explanatory statement - legislation

EXPLANATORY STATEMENT

Select Legislative Instrument No. 184

Issued by the Minister for Immigration and Border Protection

Migration Act 1958

Australian Citizenship Act 2007

Migration Legislation Amendment (2015 Measures No.3) Regulation 2015

The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presence

in, Australia of aliens, and the departure or deportation from Australia of aliens and certain

other persons.

The Australian Citizenship Act 2007 (the Citizenship Act) sets out how you become an

Australian citizen, the circumstances in which you may cease to be a citizen and some other

matters related to citizenship.

Subsection 504(1) of the Migration Act and section 54 of the Citizenship Act (the Principal

Acts) in effect provide that the Governor-General may make regulations prescribing matters

required or permitted by the relevant Act to be prescribed, or necessary or convenient to be

prescribed for carrying out or giving effect to the Principal Acts.

In addition, regulations may be made pursuant to the provisions of the Principal Acts listed in

Attachment A.

The purpose of the Migration Legislation Amendment (2015 Measures No.3)

Regulation 2015 (the Regulation) is to amend the Migration Regulations 1994 (the Migration

Regulations) and the Australian Citizenship Regulations 2007 (the Citizenship Regulations)

to strengthen and update immigration and citizenship policy.

In particular, the Regulation amends the Migration Regulations to:

allow dependent relatives of diplomatic and consular representatives to be granted a

student visa or student guardian visa while in Australia during the representative’s

posting period. The amendments also remove the requirement for the Foreign

Minister to recommend the grant of the visa. Dependant relatives can currently study

on their ‘diplomatic’ visas only in limited circumstances. This amendment broadens

the circumstances in which they can study by permitting the grant of a student visa

and student guardian visa. A student guardian visa may be needed if, for example, a

young student needs to study interstate and requires a guardian to accompany them;

enhance protection for domestic workers of diplomatic and consular representatives

by ensuring that the wages and working conditions of such domestic workers are in

accordance with the standards provided for under relevant Australian legislation and

awards;

Explanatory Statement to F2015L01810

2

prevent an applicant for a Subclass 600 (Visitor) visa from being granted the visa if it

would mean their stay in Australia would exceed twelve consecutive months as the

holder of one or more visitor visas, working holiday visas or bridging visas unless

exceptional circumstances exist. This amendment ensures that these visa holders are

restricted to the intended twelve month stay. Without these changes, a new twelve

month period would begin when an applicant moves to a bridging visa while awaiting

a visa decision, therefore not requiring exceptional circumstances to exist for their

extended stay in Australia;

make amendments in relation to victims of human trafficking, slavery and slavery-like

practices who have assisted in the administration of criminal justice in Australia. The

amendments lower the threshold for eligibility for an Attorney-General’s certificate

which is required for a permanent Referred Stay visa. The lowered threshold allows

a person who has made a contribution to, and cooperated closely with, an

investigation in relation to a person who was alleged to have engaged in human

trafficking, slavery or slavery-like practices to be considered for an Attorney-

General’s certificate, even if that investigation does not progress to a brief of

evidence or prosecution. The amendments also provide that, before issuing the

certificate, the Attorney-General or person authorised by the Attorney-General is

required to take into account information provided by a member of the Australian

Federal Police of equivalent or higher rank to a Commander. The

amendments facilitate granting permanent residence to victims of human trafficking,

slavery and slavery-like practices who have assisted in the administration of criminal

justice and who would be in danger if they returned to their home country;

ensure that work undertaken in order to be eligible for a second working holiday visa

must be undertaken on a full-time basis (or part-time or casual basis that is equivalent

to three months full-time work) and remunerated for in accordance with relevant

Australian legislation and awards;

extend the Public Interest Criterion 4020 to six visa subclasses to prevent the grant of

these visas if the applicant provides a bogus document or provides information that is

false or misleading or where the applicant fails to satisfy the Minister as to their

identity. The criterion also provides exclusion periods preventing the applicant from

being granted the visa for a specified period. The affected visa categories are

Retirement, Investor Retirement, Maritime Crew, Transit and Distinguished talent;

and

correct an error in the application provisions of Schedule 2 to the Migration

Amendment (2015 Measures No. 1) Regulation 2015, made on 18 April 2015, which

related to the English language test criteria for certain skilled visas.

The Regulation amends the Citizenship Regulations to:

facilitate citizenship application fees, and refund of citizenship application fees where

appropriate, to be paid in foreign currencies and in foreign countries; and


3

adjust the price of a number of citizenship service fees that are levied to recover costs

directly associated with citizenship application processing to allow for 100%

recovery of ongoing costs to the Government. These adjustments support a 2015-16

Budget measure which followed a joint review of border fees, charges and taxes

conducted in 2015 by the Minister for Immigration and Border Protection and the

Minister for Agriculture.

A Statement of Compatibility with Human Rights (the Statement) has been completed, in

accordance with Human Rights (Parliamentary Scrutiny) Act 2011, for each of the Schedules

to the Regulation. The overall assessment is that the Regulation is compatible with human

rights. A copy of the Statements is at Attachment B.

The Office of Best Practice Regulation (the OBPR) has been consulted in relation to the

amendments made by the Regulation. The OBPR considers that the changes in

Schedules 1 to 8 have a minor impact on business, individuals or the not-for-profit sector and

no further analysis (in the form of a Regulation Impact Statement (RIS)) is required. In

relation to Schedule 9, the department is still consulting with the OBPR about the

amendments. If a RIS is required, it will be tabled as soon as practicable after it is finalised.

The OBPR consultation references are as follows:

18034 (Schedule 1);

19076 (Schedule 2);

18617 (Schedule 3);

19598 (Schedule 4);

18928 (Schedule 5);

18948 (Schedule 6);

17284 and 18291 (Schedule 7);

19704 (Schedule 8); and

18054 (Schedule 9).

In relation to the amendments made by Schedule 1, consultation was undertaken with the

Department of Foreign Affairs and Trade (DFAT) who supported the regulation changes.

In relation to the amendments made by Schedule 2, the department participated in an

interdepartmental working group on Protections for Foreign Domestic Workers, led by the

Attorney-General’s Department, and with Department of Employment and DFAT. This

regulation amendment is a result of this working group.

In relation to the amendments made by Schedule 4, consultation was undertaken with

the Attorney-General’s Department and the Australian Federal Police and they

supported these changes. No further consultation was necessary as this instrument is of a

minor and machinery nature and does not substantially alter existing arrangements. This

accords with a circumstance where consultation may not be necessary under section 18

of the Legislative Instruments Act 2003.

In relation to the amendments made by Schedule 5, consultation was undertaken with the

Department of Employment and the Department of Agriculture. The Department of

Employment supported the change and the Department of Agriculture noted the change.


4

In relation to the amendments made by Schedule 6, consultation was undertaken with

Australian Security Intelligence Organisation, Administrative Appeals Tribunal (AAT), Law

Council of Australia, Migration Institute of Australia, Migration Alliance, Association of

Independent Retirees and British Ex-Pat Retirees in Australia. The AAT raised some matters

during consultation; the department considered these matters and is satisfied that these matters

are resolved. The other stakeholders did not raise any concerns regarding these amendments.

In relation to the amendments made by Schedules 3, 7, 8 and 9, no further consultation

was undertaken for these amendments because they are minor in nature and do not

substantially alter existing arrangements. This accords with a circumstance where

consultation may not be necessary under section 18 of the Legislative Instruments Act

2003.

Further, the amendments made by Schedule 9 are in accordance with the Government’s

decision as part of the 2015-16 Budget.

The Principal Acts specify no conditions that need to be satisfied before the power to make

the Regulation may be exercised.

Details of the Regulation are set out in Attachment C.

The Regulation is a legislative instrument for the purposes of the Legislative Instruments

Act 2003.


5

Schedules 1, 2, 3, 4 and 6 to the Regulation commence on 21 November 2015.

Schedule 5 to the Regulation commences on 1 December 2015.

Schedule 7 to the Regulation commences retrospectively on 18 April 2015 for the following

reasons:

Item 1 of Schedule 7 - The amendments made on 18 April 2015 provided that an

English language test must have been conducted within three years before an

invitation to apply for a visa was received in order to obtain certain points that go

toward visa eligibility. Subclause 4102(1) ensured that the amendments applied to all

unfinalised visa applications as this was beneficial to applicants. However, there are

still unfinalised applications from pre-July 2012 before the invitation scheme was

created. Such persons could never meet the amended provision as they did not receive

an invitation. This effect was not intended. The regulations amend the application

provision so that the amendments made on 18 April 2015 only apply to visa

applications made on or after 1 July 2012 that are not yet finally determined. This

preserves the benefit in the old regulations for applications made pre-July 2012 and

preserves the benefit in the amendments for applications made post 1 July 2012. This

amendment commences retrospectively on 18 April 2015 to restore the intended

position and ensure that no one is disadvantaged;

Item 2 of Schedule 7 – Subclause 4102(2) was drafted incorrectly and it inadvertently

obviates the effect of subclause 4102(1). The amendment repeals this clause to (in

conjunction with the amendment above) give effect to the original intention. This

repeal commences retrospectively on 18 April 2015 to ensure that no one is

disadvantaged in the intervening period.

Careful consideration of each item affected by the retrospective change has confirmed that

there is no disadvantage to any person by the retrospective commencement of the changes.

Schedules 8 and 9 to the Regulation commence on 1 January 2016.


ATTACHMENT A

AUTHORISING PROVISIONS

Subsection 504(1) of the Migration Act 1958 (the Migration Act) relevantly provides that the

Governor-General may make regulations, not inconsistent with the Migration Act,

prescribing all matters which by the Migration 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

Migration Act.

