Part 1 Preliminary
Division 1.1 Introductory
1.01 Name
of Regulations [see Note
1]
These Regulations are the Migration Regulations
1994.
1.02 Commencement
These Regulations commence on 1 September 1994.
Division 1.2 Interpretation
Note This Division sets out definitions
that apply to the Regulations as a whole. Elsewhere in the Regulations there
may be definitions that have more limited application. A term defined in
section 5 of the Act has the same meaning in the Regulations, in the absence of
a contrary intention.
1.03 Definitions
In these Regulations, unless the contrary intention
appears:
ACCESS test means the Australian Assessment
of Communicative English Skills test.
adoption has the meaning set out in
regulation 1.04.
Note adopt and adopted
have corresponding meanings: see Acts Interpretation Act 1901, section
18A.
adoption compliance certificate means an
adoption compliance certificate within the meaning of the Family
Law (Bilateral Arrangements — Intercountry Adoption)
Regulations 1998 or the Family Law (Hague Convention on Intercountry
Adoption) Regulations 1998.
Adoption Convention means the Convention on
Protection of Children and Cooperation in Respect of Intercountry Adoption
signed at The Hague on 29 May 1993.
Note The text of the Adoption Convention
is set out in Schedule 1 to the Family Law (Hague Convention on Intercountry
Adoption) Regulations 1998.
Adoption Convention country means a country
that is a Convention country under the Family Law (Hague Convention on
Intercountry Adoption) Regulations 1998.
aged dependent relative, in relation to a
person who is an Australian citizen, an Australian permanent resident or an
eligible New Zealand citizen, means a relative who:
(a) has never married, or is widowed, divorced
or formally separated from his or her spouse; and
(b) has been dependent on that person for a
reasonable period, and remains so dependent; and
(c) is old enough to be granted an age pension
under the Social Security Act 1991.
aged parent means a parent who is old enough
to be granted an age pension under the Social Security Act 1991.
aircraft safety inspector means a person who:
(a) is employed by a foreign government to
inspect the safety procedures of international air carriers or the safety of
aircraft; and
(b) travels to Australia on an aircraft in the
course of that employment; and
(c) will depart Australia on an aircraft in the
course of that employment or as a passenger.
airline crew member means:
(a) a person who:
(i) is employed by an international
air carrier as an aircrew member; and
(ii) travels to Australia in the course
of his or her employment as a member of the crew of an aircraft; and
(iii) will depart Australia in the
course of his or her employment as a member of the crew of, or a passenger on,
an aircraft; or
(b) an aircraft safety inspector.
airline positioning
crew member means a person who:
(a) is employed by an international air carrier
as an aircrew member; and
(b) travels to Australia in the course of his or
her employment as a passenger on an aircraft; and
(c) will depart Australia as a member of the
crew of an aircraft.
APEC means Asia‑Pacific Economic Co‑operation.
APEC economy means each of the following:
(a) Australia;
(b) Brunei Darussalam;
(c) Canada;
(d) Chile;
(e) PRC;
(f) Hong Kong;
(g) Indonesia;
(h) Japan;
(i) the Republic of Korea;
(j) Malaysia;
(k) Mexico;
(l) New Zealand;
(m) Papua New Guinea;
(n) Peru;
(o) the Republic of the Philippines;
(p) the Russian Federation;
(q) Singapore;
(r) Taiwan;
(s) Thailand;
(t) the United States of America;
(u) Vietnam.
appropriate regional authority, in relation
to a State or Territory and applications for visas of a particular class, means
a Department or authority of that State or Territory that is specified by
Gazette Notice, for the purposes of these Regulations, in relation to the grant
of visas of that class.
approved appointment means a nominated
position that is approved under subregulation 5.19 (1B).
approved form means a form approved by the
Minister under section 495 of the Act or regulation 1.18, and a reference to an
approved form by number is a reference to the form so approved and numbered.
approved professional
development sponsor means an
organisation that has been approved as a professional development sponsor under
subsection 140E (1) of the Act and on the terms specified in regulation 1.20O.
approved special student
sponsor means a person or an organisation that has been approved as a
special student sponsor under regulation 1.20UD.
approved trade skills training sponsor means
an organisation or individual approved under regulation 1.20UL.
Asia‑Pacific forces member means a
person who:
(a) is a member of the armed forces of Brunei,
Fiji, Malaysia, Thailand or Tonga; and
(b) is travelling to Australia, or is in Australia,
in the course of his or her duty; and
(c) holds military identity documents and
movement orders issued from an official source of the relevant country.
assessment level, in relation to a Subclass
570, 571, 572, 573, 574, 575 or 576 visa, means the level of assessment (being
level 1, 2, 3, 4 or 5) specified under Division 1.8 for a kind of eligible
passport, within the meaning of regulation 1.40, and for an education sector.
assurance of support, in relation to an
application for the grant of a visa, means:
(a) for an assurance of support accepted by the
Minister before 1 July 2004 — an assurance of support under Division 2.7;
and
(b) in any other case — an assurance of
support under Chapter 2C of the Social Security Act 1991.
AUD, in relation to an amount of money, means
Australian dollars.
AusAID means the Australian Agency for
International Development within Foreign Affairs.
AusAID Minister means the Minister
responsible for administering AusAID.
AusAID recipient has the meaning given by subregulation 1.04A (2).
AusAID student has the meaning given by subregulation 1.04A (3).
Australian child order has the meaning given
by subsection 70L (1) of the Family Law Act 1975.
Note Subsection 70L (1) of the Family
Law Act 1975 provides that an Australian child order means:
(a) a residence order, a contact order or a care order; or
(b) a State child order within the meaning of section 70B
of that Act.
Australian permanent resident means:
(a) in relation to an applicant for a Return
(Residence) (Class BB) visa or a Resident Return (Temporary) (Class TP)
visa — a non‑citizen who is the holder of a permanent visa; or
(b) in any other case (other than in the case of
an applicant for registration as a migration agent under Part 3 of the
Act) — a non‑citizen who, being usually resident in Australia, is
the holder of a permanent visa.
Note For paragraph 294 (1) (b)
of the Act, regulation 6C of the Migration Agents Regulations 1998
specifies the persons who are Australian permanent residents for
the purposes of an applicant for registration as a migration agent under Part 3
of the Act.
authorised officer means an officer
authorised by the Secretary for the purposes of the provision in which it
occurs.
award course means a course of education or
training leading to:
(a) the completion of a primary or secondary
education program; or
(b) a degree, diploma, trade certificate or other
formal award.
balance of family test has the meaning set
out in regulation 1.05.
bilateral adoption arrangement means an
arrangement between Australia and another country that allows the adoption of a
child from the other country to be recognised in Australia under the Family
Law (Bilateral Arrangements — Intercountry Adoption) Regulations 1998.
bogus document
has the same meaning as in section 97 of the Act.
Note The definition is:
bogus document, in relation to a person, means a
document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect
of the person; or
(b) is counterfeit or has been altered by a person who does
not have authority to do so; or
(c) was obtained because of a false or misleading
statement, whether or not made knowingly.
business skills points test means the test
set out in Schedule 7.
carer has the meaning given by
regulation 1.15AA.
category A course, in relation to the holder
of a visa or entry permit granted before 1 September 1994, means a course of
education or training that:
(a) is offered by an institution or other body
or person in Australia that is a registered provider, for the purposes of the Education
Services for Overseas Students Act 2000, of that course in the State or
Territory in which that person is undertaking, or proposes to undertake, it;
and
(b) is either:
(i) a course of primary or secondary
education; or
(ii) a post‑secondary course
(having as an entry requirement the successful completion of Year 12 studies or
the equivalent) leading to the award of a degree, diploma (including an
associate diploma and a graduate diploma) or graduate certificate or to an
equivalent award.
category A student
means a student who, immediately before 1 September 1994, held a Class 560
(student (category A)) entry permit granted under the Migration (1993)
Regulations or a student (Category A) (code number 560) entry permit granted
under the Migration (1989) Regulations.
category B course, in relation to the holder
of a visa or entry permit granted before 1 September 1994, means a course of
education or training that:
(a) is offered by an institution or other body
or person in Australia that is a registered provider, for the purposes of the Education Services for Overseas
Students Act 2000, of that course in the State or Territory in which that
person is undertaking, or proposes to undertake, it; and
(b) is not a category A course.
category B student means a student who,
immediately before 1 September 1994, held a Class 561 (student (category
B)) entry permit granted under the Migration (1993) Regulations or a student
(category B) (code number 561) entry permit under the Migration (1989)
Regulations.
certificate of enrolment, means a paper copy,
sent by an education provider to an applicant for a student visa, of an
electronic confirmation of enrolment relating to the applicant.
clearance officer has the meaning given by
section 165 of the Act.
Note the definition is:
clearance officer means an officer, or other
person, authorised by the Minister to perform duties for the purposes of
[Division 5 of Part 2 of the Act].
client number means a client identification
number generated by Immigration’s electronic system known as the Integrated
Client Services Environment.
close relative, in relation to a person,
means:
(a) the spouse of the person; or
(b) a child, adopted child, parent, brother or
sister of the person; or
(c) a step‑child, step‑parent, step‑brother
or step‑sister of the person.
Commissioner means a Commissioner appointed
under section 203 of the Act.
Commonwealth country means each of the
following countries:
(a) Antigua;
(b) Bahamas;
(c) Barbados;
(d) Belize;
(e) Canada;
(f) Grenada;
(g) Jamaica;
(h) Mauritius;
(j) New Zealand;
(k) Papua New Guinea;
(l) Saint Lucia;
(m) Saint Vincent and the Grenadines;
(n) Solomon Islands;
(p) St Christopher and Nevis;
(q) Tuvalu;
(r) the United Kingdom of Great Britain and
Northern Ireland.
Commonwealth forces member means a person
who:
(a) is a member of the armed forces of a
Commonwealth country; and
(b) is travelling to Australia, or is in
Australia, in the course of his or her duty; and
(c) holds military identity documents and
movement orders issued from an official source of the relevant country.
Commonwealth Medical Officer means a medical
practitioner employed or engaged by the Australian government.
community services includes the provision of
an Australian social security benefit, allowance or pension.
compelling need to work has the meaning set
out in regulation 1.08.
competent authority, in relation to an
adoption (including a prospective adoption), means:
(a) for Australia:
(i) in the case of an adoption to
which the Adoption Convention applies — a State Central Authority within
the meaning of the Family Law (Hague Convention on Intercountry Adoption)
Regulations 1998; and
(ii) in the case of an adoption to
which a bilateral adoption arrangement applies — a competent authority
within the meaning of the Family Law (Bilateral Arrangements — Intercountry Adoption)
Regulations 1998; and
(iii) in any other case — the
child welfare authorities of an Australian State or Territory; and
(b) for an Adoption Convention country — a
Central Authority within the meaning of the Family Law (Hague Convention on
Intercountry Adoption) Regulations 1998; and
(c) for a prescribed overseas jurisdiction
within the meaning of the Family Law (Bilateral Arrangements —
Intercountry Adoption) Regulations 1998 — a competent authority within
the meaning of those regulations; and
(d) for any other overseas country — a
person, body or office in that overseas country responsible for approving the
adoption of children.
condition means a condition set out in a
clause of Schedule 8, and a reference to a condition by number is a reference
to the condition set out in the clause so numbered in that Schedule.
contact hours, for a course for a period,
means the total number of hours in the period for which students enrolled in
the course are scheduled to attend classes for teaching purposes, course‑related
information sessions, supervised study sessions and examinations.
contributory parent
newborn child means:
(a) a natural child of a parent, born at a time
when that parent holds:
(i) a
Subclass 173 (Contributory Parent (Temporary)) visa; or
(ii) a bridging visa if the last
substantive visa held by that parent was a Subclass 173 (Contributory
Parent (Temporary)) visa; or
(b) a natural child of a parent, born at a time
when that parent holds:
(i) a
Subclass 884 (Contributory Aged Parent (Temporary)) visa; or
(ii) a bridging visa if the last
substantive visa held by that parent was a Subclass 884 (Contributory Aged
Parent (Temporary)) visa.
criminal detention has the meaning set out in
regulation 1.09.
custody, in relation to a child, means:
(a) the right to have the daily care and control
of the child; and
(b) the right and responsibility to make
decisions concerning the daily care and control of the child.
Defence means the Department of Defence.
Defence Minister means the Minister for
Defence.
Defence student has the meaning given in
regulation 1.04B.
dependent has the meaning given by regulation
1.05A.
dependent child means the natural or adopted
child, or step‑child, of a person (other than a child who has a spouse or
is engaged to be married), being a child who:
(a) has not turned 18; or
(b) has turned 18 and:
(i) is dependent on that person; or
(ii) is incapacitated for work due to
the total or partial loss of the child’s bodily or mental functions.
designated APEC economy means an APEC economy
specified by Gazette Notice for the purposes of this definition.
designated language means a language that is
specified by Gazette Notice as a designated language.
designated security means an investment in a
security specified under regulation 2.26C.
Education
means the Department of Education, Science and Training.
Education Minister means the Minister for Education,
Science and Training.
education provider, for a registered course
in a State or Territory, means each institution, body or person that is a
registered provider of the course in that State or Territory, for the Education
Services for Overseas Students Act 2000.
education sector, in relation to a student
visa, means whichever of the following sectors of the Australian education
system corresponds to a particular subclass of student visa:
(a) Independent ELICOS sector;
(b) Schools sector;
(c) Vocational Education and Training sector;
(d) Higher Education sector;
(e) Postgraduate
Research sector;
(f) Non‑Award
sector;
(g) AusAID or Defence sector.
electronic communication has the same meaning as in the Electronic Transactions
Act 1999.
electronic confirmation of enrolment, in
relation to an applicant for a student visa, means confirmation that:
(a) states that the applicant is enrolled in a
registered course; and
(b) is sent by an education provider, through a
computer system under the control of the Education Minister, to:
(i) a diplomatic, consular or
migration office maintained by or on behalf of the Commonwealth outside
Australia; or
(ii) an office of a visa application
agency that is approved in writing by the Minister for the purpose of receiving
applications for a student visa; or
(iii) any office of Immigration in
Australia.
ELICOS means an English Language Intensive
Course for Overseas Students that is a registered course.
eligible business has the meaning given to it
in subsection 134 (10) of the Act.
eligible New Zealand
citizen means a New Zealand citizen who:
(a) at the time of his or her last entry to
Australia, would have satisfied public interest criteria 4001 to 4004 and 4007
to 4009; and
(b) either:
(i) was in Australia on
26 February 2001 as the holder of a Subclass 444 (Special Category) visa
that was in force on that date; or
(ii) was in Australia as the holder of
a Subclass 444 visa for a period of, or periods that total, not less than
1 year in the period of 2 years immediately before 26 February 2001; or
(iii) has a certificate, issued under
the Social Security Act 1991, that states that the citizen was, for the
purposes of that Act, residing in Australia on a particular date.
Employment Minister means the Minister for
Employment and Workplace Relations.
entry permit has the meaning given by
subsection 4 (1) of the Act as in force immediately before 1 September 1994,
and includes an entry visa operating as an entry permit.
entry visa has the meaning given by
subsections 4 (1) and 17 (5) of the Act as in force immediately
before 1 September 1994.
ETA‑eligible passport has the meaning
given in regulation 1.11B.
fiscal year, in relation to a business or
investment, means:
(a) if there is applicable to the business or
investment by law an accounting period of 12 months — that period; or
(b) in any other case — a period of 12
months approved by the Minister in writing for that business or investment.
Foreign Affairs means the Department of
Foreign Affairs and Trade.
foreign armed forces dependant means a person
who:
(a) is the spouse of, or a dependent relative
of:
(i) an Asia‑Pacific forces
member; or
(ii) a Commonwealth forces member; or
(iii) a SOFA forces member; or
(iv) a SOFA forces civilian component member;
and
(b) holds a valid national passport and a
certificate that he or she is the spouse, or a dependent relative, of a person
referred to in subparagraph (a) (i), (ii), (iii) or (iv); and
(c) is accompanying or joining a person of that
kind.
Note Under section 10 of the Australian
Citizenship Act 1948, a child born in Australia on or after 26 January 1949
but before 20 August 1986 acquired Australian citizenship by birth. A child
born in Australia on or after 20 August 1986 acquired Australian citizenship
by birth only if one or both of the parents was an Australian citizen or
Australian permanent resident. For details see s. 10 of that Act.
Foreign Minister means the Minister for
Foreign Affairs.
foreign naval forces member means a person
who forms part of the complement of a ship of the regular armed forces of a
foreign government and is on board the ship.
formal course, in relation to the holder of a
visa or entry permit granted before 1 February 1991, means:
(a) a course of study at a primary or secondary
school approved, or within a class of schools approved, by the Education
Minister in writing for the purposes of the definition of formal course
in subregulation 2 (1) of the Migration (1989) Regulations; or
(b) a course of study approved in writing by the
Education Minister as a formal course for the purposes of that definition; or
(c) a course of study at a technical and further
education institution, or at a higher education institution, leading to a
formal award such as a degree or diploma.
