Selected Legislation Changes - April - June 2021

Change Details Effective from
408 AGEE Covid-19 (hospitality and tourism)

LIN 21/038: Migration (COVID-19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class CG) visa) Amendment Instrument (No. 2) (LIN 21/038) 2021: https://www.legislation.gov.au/Details/F2021L00573 amends LIN 20/229: https://www.legislation.gov.au/Details/F2021C00039

Compilation: LIN 20/229: https://www.legislation.gov.au/Details/F2021C00483

The purpose of this instrument is to:

· expand the class of persons specified in subsection 8(3) to capture people who are employed by, or in receipt of an offer of employment from, an employer in the tourism and hospitality sector (see item 3 of Schedule 1 to the instrument); and

· amend the class of persons specified in subsection 8(1) to allow for an application for a Subclass 408 visa to be made if the person holds a substantive temporary visa that is 90 days or less from ceasing to be in effect (see item 2).

14 May 2021
 186 occupation list

LIN 19/049: Specification of Occupations and Assessing Authorities—Subclass 186 Visa (Compilation): https://www.legislation.gov.au/Details/F2021C00335

186 occupation list and skills assessing authorities update

 24 March 2021
189 NZ stream (income requirements)

Migration Amendment (Subclass 189 Visas) Regulations 2021: https://www.legislation.gov.au/Details/F2021L00668

The Migration Amendment (Subclass 189 Visas) Regulations 2021 (the Regulations) amend the Migration Regulations to remove the requirement that an applicant for a Subclass 189 visa in the New Zealand stream must have earned an amount no less than the income threshold in the four most recently completed income years in the five years before the application was made.  This requirement is replaced with a new requirement that the applicant has earned an amount no less than the income threshold in three income years in the five years immediately before they apply for the visa.  One of those income years must be the income year that ended most recently before the date of the application.

1 July 2021
189 NZ stream (income requirements - exemptions)

LIN 21/018: Income Threshold and Exemptions for Subclass 189 Visa (New Zealand Stream): https://www.legislation.gov.au/Details/F2021L00596

The purpose of the instrument is to add a new class of applicants who are exempt from the minimum amount of taxable income requirements, which is a primary criterion for the grant of the Subclass 189 visa, and to add the evidence required for the new class of exempt applicants.

Under new item 4 of Schedule 1 to the instrument, an applicant is a member of a class of exempt applicants, if the applicant:

a. does not meet the income requirement for the 2019–20 income year because the applicant has been affected by the COVID‑19 pandemic; and
b. provides the evidence mentioned in item 4 of Schedule 1 to the Department to support the claim.

31 May 2021
Immigration (Education) Act 1971

Immigration (Education) Act 1971 - compilation: https://www.legislation.gov.au/Details/C2021C00210

19 April 2021
 English tuition Regulations

 Migration Legislation Amendment (English Tuition) Regulations 2021: https://www.legislation.gov.au/Details/F2021L00262

· make consequential amendments to the Immigration (Education) Regulations following removal of the limit of 510 hours on the Commonwealth’s obligation to provide English courses under the Immigration (Education) Act;

· update provisions of the Migration Regulations for the refund, in certain circumstances, of the second instalment of the visa application charge paid by relevant applicants who do not commence an approved English course for which they are eligible under the Immigration (Education) Act; and

· update the prescribed evidence of functional English for the purposes of the Migration Regulations to take account of the fact that providers of approved courses under the Immigration (Education) Act will no longer be making determinations that a person has functional English.

 19 April 2021
 Vocational English definition for AMEP

 Immigration (Education) (Standards for Vocational English) Instrument (LIN 21/012) 2021: https://www.legislation.gov.au/Details/F2021L00464

The purpose of the instrument is to specify the procedures or standards for an approved English language provider to determine whether a migrant in Australia has ‘vocational English’.

 20 April 2021
Temporary visa eligible for AMEP

Immigration (Education) (Specification of temporary visas) Instrument (LIN 21/013) 2021: https://www.legislation.gov.au/Details/F2021L00465

The instrument specifies the classes of temporary visas that a person must hold, or have applied for, to be eligible for English courses.