In addition, the following provisions of the Migration Act may apply:

subsection 31(3) 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 sections 32, 35A, 37, 37A or 38B but not by sections 33, 34,

35, 38 or 38A of the Migration Act).

Subsection 46(2) provides that, subject to subsection 46(2A), the regulations prescribe

a class of visas. An application for such a visa is valid if it made for the purposes of

subsection 46(2) and, under the regulations, the application is taken to have been

validly made;

subsection 46(3) 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;

paragraph 46(4)(a) provides in part that, without limiting subsection 46(3), the

regulations may also prescribe the circumstances that must exist for an application for

a visa of a specified class to be a valid application;

subparagraph 65(1)(a)(ii) provides that the regulations prescribe criteria, other

than health criteria, that must be satisfied before the Minister is to grant a visa;

and

section 505 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:

o 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; or

make an assessment of a specified matter; or

make a finding about a specified matter; or

make a decision about a specified matter; and

o 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;


2

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 the

Citizenship Act to be prescribed, or are necessary or convenient to be prescribed for carrying

out or giving effect to the Citizenship Act.

In addition, the following provisions of the Citizenship Act may apply:

paragraph 46(1)(d), 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), 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 the Citizenship Act.


3

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Migration Legislation Amendment (2015 Measures No.1) Regulation 2015

This Legislative Instrument is compatible with the human rights and freedoms recognised or

declared in the international instruments listed in section 3 of the Human Rights

(Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument – Schedule 1

Schedule 1 to this Legislative Instrument repeals clause 228 in Subclasses 570 to 575 and 580

and clause 226 in Subclass 576 of Schedule 2 to the Migration Regulations 1994 (the

Migration Regulations).

Currently, these clauses only permit spouses, de facto partners or dependent relatives of

a diplomatic or consular representative to apply for their student visa or student guardian visa

onshore if the relative has completed or is about to complete their official posting in Australia.

The relevant clauses provide:

If the application was made in Australia and, at the time of application, the applicant was in

Australia as the spouse, de facto partner or dependent relative of a diplomatic or consular

representative of a country other than Australia:

(a) that representative has completed, or is about to complete, an official posting in

Australia; and

(b) the Foreign Minister recommends the grant of the visa.

These clauses mean that where the diplomatic or consular representative has not completed or

is not about to complete their official posting, their spouse, de facto partner or dependent

relatives must travel outside Australia to lodge their student or student guardian visa

applications. In addition, clause 228 also requires them to provide evidence that the

Foreign Minister recommends the grant of the visa (usually in the form of a no-objection

letter from Department of Foreign Affairs and Trade (DFAT)).

Repealing these clauses will allow spouses, de facto partners and dependent relatives of

diplomatic or consular representatives to apply for a student visa or a student guardian visa in

Australia at any time during that representative’s posting period. The requirement for the

Foreign Minister to provide approval for grant of the visa will also be removed.

The amendment will relieve family members of diplomatic or consular representatives of the

inconvenience, cost and time of having to travel overseas in order to apply for a student visa

or a student guardian visa and reduce the regulatory burden on the department and DFAT.

Human rights implications

The amendment has been assessed against the seven core international human rights treaties

that comprise Australia’s human rights obligations. The amendment does not engage any

human rights.


http://legendinternal.immi.gov.au/Migration/2014/23-11-2014/legend_current_mr/Pages/_document00000/_level%20100008/_level%20200257/legend_current_mrpop04995.aspx






http://legendinternal.immi.gov.au/Migration/2014/23-11-2014/legend_current_mr/Pages/_document00000/_level%20100001/_level%20200001/level%20200002.aspx#JD_103-relativedefinition

http://legendinternal.immi.gov.au/Migration/2014/23-11-2014/legend_current_ma/Pages/_document00000/level%20100002.aspx#JD_5-diplomaticorconsularrepresentativedefinition

http://legendinternal.immi.gov.au/Migration/2014/23-11-2014/legend_current_ma/Pages/_document00000/level%20100002.aspx#JD_5-diplomaticorconsularrepresentativedefinition



http://legendinternal.immi.gov.au/Migration/2014/23-11-2014/legend_current_mr/Pages/_document00000/_level%20100001/_level%20200001/level%20200002.aspx#JD_103-ForeignMinisterdefinition

4

As a result of repealing the clauses, prospective international students who are the spouse, de

facto partner or dependent relative of a diplomatic or consular representative will be able to

apply for a student visa overseas or within Australia, and will no longer be required to travel

outside Australia to apply. The amendment reduces any current inconvenience experienced by

persons applying for a student visa as a result of the clauses and does not restrict or interfere

with any human rights.

Conclusion

The amendments do not limit any of the rights or freedoms expressed in Australia’s

international obligations and are compatible with human rights for the reasons outlined above.


Pursuant to both the Vienna Convention on Diplomatic Relations and the Vienna Convention

on Consular Relations, Australia is required to facilitate the entry of private domestic staff of

certain diplomatic and consular officials. Members of the Diplomatic and Consular Corps and

certain other foreign officials posted to Australia may be eligible to sponsor a private

domestic worker to enter Australia to work in their household under Subclass 403 (Temporary

Work (International Relations)) visa (Subclass 403 visa) in the Domestic Worker (Diplomatic

or Consular) stream. DFAT determines whether a posted diplomat or consular officer is

eligible to employ a domestic worker under the Diplomatic Privileges and Immunities

Act 1967 and the Consular Privileges and Immunities Act 1972. In the past, domestic staff

generally worked for one diplomat and departed when that diplomat’s posting expired. As

such, employment conditions were checked once on initial entry.

However, domestic workers are now more likely to work for multiple employers in Australia.

There have also been increased numbers of cases of exploitation, significant underpayment

and possible human trafficking offences detected in this visa caseload/cohort.

Currently, when applicants for Subclass 403 visa in the Domestic Worker (Diplomatic or

Consular) stream apply from outside Australia, it is a visa requirement that applicants be

remunerated according to relevant Australian wages and working conditions. Specifically,

subparagraph 403.243(c) of Schedule 2 to the Migration Regulations requires that “if the

application is made outside Australia, the applicant is to be employed or engaged in Australia

in accordance with the standards for wages and working conditions provided for under

relevant Australian legislation and awards”. There is no similar requirement applicable,

however, to applicants lodging in Australia to be remunerated according to relevant

Australian wages and working conditions.

Schedule 2 to this Legislative Instrument will amend subparagraph 403.242 of Schedule 2 to

the Migration Regulations to provide, similar to current subparagraph 403.243 applicable to

offshore applicants, to require applicants lodging in Australia to be employed or engaged in

Australia in accordance with the standards for wages and working conditions provided for

under relevant Australian legislation and awards.


5


The amendment engages the following human rights:

Right to work and rights at work

All people working in Australia are entitled to basic rights and protections in the workplace.

This right also extends to foreign workers, workers who are not citizens or permanent

residents of Australia. They are also entitled to basic rights and protections in the workplace.

The Fair Work Act 2009 (the Fair Work Act) is the principal Commonwealth legislation

dealing with the right to work and rights at work. The Fair Work Act deals with remuneration

(including equal remuneration for men and women), hours of work, leave, holidays, unfair

dismissal, and the terms and conditions that may apply to particular types of workers, such as

outworkers and pieceworkers.

Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

recognises the right of everyone to the enjoyment of just and favourable conditions of work.

This right encompasses a number of elements, including “remuneration which provides all

workers, as a minimum, with fair wages and equal remuneration for work of equal value

without distinction of any kind, in particular women being guaranteed conditions of work not

inferior to those enjoyed by men, with equal pay for equal work” (ICESCR, Article 7(a)(i));

“safe and healthy working conditions” (ICESCR, Article 7(b)); and “rest, leisure and

reasonable limitation of working hours and periodic holidays with pay, as well as

remuneration for public holidays” (ICESCR, Article 7(d)).

This amendment engages Article 7 of the ICESCR and protects both the right to work and

right to fair work conditions for domestic workers to be properly remunerated by their

employer. It will do so by removing a discrepancy between offshore and onshore applications

and require employers of applicants from both streams, to be employed or engaged in

accordance with Australian work standards provided for under Australian legislation and

awards. In turn, this will improve the integrity of the current programme by removing any

indirect or distorted incentives for proposed employers to favour one stream of applicants

over another, based on their employment conditions in Australia. Rather, this amendment will

ensure all domestic workers are not exploited by their employers and is therefore consistent

with Article 7 of the ICESCR.

Prohibition against slavery and forced labour

Article 8(3)(a) of the International Covenant on Civil and Political Rights (ICCPR) provides

that ‘[n]o one shall be required to perform forced or compulsory labour.’ Australia is

therefore obliged to ensure that no one within its jurisdiction is subject to slavery (i.e. where

powers attaching to the right of ownership are exercised) or forced labour (i.e. a person is

compelled to work under the threat of penalty in work in which the person has not offered to

perform voluntarily).

This amendment also engages Article 8(3)(a) of the ICCPR on the prohibition on slavery and

forced labour by ensuring employers of domestic workers do not abuse domestic workers

through underpayment or non-payment of wages for their services. In addition, this

amendment will establish a mechanism for domestic workers to enforce the conditions of

their employment in accordance with Australian workplace relations legislation and awards.

As such, this amendment is consistent with Article 8(3)(a) of the ICCPR.


6

Conclusion

The amendments are compatible with human rights as it does not raise any human

rights issues.


