009; and

(ii) on which condition 8107 is imposed.

Note Part 2 of Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008 provides transitional matters relevant to the amendments made by that Schedule. The transitional matters include matters relevant to persons who were, immediately before 14 September 2009, approved sponsors, approved professional development sponsors, standard business sponsors and former standard business sponsors.

Schedule 1 Amendments

(regulation 3)

[1] Regulation 1.03, definition of approved professional development sponsor

omit

[1A] Regulation 1.03, definition of approved special student sponsor

Arts Minister means the Minister responsible for administering the National Gallery Act 1975.

[1B] Regulation 1.03, after definition of designated security

domestic worker sponsor means a person who:

(b) is approved as a sponsor in relation to the domestic worker sponsor class by the Minister under subsection 140E (1) of the Act.

[1C] Regulation 1.03, after definition of Employment Minister

entertainment sponsor means a person who:

(b) is approved as a sponsor in relation to the entertainment sponsor class by the Minister under subsection 140E (1) of the Act.

[1D] Regulation 1.03, after definition of eVisitor eligible passport

exchange sponsor means a person who:

(b) is approved as a sponsor in relation to the exchange sponsor class by the Minister under subsection 140E (1) of the Act.

[1E] Regulation 1.03, after definition of foreign armed forces dependant

foreign government agency sponsor means a person who:

(b) is approved as a sponsor in relation to the foreign government agency sponsor class by the Minister under subsection 140E (1) of the Act.

[1F] Regulation 1.03, definition of labour agreement

labour agreement means a formal agreement entered into between:

(a) the Minister, or the Employment Minister; and

(b) a person or organisation in Australia;

under which an employer is authorised to recruit persons to be employed by that employer in Australia.

[1G] Regulation 1.03, definition of net employment benefit

omit

[1H] Regulation 1.03, definition of occupational trainee

omit

[1I] Regulation 1.03, after definition of Occupations Requiring English List

occupational trainee means a person who is in Australia as the holder of a Subclass 442 (Occupational Trainee) visa.

occupational trainee sponsor means a person who:

(b) is approved as a sponsor in relation to the occupational trainee sponsor class by the Minister under subsection 140E (1) of the Act.

[2] Regulation 1.03, after definition of prescribed form

primary sponsored person has the meaning given by subregulation 2.57 (1).

professional development sponsor means a person who:

(b) is approved as a sponsor in relation to the professional development sponsor class by the Minister under subsection 140E (1) of the Act.

Note 1 Approved sponsor is defined in subsection 5 (1) of the Act. A person is no longer an approved sponsor in relation to a class of sponsor if the person’s approval to be a sponsor has been cancelled under section 140M of the Act, or has otherwise ceased to have effect under section 140G of the Act.

Note 2 Different classes of sponsor, in relation to which a person may be approved as a sponsor, are prescribed under subsection 140E (2) of the Act. See regulation 2.58.

[2A] Regulation 1.03, definition of religious institution

religious institution means a body:

(a) the activities of which reflect that it is a body instituted for the promotion of a religious object; and

(b) the beliefs and practices of the members of which constitute a religion due to those members:

(i) believing in a supernatural being, thing or principle; and

(ii) accepting the canons of conduct that give effect to that belief, but that do not offend against the ordinary laws; and

(c) that meets the requirements of section 50-50 of the Income Tax Assessment Act 1997; and

(d) the income of which is exempt from income tax under section 50-1 of that Act.

religious worker sponsor means a person who:

(b) is approved as a sponsor in relation to the religious worker sponsor class by the Minister under subsection 140E (1) of the Act.

[2B] Regulation 1.03, after definition of secondary exchange student

secondary sponsored person has the meaning given by subregulation 2.57 (1).

[2C] Regulations 1.03, after definition of SOFA forces member

special program sponsor means a person who:

(b) is approved as a sponsor in relation to the special program sponsor class by the Minister under subsection 140E (1) of the Act.

[2D] Regulation 1.03, after definition of sponsorship

sport sponsor means a person who:

(b) is approved as a sponsor in relation to the sport sponsor class by the Minister under subsection 140E (1) of the Act.

[3] Regulation 1.03, after definition of spouse

standard business sponsor means a person who:

(b) is approved as a sponsor in relation to the standard business sponsor class by the Minister under subsection 140E (1) of the Act.