Gazette Notice means:
(a) a notice in the Gazette by the
Minister that is authorised by the Act; or
(b) a notice under regulation 1.17.
guardian, in relation to a child, means a
person who:
(a) has responsibility for the long‑term
welfare of the child; and
(b) has, in relation to the child, all the
powers, rights and duties that are vested by law or custom in the guardian of a
child, other than:
(i) the right to have the daily care
and control of the child; and
(ii) the right and responsibility to make
decisions concerning the daily care and control of the child.
guest of Government
means:
(a) an official guest of the Australian
government; or
(b) a spouse or dependent relative of a
person mentioned in paragraph (a) who is accompanying that person; or
(c) a member of the personal or official staff
of a person mentioned in paragraph (a), being a staff member who is
accompanying the guest; or
(d) a media representative accompanying the
official party of a person mentioned in paragraph (a).
home country, in relation to a person, means:
(a) the country of which the person is a
citizen; or
(b) if the person is not usually resident in that
country, the country of which the person is usually a resident.
Hong Kong means the Hong Kong Special
Administrative Region of the People’s Republic of China.
IASS agreement means an agreement mentioned in regulation 1.16B.
IELTS test means the International English
Language Testing System test.
Immigration means the Department of
Immigration and Multicultural and Indigenous Affairs.
Industry Minister means the Minister for
Industry, Tourism and Resources.
interdependent partner means a non‑citizen
who is in an interdependent relationship.
interdependent relationship has the meaning
given by regulation 1.09A.
international air carrier has the meaning
given by subsection 504 (6) of the Act.
Internet application means an application for
a visa made using a form mentioned in paragraph 1.18 (2) (b)
that is sent to Immigration by electronic transmission using a facility made
available at an Internet site mentioned in subparagraph 1.18 (2) (b) (ii),
in a way authorised by that facility.
in Australia means in the migration zone.
labour agreement means:
(a) a formal agreement entered into between the
Minister, or the Employment Minister, and a person or organisation in Australia
under which an employer is authorised to recruit persons (other than the
holders of permanent visas) to be employed by that employer in Australia; or
(b) a formal agreement entered into between the
Minister and a sporting organisation under which the sporting organisation is
authorised to recruit persons (other than
the holders of permanent visas) to take part in the
sporting activities of the sporting organisation, whether as employees or
otherwise.
labour market requirements has the meaning
set out in regulation 1.10.
long‑term interdependent relationship,
in relation to an applicant for a visa, means an interdependent relationship
between the applicant and another person that has continued for not less than 5
years.
long‑term spouse relationship, in
relation to an applicant for a visa, means a relationship between the applicant
and another person, each as the spouse of the other, that has continued:
(a) if there is a dependent child (other than a
step‑child) of both the applicant and the other person — for not
less than 2 years; or
(b) in any other case — for not less than 5
years.
Macau means the Macau Special Administrative
Region of the People’s Republic of China.
main business has the meaning set out in
regulation 1.11.
marital relationship includes a de facto
relationship.
Medical Officer of the Commonwealth means a
medical practitioner appointed by the Minister in writing under regulation
1.16AA to be a Medical Officer of the Commonwealth for the purposes of these
Regulations.
member of the crew,
in relation to a non‑military ship, means:
(a) a person who is articled crew; or
(b) a person who is not articled crew but is
employed on the ship under contract and is included in the crew list or the
supernumerary crew list of the ship; or
(c) if the ship is a ship of the kind described
in paragraph (b) of the definition of non‑military ship —
a person who is employed in scientific research conducted on or from the ship; or
(d) a person who
arrives in Australia for the purpose of signing on to a non‑military ship
as a member of the crew of the ship.
member of the family unit has the meaning set
out in regulation 1.12.
member of the immediate family has the
meaning given by regulation 1.12AA.
member of the Royal Family means a member of
the Queen’s immediate family.
member of the Royal party includes:
(a) a member of the personal staff of the Queen
who is accompanying Her Majesty in Australia; and
(b) a member of the personal staff of a member of
the Royal Family, being a staff member who is accompanying that member of the
Royal Family in Australia; and
(c) a media representative accompanying the
official party of the Queen or of a member of the Royal Family in Australia;
and
(d) a person who is accompanying the Queen or a
member of the Royal Family in Australia as a member of the official party of
the Queen or the member of the Royal Family.
Migration (1959) Regulations means the
Regulations comprising Statutory Rules 1959 No. 35 and those Regulations as
amended from time to time.
Migration (1989) Regulations means the
Regulations comprising Statutory Rules 1989 No. 365 and those Regulations as
amended from time to time.
Migration (1993) Regulations means the
Regulations comprising Statutory Rules 1992 No. 367 and those Regulations as
amended from time to time.
Note The Migration (1993) Regulations are
listed in full in Part 1 of the Schedule to the Migration Reform (Transitional
Provisions) Regulations. They are repealed by regulation 42 of those Regulations
but continue to apply to certain matters.
migration occupation in demand means a
skilled occupation that is specified by an instrument in writing for this
definition as a migration occupation in demand.
net employment benefit has the meaning given
by regulation 1.12A.
nominator has the meaning given by regulation
1.13.
non‑award course means a course of
education or training that is not an award course.
non‑formal course, in relation to the
holder of a visa or entry permit granted before 1 February 1991, means a course
of study or training other than a formal course.
non‑formal course student, in relation
to a visa or entry permit granted before 1 February 1991, means a person
granted entry to Australia to attend a full‑time non‑formal course
of study.
non‑military ship means:
(a) a ship that is engaged in:
(i) commercial trade; or
(ii) the carriage of passengers for
reward; or
(b) a ship that is owned and operated by a
foreign government for the purposes of scientific research; or
(c) has been accorded public vessel status by
Foreign Affairs; or
(d) a ship:
(i) that is being imported into
Australia; and
(ii) of which the master has not
entered into an agreement with the crew under the Navigation Act 1912.
occupational trainee means a person who is in
Australia as the holder of a Subclass 442 (Occupational Trainee) visa.
Occupational English Test means an
Occupational English Test conducted by the National Language and Literacy
Institute of Australia.
Occupations Requiring English List means the
list mentioned in regulation 1.19.
oral application, in relation to a visa,
means an application made in accordance with regulation 2.09.
orphan relative has the meaning set out in
regulation 1.14.
outside Australia means outside the migration
zone.
overseas passenger means:
(a) in relation to a vessel arriving at a port
in Australia in the course of, or at the conclusion of, an overseas
voyage — a passenger:
(i) who:
(A) was on board the vessel
when it left a place outside Australia at the commencement of, or during the
course of, the voyage; and
(B) whose journey in the
vessel ends in Australia; or
(ii) who:
(A) was on board the vessel
when it left a place outside Australia at the commencement of, or during the
course of, the voyage; and
(B) intends to journey in
the vessel to a place outside Australia; and
(b) in relation to a vessel leaving a port in
Australia and bound for or calling at a place outside Australia — a
passenger on board the vessel who:
(i) joined the vessel at a port in
Australia; and
(ii) intends to journey in the vessel
to or beyond that place outside Australia.
Note Under the Act, vessel
includes an aircraft, and port includes an airport.
overseas voyage, in relation to a vessel,
means a voyage that commenced at, or during which the vessel called at, a place
outside Australia.
ownership interest has the meaning given to
it in subsection 134 (10) of the Act.
parent includes an adoptive parent and a step‑parent.
parent visa means a visa of a class that is
specified in Schedule 1 using the word ‘parent’ in the title of the visa.
parole means conditional release from prison
before the completion of a sentence of imprisonment.
passenger card means a card of the kind
referred to in section 506 of the Act.
periodic detention means a system of
restriction of liberty by which periods at liberty alternate with periods in
prison, and includes the systems of intermittent imprisonment known as day
release and weekend release.
permanent entry permit means an entry permit
that had effect without limitation as to time.
permanent entry visa means an entry visa that
operated as, or was capable of operating as, a permanent entry permit.
permanent humanitarian visa means:
(a) a Subclass 200, 201, 202, 203, 204, 209,
210, 211, 212, 213, 215, 216, 217 or 866 visa; or
(b) a Group 1.3 or Group 1.5 (Permanent resident
(refugee and humanitarian)) visa or entry permit within the meaning of the
Migration (1993) Regulations; or
(c) a humanitarian visa, or equivalent entry
permit, within the meaning of the Migration (1989) Regulations; or
(d) a transitional (permanent) visa, within the
meaning of the Migration Reform (Transitional Provisions) Regulations, being:
(i) such a visa granted on the basis
of an application for a visa, or entry permit, of a kind specified in paragraph
(b) or (c); or
(ii) a visa or entry permit of a kind
specified in paragraph (b) or (c) having effect under those Regulations as a
transitional (permanent) visa.
person designated under regulation 2.07AO
means a person mentioned in subregulation 2.07AO (2).
points system means the system of assessment
under Subdivision B of Division 3 of Part 2 of the Act.
PRC means the People’s Republic of China.
prescribed form means a form set out in
Schedule 10, and a reference to a prescribed form by number is a reference to
the form so numbered in that Schedule.
prohibited non‑citizen means a person
who, on or before 18 December 1989, was a prohibited non‑citizen
within the meaning of the Act as in force at that time.
proliferation of weapons of mass destruction
includes directly or indirectly assisting in the development, production,
trafficking, acquisition or stockpiling of:
(a) weapons that may be capable of causing mass
destruction; or
(b) missiles or other devices that may be capable
of delivering such weapons.
public interest criterion means a criterion
set out in a clause of Part 1 of Schedule 4, and a reference to a public
interest criterion by number is a reference to the criterion set out in the
clause so numbered in that Part.
qualifying business
means an enterprise that:
(a) is operated for the purpose of making profit
through the provision of goods, services or goods and services (other than the
provision of rental property) to the public; and
(b) is not operated primarily or substantially
for the purpose of speculative or passive investment.
registered course means a course of education
or training provided by an institution, body or person that is registered,
under section 9 of the Education Services for Overseas Students Act 2000,
to provide the course to overseas students.
Note A current list of registered courses
appears in the Commonwealth Register of Institutions and Courses for Overseas
Students kept under section 10 of the Education Services for Overseas
Students Act 2000.
relative, in relation to a person, means:
(a) in the case of an applicant for a Subclass
200 (Refugee) visa or a Protection (Class XA) visa:
(i) a close relative; or
(ii) a grandparent, grandchild, aunt,
uncle, niece or nephew, or a step‑grandparent, step‑grandchild,
step‑aunt, step‑uncle, step‑niece or step‑nephew; or
(iii) a first or second cousin; or
(b) in any other case:
(i) a close relative; or
(ii) a grandparent, grandchild, aunt,
uncle, niece or nephew, or a step‑grandparent, step‑grandchild,
step‑aunt, step‑uncle, step‑niece or step‑nephew.
Note Close relative is
defined in this regulation: see above.
relevant assessing authority means a person
or body specified under regulation 2.26B.
religious institution means a religious
institution (within the meaning of paragraph 23 (e) of the Income Tax
Assessment Act 1936), the income of which is exempt from income tax under
that paragraph.
remaining relative has the meaning set out in
regulation 1.15.
review authority:
(a) means the Migration Review Tribunal; and
(b) for Parts 010, 020, 030, 040, 041, 050 and
051 of Schedule 2 — includes the Refugee Review Tribunal.
RHQ agreement means an agreement mentioned in regulation 1.16A and
made before 1 November 2003.
Schedule 3 criterion means a criterion set
out in a clause of Schedule 3, and a reference to a Schedule 3 criterion by
number is a reference to the criterion set out in the clause so numbered in
that Schedule.
school‑age dependant, in relation to a
person, means a member of the family unit of the person who has turned 5, but
has not turned 18.
secondary exchange student means an overseas secondary school student participating
in a secondary school student exchange program approved by:
(a) the State or
Territory education authority that administers the program; and
(b) the Education Minister.
settled, in relation to an Australian
citizen, an Australian permanent resident or an eligible New Zealand citizen,
means lawfully resident in Australia for a reasonable period.
skilled occupation means:
(a) in relation to an
applicant for a Skilled Australian Sponsored (Migrant) (Class BQ) visa whose
sponsor has, on the sponsorship form:
(i) stated a
residential address the postcode of which is specified in an instrument
in writing for this subparagraph; and
(ii) declared that the address is the
place at which the sponsor usually resides;
an occupation:
(iii) that is
in the Sydney and Selected Areas Skilled Shortage List specified in that instrument; and
(iv) for which a number of points specified
in that instrument are available; and
(b) in any other case — an occupation that
is specified in an instrument in writing for this paragraph as a skilled
occupation for which a number of points specified in that instrument are
available.
SOFA forces civilian component member means a
person who:
(a) is, for the
purposes of a Status of Forces Agreement between Australia and France,
Malaysia, New Zealand, Papua New Guinea, Singapore, Turkey or the United States
of America, a member of the civilian component of the armed forces of one of
those countries; and
(b) holds a national passport that is in force
and a certificate that he or she is a member of the civilian component of the
armed forces of the relevant country.
SOFA forces member means a person who:
(a) is, for the
purposes of a Status of Forces Agreement between Australia and France,
Malaysia, New Zealand, Papua New Guinea, Singapore, Turkey or the United States
of America, a member of the armed forces of one of those countries; and
(b) holds military identity documents and
movement orders issued from an official source of the relevant country.
special return criterion means a criterion
set out in a clause of Part 1 of Schedule 5, and a reference to a special
return criterion by number is a reference to the criterion set out in the
clause so numbered in that Schedule.
sponsor has the meaning given by
subregulation 1.20 (1).
sponsorship means an undertaking of the kind
referred to in regulation 1.20 to sponsor an applicant.
spouse has the meaning set out in regulation
1.15A.
step‑child,
in relation to a parent, means:
(a) a child of the parent who is not the natural
or adopted child of the parent but who is the natural or adopted child of the
parent’s current spouse; or
(b) a child of the parent who is not the natural
or adopted child of the parent but:
(i) who is the natural or adopted
child of a former spouse of the parent; and
(ii) who has not turned 18; and
(iii) in relation to whom the parent
has:
(A) a residence order in
force under the Family Law Act 1975; or
(B) a specific issues order
in force under the Family Law Act 1975 under which the parent is
responsible for the child’s long‑term or day‑to‑day care,
welfare and development; or
(C) guardianship
or custody, whether jointly or otherwise, under a Commonwealth, State or
Territory law or a law in force in a foreign country.
student visa means a Subclass 560, 562, 563,
570, 571, 572, 573, 574, 575 or 576 visa, whenever granted.
subsidised student means a student enrolled
in a course of study in respect of which the student is subsidised under the
Subsidised Overseas Student Program administered by Education.
substituted Subclass 676 visa means a
Subclass 676 (Tourist) visa that was granted following a decision by the
Minister to substitute a more favourable decision under section 345, 351, 391,
417, 454 or 501J of the Act.
suspended education provider means an
education provider for which a suspension certificate is in effect under
Division 2 of Part 6 of the Education Services for Overseas Students Act
2000.
temporary entry permit means an entry permit
whose effect was subject to a limitation as to time.
the Act means the Migration Act 1958.
tourism means participation in activities of
a recreational nature including amateur sporting activities, informal study
courses, relaxation, sightseeing and travel.
trainee, in the case of a visa or entry
permit granted before 1 February 1991, means a person:
(a) in respect of whom the Education Minister
has approved participation in occupational training in Australia; and
(b) who has been granted a visa or an entry
permit to enable such participation.
transit passenger means a person who:
(a) enters Australia by aircraft; and
(b) holds a confirmed onward booking to leave
Australia to travel to a third country on the same or another aircraft within 8
hours of the person’s arrival in Australia; and
(d) holds documentation necessary to enter the
country of his or her destination.
vocational English has the meaning given in
regulation 1.15B.
work means an activity that, in Australia,
normally attracts remuneration.
working age
means:
(a) in the case of a female, under 60 years of
age; and
(b) in the case of a male, under 65 years of age.
working age parent means a parent other than
an aged parent.
Note 1 aged parent is defined
in this regulation.
Note 2 foreign country
is defined in paragraph 22 (1) (f) of the Acts Interpretation Act
1901 as any country (whether or not an independent sovereign state) outside
Australia and the external Territories.
1.04 Adoption
(1) A person (in this regulation called the
adoptee) is taken to have been adopted by a person (in this regulation
called the adopter) if, before the adoptee attained the age of 18
years, the adopter assumed a parental role in relation to the adoptee under:
(a) formal adoption arrangements made in
accordance with, or recognised under, the law of a State or Territory of
Australia relating to the adoption of children; or
(b) formal adoption arrangements made in
accordance with the law of another country, being arrangements under which the
persons who were recognised by law as the parents of the adoptee before those
arrangements took effect ceased to be so recognised and the adopter became so
recognised; or
(c) other arrangements entered into outside
Australia that, under subregulation (2), are taken to be in the nature of
adoption.
(2) For the purposes of paragraph (1) (c), arrangements
are taken to be in the nature of adoption if:
(a) the arrangements were made in accordance
with the usual practice, or a recognised custom, in the culture or cultures of
the adoptee and the adopter; and
(b) the child‑parent relationship between
the adoptee and the adopter is significantly closer than any such relationship
between the adoptee and any other person or persons, having regard to the
nature and duration of the arrangements; and
(c) the Minister is satisfied that:
(i) formal adoption of the kind
referred to in paragraph (1) (b):
(A) was not available under
the law of the place where the arrangements were made; or
(B) was not reasonably
practicable in the circumstances; and
(ii) the arrangements have not been
contrived to circumvent Australian migration requirements.
1.04A AusAID
recipients and AusAID students
(1) In this regulation:
AIDAB means the former Australian
International Development Assistance Bureau.
