Australian Immigration Daily News

Overview of the Disallowable Legislative Instrument 

This Disallowable Legislative Instrument, the Migration Amendment (Postgraduate Research in Critical Technology – Student Visa Conditions) Regulations 2022 (the Amendment Regulations), also commences on 1 July 2022 and repeals the student visa conditions that were introduced by the PACT Regulations, replacing them with a revised, more clearly targeted visa condition that will be imposed on all student visas.

Instead of a requirement for all student visa holders to seek approval before changing their course or aspects of their study, the Amendment Regulations establish a new visa condition (condition 8208) which is better targeted to address the risks of unwanted transfer of critical technology in the postgraduate research sector.

The instrument amends Migration (IMMI 18/076: Arrangements for Other Family Visa Applications and New Zealand (Family Relationship) Visa Applications) Instrument 2018 (F2018L00772) (IMMI 18/076) in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act).

That subsection provides that a power to make a legislative instrument includes a power to amend or repeal that instrument in the same manner, and subject to the same conditions, as the power to make the instrument. This means that subregulation 2.07(5) of the Regulations also includes a power to amend or repeal an instrument made under that provision. 

The purpose of the instrument is to update the approved form, place and manner (the arrangements) specified in IMMI 18/076 for making an application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa (Class UP visa).

The Migration Amendment (Subclass 485 (Temporary Graduate) Visa Replacement Stream and Other Measures) Regulations 2022 (the Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to provide an opportunity for former international students to obtain another Subclass 485 (Temporary Graduate) visa - a kind of temporary work visa granted after study in Australia - in circumstances where they were unable to stay in Australia for the full period of grant of their previous Subclass 485 visa due to COVID-19 international travel restrictions. In particular, the regulations: 

-create a new stream within the Subclass 485 (Temporary Graduate) visa to allow holders of those visas to obtain another Subclass 485 visa if they were unable to stay in Australia for the full period of grant of their previous visa due to the international travel restrictions in force from 1 February 2020 to 14 December 2021. Australia¡¦s borders fully reopened to Subclass 485 visa holders on 15 December 2021;
-make consequential amendments to ensure that holders of the replacement visa can continue to qualify for a further Subclass 485 visa based on residence in regional Australia; and
- make other minor changes to clarify eligibility for the Subclass 485 visa.

Source: Migration-Amendment-sc485-Temp-Grad-Visa-Replacement-Stream-and-other-Measures-Regs-2022.pdf 

The instrument operates to specify arrangements for making a Work and Holiday (Subclass 462) visa (subclass 462 visa) application. 

The instrument specifies Brazil and Mongolia as eligible subclass 462 visa partner countries. The eligibility to apply for, and to be granted, a subclass 462 visa is restricted to applicants who hold a valid passport issued by an eligible subclass 462 visa partner country. The instrument also specifies the educational qualification requirements that applicants holding a valid Brazilian or Mongolian passport must have (amongst other things) in order to satisfy the primary criteria for a subclass 462 visa. 

The instrument updates and adds Brazilian passport holders to the class of persons who are excluded from the requirement in subparagraph 1224A(3)(b)(iii) of Schedule 1 to the Regulations. This allows applicants from Brazil to make valid applications for a subclass 462 visa without providing evidence of support for the grant of the visa from their home government.

Purpose

Paragraphs 4005(1)(aa) and 4007(1)(aa) of Schedule 4 to the Regulations each provides that if an applicant is in a class of persons specified by the Minister in an instrument in writing for that paragraph, then the applicant must undertake any medical assessment specified in the instrument and must be assessed by the person specified in the instrument unless a Medical Officer of the Commonwealth decides otherwise.

IMMI 15/144 provides that applicants mentioned in that instrument for paragraphs 4005(1)(aa) and 4007(1)(aa) of Schedule 4 to the Regulations must undertake medical assessments by reference to their country of citizenship or residence, intended activities, and their intended stay period in Australia.

The purpose of the instrument is to amend IMMI 15/144 by updating the additional medical assessments for the class of persons mentioned in paragraph 2(c) of IMMI 15/144 for paragraphs 4005(1)(aa) and 4007(1)(aa) of Schedule 4 to the Regulations.

Source: LIN22065.pdf and LIN22065-Explanatory-Statement.pdf