Schedule 3 to the Legislative Instrument will prevent people from staying in Australia longer

than 12 consecutive months without demonstrating exceptional circumstances as the holder of

one or more visitor visas; or a Subclass 417 (Working Holiday) visa; or a Subclass 462 (Work

and Holiday) visa or a bridging visa. Bridging visas will be included in the current

regulation 600.215 to maintain both the intent and integrity of the Visitor visa programme.

The intention of the Subclass 600 (Visitor) visa is that applicants genuinely intend only to

visit Australia temporarily. For this reason, in accordance with current regulation 600.215 of

the Migration Regulations, exceptional circumstances must exist for granting the visitor visa

if the period of authorised stay would exceed 12 consecutive months as the holder of:

(a) one or more visitor visas; or

(b) a Subclass 417 (Working Holiday) visa; or

(c) a Subclass 462 (Work and Holiday) visa.

The former Migration Review Tribunal, now Migration and Refugee Division of the

Administrative Appeals Tribunal, in cases where the applicant has held a bridging visa while

waiting for a decision, has taken the approach that a bridging visa "breaks" the

12 consecutive months referred to in regulation 600.215 and have remitted decisions to

the department.

This means that clients in these circumstances are not required to demonstrate exceptional

circumstances for the granting of a visitor visa and may result in undermining both the

integrity and intention of the visitor visa programme. It is entirely appropriate that applicants

who have spent 12 consecutive months as the holder of the above visas and/or a bridging visa

are required to demonstrate exceptional circumstances for the granting of a visitor visa.

Exceptional circumstances may include:

the death, serious illness or serious medical condition of a member of the visa

applicant’s close family in Australia, in circumstances where the visa applicant is

required to stay in Australia to provide assistance or support;

a change in the applicant’s circumstances (or the circumstances of an Australian

resident) that:

o could not have been anticipated at the time their visitor visa was granted; and

o is beyond the visa applicant’s control; and

o where not granting a visa would cause significant hardship to an Australian

resident or citizen.


This amendment does not engage any of the applicable rights or freedoms.

Conclusion


rights issues.


7


Schedule 4 to this Legislative Instrument amends the visa framework to support victims of

human trafficking, slavery and slavery-like practices who would be in danger if they returned

to their home country as a result of their participation in the administration of criminal justice

in Australia. That is, it widens the scope of circumstances under which the Attorney General

or a person authorised by the Attorney General can issue certificates to trafficked people to be

eligible for a Subclass 852 (Referred Stay (Permanent)) visa where they had participated in

the criminal justice process.

The amendment lowers the threshold of eligibility for victims of human trafficking to be

issued an Attorney-General’s certificate for a permanent Referred Stay visa. Currently,

regulation 2.07AK provides for very specific circumstances in which trafficked people can be

issued a certificate to be eligible for a Subclass 852 (Referred Stay (Permanent)) visa. The

lowered threshold allows a person who has made a contribution to, and cooperated closely

with, an investigation in relation to a person who was alleged to have engaged in human

trafficking, slavery or slavery-like practices to be considered for a certificate. The amendment

also requires the Attorney-General or person authorised by the Attorney-General to take into

account information provided by a member of the Australian Federal Police of equivalent or

higher rank to a Commander before issuing an Attorney-General’s certificate.

Subregulations 2.07AK (2)-(5) have also been restructured to both enable these changes and

improve readability. This restructure does not affect the legal intent of the provisions.


This regulation amendment positively engages the following human rights:

Rights to liberty, freedom from slavery and forced labour

Article 8 of the International Covenant on Civil and Political Rights (ICCPR) relevantly

provides that:

1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be

prohibited.

2. No one shall be held in servitude.

3. (a) No one shall be required to perform forced or compulsory labour;

...

The amendment to regulation 2.07AK promotes Article 8 by providing protection to victims

of human trafficking where they contribute to and cooperate closely with an investigation into

the perpetrator(s) of the offences. This also assists to prevent the offences from occurring

again in the future.

Article 9(1) of the ICCPR relevantly provides that:

Everyone has the right to liberty and security of person.

The amendment also promotes this right by protecting persons who have been deprived of

their liberty by perpetrator(s) of human trafficking, slavery or slave-like practices, and

impliedly condoning that conduct.


http://www.info.dfat.gov.au/Info/Treaties/treaties.nsf/AllDocIDs/8B8C6AF11AFB4971CA256B6E0075FE1E

8

Right to protection from exploitation, violence and abuse

The right to protection from exploitation, violence and abuse is contained in article 19(1) of

the Convention on the Rights of the Child (CRC), article 6 of the Convention on the

Elimination of All Forms of Discrimination Against Women (CEDAW), and article 16(1) of

the Convention on the Rights of Persons with Disabilities (CRPD).

Article 19(1) of the CRC provides that:

States Parties shall take all appropriate legislative, administrative, social and educational

measures to protect the child from all forms of physical or mental violence, injury or abuse,

neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in

the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Article 6 of the CEDAW provides that:

States Parties shall take all appropriate measures, including legislation, to suppress all forms

of traffic in women and exploitation of prostitution of women.

Article 16(1) of the CRPD provides that:

1. States Parties shall take all appropriate legislative, administrative, social, educational and

other measures to protect persons with disabilities, both within and outside the home, from all

forms of exploitation, violence and abuse, including their gender-based aspects.

The amendments to regulation 2.07AK promote these rights by broadening the scope of

circumstances a trafficked person can be issued a certificate to be eligible for a Subclass 852

(Referred Stay (Permanent)) visa.

Conclusion

Insofar as they engage human rights, the amendments to regulation 2.07AK are compatible

with those human rights because they serve to promote them.


Schedule 5 to the Legislative Instrument amends regulation 417.211(5) to ensure that the

three months’ specified work, performed by participants in Australia’s second Subclass 417

(Working Holiday) visa (Subclass 417 visa) initiative to acquire eligibility for a second visa,

is appropriately remunerated in accordance with relevant Australian legislation and awards.

Recent analysis indicates there is an increasing trend of second Subclass 417 visa participants

being willing to accept either underpaid or non-paid workplace arrangements with Australian

employers, in order to complete the requisite three months specified work in regional

Australia needed to acquire eligibility for a second visa. This is contributing to incidents of

their exploitation in the workplace.

The amendment also makes clear that ‘specified work’ must be undertaken on a full-time

equivalent basis. This amendment reflects current departmental practice of assessing the

88 day 'specified work' requirement on a full-time equivalent work basis and thus provides

legislative clarity for participants.


http://www.info.dfat.gov.au/Info/Treaties/Treaties.nsf/AllDocIDs/E123F4F71DCAE3E7CA256B4F007F2905

http://www.info.dfat.gov.au/Info/Treaties/treaties.nsf/AllDocIDs/636560118784755BCA25726C0007D2AC

9

These amendments will only apply to specified work performed by the applicant for a second

Subclass 417 visa from the legislative instrument date of commencement onwards. This

ensures equity for those participants who have undertaken their specified work prior to the

date of commencement but who apply for their visa after the date of commencement by

allowing their specified work to remain eligible for the purposes of their second Subclass 417

visa application.


Schedule 5 to the Legislative Instrument positively engages and supports Articles 6 and 7 of

the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Article 6 of ICESCR sets out:

1. The States Parties to the present Covenant recognize the right to work, which includes the

right of everyone to the opportunity to gain his living by work which he freely chooses or

accepts, and will take appropriate steps to safeguard this right.

2. The steps to be taken by a State Party to the present Covenant to achieve the full

realization of this right shall include technical and vocational guidance and training

programmes, policies and techniques to achieve steady economic, social and cultural

development and full and productive employment under conditions safeguarding fundamental

political and economic freedoms to the individual.

Article 7 of ICESCR sets out:

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of

just and favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of

any kind, in particular women being guaranteed conditions of work not inferior to

those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions

of the present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate

higher level, subject to no considerations other than those of seniority and competence;

(d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay,

as well as remuneration for public holidays

The amendment operates to support and protect the right of participants in the second

Subclass 417 visa programme to be appropriately remunerated for the work they perform in

accordance with Australian domestic law.

Conclusion

The amendments are compatible with human rights as it supports the human rights of

participants in the second Subclass 417 visa programme.


Schedule 6 to the Legislative Instrument introduces the requirement of the fraud-related Public

Interest Criterion (PIC) 4020 to six additional visa subclasses.

PIC 4020


10

PIC 4020 was introduced to the Migration Regulations in 2011 to strengthen the integrity of

Australia’s immigration programme by allowing the department to respond to fraud detected

in visa applications. PIC 4020(1) provides a ground to refuse the grant of a visa that requires

PIC 4020 to be satisfied where there is evidence that the visa applicant has given, or caused to

be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing

authority or a Medical Officer of the Commonwealth, a bogus document or information that is

false or misleading in a material particular in relation to:

the application for the visa; or

a visa that the applicant held in the period of 12 months before the application was

made.

Under PIC 4020(2), the Minister must also be satisfied that during the period starting 3 years

before the application was made, and ending when the Minister makes a decision to grant or

refuse to grant the visa, the applicant and each member of the applicant’s family unit has not

been refused a visa because of a failure to satisfy the above criteria. This clause does not,

however, apply to the applicant if he or she was under 18 at the time the application for the

refused visa was made (PIC 4020(2AA) refers).

The requirements of PIC 4020(1) and (2) may be waived if the Minister is satisfied that

compelling circumstances that affect the interests of Australia, or compassionate or

compelling circumstances that affect the interest of an Australian citizen, Australian

permanent resident or eligible New Zealand citizen justify the granting of the visa.