AusAID student visa means:
(a) a Subclass 560 (Student), Subclass 562
(Iranian Postgraduate Student) or Subclass 576 (AusAID or Defence Sector) visa
granted to a person who, as an applicant:
(i) satisfied the primary criteria for
the grant of the visa; and
(ii) was a student in a full‑time
course of study or training under a scholarship scheme or training program
approved by the AusAID Minister; or
(b) an equivalent former visa or entry permit; or
(c) an equivalent transitional visa.
cease, in relation to a full‑time
course of study or training, includes to complete, to withdraw from, or to be
excluded from, that course.
equivalent former visa or entry permit means
a Group 2.2 (student) visa or entry permit, within the meaning of the
Migration (1993) Regulations, granted to a person who, as an applicant:
(a) satisfied the criteria for the grant of the
visa or entry permit as a primary person; and
(b) was a student in a full‑time course of
study or training under a scholarship scheme or training program approved by
AIDAB or AusAID.
equivalent transitional visa means a
transitional (temporary) visa within the meaning of the Migration Reform
(Transitional Provisions) Regulations that:
(a) is, or was, held by a person because the
person held an equivalent former visa or entry permit; or
(b) was granted to a person on the basis of a
decision that the person satisfied the criteria for the grant of an equivalent
former visa or entry permit.
(2) A person is an AusAID
recipient if:
(a) either:
(i) the
person is the holder of an AusAID student visa and has ceased:
(A) the full‑time
course of study or training to which that visa relates; or
(B) another course approved
by the AusAID Minister in substitution for that course; or
(ii) if
the person is not the holder of an AusAID student visa — the person has in
the past been the holder of an AusAID student visa and has ceased:
(A) the full‑time
course of study or training to which the last AusAID student visa held by the
person related; or
(B) another course approved
by the AusAID Minister in substitution for that course; and
(b) the person has not spent at least 2 years
outside Australia since ceasing the course.
(3) A person is an AusAID student if:
(a) the person has been approved by the AusAID
Minister to undertake a full‑time course of study or training under a
scholarship scheme or training program approved by the AusAID Minister; and
(b) the person is:
(i) the
holder of an AusAID student visa granted in circumstances where the
person intended to undertake the full‑time course of study or training;
or
(ii) an
applicant for a student visa whose application shows an intention to
undertake a full‑time course of study or training; and
(c) in the case of a person mentioned in
subparagraph (b) (i) — the person has not ceased:
(i) the full‑time course of
study or training to which the visa relates; or
(ii) another course approved by the
AusAID Minister in substitution for that course.
1.04B Defence
student
A person is a Defence
student if:
(a) the person has
been approved by the Defence Minister to undertake a full‑time course of
study or training under a scholarship scheme or training program approved by
the Defence Minister; and
(b) the person is:
(i) the holder of a Subclass 576
(AusAID or Defence Sector) visa granted in circumstances where the person
intended to undertake the course of study or training; or
(ii) an applicant for a student visa
whose application shows an intention to undertake the course of study or
training; and
(c) in the case of a
person mentioned in subparagraph (b) (i) — the person has not ceased,
completed, withdrawn from, or been excluded from:
(i) the
course of study or training to which the visa relates; or
(ii) another course approved by the
Defence Minister in substitution for that course.
1.05 Balance
of family test
(1) For the purposes of this regulation:
(a) a person is a child of another person (the
parent) if the person is a child, adopted child or step‑child of:
(i) the parent; or
(ii) a spouse of the parent; or
(iii) a former spouse of the parent, if
the child was born or adopted:
(A) before the parent became
the spouse of the former spouse; or
(B) while the parent was the
spouse of the former spouse; and
(b) if the whereabouts of a child of the parent
are unknown, the child is taken to be resident in the usual country of
residence of the parent.
(2) A parent satisfies the balance of family test if:
(a) each of the children of the parent is
either:
(i) lawfully and permanently resident
in Australia; or
(ii) a person who is:
(A) an eligible New Zealand
citizen; and
(B) usually resident in
Australia; or
(b) the number of children of the parent who are
lawfully and permanently resident in Australia or are eligible New Zealand
citizens usually resident in Australia is:
(i) greater than, or equal to, the
total number of children of the parent who are resident overseas; or
(ii) greater than the greatest number
of children of the parent who are resident in any single overseas country.
(3) In applying the balance of family test, no account
is to be taken of a child of the parent:
(a) if the child has been removed by court
order, by adoption or by operation of law (other than in consequence of
marriage) from the exclusive custody of the parent; or
(b) if the child is resident in a country where
the child suffers persecution or abuse of human rights and it is not possible
to reunite the child and the parent in another country; or
(c) if the child is resident in a refugee camp
operated by:
(i) the United Nations High
Commissioner for Refugees; or
(ii) the government of Hong Kong;
and is registered by the Commissioner as a
refugee; or
(d) if:
(i) the child is a step‑child of
the parent; and
(ii) the child had turned 18 at the
time at which the parent became the spouse of the child’s other parent;
and one or more of the following
subparagraphs applies:
(iii) the other parent is deceased; or
(iv) the parent is permanently separated
from the other parent; or
(v) the parent is divorced from the
other parent.
1.05A Dependent
(1) Subject to subregulation (2), a person (the first
person) is dependent on another person if:
(a) at the time when it is necessary to
establish whether the first person is dependent on the other person:
(i) the first person is, and has been
for a substantial period immediately before that time, wholly or substantially
reliant on the other person for financial support to meet the first person’s
basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the
other person is greater than any reliance by the first person on any other
person, or source of support, for financial support to meet the first person’s
basic needs for food, clothing and shelter; or
(b) the first person is wholly or substantially
reliant on the other person for financial support because the first person is
incapacitated for work due to the total or partial loss of the first person’s
bodily or mental functions.
(2) A person (the first person) is
dependent on another person for the purposes of an application for:
(d) a Protection (Class XA) visa; or
(e) a Refugee and Humanitarian (Migrant) (Class
BA) visa; or
(ea) a Refugee and Humanitarian (Class XB) visa;
or
(i) a Temporary Safe Haven (Class UJ) visa;
if the first person is wholly or substantially reliant on the other
person for financial, psychological or physical support.
1.06 References
to classes of visas
A class of visas may
be referred to:
(a) in the case of a class of visas referred to
in Schedule 1 — by the code allotted to the class in the heading of the
item in Schedule 1 that relates to that class of visas; or
(b) in the case of a transitional visa, by the
following codes:
(i) transitional (permanent): BF;
(ii) transitional (temporary): UA.
Note For example, Cultural/Social
(Temporary) Class may be referred to as Class TE.
1.07 References
to subclasses of visas
(1) A reference to a visa of a particular subclass (for
example, a visa of Subclass 414) is a reference to a visa granted
on satisfaction of the criteria set out in the Part of Schedule 2 that bears
the number of the subclass.
(2) A reference to an applicant for a visa of a
particular subclass is a reference to an applicant who applies for a visa of a
class that may, under Schedule 1, be granted on satisfaction of the criteria
set out in the Part of Schedule 2 that bears the number of the subclass.
1.08 Compelling
need to work
For the purposes of these Regulations, a non‑citizen
has a compelling need to work if and only if:
(a) he or she is in financial hardship; or
(b) he or she:
(i) is nominated by an employer in
respect of an approved appointment (within the meaning of regulation 5.19); and
(ii) appears to the Minister, on the
basis of information contained in the application, to satisfy the criterion in
clause 856.213 or 857.213 of Schedule 2; or
(c) he or she:
(i) is:
(A) an applicant for a
Business (Temporary) (Class TB) visa; or
(B) an applicant for an
Educational (Temporary) (Class TH) visa who appears to the Minister, on the
basis of information contained in the application, to satisfy the criteria for
the grant of a Subclass 418 visa; or
(C) an applicant for a
Medical Practitioner (Temporary) (Class UE) visa; or
(D) an applicant for a
Temporary Business Entry (Class UC) visa who seeks a visa to remain in
Australia (whether or not also a visa to travel to and enter Australia) for a
period, or periods, of 3 months or more; and
(ii) has been sponsored by an employer
in relation to that application; and
(iii) appears, on the basis of that
application, to satisfy the criteria for that visa.
1.09 Criminal
detention
For the purposes of these Regulations, a person is
in criminal detention if he or she is:
(a) serving a term of imprisonment (including
periodic detention) following conviction for an offence; or
(b) in prison on remand;
but not if he or she is:
(c) subject to a community service order; or
(d) on parole after serving part of a term of
imprisonment; or
(e) on bail awaiting trial.
1.09A Interdependent
relationship
(1) In this regulation:
ancestor includes a parent.
(2) For the purposes of these Regulations, a person is
in an interdependent relationship with another person if:
(a) they are not within a prohibited degree of
relationship; and
(b) they have both turned 18; and
(c) the Minister is satisfied that:
(i) they have a mutual commitment to a
shared life to the exclusion of any spouse relationships or any other
interdependent relationships; and
(ii) the relationship between them is
genuine and continuing; and
(iii) they:
(A) live together; or
(B) do not live separately
and apart on a permanent basis; and
(d) subject to subregulation (2A), where either
of them is an applicant for a Partner (Migrant) (Class BC), Partner
(Provisional) (Class UF), Partner (Residence) (Class BS), or Partner
(Temporary) (Class UK) visa — the Minister is satisfied that, for the
period of 12 months immediately preceding the date of application of the party
relying on the existence of the relationship:
(i) they had a mutual commitment to a
shared life to the exclusion of any spouse relationships or any other
interdependent relationships; and
(ii) the relationship between them was
genuine and continuing; and
(iii) they had:
(A) been living together; or
(B) not been living
separately and apart on a permanent basis.
(2A) Paragraph 2 (d) does not apply if the applicant
can establish compelling and compassionate circumstances for the grant of the
visa.
(3) For the purposes of this regulation, persons are
within a prohibited degree of relationship if either of them is:
(a) an ancestor or descendant of the other
person; or
(b) a brother or sister of the other person
(whether or not they have both parents in common).
(4) For the purposes of subregulation (3):
(a) a person is taken to be an ancestor or
descendant of another person even if the relationship between them is traced
through, or to, a person who is or was an adopted child; and
(b) the relationship of parent and child between
an adoptive parent and an adopted child is taken to continue even though:
(i) the order by which the adoption
was effected has been annulled, cancelled or discharged; or
(ii) the adoption has otherwise ceased
to be effective; and
(c) the relationship between an adopted child
and the adoptive parent, or each of the adoptive parents, is taken to be or to
have been the natural relationship of child and parent; and
(d) a person who has been adopted more than once
is taken to be the child of each person by whom he or she has been adopted.
(5) In forming an opinion for the purposes of
subregulation (2) in relation to an application for a visa, the Minister must
have regard to all the circumstances of the relationship, including, in
particular:
(a) the financial aspects of the relationship,
including:
(i) any joint ownership of real estate
or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of
financial resources, especially in relation to major financial commitments; and
(iv) whether one party to the
relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day‑to‑day
household expenses; and
(b) the nature of
the household, including:
(i) any joint responsibility for care
and support of children, if any; and
(ii) the persons’ living arrangements;
and
(iii) any sharing of responsibility for
housework; and
(c) the social aspects of the relationship,
including:
(i) the opinion of the persons’
friends and acquaintances about the nature of the relationship; and
(ii) any basis on which the persons
plan and undertake joint social activities; and
(iii) whether the persons represent
themselves to other persons as being in an interdependent relationship; and
(d) the nature of the persons’ commitment to each
other, including:
(i) the duration of the relationship;
and
(ii) the length of time during which
the persons have lived together; and
(iii) the degree of companionship and
emotional support that the persons draw from each other; and
(iv) whether the persons themselves see
the relationship as a long‑term one.
(6) If 2 persons have been living together at the same
address for 6 months or longer, that fact is to be taken to be strong evidence
that the relationship is genuine and continuing, but a relationship of shorter
duration is not to be taken not to be genuine and continuing only for that
reason.
1.10 Labour
market requirements
An application for a visa meets labour market
requirements if the Minister is satisfied that:
(a) the application is in accordance with a
labour agreement; or
(b) in respect of the employment to which the
application relates:
(i) no Australian citizen or
Australian permanent resident is readily available who has suitable
qualifications and experience; and
(ii) if appropriate — relevant
employer and employee organisations have been consulted.
1.11 Main
business
(1) For the purposes of these Regulations and subject to
subregulation (2), a business is a main business in relation to an applicant
for a visa if:
(a) the applicant has, or has had, an ownership
interest in the business; and
(b) the applicant maintains, or has maintained,
direct and continuous involvement in management of the business from day to day
and in making decisions affecting the overall direction and performance of the
business; and
(c) the value of the applicant’s ownership
interest, or the total value of the ownership interests of the applicant and
the applicant’s spouse, in the business is or was at least 10% of the total
value of the business; and
(d) the business is a qualifying business.
(2) If an applicant has, or has had, an ownership
interest in more than 1 qualifying business that would, except for this
subregulation, be a main business in relation to the applicant, the applicant
must not nominate more than 2 of those qualifying businesses as main
businesses.
1.11A Ownership
for the purposes of certain Parts of Schedule 2
(1) Subject to subregulation (4), for Parts 132,
160, 161, 162, 163, 164, 165, 845, 846, 890, 891, 892 and 893 of Schedule 2,
ownership by an applicant, or the applicant’s spouse, of an asset, an
eligible investment or an ownership interest, includes beneficial ownership
only if the beneficial ownership is evidenced in accordance with subregulation (2).
(2) To evidence beneficial ownership of an asset,
eligible investment or ownership interest, the applicant must show to the
Minister:
(a) a trust instrument; or
(b) a contract; or
(c) any other document capable of being used to
enforce the rights of the applicant, or the applicant’s spouse, as the case
requires, in relation to the asset, eligible investment or ownership interest;
stamped or registered by an appropriate authority under the law of
the jurisdiction where the asset, eligible investment or ownership interest is
located.
(3) A document shown under subregulation (2) does not
evidence beneficial ownership, for subregulation (1), for any period earlier
than the date of registration or stamping by the appropriate authority.
(4) Beneficial ownership is not required to be evidenced
in accordance with subregulation (2) if the person who has legal ownership of
the asset, eligible investment or ownership interest in relation to which the
applicant, or the applicant’s spouse, has beneficial ownership:
(a) is a dependent child of the applicant; and
(b) made a combined application with the
applicant; and
(c) has not reached the age at which, in the
jurisdiction where the asset, eligible investment or ownership interest is
located, he or she can claim the benefits of ownership of the asset, eligible
investment or ownership interest.
1.11B ETA‑eligible
passport
(1) A passport is an ETA‑eligible passport
in relation to an application for a visa if:
(a) it is a valid passport of a kind specified
by Gazette Notice as an ETA‑eligible passport; and
(b) the conditions (if any) specified by Gazette
Notice for passports of that kind are satisfied in relation to that
application.
(2) A passport is an ETA‑eligible passport in
relation to a visa of a particular Subclass if:
(a) it is an ETA‑eligible passport in
accordance with subregulation (1); and
(b) it is specified by Gazette Notice to be an
ETA‑eligible passport for that Subclass.
1.12 Member
of the family unit
(1) Subject to subregulations
(2), (2A), (6) and (7), a person is a member of the family unit of
another person (in this subregulation called the family head) if
the person is:
(a) a spouse of the family head; or
(b) a dependent child of the family head or of a
spouse of the family head; or
(c) a dependent child of a dependent child of
the family head or of a spouse of the family head; or
(e) a relative of the family head or of a spouse
of the family head who:
(i) has never married or is widowed,
divorced or separated; and
(ii) is usually resident in the family
head’s household; and
(iii) is dependent on the family head.
(2) A person is a member of the family unit of an
applicant for a Student (Temporary) (Class TU) visa if the person is:
(a) a spouse of the applicant; or
(b) a dependent child of the applicant, or of
that spouse, who is unmarried and has not turned 18.
(2A) A person is a member of the
family unit of a holder of a Student (Temporary) (Class TU) visa if the person
is:
(a) a spouse of the
holder; or
(b) a dependent child of the holder, or of that
spouse, who is unmarried and has not turned 18.
(3) In addition to subregulation (1), a person is a
member of the family unit of an applicant for a Contributory Parent (Migrant)
(Class CA) visa, being an applicant who was the holder of a Subclass 173
(Contributory Parent (Temporary)) visa at the time of application, if:
(a) the person was a member of the family unit
of the applicant, in accordance with subregulation (1), at the time of
application for the Contributory Parent (Temporary) (Class UT) visa; and
(b) the person was, in accordance with
subregulation (1):
(i) a dependent child; or
(ii) dependent on the family head; and
(c) since the time of application for the
Contributory Parent (Temporary) (Class UT) visa, the person has ceased to be:
(i) a dependent child; or
(ii) dependent on the family head.
(4) In addition to subregulation (1), a person is a
member of the family unit of an applicant for a Contributory Aged Parent
(Residence) (Class DG) visa, being an applicant who was
the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the
time of application, if:
(a) the person was a member of the family unit
of the applicant, in accordance with subregulation (1), at the
time of application for the Contributory Aged Parent (Temporary) (Class UU)
visa; and
(b) the person was, in accordance with
subregulation (1):
(i) a dependent child; or
(ii) dependent on the family head; and
(c) since the time of application for the
Contributory Aged Parent (Temporary) (Class UU) visa, the person has ceased to
be:
(i) a dependent child; or
(ii) dependent on the family head.
