ETA Subclass 601 applications
Subclass 601 – This Instrument makes consequential amendments to Item 1208A of Schedule 1 in relation to the amendments made by the Migration Amendment (2022 Measures No. 2) Regulations 2022.
For Items 1208A(1) and 1208A(3)(a) of Schedule 1 of the Regulations, an application for a Subclass 601 Electronic Travel Authority visa must be made using the Australian ETA Subclass 601 application form on the Australian ETA app.
The Australian ETA means a mobile app that is made available or has been made available (including before the commencement of this instrument), by or on behalf of the Commonwealth.
Applicants can also provide biometrics using the app and their device at the time of application.
This is a summary of this Legislative Instrument and Explanatory Statement, members should review these two documents in full before lodging applications for this visa.
This Instrument commenced on 5 April 2022.
Protecting Australia’s Critical Technology
The Explanatory Statement to this Instrument states: ‘technological advances drive increased productivity, growth and improved living standards, but also have the potential to harm our national and economic security interests and undermine our democratic values and principles. Critical technologies are also enabling economic coercion, foreign interference and cyber threats. The provisions of this Instrument are modeled on the provisions in the Criminal Code s121.1 and the Defense Trade Controls Act 2012 and Defense Trade Controls Regulations 2013.
This Instrument amends the Migration Regulations in relation to visa applicants and visa holders who pose an unreasonable risk of unwanted critical technology knowledge transfer to:
- create a Public Interest Criterion (PIC) 4003A allowing the Minister to refuse to grant certain visas if there is an unreasonable risk of unwanted transfer of critical technology by the visa applicant
- insert conditions 8204A and 8204B for SC 500 Student visa holders studying, or intending to undertake, higher education studies that they must not change their course of study, or research topic unless approved by the Minister. The Minister cannot approve the change unless satisfied that there is not an unreasonable risk of unwanted transfer of critical technology by the visa holder and
- provide for the cancellation of a visa under Reg 2.43(2)(a)(iv) where the Minister is satisfied that there is an unreasonable risk of unwanted transfer of critical technology by the visa holder. Cancellation will be discretionary for ‘relevant visas’ (certain protection visas and related bridging visas), but mandatory for all other types of visas.
Unreasonable transfer of critical technology is defined in Reg 1.15Q(1) as the transfer of ‘critical technology’ or communication of information about critical technology that would have any of the following outcomes:
- harm or prejudice to the security or defence of Australia, or to the health and safety of the Australian public
- interference or prejudice to the prevention, detection, investigation, prosecution or punishment of Commonwealth offences
- harm to Australia’s international relations—including by enabling critical technology to be used in a way contrary to Australia’s international obligations and commitments.
An unreasonable risk will involve consideration of a person’s background and affiliations and the sensitivity of the material they are proposing to work with. A ‘remote’ risk is not intended to be considered an ‘unreasonable’ risk.
Critical technologies can be digital (such as artificial intelligence) or non-digital (such as synthetic biology) and may be defined by the Minister in Reg 1.03.
Critical technology will be defined by a legislative instrument made by the Minister for Reg 1.15Q(2). That instrument will include technologies that have been identified by the Department of the Prime Minister and Cabinet’s List of Critical Technologies in the National Interest, in consultation with other Government and industry stakeholders.
Part 1 -Student SC 500 visas
This Instrument inserts new PIC and Sch 8 conditions for student visas.
PIC 4003B – The Minister has not determined that there is an unreasonable risk of an unwanted transfer of critical technology by the applicant.
- 4003B will be applied where the applicant’s course of study or intended course of study is a postgraduate research course (Reg 500.217)
- It will also be applied to secondary applicants of these primary applicants (Reg 500.317).
PIC 8204A for Reg 500.611(1) – The holder must not change the holder’s course of study, or thesis or research topic, unless:
(a) the Minister is satisfied that there is not an unreasonable risk of an unwanted transfer of critical technology by the holder; and
(b) the Minister has approved the change in writing.
PIC 8204B for Reg 500.612(1)(a) – The holder must not undertake or change a course of study or research, or thesis or research topic, for:
(a) a graduate certificate, a graduate diploma, a master’s degree or a doctorate; or
(b) any bridging course required as a prerequisite to a course of study or research for a master’s degree or a doctorate;
(c) the Minister is satisfied that there is not an unreasonable risk of an unwanted transfer of critical technology by the holder; and
(d) the Minister has approved in writing the holder undertaking or changing the course of study or research, or thesis or research topic.
Merits review – refusal of visas under these Sch 8 items are Part 5 reviewable decisions subject to AAT merits review.
Under Reg 4.02(5) a new Item 10 is inserted to provide that only the visa holder may apply for review.
Item 10801 – these amendments apply to any application for a visa made after the commencement of this Part 1 on 1 July 2022.
Part 2 – Public interest criterion and visa cancellation
PIC 4003B will be applied to the following visa programs and subclasses:
- Global Talent Independent program
- SC 186 Employer Nomination Scheme
- SC 187 Regional Sponsored Migration Scheme
- SC 189 Skilled Independent
- SC 585 Distinguished Talent
- SC 191 Skilled Regional
- SC 400 Temporary Short Stay
- SC 407 Training
- SC 408 Temporary Activity
- SC 476 Recognized Skilled Graduate
- SC 482 Temporary Skill Shortage
- SC 485 Temporary Graduate
- SC 494 Skilled Employer-Sponsored Regional
Refunds of employer nomination fees and SAF levy where the associated visa is refused under PIC 4003B for SC 457, 482, 494 and 186 are made available by Regs 2.73AA and 2.73C.
Reg 2.43(2)(a) prescribes for s116(3) of the Act the circumstances in which the Minister must cancel a person’s visa other than a relevant visa.
This Instrument inserts Reg 2.43(2)(a)(iv) with the effect that the Minister must cancel a person’s visa if there is an unreasonable risk of an unwanted transfer of critical technology by the holder of the visa.
Cancellation of visas under these regulations is Part 5 reviewable decision subject to AAT merits review.
Item 10802 – Part 2 Div 1 of this Instrument, the addition of the PIC and Sch 8 conditions to the listed subclasses, will apply to any applications made after the commencement of Part 1 of this Instrument on 1 July 2022.
The Part 2 Div 2 amended cancellation provisions will apply in relation to any visa granted before, at or after the commencement of that Part.
Commencement – Part 2 of the Instrument will commence at a time to be fixed by the Minister by a notifiable instrument.
However, if the provisions do not commence within the period of 6 months beginning on the day after this instrument is registered (6 April 2022), they commence on the day after the end of that period
This is a summary of this Legislative Instrument and Explanatory Statement, members should review these two documents in full before lodging applications for visas to which these amendments will apply.
Australia ratifies International Forced Labour Protocol
The Attorney General and Hon Marise Payne have announced that the Australian Government has ratified the International Labour Organization (ILO) Protocol of 2014 to Forced Labour Convention 1930 (No. 29) (the Protocol) and has communicated its formal ratification to the Director-General of the ILO in Geneva for registration.
The full media release is available on the Attorney General’s website.