On 22 March 2014, an amendment to the Migration Regulations introduced an identity

requirement into PIC 4020 so that:

an applicant must satisfy the Minister as to his or her identity (PIC 4020(2A)) ; and

the Minister must be satisfied that during the period starting 10 years before the

application was made, and ending when the Minister makes a decision to grant or

refuse to grant the visa, neither the applicant nor any member of the applicant’s family

unit has been refused a visa because of a failure to satisfy the Minister of their identity

(PIC 4020(2B)).

A waiver of the requirements in PIC 4020(2A) and (2B) is not available, but the requirement

at PIC 4020(2B) does not apply to the applicant if he or she was under 18 when the

application for the refused visa was made (PIC 4020(2BA) refers). This provision, and that at

PIC 4020(2AA), intends to prevent minors from being disadvantaged by the fraudulent

actions of their parents or guardians.

Amendments extending the application of PIC 4020

These amendments seek to extend the application of PIC 4020 to the following visas:

Subclass 124 (Distinguished Talent) visa (granted outside Australia);

Subclass 858 (Distinguished Talent) visa (granted in Australia);

Subclass 405 (Investor Retirement) visa;

Subclass 410 (Retirement) visa;

Subclass 771 (Transit) visa; and

Subclass 988 (Maritime Crew) visa.

This will enable the Minister (or a delegate) to refuse to grant a visa where fraud or identity

issues are detected in the visa application. This will further strengthen the integrity and

protection of Australia’s borders. It will ensure that any fraud detected in these visa


11

applications will be deterred in further visa subclasses, reducing the ability of fraudulent

applicants to ‘shop around’ for a visa that is not subject to PIC 4020 once they have been

refused a visa on the basis of PIC 4020 and are consequently subject to an exclusion period

(either under PIC 4020(2) or (2B)).

This change does not impact the refugee and humanitarian protection visa caseloads because

PIC 4020 is not required to be satisfied for those visas.


Australia’s obligations under the seven core international treaties are only engaged where the

applicant is within Australia’s jurisdiction.

For those applicants within Australia’s jurisdiction, the most relevant human rights requiring

consideration are the best interests of the child (Articles 3 and 10 of the Convention on the

Rights of the Child (CROC)) and the principle of family unity (Articles 17 and 23 of the

ICCPR).

International Covenant on Civil and Political Rights

Article 17(1) of the ICCPR prohibits the arbitrary or unlawful interference with a person’s

privacy, family, home or correspondence and articulates the right to protection of the law in

this respect.

Article 23(1) of the ICCPR states that the family is the natural and fundamental group unit in

society and as such, is entitled to protection by society and the State. These articles could in

certain circumstances be engaged by the ‘exclusion period’ which appears at PIC 4020(2)

and (2B).

However, Articles 17(1) and 23(1) do not guarantee a right of entry or residence in Australia.

Further, these articles will not be engaged where the applicant is offshore and has no family in

Australia (although it may be engaged with respect to an offshore applicant’s relatives

in Australia).

The amendments are appropriate as they seek to address the department’s concerns regarding

the increase of incidents and growing sophistication of fraud. The measures will have a lawful

basis in domestic law by virtue of the amendment to the Migration Regulations. Further, the

proposed changes cannot be said to be arbitrary as they seek to implement the legitimate

objective of maintaining the integrity of Australia’s migration program and will have no

impact on applicants who do not use fraudulent means to apply for these visas. To that end,

the proposed amendments may be said to be reasonable and proportionate to the objective of

maintaining the integrity of the migration program.

Convention on the Rights of the Child

The relevant provisions of the CROC are Articles 3 and 10. Article 3(1) of the CROC states

that in all actions concerning children, whether undertaken by public or private social welfare

institutions, courts of law, administrative authorities or legislative bodies, the best interest of

the child shall be a primary consideration.

Similar to the ICCPR, the rights of children under the CROC are only engaged where a child

is within Australia’s jurisdiction. In relation to Article 3(1), it is noted that minors are exempt

from the exclusion periods in PIC 4020(2) and (2B) should their visa applications be refused


12

for failing to satisfy PIC 4020. That is, minors will not be prevented from lodging future visa

applications (either as a minor or when they become adults).

Further, PIC 4020(4) provides a waiver of PIC 4020(1) and (2) where compassionate and

compelling circumstances exist. This allows a decision maker to take into consideration the

best interests of the child, though a child’s best interests can be balanced against

countervailing primary considerations including the integrity of Australia’s family migration

program as the best interest of the child are a, not the, primary consideration.

Article 10(1) of the CROC states that applications by a child or his or her parents to enter or

leave a State Party for the purpose of family reunification shall be dealt with by States Parties

in a positive, humane and expeditious manner. Article 10 does not amount to a right of a child

to bring their parent/s to Australia for the purposes of reunification, but establishes

expectations with respect to applications of that nature. The application of PIC 4020 to

additional visa subclasses will provide a clear method by which a delegate may refuse to grant

a visa where evidence of fraud exists. This will not impact on legitimate applications,

therefore supporting the expeditious finalisation of visa applications. The existence of the

waiver may also allow for compassionate circumstances to be taken into consideration and, as

such, supports the obligation for the visa application to be dealt with in a humane manner.

Conclusion


rights issues.


Schedule 7 to the Legislative Instrument addresses amendments to the Migration Regulations,

which were made on 18 April 2015 by Schedule 2 to the Migration Amendment (2015

Measures No. 1) Regulation 2015 (the April 2015 Regulation). These amendments provided

that an English language test must have been conducted within three years before an

invitation to apply for a visa was received in order to obtain certain points that go toward visa

eligibility. The amendment was applied to all unfinalised applications. However, there are

still unfinalised applications from pre-July 2012 before the invitation scheme was created.

Such persons could never meet the amended provision as they did not receive an invitation.

This effect was not intended.

Amendment to fix unintended consequences in regulations made on 18 April 2015

These proposed regulations would amend the application provision so that the amendments

made on 18 April 2015 only apply to applications made on or after 1 July 2012 but that are

not yet finally determined. This would preserve the old regulations for applications made pre-

July 2012. It is proposed that this amendment commence retrospectively on 18 April 2015 to

rectify the error made at that time and ensure that any visas granted during that period were

granted lawfully.


13

Second error in regulations made on 18 April 2015

Schedule 7 to the April 2015 Regulation also inserted a provision which attempted to isolate

a certain cohort of applicants from the application of the amendments (subclause 4102(2)). It

was believed that this cohort might be disadvantaged by the April 2015 amendments. The

transitional provision contained an error which reversed the intention of the provision,

(paragraph 4102(2)(b) says “before the invitation was issued” instead of “after the invitation

was issued”) and this would remove all applicants from the application of the amendments).

Further advice confirmed that in fact the cohort in question would not have been

disadvantaged by the amendments in any case because the relevant visa criteria would have

excluded any person in this situation from being eligible for the grant of a visa.

Amendment to fix second error

The paragraph is being repealed, also retrospectively, from immediately after the

commencement of the April 2015 provisions. Retrospective commencement would ensure

that no applicants would miss out on the benefits of the 18 April 2015 amendments.

A careful consideration of each item affected by the retrospective change has confirmed that

there would be no disadvantage to any person by the retrospective commencement of the

changes.


Schedule 7 does not engage any of the applicable rights or freedoms.

The effect of section 2 of the Migration Legislation Amendment (2015 Measures No. 3)

Regulation 2015 (the Amending regulation) is that each provision of Schedule 7 to the

Regulation is taken to commence immediately after the commencement of Schedule 2 to the

April 2015 Regulation. The retrospective commencement does not adversely affect the rights

of any applicants rather it ensures that provisions made on 18 April 2015 which were

beneficial to some applicants will operate as originally intended.

Conclusion

The amendment is compatible with human rights as it does not raise any human rights issues.


Regulation 12A of the Australian Citizenship Regulations 2007 (the Citizenship Regulations)

sets out among other things, in which foreign currencies and countries a citizenship

application fee may be paid and how the exchange rate is to be calculated.

The acceptable foreign currencies and countries are set out in legislative instruments made

under regulations 5.36(1) and (1A) of the Migration Regulations. In order to facilitate the

lawful collection (and refund where appropriate) of citizenship application fees in foreign

currencies, the Citizenship Regulations incorporate by reference instruments made under the

Migration Regulations in relation to foreign currencies and countries.

The relevant instruments, Places and Currencies for Paying of Fees and Payment of Visa

Application Charges and Fees in Foreign Currencies, are updated in January and July each

year and are given a new instrument number each time.


14

Consequently, to ensure that citizenship application fees can continue to be paid in foreign

currencies and countries, sub-regulation 12A(7) of the Citizenship Regulations must be

amended to specify the updated instrument numbers.

The updating of the instrument numbers is the only change and is merely technical in nature.

There is no change to the substantive content of the instrument.

Human rights implications The amendment has been assessed against the seven core international human rights treaties

and does not engage any of the applicable rights or freedoms.

Conclusion This amendment is compatible with human rights as it does not raise any human rights issues.


Schedule 9 to this Legislative Instrument amends Schedule 3 to the Citizenship Regulations to

adjust the fees payable for certain citizenship applications.

Section 54 of the Australian Citizenship Act 2007 (the Citizenship Act) provides that the

Governor-General may make regulations prescribing matters that are required or permitted by

the Citizenship Act to be prescribed, or that are necessary or convenient to be prescribed for

carrying out or giving effect to the Citizenship Act.

Paragraph 46(1)(d) of the Citizenship Act provides that an application made under a provision

of the Citizenship Act must be accompanied by the fee (if any) prescribed by the regulations.

Regulation 12A of the Citizenship Regulations sets out matters relating to the fees payable for

citizenship applications.

Schedule 3 of the Citizenship Regulations sets out the fee payable for each type of

citizenship application.