(5) In addition to
subregulation (1), a person is a member of the family unit of an applicant for
a Business Skills (Residence) (Class DF) visa if, at the time of
application:
(a) the person holds a visa:
(i) of a subclass included in Business
Skills (Provisional) (Class UR); and
(ii) that was granted on the basis that
the person was a member of the family unit of a holder of a visa of a subclass
included in Business Skills (Provisional) (Class UR); and
(b) the person is included in the application for
the Business Skills (Residence) (Class DF) visa.
(6) In addition to
subregulation (1), a person is a member of the family unit of an applicant for
a Distinguished Talent (Migrant) (Class AL)
visa who has not turned 18 at the time of
application if:
(a) a parent of the
applicant has made a combined application with the applicant for the Distinguished Talent (Migrant) (Class AL) visa; and
(b) the person is:
(i) that
parent; or
(ii) a spouse of that parent; or
(iii) a dependent child of that parent;
or
(iv) a dependent child of a spouse of
that parent; or
(v) a dependent child of a dependent
child of that parent; or
(vi) a dependent child of a dependent
child of a spouse of that parent; or
(ix) a relative of that parent who:
(A) has
never married or is widowed, divorced or separated; and
(B) is
usually resident in that parent’s household; and
(C) is
dependent on that parent; or
(x) a
relative of a spouse of that parent who:
(A) has
never married or is widowed, divorced or separated; and
(B) is
usually resident in that parent’s household; and
(C) is
dependent on that parent; and
(c) no person is being treated as a member of the family unit
of the applicant, in relation to the applicant’s
application for the Distinguished Talent
(Migrant) (Class AL) visa, in accordance with subregulation (1); and
(d) no other parent of the applicant is being
treated as a member of the family unit of the applicant in accordance with this
subregulation.
Note Paragraph 1.12 (6) (c) ensures that if
one person, or a group of persons, is being treated as a member or members of
the family unit of the applicant under subregulation 1.12 (1), another person
or group of persons cannot be treated as a member or members of the family unit
of an applicant under subregulation 1.12 (6) in relation to that same
application.
Paragraph 1.12 (6) (d) ensures that only one parent of the
applicant, and the family unit of that one parent (which may include the other
parent of the applicant), can be treated as members of the family unit of the
applicant under subregulation 1.12 (6).
(7) In addition to
subregulation (1), a person is a member of the family unit of an applicant for
a Distinguished Talent (Residence) (Class BX)
visa who has not turned 18 at the time of
application if:
(a) a parent of the
applicant has made a combined application with the applicant for the Distinguished Talent (Residence) (Class BX) visa; and
(b) the person is:
(i) that
parent; or
(ii) a spouse of that parent; or
(iii) a dependent child of that parent;
or
(iv) a dependent child of a spouse of
that parent; or
(v) a dependent child of a dependent
child of that parent; or
(vi) a dependent child of a dependent
child of a spouse of that parent; or
(ix) a relative of that parent who:
(A) has
never married or is widowed, divorced or separated; and
(B) is
usually resident in that parent’s household; and
(C) is
dependent on that parent; or
(x) a
relative of a spouse of that parent who:
(A) has
never married or is widowed, divorced or separated; and
(B) is
usually resident in that parent’s household; and
(C) is
dependent on that parent; and
(c) no person is being treated as a member of the family unit
of the applicant, in relation to the applicant’s
application for the Distinguished Talent
(Residence) (Class BX) visa, in accordance with subregulation (1); and
(d) no other parent of the applicant is being
treated as a member of the family unit of the applicant in accordance with this
subregulation.
Note Paragraph 1.12 (7) (c) ensures that if
one person, or a group of persons, is being treated as a member or members of
the family unit of the applicant under subregulation 1.12 (1), another person
or group of persons cannot be treated as a member or members of the family unit
of an applicant under subregulation 1.12 (7) in relation to that same
application.
Paragraph 1.12 (7) (d) ensures that only one parent of the
applicant, and the family unit of that one parent (which may include the other
parent of the applicant), can be treated as members of the family unit of the
applicant under subregulation 1.12 (7).
(8) In addition to
subregulation (1), a person is a member of the family unit of:
(a) an applicant for
an Employer Nomination (Residence) (Class BW) visa who seeks to satisfy the
criteria for the grant of a Subclass 857 (Regional Sponsored Migration Scheme)
visa; or
(b) an applicant for a Business Skills
(Residence) (Class DF) visa who seeks to satisfy the criteria for the grant of
a Subclass 892 (State/Territory Sponsored Business Owner) visa; or
(c) an applicant for a Skilled Independent
(Migrant) (Class BN) visa who seeks to satisfy the criteria for the grant
of a Subclass 137 (Skilled — State/Territory‑nominated Independent)
visa;
if, at time of application:
(d) either:
(i) the
person is the holder of a Skilled — Independent Regional (Provisional)
(Class UX) visa; or
(ii) the last substantive visa held by
the person:
(A) since
entering Australia; and
(B) within
the period of 28 days before the application was made;
was a
Skilled — Independent Regional (Provisional) (Class UX) visa; and
(e) the Skilled —
Independent Regional (Provisional) (Class UX) visa was granted on the basis
that the person was a member of the family unit of the holder of a Skilled —
Independent Regional (Provisional) (Class UX) visa, granted on the basis that
the holder satisfied the primary criteria; and
(f) the person is included in the application
for an Employer Nomination (Residence) (Class BW), Business Skills (Residence)
(Class DF) or Skilled Independent (Migrant) (Class BN) visa.
1.12AA Member
of the immediate family
(1) For these Regulations, a person A is a
member of the immediate family of another person B if:
(a) A is a spouse of B; or
(b) A is a dependent child of B; or
(c) A is a parent of B, and B is not 18 years or
more.
(2) In addition to
subregulation (1), a person is a member of the immediate family of an applicant
for a Witness Protection (Trafficking) (Permanent) (Class DH) visa if, at the
time of application:
(a) the person holds a visa:
(i) of a subclass included in Witness
Protection (Trafficking) (Temporary) (Class UM); and
(ii) that was granted on the basis that
the person was
a member of the immediate family of the applicant, if the applicant held a visa
of a subclass included
in Witness Protection (Trafficking) (Temporary) (Class UM); and
(b) the person is included in the application for
the Witness Protection (Trafficking) (Permanent) (Class DH) visa.
1.12A Net
employment benefit
If:
(a) an applicant for a visa seeks to enter
Australia to undertake an activity individually or in association with a group;
and
(b) the Minister is satisfied that the undertaking
of the activity would lead to greater employment of Australian citizens or
Australian permanent residents (or both) than if a person normally resident in
Australia undertook the activity;
the entry of the applicant to Australia is taken to confer a net
employment benefit on Australia.
1.13 Meaning
of nominator
(1) The nominator of an applicant for a
visa is a person who, on the relevant approved form, nominates another person
as an applicant for a visa of a particular class.
(2) However, a person who proposes another person for
entry to Australia as an applicant for a permanent humanitarian visa is not the
nominator of the other person.
1.14 Orphan
relative
An applicant for a visa is an orphan relative of
another person who is an Australian citizen, an Australian permanent resident
or an eligible New Zealand citizen if:
(a) the applicant:
(i) has not turned 18; and
(ii) does not have a spouse; and
(iii) is a relative of that other
person; and
(b) the applicant cannot be cared for by either parent
because each of them is either dead, permanently incapacitated or of unknown
whereabouts; and
(c) there is no compelling reason to believe
that the grant of a visa would not be in the best interests of the applicant.
1.15 Remaining
relative
(1) An applicant for a visa is a remaining
relative of another person who is an Australian citizen, an Australian
permanent resident or an eligible New Zealand citizen if the applicant
satisfies the Minister that:
(a) the other person is a parent, brother, sister,
step‑parent, step‑brother or step‑sister of the applicant;
and
(b) the other person is usually resident in
Australia; and
(c) the applicant, and the applicant’s spouse
(if any), have no near relatives other than near relatives who are:
(i) usually resident in Australia;
and
(ii) Australian citizens, Australian
permanent residents or eligible New Zealand citizens; and
(d) if the applicant is a child who:
(i) has not turned 18; and
(ii) has been adopted by an Australian
citizen, an Australian permanent resident or an eligible New Zealand citizen
(the adoptive parent) while overseas:
at the time of making the application, the
adoptive parent has been residing overseas for a period of at least
12 months.
(2) In this regulation:
near relative,
in relation to an applicant, means a person who is:
(a) a parent, brother, sister, step‑parent,
step‑brother or step‑sister of the applicant or of the applicant’s
spouse (if any); or
(b) a child
(including a step‑child) of the applicant or of the applicant’s spouse
(if any), being a child who:
(i) has turned 18 and is not a
dependent child of the applicant or the applicant’s spouse (if any); or
(ii) has not turned 18 and is not
wholly or substantially in the daily care and control of the applicant or the
applicant’s spouse (if any).
1.15AA Carer
(1) An applicant for a visa is a carer of
a person who is an Australian citizen usually resident in Australia, an
Australian permanent resident or an eligible New Zealand citizen (the
resident) if:
(a) the applicant is a relative of the resident;
and
(b) according to a certificate that meets the
requirements of subregulation (2):
(i) a person (being the resident or a
member of the family unit of the resident) has a medical condition; and
(ii) the medical condition is causing
physical, intellectual or sensory impairment of the ability of that person to
attend to the practical aspects of daily life; and
(iii) the impairment has, under the
Impairment Tables, the rating that is specified in the certificate; and
(iv) because of the medical condition,
the person has, and will continue for at least 2 years to have, a need for
direct assistance in attending to the practical aspects of daily life; and
(c) the rating mentioned in subparagraph (b)
(iii) is equal to, or exceeds, the impairment rating specified by Gazette
Notice for this paragraph; and
(d) if the person to whom the certificate relates
is not the resident, the resident has a permanent or long‑term need for
assistance in providing the direct assistance mentioned in subparagraph (b)
(iv); and
(e) the assistance cannot reasonably be
obtained:
(i) from any other relative of the
resident, being a relative who is an Australian citizen, an Australian
permanent resident or an eligible New Zealand citizen; or
(ii) from welfare, hospital, nursing or
community services in Australia; and
(f) the applicant is willing and able to provide
to the resident substantial and continuing assistance of the kind needed under
subparagraph (b) (iv) or paragraph (d), as the case requires.
(2) A certificate meets the requirements of this
subregulation if:
(a) it is a certificate in relation to a medical
assessment carried out on behalf of Health Services Australia that is signed by
the medical adviser who carried it out; or
(b) it is a certificate issued by Health Services
Australia in relation to a review of an opinion in a certificate mentioned in
paragraph (a) that was carried out by Health Services Australia in accordance
with its procedures.
(3) The Minister is to take the opinion in a certificate
that meets the requirements of subregulation (2) on a matter mentioned in
paragraph (1) (b) to be correct for the purposes of deciding whether
an applicant satisfies a criterion that the applicant is a carer.
(4) In this regulation:
Health Services Australia means the
government business enterprise Health Services Australia Ltd.
Impairment Tables means the Tables for the
Assessment of Work‑related Impairment for Disability Support Pension in
Schedule 1B to the Social Security Act 1991.
1.15A Spouse
(1) For the purposes of these Regulations, a person is
the spouse of another person if the 2 persons are:
(a) in a married relationship, as described in
subregulation (1A); or
(b) in a de facto relationship, as described in
subregulation (2).
(1A) Persons are in a married relationship if:
(a) they are married to each other under a
marriage that is recognised as valid for the purposes of the Act; and
(b) the Minister is satisfied that:
(i) they have a mutual commitment to a
shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is
genuine and continuing; and
(iii) they:
(A) live together; or
(B) do not live separately
and apart on a permanent basis.
(2) Persons are in a de facto relationship if:
(a) they:
(i) are of opposite sexes; and
(ii) are not married to each other
under a marriage that is recognised as valid for the purposes of the Act; and
(iii) are not within a relationship
that is a prohibited relationship for the purposes of subsection 23B (2) of the
Marriage Act 1961; and
(b) they are of full age, that is:
(i) if either of the persons is
domiciled in Australia — both of them have turned 18; or
(ii) if neither of the persons is
domiciled in Australia — both of them have turned 16; and
(c) the Minister is satisfied that:
(i) they have a mutual commitment to a
shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is
genuine and continuing; and
(iii) they:
(A) live together; or
(B) do not live separately
and apart on a permanent basis; and
(d) subject to paragraph (e) and subregulation
(2A), where either of them is an applicant for a permanent visa, a Student (Temporary) (Class TU) visa, a Partner
(Provisional) (Class UF) visa, or a Partner (Temporary) (Class UK) visa —
the Minister is satisfied that, for the period of 12 months immediately
preceding the date of application of the party relying on the existence of the
relationship:
(i) they had a mutual commitment to a
shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them was
genuine and continuing; and
(iii) they had:
(A) been living together; or
(B) not been living
separately and apart on a permanent basis; and
(e) where either of them is an applicant for a
Resolution of Status (Residence) (Class BL) or Resolution of Status (Temporary)
(Class UH) visa — the Minister is satisfied (unless the applicant can
establish compelling and compassionate circumstances for the grant of the visa)
that, for the period of 12 months immediately preceding 13 June 1997:
(i) they had a mutual commitment to a
shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them was
genuine and continuing; and
(iii) they had:
(A) been living together; or
(B) not been living
separately and apart on a permanent basis.
(2A) Paragraph 2 (d) does not apply if:
(a) the applicant is applying as:
(i) the spouse of a person who:
(A) is, or was, the holder
of a permanent humanitarian visa; and
(B) before that permanent
humanitarian visa was granted, was in a relationship with the applicant that
satisfies the requirements of subparagraphs (2) (c) (i), (ii) and (iii) and of
which Immigration was informed before the visa was granted; or
(ii) a member of the family unit of a
person who is an applicant for a permanent humanitarian visa; or
(b) the applicant can establish compelling and
compassionate circumstances for the grant of the visa.
Note permanent humanitarian visa
is defined in regulation 1.03.
(3) In forming an opinion whether 2 persons are in a
married relationship, or a de facto relationship, in relation to an application
for:
(ad) a Partner (Migrant) (Class BC) visa; or
(ae) a Partner (Provisional) (Class UF) visa; or
(af) a Partner (Residence) (Class BS) visa; or
(ag) a Partner (Temporary) (Class UK) visa;
the Minister must have regard to all of the circumstances of the
relationship, including, in particular:
(a) the financial aspects of the relationship,
including:
(i) any joint ownership of real estate
or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of
financial resources, especially in relation to major financial commitments; and
(iv) whether one party to the
relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day‑to‑day
household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for care
and support of children, if any; and
(ii) the parties’ living arrangements;
and
(iii) any sharing of responsibility for
housework;
(c) the social aspects of the relationship,
including:
(i) whether the persons represent
themselves to other people as being married or in a de facto relationship with
each other;
(ii) the opinion of the persons’
friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons
plan and undertake joint social activities;
(d) the nature of the persons’ commitment to each
other, including:
(i) the duration of the relationship;
and
(ii) the length of time during which
the persons have lived together; and
(iii) the degree of companionship and
emotional support that the persons draw from each other; and
(iv) whether the persons see the
relationship as a long‑term one.
(4) In forming an opinion whether 2 persons are in a
married relationship, or a de facto relationship, in relation to an application
for a visa of a class other than a class specified in paragraph (3) (ad), (ae),
(af) or (ag), the Minister may have regard to any of the factors set out in
subregulation (3).
(5) If 2 persons have been living together at the same
address for 6 months or longer, that fact is to be taken to be strong
evidence that the relationship is genuine and continuing, but a relationship of
shorter duration is not to be taken not to be genuine and continuing only for
that reason.
1.15B Vocational English
(1) Vocational English, for a person, has
the meanings given in subregulations (2), (3) and (4).
(2) If a person applied, before 1 July 1999,
for a visa a criterion for the grant of which is that the person has vocational
English, the person has vocational English if the person
satisfies the Minister that the person is proficient in English to at least the
standard required for the award of 15 points in the language skill factor
of the general points test specified in Part 3 of Schedule 6.
(3) If a person applies, on or after 1 July 1999,
for a visa a criterion for the grant of which is that the person has vocational
English, the person has vocational English if the person
satisfies the Minister that the person has achieved an IELTS test score of at
least 5 for each of the 4 test components of speaking, reading, writing and listening
in a test conducted:
(a) not more than 12 months before the day on
which the application was lodged; or
(b) during the processing of the application.
(4) If a person applies, on or after 1 July 1999,
for a visa a criterion for the grant of which is that the person has vocational
English, the person has vocational English if:
(a) the person does not have an IELTS test
score in a test conducted:
(i) not more
than 12 months before the day on which the application was lodged; or
(ii) during
the processing of the application; and
(b) the Minister:
(i) determines that it is not
reasonably practicable, or not necessary, for the person to be tested using the
IELTS test; and
(ii) is satisfied that the person is
proficient in English to a standard that is not less than the standard required
under subregulation (3).
Division 1.3 Administration
1.16 Delegation
(1) The Minister may, by writing signed by the Minister,
delegate to an officer any of the Minister’s powers under these Regulations,
other than this power of delegation.