Note 1 Approved sponsor is defined in subsection 5 (1) of the Act. A person is no longer an approved sponsor in relation to a class of sponsor if the person’s approval to be a sponsor has been cancelled under section 140M of the Act, or has otherwise ceased to have effect under section 140G of the Act.

Note 2 Different classes of sponsor, in relation to which a person may be approved as a sponsor, are prescribed under subsection 140E (2) of the Act. See regulation 2.58.

Note 3 A person who, immediately before 14 September 2009, was a standard business sponsor or an approved sponsor (other than an approved professional development sponsor), is taken to be approved as a sponsor in relation to the standard business sponsor class under section 140E of the Act. The terms specified in the person’s approval, immediately before 14 September 2009, continue to apply. See item 45 of Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008.

[3A] Regulation 1.03, after definition of superyacht

superyacht crew sponsor means a person who:

(b) is approved as a sponsor in relation to the superyacht crew sponsor class by the Minister under subsection 140E (1) of the Act.

[3B] Regulation 1.03, after definition of temporary entry permit

temporary work sponsor means any of the following:

(a) an exchange sponsor;

(b) a foreign government agency sponsor;

(c) a special program sponsor;

(d) a visiting academic sponsor;

(e) an entertainment sponsor;

(f) a sport sponsor;

(g) a domestic worker sponsor;

(h) a religious worker sponsor;

(i) an occupational trainee sponsor;

(j) a superyacht crew sponsor.

[3C] Regulation 1.03, after definition of transit passenger

visiting academic sponsor means a person who:

(b) is approved as a sponsor in relation to the visiting academic sponsor class by the Minister under subsection 140E (1) of the Act.

[3D] Regulation 1.12A

omit

[4] Division 1.4, heading

Division 1.4 Sponsorship not applicable to Division 3A of Part 2 of the Act

[5] Regulation 1.20, heading

1.20 Sponsorship undertakings

[5A] Paragraph 1.20 (2) (b)

omit

, Extended Eligibility (Temporary) (Class TK), Sponsored Training (Temporary) (Class UV) or Superyacht Crew (Temporary) (Class UW)

or Extended Eligibility (Temporary) (Class TK)

[5B] Subparagraph 1.20 (2) (e) (ii)

omit

granted;

granted.

[5C] Paragraph 1.20 (2) (f)

omit

[5D] After paragraph 1.20 (4) (e)

(ea) Cultural/Social (Temporary) (Class TE);

(eb) Domestic Worker (Temporary) (Class TG);

(ec) Educational (Temporary) (Class TH);

[5E] After paragraph 1.20 (4) (f)

(fa) Sponsored Training (Temporary) (Class UV);

(fb) Superyacht Crew (Temporary) (Class UW).

[5F] Subregulation 1.20 (4), note

omit

[5G] Subregulation 1.20 (5)

omit

[5H] Subregulation 1.20AA (1)

(1) This regulation applies to a Subclass 422 (Medical Practitioner) visa.

[5I] Subregulation 1.20AA (2)

omit

a school, foreign government agency or

[6] Division 1.4A

omit

[7] Division 1.4B, heading

Division 1.4B Limitation on certain sponsorships under Division 1.4

[8] Divisions 1.4C and 1.4D

omit

[8A] After paragraph 2.43 (1) (i)

(ia) in the case of a holder of:

(ii) a Subclass 415 (Foreign Government Agency) visa; or

(iii) a Subclass 416 (Special Program) visa; or

(iv) a Subclass 419 (Visiting Academic) visa; or

(v) a Subclass 420 (Entertainment) visa; or

(vi) a Subclass 421 (Sport) visa; or

(vii) a Subclass 423 (Media and Film Staff) visa; or

(viii) a Subclass 427 (Domestic Worker (Temporary) — Executive) visa; or

(ix) a Subclass 428 (Religious Worker) visa; or

(x) a Subclass 442 (Occupational Trainee) visa; or

(xi) a Subclass 488 (Superyacht Crew) visa;

that the grounds in subregulation (1A) are met; or

[8B] Paragraphs 2.43 (1) (l), (la) and (lb)

(kb) in the case of the holder of Subclass 457 (Business (Long Stay)) 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:

(i) 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

(ii) the holder has ceased to have a genuine intention to perform that occupation; or

(iii) the position associated with the nominated occupation is not genuine;

(l) in the case of the holder of a Subclass 457 (Business (Long Stay)) visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor) — that:

(i) the sponsor has not complied, or is not complying, with the undertaking given by the business sponsor in accordance with approved form 1067, 1196 or 1196 (Internet); or

(ii) the sponsor has given false or misleading information to Immigration or the Migration Review Tribunal in relation to:

(A) the application (if any) under regulation 1.20C for approval as a standard business sponsor; or

(B) any other matter relating to the business sponsor; or

(iii) the sponsor has failed to satisfy a sponsorship obligation; or

(iv) the sponsor has been cancelled or barred under section 140M of the Act; or

(v) the labour agreement has been terminated, has been suspended or has ceased;

(la) in the case of the holder of a Subclass 457 (Business (Long Stay)) visa who was granted the visa on the basis of a nomination of an activity under regulation 1.20GA as in force immediately before 14 September 2009 — that the holder is living or working within an area specified by the Minister in an instrument in writing for this paragraph;

(lc) in the case of a holder of:

(ii) a Subclass 415 (Foreign Government Agency) visa; or

(iii) a Subclass 416 (Special Program) visa; or

(iv) a Subclass 419 (Visiting Academic) visa; or

(v) a Subclass 420 (Entertainment) visa; or

(vi) a Subclass 421 (Sport) visa; or

(vii) a Subclass 423 (Media and Film Staff) visa; or

(viii) a Subclass 427 (Domestic Worker (Temporary) — Executive) visa; or

(ix) a Subclass 428 (Religious Worker) visa; or

(x) a Subclass 442 (Occupational Trainee) visa; or

(xi) a Subclass 488 (Superyacht Crew) visa;

who is a primary sponsored person in relation to a person who is or was an approved sponsor — that 1 of the grounds specified in subregulation (1B) is met;

(ld) in the case of a holder of:

(ii) a Subclass 419 (Visiting Academic) visa; or

(iii) a Subclass 420 (Entertainment) visa; or

(iv) a Subclass 421 (Sport) visa; or

(v) a Subclass 423 (Media and Film Staff) visa; or

(vi) a Subclass 427 (Domestic Worker (Temporary) — Executive) visa; or

(vii) a Subclass 428 (Religious Worker) visa; or

(viii) a Subclass 442 (Occupational Trainee) visa; or

(ix) a Subclass 457 (Business (Long Stay)) visa;

who is a secondary sponsored person in relation to a person who is or was an approved sponsor — that the person who is or was an approved sponsor of the primary sponsored person to whom the secondary sponsored person is related has not listed the secondary sponsored person in the latest nomination in which the primary sponsored person is identified;

(le) in the case of a holder of:

(i) a Subclass 427 (Domestic Worker (Temporary) — Executive) visa; or

(ii) a Subclass 428 (Religious Worker) visa; or

(iii) a Subclass 457 (Business (Long Stay)) visa;

who is a primary sponsored person or a secondary sponsored person in relation to a person who is or was an approved sponsor — that the person who is or was an approved sponsor has paid the return travel costs of the holder in accordance with the sponsorship obligation mentioned in regulation 2.80 or 2.80A;

[8C] After subregulation 2.43 (1)

(1A) For paragraph (1) (ia), the grounds are that, despite the grant of the visa, the Minister is satisfied that 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:

(a) the visa holder’s visa was granted; or

(b) if the visa holder is identified in a nomination after the visa is granted — the visa holder was identified in a nomination.

(1B) For paragraph (1) (lc), the grounds are the following:

(a) the approval of the person as a sponsor has been cancelled, or the approved sponsor has been barred, under section 140M of the Act;

(b) if the approved sponsor is a party to a work agreement — the work agreement has been terminated or has ceased;

(c) if the primary sponsored person is required to be identified in a nomination — the criteria for approval of the latest nomination in which the primary sponsored person is identified are no longer met;

(d) the person who is or was an approved sponsor has failed to satisfy a sponsorship obligation.

[9] After Part 2

Part 2A Sponsorship applicable to Division 3A of Part 2 of the Act