The Australian Government Cost Recovery Guidelines (in particular, see Resource

Management Guide No. 304) promote consistent, transparent and accountable charging for

government activities and support the proper use of public resources. The Government’s

overarching cost recovery policy is that, where appropriate, non-government recipients of

specific government activities should be charged some or all of the costs of those activities.

The types of activities that are most appropriate to cost recover are considered by the

Government on a case-by-case basis. Partial cost recovery, which occurs when less than the

full cost of a government activity is recovered, may be appropriate in some circumstances

where:

charges are being ‘phased in’;

full cost recovery would be inconsistent with community service obligations endorsed

by the Australian Government;

the Australian Government has made an explicit policy decision to charge for part of

the costs of an activity.

Under the cost recovery guidelines departments are required to review cost recovery

arrangements at least every four years; more frequently if there are significant shifts in


15

activities resulting in changes to costs. An internal review of the costs associated with the

Citizenship programme in 2014 revealed that its costs were under-recovered by

approximately $7.3m. This reflected with the Government’s policy at the time of subsidising

costs associated with two types of citizenship applications. A further internal review

conducted in 2015 identified that this under-recovery was not in fact confined to the two types

of citizenship applications, but was experienced across the majority of application types. This

finding came at a similar time to the Government’s decision to no longer subsidise

Citizenship applications, in line with the new cost recovery policy.

Consistent with the cost recovery policy, from 1 January 2016 the Australian Government

will recover the full costs associated with the processing of certain types of applications made

under the Citizenship Act. This Legislative Instrument implements this policy by amending

the fee payable under Schedule 3 of the Citizenship Regulations (Schedule 3) for the relevant

types of applications, as listed in the following table.

Schedule

3

table

item

number

Application type

Fee prior to

amendment

Fee from

1 January

2016

1

Citizenship by descent – person born

outside Australia to an Australian parent

Applications made at the same time under

section 16 of the Citizenship Act

(Application and eligibility for citizenship)

by 2 or more siblings

$120 for the

application by

the first sibling,

and $95 for the

applications

made by the

second and

subsequent

siblings

$230 for the

application by

the first sibling,

and $95 for the

applications

made by the

second and

subsequent

siblings

2

Citizenship by descent – person born

outside Australia to an Australian parent

An application under section 16 of the

Citizenship Act (Application and eligibility

for citizenship), other than an application

mentioned in table item number 1

$120

$230

3

Citizenship through adoption – person

adopted in accordance with the Hague

Convention on Intercountry Adoption

Applications made at the same time under

section 19C of the Citizenship Act

(Application and eligibility for citizenship)

by 2 or more siblings

$120 for the

application by

the first sibling,

and $95 for the

applications

made by the

second and

subsequent

siblings

$230 for the

application by

the first sibling,

and $95 for the

applications

made by the

second and

subsequent

siblings


http://legendinternal.immi.gov.au/legend_current_c/2015/legend_01_07_2015_c/legend_current_ca/Pages/_document00000/level%20100002.aspx#JD_16

http://legendinternal.immi.gov.au/legend_current_c/2015/legend_01_07_2015_c/legend_current_cr/Pages/_document00000/document00001.aspx#JD_4-Act




http://legendinternal.immi.gov.au/legend_current_c/2015/legend_01_07_2015_c/legend_current_cr/Pages/_document00000/document00004.aspx#JD_Sch3-1

http://legendinternal.immi.gov.au/legend_current_c/2015/legend_01_07_2015_c/legend_current_ca/Pages/_document00000/level%20100002.aspx#JD_19C


16

4

Citizenship through adoption – person

adopted in accordance with the Hague

Convention on Intercountry Adoption

An application under section 19C of the




$120

$230

14A

Citizenship by conferral – general

eligibility




mentioned in table item numbers 5 to 14 or

items 14B to 15D, if the applicant claims

eligibility on the basis of the criteria in

subsection 21(2) of the Citizenship Act

$260

$285

15

Citizenship by conferral – other than

general eligibility - citizenship test not

required




mentioned in table item numbers 5 to 14B

or 15C and 15D

$130

$180

15D

Citizenship by conferral – general

eligibility – applicant previously passed

citizenship test in association with a

previous application

An application (the new application) under

section 21 of the Citizenship Act

(Application and eligibility for citizenship),

other than an application mentioned in

table item numbers 5, 6, 7A, 14 and 15C,

if:

(a) the applicant claims eligibility on the

basis of the criteria in subsection 21(2)

of the Citizenship Act; and

(b) the applicant previously made an

application (the old application) on or

after 1 October 2007; and

(c) under the old application, the applicant

sat a test as described in

paragraph 21(2A)(a) of the Citizenship

Act

$130

$180








http://legendinternal.immi.gov.au/legend_current_c/2015/legend_01_07_2015_c/legend_current_cr/Pages/_document00000/document00004.aspx#JD_Sch3-14B






http://legendinternal.immi.gov.au/legend_current_c/2015/legend_01_07_2015_c/legend_current_cr/Pages/_document00000/document00004.aspx#JD_Sch3-15C

http://legendinternal.immi.gov.au/legend_current_c/2015/legend_01_07_2015_c/legend_current_cr/Pages/_document00000/document00004.aspx#JD_Sch3-15D





http://legendinternal.immi.gov.au/legend_current_c/2015/legend_01_07_2015_c/legend_current_cr/Pages/_document00000/document00004.aspx#JD_Sch3-7A





http://legendinternal.immi.gov.au/legend_current_c/2015/legend_01_07_2015_c/legend_current_ca/Pages/_document00000/level%20100002.aspx#JD_21402A4140a41


17

17

Resumption of Australian citizenship



for resuming citizenship), other than an

application mentioned in table item

number 16

$70

$210

18

Renunciation of Australian citizenship


Citizenship Act (Renunciation)

$285

$205

20

Notice of evidence of Australian

citizenship


Citizenship Act (Evidence of Australian

citizenship), other than an application

mentioned in table item numbers 19 or 19A

$60

$190

Items in Schedule 3 that provide for a concessional, reduced or nil fee are not being amended

as the Government decided not to increase the amounts recovered against these items.

Concessional fees are payable for Schedule 3 Items 9, 10, 13, 14 and 15C. These concessional

fees reduce the financial barrier to acquiring citizenship that may be experienced by

applicants for citizenship by conferral who suffer from permanent or long-term financial

disadvantage, as evidenced by their holding of a pensioner concession card or health care card

endorsed with a prescribed benefit code.

Reduced fees are payable for applications for citizenship by descent and applications for

citizenship by adoption in accordance with the Hague Convention on International Adoption

(Schedule 3 Items 1 and 3 respectively) made by second and subsequent siblings at the same

time as the first sibling. These reduced fees recognise that there are some processing

efficiencies associated with these types of applications when lodged at the same time.

Nil fees are provided for in Schedule 3 Items 5, 6, 7, 7A, 8, 14B, 16, 19 and 19A. These nil

fees cater for the following specific circumstances:

applications for citizenship by conferral by people who:

o have served a prescribed time in the Australian Defence Forces; or

o migrated to Australia under the UK and Malta child migration scheme; or

o were previously refused citizenship because they did not meet the residence

requirement and have lodged a new application within three months of

becoming able to meet the residence requirement; or

o have applied under the statelessness provision in subsection 21(8); or

o are under the age of 16 and applying at the same time and on the same form as

a responsible parent;

applications for resumption of citizenship by people under the age of 16 who apply at

the same time and on the same form as a responsible parent;


18

applications for a notice of evidence of Australian citizenship by people:

o under the age of 16 who apply at the same time and on the same form as an

application for citizenship by conferral or an application for resumption of

citizenship; or

o who seek to replace a notice of evidence of Australian citizenship that was

lost, destroyed or damaged due to a natural disaster.

Human rights implications This Legislative Instrument has been assessed against the seven core international human

rights treaties. By increasing the fee payable for certain types of citizenship applications, this

Legislative Instrument may indirectly engage the rights to acquire or change a nationality

under:

Article 18 of the Convention on the Rights of Persons with Disabilities;

Article 9 of the Convention on the Elimination of All Forms of Discrimination

Against Women;

Article 7 of the Convention of the Rights of the Child; and

Article 24 of the International Covenant on Civil and Political Rights.

To the extent that the Legislative Instrument may operate to limit a right to acquire or change

a nationality, that limitation is allowable as it is:

in pursuit of a legitimate objective;

rationally connected to the objective; and

a proportionate way of achieving the objective.

The objective of the Legislative Instrument is to implement the Government policy of cost

recovery for certain services provided under the Citizenship Act. The Legislative Instrument

is rationally connected to the objective of cost recovery as it amends Schedule 3 of the

Citizenship Regulations, which is the only mechanism by which the cost of an application

made under the Citizenship Act can be recovered from the applicant.

Schedule 9 of the Legislative Instrument is a proportionate way of achieving the objective as

it assigns a fee for each application that is proportionate to the overall cost of processing that

type of application. This has been achieved by dividing the actual costs for a financial year

allocated to the particular citizenship application item in Schedule 3 by the associated

volumes to determine the new fee. The amended fees will address the current shortfall in cost

recovery for those types of application.

Conclusion The amendments are compatible with human rights as any limitation of human rights is in

pursuit of a legitimate objective, rationally connected to the objective and a proportionate way

of achieving the objective.

The Hon Peter Dutton

Minister for Immigration and Border Protection


19

ATTACHMENT C

Details of the Migration Legislation Amendment (2015 Measures No. 3) Regulation 2015

Section 1 – Name

This section provides that the title of the Regulation is the Migration Legislation Amendment

(2015 Measures No. 3) Regulation 2015.