20 April 2021
Trans Tasman Bubble

Biosecurity Legislation (Human Coronavirus with Pandemic Potential) Amendment (No. 1) Determination 2021: https://www.legislation.gov.au/Details/F2021L00456

amends Biosecurity (Entry Requirements—Human Coronavirus with Pandemic Potential) Determination 2020: https://www.legislation.gov.au/Details/F2020L01307

and amends Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020

to provide that where a person has spent the previous 14 days only in either or both Australia and New Zealand, they are exempt from the travel ban if they intend to travel directly to New Zealand only and then return to Australia; or they travel directly to New Zealand and do not intend to return to Australia. The effect of these provisions is to clarify that the general exemption to the travel ban for travel to New Zealand will not apply where a person intends to onward travel from New Zealand to another foreign country.

19 April 2021
Travel ban for travellers from India

Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021: https://www.legislation.gov.au/Details/F2021L00533

requires passengers on a relevant international flight not to enter Australian territory at a landing place if the person has been in India within 14 days of the day the flight was scheduled to commence.

3 May 2021
Family visa - maxmum grants for FY2020-21

Migration (Granting of contributory parent visas, parent visas and other family visas in the 2020/2021 financial year) Instrument (LIN 21/025) 2021: https://www.legislation.gov.au/Details/F2021L00511

The purpose of the instrument is to determine the maximum number of visas that may be granted for certain classes of visas in the financial year from 1 July 2020 to 30 June 2021:

a. Contributory Parent visas: 3,600 (which includes 125 visas under the Pathway to Permanent Residence for Retirees that was introduced under the Migration Amendment (Pathway to Permanent Residence for Retirees) Regulations 2018)

b. Parent visas: 900

c. Other Family visas: 500.

30 April 2021
Character Decisions - Tabling Notice

Migration Amendment (Tabling Notice of Certain Character Decisions) Bill 2021: https://www.legislation.gov.au/Details/C2021B00047

A main purpose is to insert a new subsection 501(4A) to provide that if the Minister makes a decision under current subsection 501(3) in relation to a person, the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day the decision was made.

Royal Assent received on 24 May 2021
Clarifying International Obligations (Protection Visa)

Migration Amendment (Clarifying International Obligations for Removal) Bill 2021: https://www.legislation.gov.au/Details/C2021B00043

· insert a new section 36A which ensures that, in considering a protection visa application, the Minister or the Minister’s delegate assesses protection obligations, including in circumstances where the applicant is ineligible for a visa due to criminal conduct or risks to security 

· amend current section 197C to provide for the relevance of Australia’s non‑refoulement obligations to removal of UNCs under current section 198 

· provide for the application of the amendments in certain circumstances

Royal Assent received on 24 May 2021
Travel Ban Extension for Further 3 Months

Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 2) Instrument 2021: https://www.legislation.gov.au/Details/F2021L00727

 On 2 March 2021, the Governor-General extended the human biosecurity emergency period for a further three months to 17 June 2021. The purpose is to vary the Declaration to extend the human biosecurity emergency period for a further three months until 17 September 2021, unless further extended by the Governor-General.

11 June 2021
Covid-19 Disaster Payment for temporary visa holders with work rights

Financial Framework (Supplementary Powers) Amendment (Home Affairs Measures No. 3) Regulations 2021: https://www.legislation.gov.au/Details/F2021L00707

The Financial Framework (Supplementary Powers) Amendment (Home Affairs Measures No. 3) Regulations 2021 (the Regulations) amend table item 492 in Part 4 of Schedule 1AB to the Principal Regulations, which establishes legislative authority for government spending on the COVID-19 Disaster Payment. The payment will be a one-off and time-limited financial assistance to eligible persons who are, or were, unable to earn their usual income as a result of health restrictions (public health order) imposed by state or territory governments, where the Commonwealth Chief Medical Officer has determined the location to be a COVID-19 hotspot for the purposes of Commonwealth support.

The payment is intended to assist Australian citizens, Australian permanent residents and temporary visa holders who have the right to work in Australia, who have had their hours of work and income significantly affected by the restrictions. The payment will apply when restrictions have remained in place for longer than seven days and, other than annual leave, the individual does not, or did not, have available leave entitlements to cover the period of the restrictions. Individuals who are, or were, already receiving Commonwealth income support payments, payments of a similar nature, or pandemic leave disaster payments during the period of the restrictions will not be eligible for this payment.