(2) The Secretary may, by writing signed by the
Secretary, delegate to an officer any of the Secretary’s powers under these
Regulations, other than this power of delegation.
1.16AA Appointment
of Medical Officer of the Commonwealth
The Minister may, by writing signed by the
Minister, appoint
a medical practitioner to be a Medical Officer of the Commonwealth for the
purposes of these Regulations.
1.16A Regional
headquarters agreements
If an organisation that has its head office outside
Australia wishes to establish a regional headquarters in Australia, the
Minister and the Industry Minister may enter into an agreement with the
organisation to provide for the entry to, and stay in, Australia of staff
members of the organisation for the purposes of the regional headquarters.
1.16B Invest Australia Supported Skills agreements
If an organisation that
has its head office outside Australia wishes to make a significant investment
in Australia, the Minister and the Industry Minister may enter into an
agreement with the organisation to provide for the entry to, and stay in,
Australia of staff members of the organisation for the purposes of the
investment.
1.17 Specification
of matters by Gazette Notice
The Minister may, by notice published in the Gazette,
specify matters required by individual provisions of these Regulations to be
specified for the purposes of those provisions.
1.18 Approved
forms
(1) The Minister may, in
writing, approve forms for:
(a) use in making an
application for a visa; or
(b) any other purpose authorised or required by
these Regulations.
(2) Each of the following is
an approved form for use in making an application for a visa:
(a) a paper form;
(b) a set of questions in an interactive computer
program that is:
(i) approved
by the Minister for use in making an application for the visa; and
(ii) made available at an Internet site
operated under the authority of the Minister.
1.19 Occupations
requiring English list
The Minister may publish by notice in the Gazette
a list of occupations requiring proficiency in English of at least the standard
required for the award of 15 points under Part 3 of Schedule 6.
Note Part 3 of Schedule 6 deals with the
award of points on the basis of an applicant’s language skills.
Division 1.4 Sponsorship
1.20 Sponsorship
(1) The sponsor of an applicant for a visa
is a person (except a person who proposes on the relevant approved form another
person for entry to Australia as an applicant for a permanent humanitarian
visa) who undertakes the obligations stated in subregulation (2) in
relation to the applicant.
(2) Subject to subregulation (4), the obligations of a
sponsor in relation to an applicant for a visa are the following:
(a) if the application is for a permanent visa
(other than a Partner (Migrant) (Class BC), Resolution of Status (Residence)
(Class BL) or Partner (Residence) (Class BS) visa) — the sponsor
undertakes to assist the applicant, to the extent necessary, financially and in
relation to accommodation:
(i) if the applicant is in
Australia — during the period of 2 years immediately following the grant
of that visa; or
(ii) if the applicant is outside
Australia — during the period of 2 years immediately following the
applicant’s first entry into Australia under that visa;
including any period of participation by
the applicant in the program known as the Adult Migrant English Program
administered by Immigration that falls within that period;
(b) if the application is for a temporary visa
(other than a Resolution of Status (Temporary) (Class UH), Partner
(Provisional) (Class UF), Partner (Temporary) (Class UK), Extended Eligibility (Temporary) (Class TK) visa) or Sponsored
Training (Temporary) (Class UV) visa — the sponsor accepts
responsibility for:
(i) all financial obligations to the
Commonwealth incurred by the applicant arising out of the applicant’s stay in
Australia; and
(ii) compliance by the applicant with
all relevant legislation and awards in relation to any employment entered into
by the applicant in Australia; and
(iii) unless the Minister otherwise
decides, compliance by the applicant with the conditions under which the
applicant was allowed to enter Australia;
(c) if the application is a concurrent
application for a Partner (Provisional) (Class UF) and a Partner (Migrant)
(Class BC) visa or a Partner (Temporary) (Class UK) and
a Partner (Residence) (Class BS) visa, the sponsor undertakes to assist the
applicant, to the extent necessary, financially and in relation to
accommodation:
(i) if the applicant is in
Australia — during the period of 2 years immediately following the grant
of the provisional or temporary visa; or
(ii) if the applicant is outside
Australia — during the period of 2 years immediately following the
applicant’s first entry into Australia after the grant of the provisional or
temporary visa;
(d) if the application is for a Resolution of
Status (Temporary) (Class UH) visa made by an applicant who is outside
Australia — the sponsor undertakes to assist the applicant, to the extent
necessary, financially and in respect of accommodation, during the period of 2
years immediately following the applicant’s entry into Australia as the holder
of the visa;
(e) if the application is for an Extended
Eligibility (Temporary) (Class TK) visa, the sponsor undertakes to assist the
applicant, to the extent necessary, financially and in relation to
accommodation:
(i) if the applicant is in
Australia — for the 2 years immediately after the visa is granted; or
(ii) if the applicant is outside Australia —
for the 2 years immediately after the applicant’s first entry into Australia
after the visa is granted.
(3) A person who has been approved by the Minister as
the sponsor of an applicant for a visa must enter into the sponsorship by
completing the relevant approved form and give it to the Minister not later
than a reasonable period after the Minister approves the person as a sponsor.
(4) This regulation does not apply to a visa in the
following classes or subclasses:
(a) Business Skills (Migrant) (Class AD);
(b) Business Skills — Business Talent
(Migrant) (Class EA);
(c) Business Skills — Established Business
(Residence) (Class BH);
(d) Business Skills (Residence) (Class BH);
(e) Business Skills (Residence) (Class DF);
(f) Business Skills (Provisional) (Class UR);
(g) Skilled —
Independent Regional (Provisional) (Class UX);
(h) Subclass 457
(Business (Long Stay)).
Note Sponsorship arrangements for Subclass 457
(Business (Long Stay)) visas are set out in Division 1.4A of these Regulations.
(5) This regulation does not apply to:
(a) a Subclass 571 (Schools Sector) visa; or
(b) a Subclass 572 (Vocational Education and
Training Sector) visa; or
(c) a Subclass 573 (Higher Education Sector)
visa; or
(d) a Subclass 574 (Postgraduate Research Sector)
visa;
if the applicant for the visa is a person designated under
regulation 2.07AO, or is applying on the basis of being a member of the family
unit of a person designated under regulation 2.07AO.
Division 1.4A Temporary business entry: sponsorship and nomination
1.20A Object
of this Division
The object of this Division is to provide for:
(a) applications for approval as a business
sponsor; and
(b) nominations by business sponsors of
activities to be undertaken in Australia by prospective holders of
Subclass 457 (Business (Long Stay)) visas; and
(c) approval of those applications and
nominations; and
(d) prescribed grounds for cancellation of
approvals as a business sponsor.
1.20B Interpretation
In this Division:
minimum salary level means a level of salary
worked out in the way specified in a Gazette Notice for the purposes of this
definition.
person includes an unincorporated body of
persons.
pre‑qualified
business sponsor means a person:
(a) whose application for approval as a pre‑qualified
business sponsor was approved in accordance with regulation 1.20D before 1 July
2003; or
(b) whose application for approval as a pre‑qualified
business sponsor is:
(i) mentioned in subregulation 1.20CA (1);
and
(ii) approved in accordance with regulation
1.20D as in force immediately before 1 July 2003;
and includes a person whose approval as a
pre‑qualified sponsor has been renewed under regulation 1.20E as in force
immediately before 1 July 2003.
Note From 1 July 2003, an application for
approval as a pre‑qualified business sponsor, made before 1 July 2003,
will be dealt with under regulation 1.20D as in force immediately before 1 July
2003: see subregulation 1.20CA (1).
sponsored person
means:
(a) in relation to an
applicant for approval as a standard business sponsor:
(i) a person who:
(A) seeks to be granted a
Subclass 457 (Business (Long Stay)) visa on the basis that the requirements of
subclause 457.223 (4) or (5) of Schedule 2 are met; and
(B) if granted that visa,
would be in the employment of the standard business sponsor or a related body
corporate; or
(ii) a person who is:
(A) a member of the family
unit; or
(B) the interdependent
partner; or
(C) a dependent child of the
interdependent partner;
of a person who is described in subparagraph
(i); and
(b) in relation to a
standard business sponsor:
(i) a person
who:
(A) holds a Subclass 457
(Business (Long Stay)) visa granted on the basis that the requirements of
subclause 457.223 (4) or (5) of Schedule 2 are met; and
(B) is, or would be, in the
employment of the standard business sponsor or a related body corporate; or
(ii) a person
who is:
(A) a member of the family
unit; or
(B) the interdependent
partner; or
(C) a dependent child of the
interdependent partner;
of a person who is described
in subparagraph (i).
Note 1 See paragraph 1.20D (2) (b) of
these Regulations for information about related bodies corporate.
Note 2 An applicant for approval as
a standard business sponsor makes undertakings in relation to a sponsored
person (see regulation 1.20CB of these Regulations), but these undertakings do
not take effect until:
(a) the applicant has been
approved as a sponsor under subsection 140E (1) of the Act, and has
consented to sponsor the sponsored person in accordance with paragraph 140D (a)
of the Act; and
(b) the sponsored person is
granted a Subclass 457 (Business (Long Stay)) visa (see subsection 140H (3)
of the Act).
standard business sponsor means a person:
(a) whose application for approval as a standard
business sponsor was approved in accordance with regulation 1.20D before 1 July
2003; or
(b) whose application for approval as a standard
business sponsor is:
(i) mentioned in subregulation 1.20CA (1);
and
(ii) approved in accordance with
regulation 1.20D as in force before 1 July 2003; or
(c) whose application for approval as a standard
business sponsor is:
(i) made on or after 1 July 2003; and
(ii) approved in accordance with
regulation 1.20D or 1.20DA.
Note From 1 July 2003, an application for
approval as a standard business sponsor, made before 1 July 2003, is to be
dealt with under regulation 1.20D as in force before 1 July 2003: see
subregulation 1.20CA (1).
1.20BA Application
of Division 3A of Part 2 of the Act
For section 140A of the
Act, Division 3A of Part 2 of the Act applies to the following kinds of visas:
(a) a Subclass 457
(Business (Long Stay)) visa granted on the basis that the requirements of
subclause 457.223 (4) of Schedule 2 were met;
(b) a Subclass 457 (Business (Long Stay)) visa granted
on the basis that the requirements of subclause 457.223 (5) of Schedule 2
were met;
(c) a Subclass 457
(Business (Long Stay)) visa granted to a person who is:
(i) a member of the family unit; or
(ii) the interdependent partner; or
(iii) a dependent child of the
interdependent partner;
of a person who has been granted a Subclass
457 (Business (Long Stay)) visa on the basis that the requirements of subclause
457.223 (4) or (5) of Schedule 2 were met.
1.20C Application for approval as standard business sponsor
(1) For subsection 140F (1)
of the Act, a person may apply to the Minister for approval as a standard
business sponsor in accordance with this regulation.
Note 1 From 1 July 2003, 2 kinds of
business sponsorship are provided for by these Regulations: standard business
sponsorship approved under regulation 1.20D and standard business sponsorship
approved under regulation 1.20DA (which relates to overseas businesses). The
option of pre‑qualified business sponsorship that was previously set out
in this regulation has been removed.
However, an application for approval as a standard business
sponsor, or a pre‑qualified business sponsor, made before 1 July 2003 but
not approved or rejected before 1 July 2003, will continue to be dealt with
under regulation 1.20D as in force before 1 July 2003.
Note 2 In relation to the effect of
approval as a standard business sponsor under regulation 1.20D, see
subregulation 1.20D (6) and subclause 457.223 (4) of Schedule 2.
In relation to the effect of approval as a standard business sponsor under
regulation 1.20DA, see subregulation 1.20DA (5) and subclause 457.223 (5)
of Schedule 2.
(2) The application must be made:
(a) if the application is made by an applicant
for approval as a standard business sponsor who is actively and lawfully
operating a business outside Australia — in accordance with approved form
1196; or
(b) in any other case — in accordance with
approved form 1196 or 1196 (Internet).
(3) The application must be accompanied by a fee of $270.
1.20CA Business sponsors — transitional arrangements for 1 July
2003
(1) An application for approval as a standard business
sponsor or as a pre‑qualified business sponsor:
(a) made under regulation 1.20C before 1 July
2003; and
(b) that had not been approved or rejected before
1 July 2003;
is to be dealt with (including for the
purpose of review under Part 5 of the Act), on and after 1 July 2003, in
accordance with regulation 1.20D as in force immediately before 1 July 2003.
(2) If:
(a) a person gave the Minister approved form
1067 before 1 July 2003, for a purpose other than making an application;
and
(b) the form had not been dealt with before 1
July 2003;
the form is to be dealt with, on and
after 1 July 2003, in accordance with regulation 1.20G as in force immediately
before 1 July 2003.
(3) If a pre‑qualified business sponsor sought a
renewal of the approval as a pre‑qualified business sponsor under
regulation 1.20E as in force immediately before 1 July 2003, the renewal is to
be dealt with, on and after 1 July 2003, in accordance with regulation 1.20E as
in force immediately before 1 July 2003.
(4) If:
(a) an application for approval as a standard
business sponsor or as a pre‑qualified business sponsor was made under
regulation 1.20C before 1 July 2003; and
(b) a decision that was made in respect of the
application was subject to a form of review under Part 5 of the Act immediately
before 1 July 2003;
the application is to be dealt with, on
and after 1 July 2003, in accordance with regulation 1.20D as in force
immediately before 1 July 2003.
1.20CB Sponsorship
undertakings
(1) For subsection 140H (1)
of the Act, an applicant for approval as a standard business sponsor must make
the following undertakings:
(a) to ensure that the
cost of return travel by a sponsored person is met;
(b) not to employ a person who would be in breach
of the immigration laws of Australia as a result of being employed;
(c) to comply with its responsibilities under
the immigration laws of Australia;
(d) to notify Immigration
of:
(i) any
change in circumstances that may affect the business’s capacity to honour its
sponsorship undertakings; or
(ii) any change to the information that
contributed to the applicant’s being approved as a sponsor, or the approval of
a nomination;
(e) to cooperate with
the Department’s monitoring of the applicant and the sponsored person;
(f) to notify Immigration, within 5 working days
after a sponsored person ceases to be in the applicant’s employment;
(g) to comply with:
(i) laws
relating to workplace relations that are applicable to the applicant; and
(ii) any workplace agreement that the
applicant may enter into with a sponsored person, to the extent that the
agreement is consistent with the undertaking required by paragraph (i);
(h) to ensure that a
sponsored person holds any licence, registration or membership that is
mandatory for the performance of work by the person;
(i) to ensure that, if there is a gazetted
minimum salary in force in relation to the nominated position occupied by a
sponsored person, the person will be paid at least that salary;
(j) to ensure that, if it is a term of the
approval of the nomination of a position that a sponsored person must be
employed in a particular location, the applicant will notify Immigration of any
change in the location which would affect the nomination approval;
(k) either:
(i) for an
application made before 1 November 2005 — to pay all medical or
hospital expenses for a sponsored person (other than costs that are met by
health insurance arrangements); or
(ii) for an application made on or
after 1 November 2005 — to pay all medical or hospital expenses
for a sponsored person arising from treatment administered in a public hospital
(other than expenses that are met by health insurance or reciprocal health care
arrangements);
(l) to make any superannuation contributions
required for a sponsored person while the sponsored person is in the
applicant’s employment;
(m) to deduct tax instalments, and make payments
of tax, while the sponsored person is in the applicant’s employment;
(n) to pay to the Commonwealth an amount equal
to all costs incurred by the Commonwealth in relation to a sponsored person.
Note Under subsection 140H (3) of the
Act, these undertakings do not have effect until the relevant visa is granted.
Under paragraph 457.223 (4) (i) or (5) (j) of Schedule 2 to
these Regulations, a person must be sponsored by an approved sponsor in order
to be granted a Subclass 457 (Business (Long Stay)) visa. See also regulation
1.20BA of these Regulations, by which Division 3A of Part 2 of the Act applies
to visas that are relevant to standard business sponsors.
(2) For paragraph (1) (n), the
costs include the cost of:
(a) locating the
sponsored person; and
(b) detaining the sponsored person; and
(c) removing the sponsored person from Australia
(including airfares, transport to an airport in Australia and provision of an
escort (if needed)); and
(d) processing an application for a protection
visa made by a sponsored person.
Note An undertaking is not enforceable in
relation to costs of locating and detaining a sponsored person that exceed the
limit prescribed by regulation 1.20CC.
1.20CC Limit in
relation to costs of location and detention
For subsection 140I (4)
of the Act, the limit (over which an undertaking in relation to the costs of
the Commonwealth in locating and detaining a sponsored person is not
enforceable) is $10 000.
1.20D Approval as standard business sponsor
(1) For subsections 140E (1),
140F (1) and 140G (1) of the Act, the Minister must, in accordance
with this regulation, approve or reject an application for approval as a
standard business sponsor made under regulation 1.20C.
Note An application for approval as a
standard business sponsor or a pre‑qualified business sponsor made under
regulation 1.20C as in force before 1 July 2003 is to be dealt with under
regulation 1.20D as in force before 1 July 2003: see subregulation 1.20CA (1).