Section 2 – Commencement

Subsection 2(1) provides that each provision of the Regulation 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.

The table states that Sections 1 to 4 and anything in this instrument not elsewhere covered by

this table commence the day after this instrument is registered.

The table states that Schedules 1, 2, 3, 4 and 6 and item 2 of Schedule 10 to the Regulation

commence on 21 November 2015.

The table states that Schedules 5 to the Regulation commences on 1 December 2015.

The table states that Schedules 8 and 9 and item 1 of Schedule 10 to the Regulation

commence on 1 January 2016.

The table states that Schedule 7 to the Regulation commences immediately after the

commencement of Schedule 2 to the Migration Amendment (2015 Measures No. 1)

Regulation 2015, which commenced on 18 April 2015. Schedule 8 to the Regulation

commences retrospectively for the following reasons:


20

Item 1 of Schedule 7 - The amendments made on 18 April 2015 provided that an

English language test must have been conducted within three years before an

invitation to apply for a visa was received in order to obtain certain points that go

toward visa eligibility. Subclause 4102(1) ensured that the amendments applied to all

unfinalised visa applications as this was beneficial to applicants. However, there are

still unfinalised applications from pre-July 2012 before the invitation scheme was

created. Such persons could never meet the amended provision as they did not receive

an invitation. This effect was not intended. The regulations amend the application

provision so that the amendments made on 18 April 2015 only apply to visa

applications made on or after 1 July 2012 that are not yet finally determined. This

preserves the benefit in the old regulations for applications made pre-July 2012 and

preserves the benefit in the amendments for applications made post 1 July 2012. This

amendment commences retrospectively on 18 April 2015 to restore the intended

position and ensure that no one is disadvantaged;

Item 2 of Schedule 7 – Subclause 4102(2) was drafted incorrectly and it inadvertently

obviates the effect of subclause 4102(1). The amendment repeals this clause to (in

conjunction with the amendment above) give effect to the original intention. This

repeal commences retrospectively on 18 April 2015 to ensure that no one is

disadvantaged in the intervening period.

Careful consideration of each item affected by the retrospective change has confirmed that

there is no disadvantage to any person by the retrospective commencement of the changes.

A note clarifies that 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.

Subsection 2(2) provides that any information in column 3 of the table is not part of the

Regulation. Information may be inserted in this column, or information in it may be edited, in

any published version of this instrument. Column 3 of the table provides the date/details of

the commencement date.

The purpose of this section is to provide for when the amendments made by the instrument

commence.

Section 3 – Authority

This section provides that the Regulation is made under the Migration Act 1958 (the

Migration Act) and the Australian Citizenship Act 2007 (the Citizenship Act).

The purpose of this section is to set out the Acts under which the Regulation is made.

Section 4 – Schedule(s)

This section provides that 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.

The purpose of this section is to provide for how the amendments in this Regulation operate.


21

Schedule 1 – Diplomatic dependant students

Item 1 – Amendments of listed provisions—repeals

This item repeals clauses 570.228, 571.228, 572.228, 573.228, 574.228, 575.228, 576.226 and

580.228 of Schedule 2 to the Migration Regulations 1994 (the Migration Regulations).

These clauses provided that if the application was made in Australia and, at the time of

application, the applicant was in Australia as the spouse, de facto partner or dependent

relative of a diplomatic or consular representative of a country other than Australia:

that representative has completed, or is about to complete, an official posting in

Australia; and

the Foreign Minister recommends the grant of the visa.

Previously, under these clauses, dependent relatives of a diplomat or consular representative

could apply for a student visa or a student guardian visa in Australia only when that

representative has completed or is about to complete the posting in Australia. This was

because the dependant of such a representative was usually entitled to study on their

diplomatic visa during the period of the posting.

However, there are situations where the dependent relatives will need to apply for a student

visa or a student guardian visa during that representative’s posting period in Australia.

For example:

The applicant may seek to study in a city other than that which their parents are

posted, meaning they will no longer form part of the diplomat or consular

representative’s physical household and can no longer hold a diplomatic visa;

Department of Foreign Affairs and Trade (DFAT) requires that only children up to

21 years of age who form part of the diplomat or consular representative’s physical

household are accepted as dependants and therefore are eligible for diplomatic visas.

Children may be over 21 years of age during the representative's posting period and

need to continue their study in Australia;

When the child of the diplomat or consular representative is under 18 years old and

needs a separate student visa to study (for example in another city), one of their

parents may need a student guardian visa to fulfil the welfare requirements in the

student visa regulations.

Applicants were required to travel outside Australia to lodge their student or student guardian

visa application in order to be granted the visa if the timing of the diplomatic posting is not

nearing completion. Applicants were also required to obtain a no-objection letter from DFAT

in order to be granted the visa.

The purpose of this amendment is to allow dependent relatives of the diplomatic or consular

representative to apply for a student visa or a student guardian visa in Australia during that

representative’s posting period and to remove the requirement to provide a no-objection letter

from DFAT. The proposed change will reduce the regulatory burden currently imposed on

dependent holders of a Subclass 995 (Diplomatic (Temporary)) visa who wish to move to

a student visa or a student guardian visa. Policy has advised that DFAT is also supportive of

the proposed change as it is expected to reduce the regulatory burden on the department,

DFAT and applicants.


22

Schedule 2 – Working conditions for diplomatic domestic workers

Item 1 – Clause 403.242 of Schedule 2

This item inserts a new subclause 403.242(1) before the word “If”.

This item is a technical and consequential amendment. Currently clause 403.242 consists of

one clause. The purpose and effect of this item is to amend the structure of clause 403.242 to

provide for two subclauses. The new subclause 403.242(1) replicates the existing of

provisions clause 403.242.

Item 2 – At the end of clause 403.242 of Schedule 2

This item inserts a new subclause 403.242(2). The purpose of this item is to add a criterion

for the grant of a for a Subclass 403 (Temporary Work (International Relations)) visa

(Subclass 403 visa) where the application is made in Australia. This will ensure that the same

requirements apply to applications made in Australia as with those applications made

outside Australia.

The effect of this item is that all applications for a Subclass 403 visa require that the applicant

is to be employed or engaged in Australia in accordance with the standards for wages and

working conditions provided for under relevant Australian legislation and awards.

Schedule 3 – Subclass 600 (Visitor) visa


Clause 600.215 of the the Migration Regulations requires exceptional circumstances to exist

if the grant of the visa would result in the applicant being authorised to stay in Australia for

more than 12 consecutive months as a holder of certain listed visas.

This item substitutes clause 600.215 to include bridging visas in addition to the existing

visas:

one or more visitor visas;

a subclass 417 (Working Holiday) visa;

a subclass 462 (Work and Holiday) visa.

The purpose of this item is to ensure it is a criterion for the grant of a Subclass 600 (Visitor)

visa that the grant of the visa would not allow an applicant to stay in Australia for more

than 12 consecutive months as the holder of one of the visas listed in subclause 600.215(2).

The effect of this item is that an applicant who is granted a bridging visa associated with their

visitor visa application will be required to demonstrate exceptional circumstances to be able

to extend their period of stay in Australia beyond 12 consecutive months.


23

Schedule 4 – Referred stay visa

Item [1] – Subregulations 2.07AK(2) to (5)

This item repeals old subregulations 2.07AK(2) to (5) and substitutes a lower eligibility

requirement in relation to the issuing of a certificate by the Attorney-General in

subregulation 2.07AK(3) of Division 2.2 of Part 2 of the Migration Regulations. This item

also restructures subregulations 2.07AK (2) to (5) enable the lower eligibility requirement

changes and improve readability of the regulation.

Previously, alternatives in subparagraphs 2.07AK(3)(c)(i) and (ii) of Part 2 of the Migration

Regulations provided that the Attorney-General (or a person authorised by the Attorney-

General) may issue a certificate in relation to the person if:

the person made a contribution to, and cooperated closely with, the prosecution of

a person who was alleged to have engaged in human trafficking, slavery or

slavery-like practices or who was alleged to have forced a person into exploitative

conditions (whether or not the person was convicted); or

the person made a contribution to, and cooperated closely with, an investigation in

relation to which the Director of Public Prosecutions (DPP) has decided not to

prosecute a person who was alleged to have engaged in human trafficking, slavery

or slavery-like practices or who was alleged to have forced a person into

exploitative conditions.

New subregulation 2.07AK(3) relevantly provides that the Attorney-General (or a person

authorised by the Attorney-General) has, after taking into account information provided by

a member of the Australian Federal Police (AFP) of equivalent or higher rank to a

Commander, issued a certificate in relation to the person to the effect that the person made

a contribution to, and cooperated closely with, an investigation in relation to another person

who was alleged to have engaged in human trafficking, slavery or slavery-like practices.

The remaining provisions have been restructured to improve readability but the restructure is

not intended to affect the legal intent of the redrafted provisions.

The effect of this amendment is that the threshold for eligibility for an Attorney-General’s

certificate for a referred stay visa is lowered to where the person had made a contribution to,

and cooperated closely with, an investigation in relation to a person who was alleged to have

engaged in human trafficking, slavery or slavery-like practices, even if that investigation does

not progress to a brief of evidence or prosecution. The effect of the amendment is also that the

Attorney-General or person authorised by the Attorney-General for the purpose must take into

account information provided by a member of the AFP of equivalent or higher rank to

a Commander before issuing an Attorney-General’s certificate. Lowering this threshold

means the new provision may now include circumstances where the alleged offender is

immune from investigation or criminal prosecution, or where there is insufficient evidence in

Australia to support submitting a brief of evidence, or where the offender is no longer

in Australia.