The rate of payment will be set at $500 per week for people who were engaged in paid employment of more than 20 hours per week, and $325 per week for people who were engaged in paid employment of less than 20 hours per week. To be eligible, recipients must not have liquid assets of more than $10,000 during the period of the restrictions.

Precise details of the period during which applications for assistance can be made will be published on the Services Australia website (www.servicesaustralia.gov.au) and as part of the COVID-19 Disaster Payment Guidelines, which will be made available on the GrantConnect website (www.grants.gov.au).

The COVID-19 Disaster Payment is a national payment, with Victoria to be the first jurisdiction to receive Commonwealth support in the form of the payment, where the Greater Melbourne area has currently been determined by the Commonwealth Chief Medical Officer to be a COVID-19 hotspot for the purposes of Commonwealth support. The Commonwealth will enter into an individual agreement for the payment with the relevant state or territory, where similar circumstances arise in the future.

The payment will be administered by Services Australia as a demand driven (eligibility based) grant and paid directly to eligible persons. The program will commence on 8 June 2021. Claimants will be required to complete and submit a claim via a myGov account. 

7 June 2021 (5.14pm)
Foreign currencies, places, exchange rates

Migration (Payment of Visa Application Charges and Fees in Foreign Currencies) Instrument (LIN 21/003) 2021 (No. 2): https://www.legislation.gov.au/Details/F2021L00741

Migration (Places and Currencies for Paying of Fees) Instrument (LIN 21/004) 2021 (No. 2): https://www.legislation.gov.au/Details/F2021L00739

1 July 2021
BIIP, WHV, BVE, fees changes

Home Affairs Legislation Amendment (2021 Measures No. 1) Regulations 2021: https://www.legislation.gov.au/Details/F2021L00852

Amendments to the Migration Regulations 1994:

Schedule 1 – Business Innovation and Investment Program – implements findings of a review and consultations to streamline and improve the operation of the Business Innovation and Investment Program to produce better outcomes for the Australian economy and support Australia’s post-COVID-19 economic recovery by maximising the impact of high value investors, business owners and entrepreneurs.

Schedule 2 – Working holiday maker visas – provides a nil visa application charge and eligibility concessions for working holiday makers affected by the COVID-19 pandemic.

Schedule 3 – Bridging visa amendments – makes amendments to reduce face-to-face contact by permitting the requirement for an interview to be waived for certain bridging visa applicants, and amends visa condition 8401, requiring visa holders to report to the Department, to provide the Minister with a discretion to allow bridging visa holders to report to the Department electronically or by telephone, rather than by attending in person.

Schedule 4 – Manner of Reporting on arriving overseas passengers and crew members – enables officers to require reporting to be given in a particular way, including a digital format, to provide greater efficiency and in accordance with the digital transformation agenda.

Amendments to the Australian Citizenship Regulation 2016

Schedule 5 – Changes to citizenship fees – provides a nil fee for an application for evidence of citizenship when it is combined with an application for citizenship by descent or adoption (consistent with other applications); updates eligibility for concessional fees for an application for citizenship by conferral; and updates citizenship application fees to better reflect the cost of processing these applications..

Schedule 6 – Payment of citizenship fees in foreign currencies – makes routine amendments to incorporate instruments made under the Migration Regulations updating the places and currencies in which citizenship application fees may be paid and the relevant exchange rates.

Schedule 7 – Application, saving and transitional Provisions – sets out application and transitional provisions for Schedules 1 to 6.

1 July 2021
WHV Nil Application Fee

Migration (Class of persons: Nil VAC for Work and Holiday and Working Holiday visas) Instrument (LIN 21/043) 2021: https://www.legislation.gov.au/Details/F2021L00836

- to accompany changes to applications for the WHM visas made to the Regulations by the Home Affairs Legislation Amendment (2021 Measures No. 1) Regulation 2021 (the Amendment Regulations).  These criteria capture WHMs whose visas were affected by COVID-19, so that they can apply for another WHM visa with a nil VAC. Additionally, the class is limited so that an applicant can only be granted one nil VAC visa, and cannot make repeat applications if it is refused.  However, an applicant who withdraws a nil VAC application can reapply.