(2) The Minister must approve the application if:
(a) the Minister is satisfied that the applicant
for approval is actively and lawfully operating in Australia a business in
which the employment of the holder of a Subclass 457 (Business (Long Stay))
visa would contribute to:
(i) the creation or maintenance of
employment for Australian citizens or Australian permanent residents; or
(ii) expansion of Australian trade in
goods or services; or
(iii) the improvement of Australian
business links with international markets; or
(iv) competitiveness within sectors of
the Australian economy; and
(b) in respect of each visa applicant who seeks
to satisfy the primary criteria for a Subclass 457 visa to be granted on the
basis that:
(i) the
applicant for approval is the employer referred to in subclause 457.223 (4) of
Schedule 2 in relation to the visa application; and
(ii) the visa applicant satisfies the
requirements of that subclause;
the Minister is satisfied that:
(iii) the
applicant for approval proposes to be the direct employer in Australia of the
visa applicant as the holder of the visa (the visa holder); or
(iv) if the applicant for approval is a
body corporate — the applicant for approval is, under section 50 of the Corporations
Act 2001, related to the body corporate that proposes to be the direct
employer in Australia of the visa holder; and
(c) the Minister is satisfied that the applicant
for approval:
(i) will
introduce to, or utilise or create in, Australia new or improved technology or
business skills; or
(ii) has a satisfactory record of, or a
demonstrated commitment towards, training Australian citizens and Australian
permanent residents in the business operations of the applicant in Australia;
and
(d) the Minister is satisfied that nothing
adverse is known to Immigration about the business background of:
(i) the
applicant for approval; or
(ii) any officer of any of the entities
that constitute the applicant for approval; or
(iii) any individual who is a member of
a partnership that is 1 of the entities that constitute the applicant for
approval; and
(e) the Minister is satisfied that where
relevant, the applicant for approval has a satisfactory record of compliance
with the immigration laws of Australia; and
(f) the Minister is satisfied that while there
is in effect a Subclass 457 visa granted on the basis that:
(i) the
applicant for approval is the employer referred to in subclause 457.223 (4) of
Schedule 2 in relation to a visa application; and
(ii) the visa holder satisfies the
requirements of that subclause;
the applicant for approval is able, in
relation to each visa holder, to comply with the undertakings given by the
applicant in accordance with approved form 1196 or 1196
(Internet); and
(g) the Minister is
satisfied that, if an authorised officer requires security for compliance with
the provisions of the Act and these Regulations in relation to the applicant’s
undertakings as a sponsor, the applicant has given the security.
(3) In subparagraph (2) (d) (ii):
officer, for a corporation, means an officer
of the corporation within the meaning of the Corporations Act 2001.
(4) An approval of a person as a standard business
sponsor must specify the maximum number of nominations of business activities,
being a number not exceeding the number proposed in the application for
approval, that may be approved under regulation 1.20H in relation to the
standard business sponsor while the approval is in effect.
(5) As soon as practicable after deciding the
application:
(a) the Minister must provide the applicant
with:
(i) a
copy of the written approval or rejection of the application; and
(ii) if the application is rejected, a
statement of the reasons why the application was not approved; and
(b) if the application was made using approved
form 1196 (Internet), the Minister may provide the applicant with those documents
in electronic form.
(6) An approval of a person as a standard business
sponsor ceases to have effect on the earliest of:
(a) when the number of Subclass 457 visas
granted, since the giving of the approval, on the basis that:
(i) the applicant satisfies the
primary criteria; and
(ii) the standard business sponsor is
the employer (within the meaning of subclause 457.223 (4) of Schedule 2);
is equal to the number of nominations of
business activities determined under subregulation (4) in relation to that
approval of that standard business sponsor; and
(b) the end of the period of 24 months commencing
on the day on which the approval is given; and
(c) cancellation of the approval under section 137B
of the Act.
1.20DA Approval as standard business sponsor — overseas
business
(1) For subsections 140E (1),
140F (1) and 140G (1) of the Act, the Minister must, in
accordance with this regulation, approve or reject an application for approval
as a standard business sponsor made under regulation 1.20C.
(2) The Minister must approve the application if:
(a) the Minister is satisfied that the applicant
for approval is actively and lawfully operating outside Australia a business in
which the employment in Australia of the holder of a Subclass 457 (Business (Long
Stay)) visa would contribute to:
(i) the
creation or maintenance of employment for Australian citizens or Australian
permanent residents; or
(ii) expansion of Australian trade in
goods or services; or
(iii) the improvement of Australian
business links with international markets; or
(iv) competitiveness within sectors of
the Australian economy; and
(b) in respect of each visa applicant who seeks
to satisfy the primary criteria for a Subclass 457 visa to be granted on the
basis that:
(i) the
applicant for approval is the employer referred to in subclause 457.223 (5) of
Schedule 2 in relation to the visa application; and
(ii) the visa applicant satisfies the
requirements of that subclause;
the Minister is satisfied that:
(iii) the applicant for approval
proposes to be the direct employer in Australia of the visa applicant as the
holder of the visa (in this subregulation called the visa holder);
or
(iv) if the applicant for approval is a
body corporate — the applicant for approval is, under section 50 of the Corporations
Act 2001, related to the body corporate that proposes to be the direct
employer in Australia of the visa holder; and
(c) the Minister is satisfied that nothing
adverse is known to Immigration about the business background of:
(i) the
applicant for approval; or
(ii) any officer or other senior or
responsible person in relation to the applicant; or
(iii) any individual who is a member of
a partnership that is 1 of the entities that constitute the applicant for
approval; and
(d) the Minister is satisfied that where
relevant, the applicant for approval has a satisfactory record of compliance
with the immigration laws of Australia; and
(e) the Minister is satisfied that while there
is in effect a Subclass 457 visa granted on the basis that:
(i) the
applicant for approval is the employer referred to in subclause 457.223 (5) of
Schedule 2 in relation to a visa application; and
(ii) the visa holder satisfies the
requirements of that subclause;
the applicant for approval is able, in
relation to each visa holder, to comply with the undertakings given by the
applicant in accordance with approved form 1196; and
(f) the Minister
is satisfied that, if an authorised officer requires security for compliance
with the provisions of the Act and these Regulations in relation to the
applicant’s undertakings as a sponsor, the applicant has given the security.
(3) An approval of a person as a standard business
sponsor must specify the maximum number of nominations of business activities,
being a number not exceeding the number proposed in the application for
approval, that may be approved under regulation 1.20H in relation to the
standard business sponsor while the approval is in effect.
(4) As soon as practicable after deciding the
application, the Minister must provide the applicant with:
(a) a copy of the written approval or rejection
of the application; and
(b) if the application is rejected, a statement
of the reasons why the application was not approved.
(5) An approval of a person as a standard business
sponsor ceases to have effect on the earliest of:
(a) when the number of Subclass 457 visas
granted, since the giving of the approval, on the basis that:
(i) the
applicant satisfies the primary criteria; and
(ii) the standard business sponsor is
the employer (within the meaning of subclause 457.223 (5) of Schedule 2);
is equal to the number of nominations of
business activities determined under subregulation (3) in relation to that
approval of that standard business sponsor; and
(b) the end of the period of 24 months commencing
on the day on which the approval is given; and
(c) cancellation of the approval under section 137B
of the Act.
1.20DB Consequences
if approved business sponsor or sponsored person changes status
For subsection 140Q (1)
of the Act, an undertaking arising out of the sponsorship of the holder of a
visa to which Division 3A of Part 2 of the Act applies remains enforceable
against the sponsor concerned until the time set out in the following table.
Note 1 See regulation 1.20BA for the visas to
which Division 3A of Part 2 of the Act applies.
Note 2 The effect of subsection 140Q (1)
of the Act is that, if no regulations are prescribed for a particular
undertaking arising out of a sponsorship, the undertaking ceases to be
enforceable if:
(a) the visa holder ceases to
hold the visa for which he or she was sponsored; or
(b) the sponsor ceases to be an
approved sponsor of the visa holder for the visa.
|
Item
|
The undertaking set out in
|
Remains enforceable until
|
|
1
|
Paragraph 1.20CB (1) (e)
|
The earlier of:
(a) if the sponsored person
ceases to hold the visa for which he or she was sponsored — the earlier
of:
(i) the time when the
person leaves Australia; and
(ii) the time when the person is granted a
substantive visa; and
|
|
|
|
(b) the
time when the sponsor ceases to be an approved sponsor of the sponsored
person
|
|
2
|
Paragraph 1.20CB (1) (k)
|
The time when the expenses are
paid
|
|
3
|
Paragraph 1.20CB (1) (n)
|
The time when the amount is paid
|
Note Undertakings made by an approved standard business sponsor
in relation to a sponsored person do not have effect until a visa is granted to
the sponsored person: see subsection 140H (3) of the Act.
1.20E Term of
approval as standard business sponsor
For subsection 140G (2)
of the Act, a term of approval as a sponsor under regulation 1.20D or 1.20DA is
that the approval ceases, in relation to a particular sponsored person, on the
earliest of the following:
(a) at the end of 28
days after the standard business sponsor notifies Immigration that the
sponsored person has ceased to be in the applicant’s employment;
(b) if the sponsored person ceases to hold the
visa for which he or she was sponsored — when the person leaves Australia;
(c) if the sponsored person ceases to hold the
visa for which he or she was sponsored — when the person is granted a
substantive visa.
1.20F Prescribed grounds for cancellation of approval as a
business sponsor (Act s 137B)
For subsection 137B (1) of the Act, the
following grounds are prescribed:
(a) the person gave incorrect information to
Immigration in relation to:
(i) an
application under regulation 1.20C, as in force before 1 July 2003, for
approval as a standard business sponsor or a pre‑qualified business
sponsor; or
(ii) an application under regulation
1.20C, as in force on or after 1 July 2003, for approval as a standard business
sponsor;
(b) the person gave incorrect information to
Immigration in relation to any other matter relating to the person;
(c) the person has not complied, or is not complying,
with the undertakings given by the person in accordance with approved form
1067, 1196 or 1196 (Internet);
(d) the person does not continue to satisfy the
requirements that the person satisfied for approval as:
(i) a
pre‑qualified business sponsor; or
(ii) a standard business sponsor.
Note If the Minister decides to cancel an
approval of a person as a business sponsor, the Minister is to give the person
a written notice of the decision: see section 137D of the Act.
1.20G Nomination
of business activities
(1) A person who:
(a) is a party to a labour agreement; or
(b) is a pre‑qualified business sponsor; or
(c) is a standard business sponsor; or
(d) before 1 July 2003:
(i) did not operate a business in
Australia; and
(ii) gave the Minister undertakings in
accordance with approved form 1067; and
(iii) was a person whom the Minister
was satisfied (apart from not operating a business in Australia) would, on
application, have been likely to have been approved as a standard business sponsor;
or
(e) is a party to an IASS agreement;
may nominate to the Minister an activity in which an individual is
proposed to be employed by the person in Australia.
(2) If the person is mentioned in paragraph
(1) (b), (c), (d) or (e), the tasks of the nominated activity must
correspond to the tasks of an occupation specified in a Gazette Notice for the
purposes of this subregulation.
(3) A nomination must be made:
(a) if the nomination is made by a standard
business sponsor who is actively and lawfully operating a business outside
Australia (or by an applicant for approval as a standard business sponsor who
is actively and lawfully operating
a business outside Australia) — in accordance with approved form 1196; or
(b) in any other case — in accordance with
approved form 1196 or 1196 (Internet).
(4) If the person is mentioned in paragraph
(1) (b), (c), (d) or (e), the nomination must indicate that:
(a) the applicant will be paid at the level
specified in the nomination; and
(b) that level will be at least the minimum
salary level that applied at the time the nomination was made.
(5) Subject to subregulation (6), the nomination must be
accompanied by a fee, as follows:
(a) if the person became a party to a labour
agreement on or after 1 July 2003, the fee is $55;
(b) if the person’s application for approval as a
standard business sponsor was made before 1 July 2003, the fee is $265;
(c) if, before 1 July 2003, the person:
(i) did not operate a business in
Australia; and
(ii) gave the Minister undertakings in
accordance with approved form 1067; and
(iii) was a person whom the Minister
was satisfied (apart from not operating a business in Australia) would, on
application, have been likely to have been approved as a standard business
sponsor;
the fee is $265;
(d) if the person’s application for approval as a
standard business sponsor was made on or after 1 July 2003, the fee is $55.
(6) No fee is payable if:
(a) the person:
(i) became a party to a labour
agreement before 1 July 2003; and
(ii) is a party to the agreement when
the person nominates the activity; or
(b) the person is a pre‑qualified business sponsor;
or
(c) the person is a party to an IASS agreement.
1.20GA Nomination
of business activities — certified regional employment
(1) A person mentioned in
subregulation (2) may nominate to the Minister an activity in which an
individual is proposed to be employed by the person in Australia, if:
(a) the tasks of
the nominated activity:
(i) correspond to the tasks of an
occupation specified in a Gazette Notice for this paragraph; and
(ii) relate to a genuine full‑time
position that is necessary to the operation of the person’s business; and
(iii) relate to a position that cannot
reasonably be filled locally; and
(b) the nomination indicates that the individual
will be paid at the level specified in the nomination; and
(c) that level will be:
(i) not less than the level of
remuneration provided for under relevant Australian legislation and awards; and
(ii) at least the minimum salary level
that applied at the time the nomination was made; and
(d) the individual’s working conditions will be
no less favourable than working conditions provided for under relevant
Australian legislation and awards; and
(e) a body, specified for this paragraph by
Gazette Notice, certifies that the nomination meets the requirements of
paragraphs (a) to (d).
(2) The person is:
(a) a pre‑qualified business sponsor; or
(b) a standard business sponsor approved under
regulation 1.20D:
(i) as in force before 1 July 2003; or
(ii) as in force on or after 1 July
2003;
other than a sponsor whose business activities include recruitment
or labour hire activities.
(3) A nomination must be made in accordance with
approved form 1196 or 1196 (Internet).
(4) If the person is a
standard business sponsor to which subparagraph (2) (b) (i) applies,
the nomination must be accompanied by a fee of $265.
(5) If the person is a
standard business sponsor to which subparagraph (2) (b) (ii) applies,
the nomination must be accompanied by a fee of $55.
(6) If the person is a pre‑qualified
business sponsor, no fee is payable.
1.20H Approval
of nominations of business activities
(1) The Minister must approve a nomination of an
activity made under regulation 1.20G or 1.20GA (a nomination) if
the nomination is in accordance with:
(a) for a nomination under regulation 1.20G:
(i) subregulations 1.20G (1) and
(3); and
(ii) if they are applicable —
subregulations 1.20G (2), (4) and (5); or
(b) for a nomination under regulation
1.20GA — regulation 1.20GA.
(2) The Minister must refuse
to approve a nomination if it does not satisfy the requirements of
subregulation (1).
(3) A decision to approve or refuse to approve a
nomination must be made in writing.
(4) As soon as practicable after deciding the
nomination:
(a) the Minister must provide the person who
made the nomination with:
(i) a copy of the written approval or
refusal of the nomination; and
(ii) if the nomination is refused, a
statement of the reasons why the nomination was refused; and
(b) if the nomination was made using approved
form 1196 (Internet), the Minister may provide the person who made the
nomination with those documents in electronic form.
(5) An approval of a
nomination ceases to have effect at the earliest of the following:
(a) at the end of 12
months after the day on which the nomination is approved;
(b) when a Subclass 457 visa is granted to
the individual proposed to be employed in the activity to which the nomination
relates;
(c) in the case of a business activity nominated
by a person who is a party to a labour agreement or an IASS agreement —
when that agreement ceases to have effect;
(d) in the case of a business activity nominated
by:
(i) a pre‑qualified business
sponsor; or
(ii) a standard business sponsor;
when the approval ceases to have effect;
(e) in the case of a business activity nominated
by a person to whom paragraph 1.20G (1) (d) refers — upon the
Minister becoming satisfied that the person is not able to comply with the
undertakings given by the person in accordance with approved form 1067 before 1
July 2003;
(f) in
the case of a business activity nominated by a person to whom paragraph
1.20G (1) (d) refers — upon the Minister ceasing to be satisfied
that the person (apart from not operating a business in Australia) would, on
application, be likely to be approved as a standard business sponsor.
1.20HA Cancelling
or barring approval as a sponsor if undertakings breached
For subsection 140J (2) of the Act:
(a) the circumstances
in which the Minister may take one or more of the actions mentioned in
paragraphs 140L (a), (c), (d), (e), (f) or (g) of the Act; and
(b) the criteria to be taken into account by the
Minister in determining what action to take under those paragraphs;
are set out in the following table.
Note As well as barring a sponsor, this
regulation deals with cancelling approval as a sponsor, other than as a
business sponsor (as defined in section 137A of the Act). In accordance with
subsections 140J (5) and 140K (5) of the Act, the cancellation of
approval of a business sponsor is dealt with by Subdivision GA of Division 3 of
Part 2 of the Act.
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Item
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The action set out in
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May be taken in these
circumstances
|
Taking these criteria into
account
|
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1
|
Paragraph 140L (a), (c),
(d), (e) or (f) of the Act
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An undertaking has been breached
by the standard business sponsor (or former standard business sponsor against
whom the undertaking remains enforceable)
|
Both of the following:
(a) the severity of the
breach of the undertaking;
(b) the past conduct of the
standard business sponsor
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2
|
Paragraph 140L (g) of the
Act
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An undertaking has been breached
by the standard business sponsor (or former standard business sponsor against
whom the undertaking remains enforceable)
|
Each of the following:
(a) whether the sponsor has
been given a notice stating that the Minister is considering taking action
under section 137B or paragraph 140L (a), (c), (d), (e) or (f) of the
Act;
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|
|
|
|
(b) if the sponsor has not
been given a notice of that kind — the severity of the breach of the
undertaking;
|
|
|
|
|
(c) if the sponsor has
not been given a notice of that kind — the past conduct of the standard
business sponsor
|
1.20HB Cancelling
or barring approval as a sponsor in circumstances other than those set out in regulation
1.20HA
For subsection 140K (1)
of the Act:
(a) the circumstances
in which the Minister may take one or more of the actions mentioned in section
140L of the Act; and
(b) the criteria to be taken into account by the
Minister in determining what action to take under that section;
are set out in the following table.