Schedule 5 – Work requirements for working holiday visas

Item 1 – Subclause 417.211(5) of Schedule 2


24

This item repeals and substitutes subclause 417.211(5) of Schedule 2 to the

Migration Regulations.

Previously, subclause 417.211(5) provided that if the applicant is, or has previously been, in

Australia as the holder of a Subclass 417 visa, the Minister must, among other things, be

satisfied that the applicant has carried out specified work in regional Australia for a total

period of at least 3 months as the holder of that visa.

New subclause 417.211(5) now requires that where an applicant for a Subclass 417 visa is, or

has previously been, in Australia as the holder of a Subclass 417 visa, before granting the visa

the Minister must satisfied that the applicant has been remunerated for the work in accordance

with relevant Australian legislation and awards. The new subclause also clarifies that the

applicant has carried out (whether on a full time, part time or casual basis) a period or periods

of specified work in regional Australia as the holder of the visa; and the total period of the

work carried out is, or is equivalent to, at least three months full time work.

The three months duration of the specified work is assessed under policy on a full-time

equivalent basis. Part-time and casual work is eligible, but the sum total of the work

performed needs to be the equivalent of full-time employment over a three month period.

The purpose of this amendment is to clarify that in order to be granted a second Subclass 417

visa, the applicant must have completed at least three months of specified work (whether on

a full time, part time or casual basis) in regional Australia. The purpose is also to ensure that

the work is remunerated in accordance with relevant laws.

The effect of this amendment is that inappropriately remunerated work would be prohibited

for the purposes of second visa eligibility

Schedule 6 – Addition of Public Interest Criterion 4020 to certain visa subclasses

Item 1 – At the end of Subdivision 124.22 of Schedule 2

This item inserts a new subclause 124.228 to apply the requirement to meet Public Interest

Criterion (PIC) 4020 to both the applicant for a Subclass 124 (Distinguished Talent) visa

(Subclass 124 visa) and each member of the applicant’s family unit (regardless of whether

they are an applicant or not) except where the applicant meets the requirements of

subclause 124.211(4). PIC 4020 relates to the provision of bogus documents, false or

misleading information and evidence of identity.

The effect of this item is to ensure that the primary applicant cannot be granted

a Subclass 124 visa unless they and their family members satisfy PIC 4020. The purpose of

this item is to ensure that if one family member fails PIC 4020, the primary applicant cannot

be granted the visa. This is intended to ensure that family members are not separated if the

primary applicant could be granted a visa but their family members could not.

This item does not apply to applicants and their family members if the applicant meets the

requirements of subclause 124.221(4), which relates to an applicant who has provided

specialised assistance to the Australian Government in matters of security.



25

This item inserts a new subclause 124.327 to apply PIC 4020 to a secondary applicant who is

a family member of a holder of a Subclass 124 visa unless the primary applicant meets the

requirements of subclause 124.211(4) which relates to an applicant who has provided


The effect and purpose of this item is to ensure that the secondary applicant must also meet

PIC 4020 in order for them to meet the secondary criteria for a Subclass 124 visa.

Item 3 – Subclause 405.227(6) of Schedule 2

This item inserts “, 4020” after “4019” to apply the requirement to meet PIC 4020 to an

applicant for a Subclass 405 (Investor Retirement) visa (Subclass 405 visa) who does not

meet subclause 405.228.

The effect and purpose of this item is to ensure that the applicant must meet PIC 4020 in

order for them to meet the primary criteria for a Subclass 405 visa.

Item 4 – Paragraph 405.227(7)(a) of Schedule 2

This item inserts “and 4020” after “4014” to apply the requirement to meet PIC 4020 to the

spouse or de facto partner of the primary applicant for a Subclass 405 visa.

The effect and purpose of this item is to ensure that the primary applicant cannot be granted

the Subclass 405 visa if their spouse or de facto partner do not meet PIC 4020. This is

intended to ensure that family members are not separated if the primary applicant could be

granted a visa but their family members could not.

Item 5 – Paragraph 405.228(6) of Schedule 2

This item inserts “, 4020” after “4019” to apply the requirement to meet PIC 4020 to the

primary applicant who holds or, since last entering Australia, the last substantive visa held,

was a Subclass 405 visa.

The effect and purpose of this item is to ensure that the primary applicant must meet

PIC 4020 in order for them to meet the primary criteria for a Subclass 405 visa.

Item 6 – Paragraph 405.228(6A)(a) of Schedule 2

This item omits the phrase “and 4014” and substitutes it with “, 4014 and 4020” to apply

PIC 4020 to a spouse or de facto partner of primary applicant who meets the requirements of

subclause 405.228(1).


the Subclass 405 visa if their spouse or de facto partner does not meet PIC 4020. This is

intended to ensure that family members are not separated if the primary applicant could be


Item 7 – Paragraph 405.329(3)(a) and 405.330(3)(a) of Schedule 2


26

This item inserts “4020” after “4014” to apply the requirement to meet PIC 4020 to spouse or

de facto partner of the primary applicant for Subclass 405 visa.

The effect and purpose of this item is to ensure that the spouse or de facto partner must also

meet PIC 4020 in order for them to meet the secondary criteria for a Subclass 405 visa. This

is intended to ensure that family members are not separated if the primary applicant could be


Item 8 – Paragraph 410.221(8)(a) of Schedule 2

This item omits the phrase “and 4019” and substitutes it with “, 4019 and 4020” to apply the

requirement to meet PIC 4020 to both the primary applicant and their spouse or de facto

partner for Subclass 410 (Retirement) visa (Subclass 410 visa).


the Subclass 410 visa if their spouse or de facto partner (regardless of whether they are an

applicant) do not meet PIC 4020. This is intended to ensure that family members are not

separated if the primary applicant could be granted a visa but their family members could not.

Item 9 – Subparagraph 410.321(3)(a)(i) of Schedule 2

This item omits the phrase “and 4014” and substitutes it with “, 4014 and 4020” to apply the

requirement to meet PIC 4020 to the spouse or de facto partner of a primary applicant for

a Subclass 410 visa.


meet PIC 4020 in order for them to meet the secondary criteria. This is intended to ensure

that family members are not separated if the primary applicant could be granted a visa but

their family members could not.


This item inserts “, 4020” after “4014” to apply the requirement to meet PIC 4020 to

applicant for a Subclass 771 (Transit) visa (Subclass 771 visa).

The effect and purpose of this item is to ensure that an applicant must meet PIC 4020 in order

for them to meet the criteria for a Subclass 771 visa.


This item adds a new subclause 858.227 to apply the requirement to meet PIC 4020 to both

the applicant and each member of the applicant’s family unit unless the applicant meets the

requirements of subclause 858.212(4).

The effect of this item is to ensure that the primary applicant cannot be granted a

Subclass 858 (Distinguished Talents) visa (Subclass 858 visa) unless they and their family

members satisfy PIC 4020. The purpose of this item is to ensure that if one family member

fails PIC 4020, the primary applicant cannot be granted the visa. This is intended to ensure




27





This item adds a new subclause 858.326 to apply the requirement to meet PIC 4020 to the

family members of the primary applicant for a Subclass 858 visa unless the primary applicant

meets the requirements of subclause 858.212(4).


meet PIC 4020 in order for them to meet the secondary criteria. This is intended to ensure








applicant for a Subclass 988 (Maritime Crew) visa (Subclass 988 visa).

The effect and purpose of this item is to ensure that the applicant must meet PIC 4020 in

order for them to meet the criteria for a Subclass 988 visa.



applicant who is spouse or de facto partner or dependent child of the primary applicant for

a Subclass 988 visa.

The effect and purpose of this item is to ensure that the secondary applicant must meet

PIC 4020 in order for them to meet the criteria for a Subclass 988 visa.

Schedule 7 – Technical Amendments

Item 1 – Paragraph 4102(1)(a) of Schedule 13

This item substitutes a new paragraph 4102(1)(a) in Schedule 13.

After the commencement of Schedule 2 to the Migration Amendment (2015 Measures No. 1)

Regulation 2015 on 18 April 2015 it was noted that there might be unfinalised applications

for a visa made before 1 July 2012 (when the invitation requirement was introduced). These

applicants would not have made an application in response to an invitation and so the 18

April 2015 amendments might inadvertently result in regulations 1.15D and 1.15EA not

being capable of applying to those applicants. This would disadvantage those applicants

because they would not be able to be awarded the points for those English levels.


28

This item is a technical amendment to ensure that the amendments made by Schedule 2 to the

Migration Amendment (2015 Measures No. 1) Regulation 2015 on 18 April 2015 apply as

originally intended. Therefore this amendment, which commences retrospectively,

immediately after the amendments of 18 April 2015, ensures that the amendments made on

18 April 2015 do not apply to applications made before 1 July 2012, and is beneficial to

those applicants.

Item 2 – Subclause 4102(2) of Schedule 13

This item repeals subclause 4102(2) of Schedule 13.

Subclause 4102(2) was a transitional provision inserted to make provision for any applicants

with undecided applications who might have achieved the required English language score in

an English test after the invitation was issued (and before the application was lodged). It was

intended that this provision would prevent disadvantage to an applicant arising from the

amendments required a test to be conducted in the three years before the invitation, resulting

the application having to sit a new test.

In fact subclause 4102(2) contained a typographical error, referring to tests taken before

rather than after the invitation was issued. The effect of this error was to prevent the

application of the changes to the majority of applicants, when it was intended to prevent the

application of the regulations to only a small group. It is necessary to fix this error because

the amendments were beneficial to applicants. It also became clear after the commencement

of the regulations in April that the small group we were trying to assist in fact would not be

helped by this provision because other provisions would prevent the grant of a visa in any

case. Accordingly it is proposed to remove the subclause as, in its correct form, it would have

no operation.