1 July 2021
Application Fees - Changes

Migration Amendment (Visa Application Charges) Regulations 2021: https://www.legislation.gov.au/Details/F2021L00842

The purpose of the Migration Amendment (Visa Application Charges) Regulations 2021 (the Regulations) is to amend the Migration Regulations 1994 (the Migration Regulations) to make changes to visa application charges (VACs) for certain visas as a consequence of the 2017-18 Budget Measure Indexation of visa application charges, and 2020-21 Budget Measure Migration Program – changes to the Business Innovation and Investment Program.

Migration Amendment (Merits Review) Regulations 2021: https://www.legislation.gov.au/Details/F2021L00845

The Migration Amendment (Merits Review) Regulations 2021 (the Regulations) amend the Migration Regulations to increase the fee for certain applications to the Administrative Appeals Tribunal (AAT) from $1,826 to $3000. The fee applies to applications for review of decisions relating to visas other than protection visas, and includes decisions in relation to sponsorships and nominations. The new fee is subject to annual increase, from 1 July 2022, in line with existing legislated indexation arrangements.

Annual federal courts and tribunals fee increases from 1 July 2021: https://www.legislation.gov.au/Details/C2021G00445

1 July 2021
Bridging visa application arrangements

Migration (Arrangements for Bridging visa applications) Instrument (LIN 21/045) 2021: https://www.legislation.gov.au/Details/F2021L00899

The purpose of the instrument is to update LIN 20/068, to reflect changes to the manner in which a Bridging E (Class WE) application on paper forms 1005 and 1008 is lodged. Specifically, the instrument removes acceptance of paper application for form 1005 or 1008 lodged by any electronic means, i.e. by email to a permitted email address or by fax to a permitted fax number. However, this does not cease the use of paper forms 1008 or 1005, as it is still possible for an applicant to submit an application for a Bridging E (Class WE) visa by post to an office of immigration or in person using the paper forms.

In addition, the instrument amends the approved forms for bridging visa applications under the Migration Regulations to include references to paper form 47GT and online form 47GT (Internet). This allows an applicant for a Global Talent (Class BX) (Subclass 858) visa to be lawfully granted a Bridging A (Class WA) visa, a Bridging C (Class WC) visa or a Bridging E (Class WE) visa at the time when the applicant submitted a valid visa application on paper or online, using those forms.

1 July 2021
188 Complying Investments

Migration (Complying Investments) Amendment Instrument (LIN 21/041) 2021: https://www.legislation.gov.au/Details/F2021L00917 amends Migration (IMMI 15/100: Complying Investments) Instrument 2015 https://www.legislation.gov.au/Details/F2015L01012

Compilation: https://www.legislation.gov.au/Details/F2021C00656

 Subregulation 5.19C(1) of the Regulations provides that an investment by a person (the investor) is a complying significant investment if all of the requirements in the Regulations are met. Subregulation 5.19C(6) of the Regulations provides that the Minister may, by legislative instrument, specify requirements for subregulation 5.19C(5), namely to define the scope of a complying significant investment.

 The purpose of the instrument is to amend IMMI 15/100 to specify the scope and requirements of complying significant investments that are required as a result of the amendments made to the Regulations.

The instrument also addresses feedback identified in a review conducted by the Department of Home Affairs in consultation with the Australian Trade and Investment Commission (Austrade). The items the instrument address include several technical issues considered in the review regarding exchange traded funds and the use of derivatives for risk management purposes. The instrument also clarifies the eligibility of venture capital investments via fund of fund structures.

1 July 2021
Skills Priority List

The National Skills Commission has released its first nationally anchored assessment of the Australians labour market analysis on occupations through the Skills Priority List.

The list provides a current labour market rating and a future demand rating for occupations nationally, with current labour market ratings also available at a state and territory level.

Each occupation is given an indicative future demand rating (strong, moderate or soft) to indicate the likely demand for the occupation over the coming five year period.