Note As well as barring a sponsor, this
regulation deals with cancelling approval as a sponsor, other than as a
business sponsor (as defined in section 137A of the Act). In accordance with
subsections 140J (5) and 140K (5) of the Act, the cancellation of
approval of a business sponsor is dealt with by Subdivision GA of Division 3 of
Part 2 of the Act.
|
Item
|
The action is set out in
|
May be taken in these
circumstances
|
Taking these criteria into
account
|
|
1
|
Paragraph 140L (a), (c),
(d), (e) or (f) of the Act
|
The Minister is satisfied that
the standard business sponsor:
(a) has failed to continue to
satisfy the requirements of the sponsorship; or
(b) has given false
information in relation to the sponsorship; or
|
Both of the following:
(a) the significance of any
false information provided;
(b) the past conduct of the
standard business sponsor
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|
|
|
(c) has
given false information in relation to the assessment of the applicant’s
compliance with the Act and these Regulations in relation to the applicant’s
approval; or
|
|
|
|
|
(d) has given false
information in relation to the assessment of the sponsored person’s
compliance with the conditions to which the person’s Subclass 457 (Business
(Long Stay)) visa is subject
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|
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2
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Paragraph
140L (g) of the Act
|
The Minister is satisfied that
the standard business sponsor:
(a) has failed to continue to
satisfy the requirements of the sponsorship; or
(b) has
given false information in relation to the sponsorship; or
|
Each of the following:
(a) whether
the sponsor has been given a notice stating that the Minister is considering
taking action under section 137B or paragraph 140L (a), (c), (d), (e) or
(f) of the Act;
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|
|
|
(c) has
given false information in relation to the assessment of the applicant’s
compliance with the Act and these Regulations in relation to the applicant’s
approval; or
(d) has given false
information in relation to the assessment of the sponsored person’s
compliance with the conditions to which the person’s Subclass 457 (Business
(Long Stay)) visa is subject
|
(b) if
the sponsor has not been given a notice of that kind — the significance
of any false information provided;
(c) if the sponsor has
not been given a notice of that kind — the past conduct of the standard
business sponsor
|
1.20HC Waiving a
bar
(1) For subsection 140O (1) of the Act, the
following kinds of visas are prescribed:
(a) a Subclass 457
(Business (Long Stay)) visa granted on the basis that the requirements of
subclause 457.223 (4) of Schedule 2 were met;
(b) a Subclass 457 (Business (Long Stay)) visa
granted on the basis that the requirements of subclause 457.223 (5) of
Schedule 2 were met;
(c) a Subclass 457
(Business (Long Stay)) visa granted to a person who is:
(i) a member of the family unit; or
(ii) the interdependent partner; or
(iii) a dependent child of the
interdependent partner;
of a person who has been granted a Subclass
457 (Business (Long Stay)) visa on the basis that the requirements of subclause
457.223 (4) or (5) of Schedule 2 were met.
(2) For subsection 140O (2)
of the Act, a circumstance in which the Minister may waive a bar placed on a
standard business sponsor, or a former business sponsor, under section 140J or
140K of the Act is that the person has made a request to the Minister to waive
the bar.
(3) For subsection 140O (3) of the Act, the
criteria to be taken into account by the Minister in determining whether to
waive the bar are:
(a) whether
Australia’s interests would be significantly affected if the bar were not
waived; and
(b) whether a substantial trade opportunity would
be lost if the bar were not waived; and
(c) whether there would be a significant
detriment to the Australian community if the bar were not waived; and
(d) whether the person’s inability to be a
standard business sponsor would significantly damage Australia’s relations with
the government of another country; and
(e) if the Minister has previously refused to
waive the bar — whether the Minister is satisfied that the circumstances
in which the Minister took the criteria in paragraphs (a), (b), (c) and (d)
into account have changed substantially.
1.20HD Process for
waiving a bar
For subsection 140P (1)
of the Act, a request to the Minister to waive a bar placed on a person under
section 140J or 140K of the Act must be made in writing.
1.20I Exercise
of Minister’s powers under this Division
In addition to being exercisable by the Minister
personally or by a delegate of the Minister, the powers and functions of the
Minister under this Division are exercisable by a person who:
(a) is the holder of an office under the Act;
and
(b) is authorised in writing by the Minister to
exercise those powers;
and, when any of those powers or functions is exercised by such a
person, that power or function is taken, for the purposes of these Regulations,
to have been exercised by the Minister.
1.20IA Disclosure
of personal information
For section 140V of the Act:
(a) personal information that may be disclosed
to a standard business sponsor or a former standard business sponsor about the
holder or former holder of a Subclass 457 (Business (Long Stay)) visa is:
(i) details
of any breaches of visa conditions by the sponsored person; and
(ii) information about whether the
sponsored person holds a Subclass 457 (Business (Long Stay)) visa that is in
effect, and remains in Australia as an unlawful non‑citizen; and
(iii) information about the sponsored
person’s salary or other workplace conditions; and
(iv) details of any hospital or medical
expenses for the sponsored person that the sponsor or former sponsor is
required to pay; and
(v) details of any costs incurred by
the Commonwealth in relation to the sponsored person; and
(b) the circumstances
in which the Minister may disclose the personal information are that the
disclosure is necessary:
(i) to allow
the sponsor to respond to a claim that the sponsor has engaged in conduct that
may lead to action under section 140J or 140K of the Act against the sponsor;
or
(ii) to allow the sponsor to meet a
liability relating to the sponsorship of the holder or former holder; or
(iii) in connection with a proceeding
for review of a decision mentioned in paragraph 4.02 (4) (i) of these
Regulations; and
(c) the circumstances
in which the standard business sponsor or former standard business sponsor may
use or disclose the information are the circumstances set out in
paragraph (b).
Division 1.4B Limitation on certain sponsorships and nominations
1.20J Limitation
on approval of sponsorships — spouse, prospective spouse and
interdependency visas
(1) Subject to subregulations (2) and (3), the Minister
must not approve:
(a) the sponsorship of an applicant for:
(i) a Spouse (Provisional) (Class UF)
visa, a Partner (Provisional) (Class UF) visa or a Prospective Marriage
(Temporary) (Class TO) visa, as the spouse or prospective spouse of the
sponsor; or
(ii) an Interdependency (Provisional)
(Class UG) visa or a Partner (Provisional) (Class UF) visa, as a person in an
interdependent relationship with the sponsor; or
(b) the sponsorship of an applicant for an
Extended Eligibility (Temporary) (Class TK) visa or a Partner (Temporary)
(Class UK) visa as the spouse of, or as a person in an interdependent
relationship with, the sponsor;
unless the Minister is satisfied that:
(c) not more than 1 other person has been
granted a relevant permission as:
(i) the spouse or prospective spouse
of, or a person in an interdependent relationship with, the sponsor on the
basis of a sponsorship or nomination; or
(ii) a person who ceased a relationship
of a kind mentioned in subparagraph (i) with the sponsor after the person,
or another person mentioned in the prescribed criteria for the visa, had
suffered domestic violence committed by the sponsor; and
(d) if another person has been granted a relevant
permission in the circumstances referred to in paragraph (c) — not less
than 5 years has passed since the date of making the application for that
relevant permission; and
(e) if the sponsor was granted a relevant
permission as the spouse or prospective spouse of, or as a person in an
interdependent relationship with, another person on the basis of a sponsorship
or nomination — not less than 5 years has passed since the date of making
the application for that relevant permission.
(1A) In subregulation (1):
relevant permission
means:
(a) in relation to an application for a visa
referred to in paragraph (1) (a) or (b) made during the period from
1 November 1996 to 30 June 1997 (inclusive) — a visa; and
(b) in relation to an application for a visa
referred to in paragraph (1) (a) or (b) made on or after 1 July 1997 —
permission (other than a visa or entry permit) granted under the Act to remain
indefinitely in Australia, a visa or an entry permit.
(2) Despite subregulation (1), the Minister may approve
the sponsorship of an applicant for a visa if the Minister is satisfied that
there are compelling circumstances affecting the sponsor.
(3) Subject to subregulation (4), this regulation
applies in relation to an application for a visa made on or after 1 November
1996.
(4) This regulation does not apply in relation to an
application by a person who:
(a) was the holder of a Subclass 300 visa that
was granted on the basis of an application for a Prospective Marriage
(Temporary) (Class TO) visa that was made before 1 November 1996; and
(b) has applied for an Extended Eligibility
(Temporary) (Class TK) visa; and
(c) is seeking to remain permanently in
Australia on the basis of the person’s marriage to the person who was specified
as the intended spouse in the application that resulted in the grant of that
Prospective Marriage (Temporary) (Class TO) visa.
1.20K Limitation
on sponsorships — remaining relative visas
(1) The Minister must not grant a Subclass 115 or
Subclass 835 visa to an applicant if the Minister is satisfied that a Subclass
104 visa, a Subclass 115 visa, a Subclass 806 visa or a Subclass 835 visa has
previously been granted:
(a) to the person (person S) who
is the sponsor of the applicant; or
(b) to another person on the basis of sponsorship
or nomination by person S.
(3) A reference in this regulation to a Subclass 104
visa or a Subclass 806 visa is a reference to a Subclass 104 (Preferential
Family) visa or a Subclass 806 (Family) visa, as the case requires, that could
have been granted under these Regulations, as in force immediately before 1
November 1999.
1.20L Limitation
on approval of sponsorship — Subclass 679 (Sponsored Family Visitor) visas
(1) The Minister must not approve the sponsorship by a
sponsor of an applicant for a Sponsored (Visitor) (Class UL) visa who appears
to satisfy the criteria for the grant of a Subclass 679 (Sponsored Family
Visitor) visa if:
(a) the sponsor has previously sponsored another
applicant (the previous applicant) for:
(i) a Sponsored (Visitor) (Class UL)
visa; or
(ii) a Short Stay Sponsored (Visitor)
(Class UL) visa; and
(b) the previous applicant was granted a visa of
that kind; and
(c) either:
(i) subject to subregulations (2) and
(3), the visa is still in effect; or
(ii) subject
to subregulation (4), if the visa has ceased to be in effect:
(A) the previous applicant
did not comply with a condition of the visa; and
(B) a period of 5 years has
not passed since the grant of the visa.
(2) Despite subparagraph (1) (c) (i), the
Minister may approve the sponsorship by the sponsor of the applicant if:
(a) the previous applicant is the holder of a
Subclass 459 (Sponsored Business Visitor (Short Stay)) visa; and
(b) the Minister is satisfied that:
(i) the applicant is proposing to
travel to Australia at the same time, and for the same business purposes, as
the previous applicant; or
(ii) the applicant:
(A) is the spouse, or a
dependent child, of the previous applicant; and
(B) is proposing to travel
to Australia at the same time as the previous applicant.
(3) Despite subparagraph (1) (c) (i), the
Minister may approve the sponsorship by the sponsor of the applicant if:
(a) the previous applicant is the holder of:
(i) a Subclass 679 (Sponsored Family
Visitor (Short Stay)) visa; or
(ii) a Subclass 679 (Sponsored Family
Visitor) visa; and
(b) the Minister is satisfied that the applicant:
(i) is a member of the family unit of
the previous applicant; and
(ii) is proposing to travel to
Australia for the same purpose as the previous applicant.
(4) Despite subparagraph (1) (c) (ii),
the Minister may approve the sponsorship by the sponsor of the applicant if:
(a) the previous
applicant was the holder of:
(i) a
Subclass 679 (Sponsored Family Visitor (Short Stay)) visa; or
(ii) a
Subclass 679 (Sponsored Family Visitor) visa; and
(b) the
Minister has, at any time, determined in writing that he or she is
satisfied that:
(i) the
previous applicant did not comply with condition 8531; and
(ii) the
previous applicant exceeded the period of stay permitted by the visa due to
circumstances:
(A) beyond the previous
applicant’s control; and
(B) that occurred after the
previous applicant entered Australia as the holder of a visa mentioned in
paragraph (a).
Note Condition 8531 provides that the holder of a visa is not
permitted to remain in Australia after the end of the period of stay permitted
by that visa.
Division 1.4C Sponsorship: professional
development
Subdivision
1.4C.1 Introductory
1.20LA Application of Division 3A of Part 2 of the Act
For section 140A of the
Act, Division 3A of Part 2 of the Act applies to a Subclass 470 (Professional
Development) visa.
1.20M Definitions
In this Division:
agreement rules, in relation to a
professional development agreement, means the rules set out in subregulation
1.20NA (4).
Australian organisation means an organisation
that is lawfully established in Australia.
employed, in
relation to an overseas employer, includes being nominated in the circumstances
described in sub‑subparagraph (a) (ii) (B) or (b) (ii) (B) of the
definition of overseas employer.
government agency means an agency of the
Commonwealth or of a State or Territory.
organisation means a body corporate or an
unincorporated body (other than an individual or a sole trader).
overseas employer, in relation to a person who applies, or proposes to
apply, for a Sponsored Training (Temporary) (Class UV) visa, means:
(a) an organisation:
(i) the
activities of which are conducted under the auspices of the government of:
(A) a
foreign country; or
(B) a
province, territory or state of a foreign country; and
(ii) that:
(A) employs
the person; or
(B) has nominated the person
to undertake a genuine training program; or
(b) a multilateral agency that:
(i) is actively operating, and has
been actively operating for a continuous period of at least 1 year immediately
before the date of application; and
(ii) either:
(A) employs the person; or
(B) has nominated the person
to undertake a genuine training program; or
(c) a registered business
that:
(i) is
conducted outside Australia by an organisation; and
(ii) is actively and lawfully operating
outside Australia, and has been actively operating outside Australia for a
continuous period of at least 1 year immediately before the date of
application; and
(iii) employs the person.
overseas participant, in relation to an approved professional development
sponsor, means:
(a) a person who holds
a Subclass 470 (Professional Development) visa; or
(b) a person:
(i) who is
in Australia; and
(ii) who does not hold a substantive
visa; and
(iii) whose last substantive visa was a
Subclass 470 (Professional Development) visa.
participant costs for an overseas participant
in a professional development program conducted by an approved professional development
sponsor means the costs of:
(a) the overseas participant’s travel and entry
to Australia; and
(b) the overseas participant’s tuition for
the professional development program; and
(c) the overseas participant’s accommodation in
Australia; and
(d) the overseas participant’s living expenses in
Australia; and
(e) the overseas participant’s health insurance
in Australia; and
(f) the overseas participant’s return travel
from Australia.
professional development agreement means an
agreement that complies with the agreement rules.
professional development program means a
program that complies with the requirements in paragraph
1.20NA (2) (a).
Subdivision 1.4C.2 Becoming
an approved professional development sponsor
1.20N Process
for making application to become an approved professional development sponsor
(1) For subsection 140F (1) of the Act, an
application to the Minister for approval as an approved professional
development sponsor may be made by:
(a) an Australian organisation; or
(b) a government agency;
that has entered into a professional development agreement that is
in force at the time of the making of the application.
(2) An application must be
made in accordance with approved form 1226.
(3) If the application is not made by a Commonwealth
agency, the application must be accompanied by a fee of $1 080.
(4) An application must be
made by:
(a) posting the
application (with the correct pre‑paid postage) to the post office box
address specified in a Gazette Notice for this paragraph; or
(b) having the application delivered by a courier
service to the address specified in a Gazette Notice for this paragraph; or
(c) having the application sent by facsimile to
the address specified in a Gazette Notice for this paragraph.
Note In prescribed circumstances, a sponsor
may be barred from making future applications for approval as a professional
development sponsor (see paragraphs 140L (e) and (f) of the Act).
1.20NA Approving
an application to become an approved professional development sponsor
(1) For section 140E of the
Act, the criteria for approval as an approved professional development sponsor
are that the Minister:
(a) is satisfied about
each of the matters mentioned in subregulation (2); and
(b) is satisfied that if an authorised officer
requires security for compliance with:
(i) the
provisions of the Act and these Regulations in relation to the applicant’s
undertakings as an approved professional development sponsor; or
(ii) a condition imposed under the Act
or these Regulations in relation to the applicant’s undertakings as an
approved professional development sponsor;
the applicant has given the security.
Note Under section 140E of the Act, the
Minister must approve an applicant as an approved professional development
sponsor if the prescribed criteria are satisfied.