This item is a technical amendment to ensure that the amendments made by Schedule 2 to the

Migration Amendment (2015 Measures No. 1) Regulation 2015 on 18 April 2015 apply as

originally intended.

Schedule 8 – Foreign currency exchange

Item 1 – Subregulation 12A(7)

This item substitutes the previous 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 16/001), that commences on

1 January 2016.

The definition of “conversion 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 currency specified in the conversion instrument.


29

This item replaces a reference to the previous instrument in the definition of “conversion

instrument” with a reference to an instrument that is made under subregulation 5.36(1A) of

the Migration Regulations. This instrument commenced on 1 July 2015 and sets 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 current instrument made under subregulation 5.36(1A) of the Migration

Regulations, application fees and refunds payable under the Australian Citizenship Act 2007

(the Citizenship Act) can continue to be paid in foreign currencies. This amendment reduces

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

Migration Regulations as in force from time to time. Rather, the current instrument needs to

be incorporated by reference at the time of commencement of the Migration Regulations.

Instruments made under the Migration Regulations are incorporated in the

Citizenship Regulations because the Citizenship Act does not currently permit the Minister

for Immigration and Border Protection 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 16/002), that commences on

1 January 2016.

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 previous instrument in the definition of “places and

currencies instrument” with a reference to an instrument that is made under

subregulation 5.36(1) of the Migration Regulations. This instrument commenced on

1 July 2015 and sets out the places and currencies for paying fees.

By referring to the current instrument made under subregulation 5.36(1) of the

Migration Regulations, application fees and refunds payable under the Citizenship Act can

continue to be paid in foreign countries and foreign currencies. This amendment reduces

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

Migration Regulations as in force from time to time. Rather, the current instrument needs to

be incorporated by reference at the time of commencement of the Migration Regulations.


30

Instruments made under the Migration Regulations are incorporated in the

Citizenship Regulations because the Citizenship Act does not currently permit the Minister for

Immigration and Border Protection to make instruments under the Citizenship Regulations.

Schedule 9 – Australian citizenship application fees

Item 1 – Amendments of listed provisions—changes to application fees

This item amends the provisions in Schedule 3 to the Citizenship Regulations to give

effect to the Government’s decision as part of the 2015-16 Budget to adjust the price of

a number of citizenship service fees that are levied to recover costs directly associated

with processing.

All Citizenship charges were determined following an extensive review of the costs

associated with the Citizenship programme, consistent with the Australian Government’s

Cost Recovery Guidelines. The new fees were set to recover the individual costs associated

with each citizenship fee type. This resulted in some fees increasing, and some decreasing, as

the previous charges were either not set to match the costs associated with the charges, or had

not been reviewed in some time to ensure they were consistent with the costs. Furthermore,

efficiencies may have been realised within the department, thereby streamlining the services

and decreasing the costs associated with some of the charges.

Within this review, it was also determined that Concession and Exemption charges would not

be altered.

All changes 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 price changes allow for 100% recovery of ongoing costs to the Government to be

recovered for each fee, with the exception of all concessional fees.

Amendments of listed provisions – changes to citizenship fees

Columns 1 and 2 of the tables below identify the fees that are amended. Columns 3 and 4 of

the table list the previous fees and the new fees.

Column 1 Column 2 Column 3 Column 4

Table

item

number

Application type

Current Price

Price from

1 January

2016

1

Citizenship by descent –

Applications made at the same time

under section 16 of the Act (Application

$120 for the

application by

the first sibling,

and $95 for the

$230 for the

application by

the first sibling,

and $95 for the




31

and eligibility for citizenship) by 2 or

more siblings

applications

made by the

second and

subsequent

siblings

applications

made by the

second and

subsequent

siblings

2

Citizenship by descent –


Act (Application and eligibility for



$120

$230

3

Citizenship through adoption –

Applications made at the same time

under section 19C of the Act

(Application and eligibility for

citizenship) by 2 or more siblings

$120 for the

application by

the first sibling,

and $95 for the

applications

made by the

second and

subsequent

siblings

$230 for the

application by

the first sibling,

and $95 for the

applications

made by the

second and

subsequent

siblings

4

Citizenship through adoption –

An application under section 19C of the




$120

$230

14A

Citizenship grant with test –




mentioned in table item numbers 5 to 14

or items 14B to 15D, if the applicant

claims eligibility on the basis of the

criteria in subsection 21(2) of the Act

$260

$285

15

Citizenship grant without test –




mentioned in table item numbers 5 to

14B or 15C and 15D

$130

$180

15D

Citizenship grant without test –

An application (the new application)

under section 21 of the Act (Application

and eligibility for citizenship), other than

$130

$180














http://legendinternal.immi.gov.au/legend_current_c/2015/legend_01_07_2015_c/legend_current_cr/Pages/_document00000/document00004.aspx#JD_Sch3-14B







http://legendinternal.immi.gov.au/legend_current_c/2015/legend_01_07_2015_c/legend_current_cr/Pages/_document00000/document00004.aspx#JD_Sch3-15D



32

an application mentioned in table item

numbers 5, 6, 7A, 14 and 15C, if:

(d) the applicant claims eligibility on the

basis of the criteria in subsection

21(2) of the Act; and

(e) the applicant previously made an

application (the old application) on

or after 1 October 2007; and

(f) under the old application, the

applicant sat a test as described in

paragraph 21(2A)(a) of the Act

17

Resumption of Australian citizenship –



resuming citizenship), other than an

application mentioned in table item

number 16

$70

$210

18

Renunciation of citizenship –


Act (Renunciation)

$285

$205

20

Certificates of evidence citizenship –


Act (Evidence of Australian citizenship),

other than an application mentioned in

table item numbers 19 or 19A

$60

$190

Schedule 10 – Application and transitional provisions

Australian Citizenship Regulations 2007

Item 1 – Part 4

This item amends Part 4 of the Citizenship Regulations to insert regulation 29 entitled

‘Amendments made by the Migration Legislation Amendment (2015 Measures No. 3)

Regulation 2015’.

Inserted regulation 29 provides that the amendments of the Citizenship Regulations made by

Schedules 8 and 9 to the Regulation apply in relation an application made under a provision

of the Citizenship Act on or after 1 January 2016. A note clarifies that Schedules 8 and 9 to

the Migration Legislation Amendment (2015 Measures No. 3) Regulation 2015 commence on

1 January 2016.

The effect and purpose of the item is to clarify to whom and when these amendments in the

Regulation apply.




http://legendinternal.immi.gov.au/legend_current_c/2015/legend_01_07_2015_c/legend_current_cr/Pages/_document00000/document00004.aspx#JD_Sch3-7A





http://legendinternal.immi.gov.au/legend_current_c/2015/legend_01_07_2015_c/legend_current_ca/Pages/_document00000/level%20100002.aspx#JD_21402A4140a41


33

Migration Regulations 1994

Item 2 – Schedule 13

This item amends Schedule 13 to the Migration Regulations to insert Part 48 entitled

“Amendments made by the Migration Amendment (2015 Measures No. 3) Regulation 2015”

and inserts new clauses 4801, 4802 and 4803.

Inserted clause 4801, entitled ‘Operation of Schedules 1 to 4’, provides that the amendments

of the Migration Regulations made by Schedules 1 to 4 to the Regulation apply in relation to

an application for a visa made on or after 21 November 2015. A note clarifies that

Schedules 1 to 4 to the Migration Amendment (2015 Measures No. 3) Regulation 2015

commence on 21 November 2015.

Inserted clause 4802, entitled ‘Operation of Schedule 5’, provides that the amendments of the

Migration Regulations made by Schedule 6 to the Regulation apply in relation to an

application for a visa made on or after 1 December 2015. However, paragraph 417.211(5)(c)

of Schedule 2 (as amended by the amendments referred to in subregulation 417.211(1)) does

not apply in relation to specified work carried out before 1 December 2015.

The effect and purpose of this clause is to ensure that any specified work performed by the

applicant pre-1 December 2015 is assessed against the previously existing criteria, and to

assess any specified work performed by the applicant from 1 December 2015 onwards against

the new criteria. Where an applicant has performed specified work both pre and post

1 December 2015, each period of work will be assessed against the criteria in effect at the

time the work was performed. This ensures that applicants who completed specified work

prior to 1 December 2015 are not subject to these additional requirements.

Inserted clause 4803, entitled ‘Operation of Schedule 6’, provides that the amendments of the

Migration Regulations made by Schedule 6 to the Regulation apply in relation to an

application made, but not finally determined, before 21 November 2015 and an application

made on or after 21 November 2015. A note clarifies that Schedules 6 to the Migration

Amendment (2015 Measures No. 3) Regulation 2015 commences on 21 November 2015.

The amendments made by Schedule 6 relate to the provision of bogus documents, false or

misleading information and identity. It is appropriate that these amendments apply to

unfinalised visa applications to ensure that visas are granted to genuine and correctly

identified applicants. Given the importance of accurate identity verification to national

security and the public interest it is appropriate to ensure these safeguards apply to all visas

granted after the commencement of the Regulation.

Further, section 504 of the Migration Act authorises the making of regulations that are

necessary or convenient to carry out or give effect to the objectives of the Migration Act,

which include regulating the entry and stay of non-citizens in Australia in the national

interest. Accordingly, these amendments apply to all relevant applications decided on or after

the commencement of the Regulation.

An application and transitional provision is not required for Schedule 7.


34

The purpose of these amendments is to clarify to whom these amendments in the

Regulation apply.


explanatory statement - legislation

Documents