The lists further break the demand into state and territories, those shortages restricted to metropolitan (M) or regional (R) areas and no shortages (NS).

https://www.nationalskillscommission.gov.au/2021-skills-priority-list

 
Temporary parent visa 870 - extension

Migration Amendment (Temporary Sponsored Parent Visas) Regulations 2021: https://www.legislation.gov.au/Details/F2021L01029

The main purpose is amend the Migration Regulations to extend for an additional 18 months, Subclass 870 (Sponsored Parent (Temporary)) visas held by persons who were outside Australia on 1 July 2021, in order to assist persons who may have had difficulty using the visa to travel to Australia due to COVID-19 related travel restrictions.

30 July 2021
WHV417/462 - excluded work for the purpose of WHV extension

 Migration Amendment (Subclass 417 and 462 Visas) Regulations 2021: https://www.legislation.gov.au/Details/F2021L01030

The Migration Amendment (Subclass 417 and 462 Visas) Regulations 2021 (the Regulations) exclude work for specified businesses, which would be listed in a legislative instrument signed by the Minister, from counting towards eligibility for a second or third working holiday maker visa. The exclusion would only apply to work undertaken after the business is listed in the legislative instrument.

The Department of Home Affairs (the Department) would implement enhanced communication channels to allow visa holders to easily check the status of their employer.

28 July 2021
PMSOL - new occupations

Supporting Australia’s COVID-19 vaccine rollout through skilled migration: https://minister.homeaffairs.gov.au/AlexHawke/Pages/covid-19-vaccine-rollout-skilled-migration.aspx

The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Alex Hawke MP has announced the inclusion of pharmacists on the Priority Migration Skilled Occupation List (PMSOL).

The new occupations are (including ANZSCO codes):

Hospital Pharmacist (251511)
Retail Pharmacist (251513)
Industrial Pharmacist (251512)

https://immi.homeaffairs.gov.au/visas/employing-and-sponsoring-someone/sponsoring-workers/pmsol

27 July 2021
Time limit on certain AAT reviews

Migration Amendment (Clarifying International Obligations for Removal) Regulations 2021: https://www.legislation.gov.au/Details/F2021L01078

Subsection 197D(2) of the Migration Act sets out the Minister’s decision‑making power in relation to certain individuals who were previously determined to have engaged protection obligations but are subsequently found by the Minister to no longer engage those obligations. Paragraph 411(1)(e) of the Migration Act provides that decisions under subsection 197D(2) are Part 7-reviewable decisions (as defined in section 411 of the Migration Act), reviewable by the Tribunal. 

The Regulations amend the Migration Regulations to prescribe a period of 120 days, for the purposes of subsection 419(1), for the Tribunal to make its decision in relation to review of a decision under subsection 197D(2) of the Migration Act – and to notify the applicant of that decision. This period would start when the application for review is received by the Tribunal, and would end at the end of 120 days starting on the first working day after the day on which the Tribunal received the application.

7 August 2021
Inquiry into Australia's Skilled Migration Program

Final Report of the Inquiry into Australia's Skilled Migration Program released: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Migration/SkilledMigrationProgram/Report_2

 
Overseas Travel Ban Update

Biosecurity (Human Coronavirus with Pandemic Potential) Amendment (No. 1) Determination 2021: https://www.legislation.gov.au/Details/F2021L01068

The Amendment Determination will remove the automatic exemption for Australian citizens and permanent residents ordinarily resident in a country other than Australia, such that a person will no longer be able to rely on an automatic exemption to travel overseas where they ordinarily reside in a country other than Australia. However, in exceptional circumstances, the Australian Border Force (ABF) Commissioner or an ABF employee may grant an exemption to an Australian citizen or a permanent resident, or an operator of an outgoing aircraft or vessel from the requirement not to travel outside Australian territory. The person will be required to demonstrate that they have a compelling reason for needing to leave Australian territory.

11 August 2021
Carer Visa - Newly Arrived Resident Waiting Period

Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Carer Payment) Amendment Determination 2021: https://www.legislation.gov.au/Details/F2021L01066

The purpose of the Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Carer Payment) Amendment Determination 2021 (the Amendment Determination) is to provide for the continuation of existing exemptions for holders of a Carer visa (subclass 116 or 836) from the Newly Arrived Resident’s Waiting Period (NARWP) for carer payment and carer allowance.

4 August 2021
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