(2) For paragraph (1) (a), the matters are:
(a) the applicant is
offering to conduct a program that complies with the following requirements:
(i) the
program is relevant to, and consistent with,
the development of the skills of managers, professionals, or both;
(ii) the program provides skills and
experience relevant to, and consistent with, the business and business
background of an overseas participant’s overseas employer;
(iii) the duration of the program does
not exceed:
(A) 18 months; or
(B) if
the Secretary is satisfied that exceptional circumstances exist — a longer
period approved by the Secretary;
(iv) the
primary form of the program is the provision of face to face teaching in a
classroom or similar environment;
(v) the primary content of the program
is not a practical component;
(vi) any practical component of the
program:
(A) does
not exceed 7 hours in any day and 35 hours in any week; and
(B) does
not adversely affect the Australian labour market; and
(C) requires
or involves the payment of remuneration to an overseas participant only by the
overseas participant’s overseas employer; and
(b) the applicant has
demonstrated overall the capacity to provide professional development programs
involving overseas participants; and
(c) the applicant has entered into a
professional development agreement that is in force at the time of the
Minister’s consideration of the application; and
(ca) each of the parties to the agreement has the
capacity to meet their financial commitments; and
(cb) all of the participant costs of an overseas
participant in a professional development program that an applicant is offering
to conduct will be met; and
(cc) an overseas participant will not be required
to pay
the participant’s costs of tuition for the
professional development program; and
(d) the applicant and each of the other parties
with which the applicant has a current professional development agreement:
(i) is not a
proscribed person or entity within the meaning of section 14 of the Charter
of the United Nations Act 1945; and
(ii) is not a terrorist organisation,
or a member of a terrorist organisation, within the meaning of Division 102 of
the Criminal Code; and
(iii) does not intentionally provide
support to:
(A) a
proscribed person or entity within the meaning of section 14 of the Charter
of the United Nations Act 1945; or
(B) an
organisation which the person knows to be a terrorist organisation, or a member
of a terrorist organisation, within the meaning of Division 102 of the Criminal
Code; and
(e) if the applicant
has previously been required to comply with the immigration laws of Australia —
the applicant has a satisfactory record of compliance; and
(f) if a person associated with the applicant has
previously been required to comply with the immigration laws of Australia —
the person has a satisfactory record of compliance; and
(g) if an overseas employer with which the
applicant has a current professional development agreement has previously been
required to comply with the immigration laws of Australia — the employer
has a satisfactory record of compliance; and
(h) each person who is, or was, an overseas
participant in a professional development program conducted by or for the
applicant has:
(i) a
satisfactory record of compliance with the person’s visa conditions; and
(ii) a satisfactory record of
compliance with the immigration laws of Australia in relation to any previous
application by the person for a visa; and
(j) the applicant has
given the undertakings mentioned in regulation 1.20P; and
Note The undertakings do not have effect in
relation to an overseas participant until a visa is granted to the overseas
participant (see subsection 140H (3) of the Act).
(k) the applicant is
capable of complying with the undertakings mentioned in regulation 1.20P;
and
(l) the applicant does not owe costs for
medical or hospital expenses (not covered by health insurance) incurred in
relation to an overseas participant; and
(m) the applicant does not have any outstanding
debts to the Commonwealth incurred in relation to an overseas participant.
(3) As soon as practicable
after deciding an application under subregulation 1.20N (1), the Minister must give the applicant:
(a) a copy of the
written approval or refusal of the application; and
(b) if the application is refused, a statement of
the reasons for the refusal.
Note Under section 140E of the Act, the
Minister must approve a person as an approved professional development sponsor
if the criteria set out in regulation 1.20NA are satisfied.
(4) The agreement rules, in relation to a
professional development agreement, are the following rules:
(a) the parties to the agreement must be:
(i) the applicant; and
(ii) the overseas employer of a person
who would be an overseas participant;
(b) the applicant must be:
(i) an Australian organisation that
has been actively operating in Australia for a continuous period of at least 1
year before the making of the agreement; or
(ii) an Australian organisation that,
while not meeting the requirements of subparagraph (i), has been approved by
the Minister for the purposes of this subparagraph; or
(iii) a government agency;
(c) there may be other parties to the agreement
but, if there are, those other parties must be either Australian organisations
or government agencies;
(d) the agreement must specify who is responsible
for the participant costs of persons who would be overseas participants;
(e) the agreement must include:
(i) a
description of the professional development program and what is intended to be
provided by the sponsor; and
(ii) a
description of the roles of each of the parties under the agreement; and
(iii) the details
of the duration of the agreement; and
(iv) arrangements
for mediation of disputes and other conflict resolution arrangements; and
(v) any
arrangements made by the sponsor to subcontract any part of the provision of
the professional development program; and
(vi) a
description of the arrangements for insurance relating to the sponsor; and
(vii) a
description of the arrangements for recovery of costs if the sponsor, or
another provider of the professional development program acting for the
sponsor, ceases operations for any reason; and
(viii) a
description of the characteristics of the persons whom the overseas employer
proposes to select as overseas participants, and how overseas participants will
be selected;
(f) if proposed overseas participants will be
expected to pay for some of their participation costs (other than tuition costs),
the agreement must contain:
(i) a statement setting out that the
proposed overseas participants will be expected to meet the costs set out; and
(ii) a declaration from the overseas
employer that the employer will not select an employee to be an overseas
participant without being first satisfied that the employee can meet those
costs;
(g) the agreement is
signed and dated by representatives of each party who are authorised to sign
the agreement.
1.20O Terms of
approval as approved professional development sponsor
(1) For subsection 140G (2)
of the Act, an approval as an approved professional development sponsor has
effect only in relation to:
(a) the professional
development program specified in the application for approval; and
(b) the professional development agreement or
agreements specified in the application for approval; and
(c) the overseas employer or overseas employers
specified in the application for approval.
Note If an approved professional development
sponsor wishes:
(a) to prepare a new professional
development program; or
(b) to make a new agreement; or
(c) to offer an existing
professional development program to a new overseas employer;
the sponsor must apply under regulation 1.20N for a new approval
as an approved professional development sponsor in relation to the new
arrangement.
(1A) For subsection 140G (2) of the Act, an approval as an
approved professional development sponsor has as terms the matters set out in
subregulations (1B), (1C) and (1D).
(1B) An authorised officer may require the sponsor to give
additional security for compliance with:
(a) the provisions of the Act and these
Regulations in relation to the applicant’s undertakings as an approved
professional development sponsor; or
(b) a condition imposed under the Act or these
Regulations in relation to the applicant’s undertakings as an approved professional
development sponsor.
(1C) The additional security may be required if the
security given under paragraph 1.20NA (1) (b) by the sponsor has been
called upon so that the amount of the security remaining is zero or an amount
that is less than the amount of the security given.
(1D) If an authorised officer has required the sponsor to
give additional security under subregulation (1B), the
sponsor must give the security within:
(a) 28 days; or
(b) such longer period as allowed by the
Minister;
after the time the requirement has been made.
(2) For subsection 140G (2) of
the Act, an approval as an approved
professional development sponsor ceases to have effect on the earliest of:
(a) the end of 3 years
commencing on the day on which the approval is given; and
(b) the ending of:
(i) the professional
development agreement specified in the application
for approval; or
(ii) if more than 1 agreement is
specified in the application for approval — the specified agreement that
ends first; and
(c) cancellation of
the approval as mentioned in paragraph 140L (a) or (b) of the Act.
1.20P Sponsorship
undertakings
(1) For subsection 140H
(1) of the Act, the undertakings that an applicant for approval as an approved
professional development sponsor must make are:
(a) to ensure that the participant costs of an
overseas participant are met while the participant is the holder of a Subclass
470 (Professional Development) visa; and
(b) to ensure that an overseas participant
complies with the conditions to which the overseas participant’s visa is
subject; and
(c) to ensure that an overseas participant
complies with the immigration laws of Australia; and
(d) to comply with its responsibilities under the
immigration laws of Australia; and
(e) to ensure that an overseas participant’s
standard of living (including the overseas participant’s accommodation) while
the overseas participant is the holder of a Subclass 470 (Professional Development)
visa is consistent with a reasonable standard of living in Australia; and
(f) to give the Secretary accurate information,
as soon as practicable, about:
(i) any
material change in the approved professional development sponsor’s
circumstances; or
(ii) any matter that may affect the
approved professional development sponsor’s ability to carry out the
undertakings mentioned in this regulation; or
(iii) any material change in an
overseas participant’s circumstances; or
(iv) any matter that may affect an
overseas participant’s ability to comply with the conditions to which the
overseas participant’s visa is subject; and
(g) not to make a
material change to the professional development program for an overseas
participant unless the Secretary has approved the change in writing; and
(h) to give officers reasonable access, at
reasonable times, to premises at which the approved professional development
sponsor provides, or will provide, a professional development program, for the
purpose of assessing:
(i) the
approved professional development sponsor’s compliance with the Act and these
Regulations in relation to the approved professional development sponsor’s
sponsorship, the program and any overseas participant; and
(ii) an overseas participant’s compliance
with the conditions to which the overseas participant’s visa is subject; and
(i) to co‑operate
with the Department’s monitoring of the approved professional development
sponsor and of an overseas participant sponsored by the sponsor; and
(j) not to employ a non‑citizen who does
not hold a visa permitting the non‑citizen to work (whether for reward or
otherwise); and
(k) not to employ a non‑citizen in breach
of a visa condition restricting the work that the non‑citizen may perform
in Australia; and
(l) either:
(i) for an
application made before 1 November 2005 — to pay all medical or
hospital expenses for the overseas participant (other than expenses that are
met in accordance with health insurance arrangements); or
(ii) for an application made on or
after 1 November 2005 — to pay all medical or hospital expenses
for the overseas participant arising from treatment administered in a public
hospital (other than expenses that are met by health insurance or reciprocal
health care arrangements); and
(m) to pay to the Commonwealth an amount equal to
all
costs incurred by the Commonwealth in relation to an overseas participant
(including costs mentioned in subregulation (2)); and
(n) to pay to the Commonwealth any security
required under subregulation 1.20O (1B) within the time provided for in
subregulation 1.20O(1D).
(2) For paragraph (1) (m),
the costs include the cost of:
(a) locating the
overseas participant; and
(b) detaining the
overseas participant; and
(c) removing the overseas participant from
Australia; and
(d) processing an application for a protection
visa made by the overseas participant.
Note An undertaking is not enforceable in
relation to costs of locating and detaining an overseas participant that exceed
the limit prescribed by regulation 1.20PA.
1.20PA Limit in
relation to costs of location and detention
For subsection 140I (4)
of the Act, the limit (over which an undertaking in relation to the costs of
the Commonwealth in locating and detaining an overseas participant is not
enforceable) is $10 000.
1.20PB Consequences
if approved professional development sponsor or visa holder changes status
For subsection 140Q (1)
of the Act, an undertaking arising out of the sponsorship of the holder of a
Subclass 470 (Professional Development) visa remains enforceable against the
sponsor concerned until the time set out in the following table.
|
Item
|
The undertaking set out in
|
Remains enforceable until
|
|
1
|
Paragraph 1.20P (1) (l)
|
The time when the expenses are
paid
|
|
2
|
Paragraph 1.20P (1) (m)
|
The time when the amount is paid
|
|
2A
|
Paragraph 1.20P (1) (n)
|
The time when the security is given
|
|
3
|
Paragraph 1.20P (1) (c)
or (d), subparagraph 1.20P (1) (f) (iii), paragraph
1.20P (1) (h), (i), (j) or (k)
|
If the sponsor ceases to be an
approved sponsor of the sponsored person, and the sponsored person ceases to
hold a Subclass 470 (Professional Development) visa for which he or she was
sponsored — the time when the person ceases to be an overseas
participant
|
|
4
|
Paragraph
1.20P (1) (a), (b) or (e), subparagraph 1.20P (1) (f) (i),
(ii) or (iv), paragraph 1.20P (1) (g)
|
If
the sponsor ceases to be an approved sponsor of the sponsored person, and the
sponsored person ceases to hold a Subclass 470 (Professional Development)
visa for which he or she was sponsored — the time when the sponsored
person ceases to hold the Subclass 470 (Professional Development) visa
|
Note Undertakings made by an approved
professional development sponsor in relation to an overseas participant do not
have effect until a visa is granted to the overseas participant (see subsection 140H (3)
of the Act).
Subdivision 1.4C.3 Cancelling
or barring an approved professional development sponsor
1.20Q Cancelling
or barring approval as a sponsor
(1) This regulation applies
if:
(a) the Minister is
satisfied that an approved professional development sponsor has breached an
undertaking mentioned in regulation 1.20P; or
(b) the Minister is no longer satisfied as to a
matter mentioned in subregulation 1.20NA (2); or
(c) the Minister is no longer satisfied that the
approved professional development sponsor is able to comply with an undertaking
mentioned in regulation 1.20P.
(2) In deciding which of the
actions mentioned in section 140L of the Act to take in the circumstances
mentioned in subregulation (1), the criteria that the Minister must take
into account are:
(a) the severity of
the breach or other conduct; and
(b) the past conduct of the sponsor; and
(c) the impact (if any) of the taking of the
action may have on the Australian community; and
(d) whether barring the approved professional
development sponsor in a way mentioned in section 140L of the Act would be
an inadequate means of dealing with the matter, having regard to considerations
including:
(i) the
seriousness of the inability or failure to comply; and
(ii) the past conduct of the approved
professional development sponsor.
(3) If the Minister decides to
take any action mentioned in section 140L of the Act, the Minister must
give the sponsor written notice of the decision.
(4) The notice must specify:
(a) which of the
circumstances mentioned in subregulation (1) apply; and
(b) the specific action to be taken; and
(c) if the action is to bar the approved
professional development sponsor — the duration of the bar.
1.20R Waiving a
bar
(1) For subsection 140O (1)
of the Act, a Subclass 470 (Professional Development) visa is prescribed.
(2) For subsection 140O (2) of the Act, a
circumstance in which the Minister may waive a bar placed on an approved
professional development sponsor, or a former approved professional development
sponsor, under section 140J or 140K of the Act is that the sponsor, or former
sponsor, has requested in writing that the bar be waived.
(3) For subsection 140O (3)
of the Act, the criteria to be taken into account by the Minister in
determining whether to waive a bar are that:
(a) there would be
significant social, economic or political benefits to Australia if the bar were
waived; and
(b) there has been a substantial change in the sponsor’s,
or former sponsor’s, circumstances significantly minimising the likelihood of
further breaches or unacceptable conduct in other circumstances; and
(c) the benefits to Australia and the change in
the sponsor’s, or former sponsor’s, circumstances outweigh the severity of the
breach of undertakings or other conduct that resulted in the bar; and
(d) if the Minister has previously refused to
waive the bar — the Minister is satisfied that the circumstances relevant
to the criteria mentioned in paragraphs (a), (b) and (c) have changed
substantially since the refusal to waive the bar.
1.20S Giving
notice about a bar, waiving a bar or cancellation
If the Minister takes action mentioned in section
140L or 140O of the Act in relation to an approved professional development
sponsor, or a former approved professional development sponsor, the Minister
must give the sponsor or former sponsor notice of the action in accordance with
section 494B of the Act.
Note If the Minister gives a person a
document by a method specified in section 494B of the Act, the person is taken
to have received the document at the time specified in section 494C of the Act
in respect of the method.
Subdivision 1.4C.4 General
1.20T Disclosure
of personal information
For section 140V of the
Act:
(a) personal
information that may be disclosed to an approved professional development
sponsor or a former approved professional development sponsor about the holder
or former holder of a Subclass 470 (Professional Development) visa (the person)
is:
(i) details
of any breaches of visa conditions by the person; and
(ii) if the person no longer holds a
Subclass 470 (Professional Development) visa that is in effect and remains in
Australia as an unlawful non‑citizen — that information; and
(iii) details of any hospital or
medical expenses for the person that the sponsor or former sponsor is required
to pay; and
(iv) details of any costs incurred by
the Commonwealth in relation to the person; and
(v) details of the cost of return
travel from Australia by the person, while the person was the holder of a
Subclass 470 (Professional Development) visa; and
(vi) details of any non‑compliance
with the immigration laws of Australia by the person; and
(vii) if the person’s standard of
living, while the person was the holder of a Subclass 470 visa was not
consistent with a reasonable standard of living in Australia — that
information; and
(viii) details of any material change in
the person’s circumstances; and
(ix) details of any matter that affected
the person’s ability to comply with the conditions to which the person’s visa
was subject; and
(b) the circumstances
in which the Minister may disclose the personal information are that the
disclosure is necessary:
(i) to allow
the sponsor or former sponsor to respond to a claim about conduct that may lead
to action under section 140J or 140K of the Act against the sponsor or former
sponsor; or
(ii) to allow the sponsor or former
sponsor to meet a liability relating to the sponsorship of the holder or former
holder of a Subclass 470 (Professional Development) visa; or
(iii) in connection with a proceeding
for review of a decision mentioned in paragraph 4.02 (4) (h) of these
Regulations; and
(c) the circumstances
in which the sponsor or former sponsor may use or disclose the information are
the circumstances set out in paragraph (b).
Division 1.4D Special student sponsorship
Subdivision 1.4D.1 Introductory
1.20UA Definitions
for Division 1.4D
In this Division:
organisation, for an applicant for approval
as an approved special student sponsor, means a body that is lawfully
established and actively operating in Australia (including an unincorporated
body of persons); and
relevant student visa
means either of the following visas:
(a) a Subclass 571 (Schools Sector) visa, Subclass
572 (Vocational Education and Training Sector) visa, Subclass 573 (Higher
Education Sector) visa or Subclass 574 (Postgraduate Research Sector) visa that
is granted, or would be granted, to:
(i) a person designated under
regulation 2.07AO; or
(ii) a member of the family unit of a
person designated under regulation 2.07AO;
on the basis of the sponsorship of the
person designated under regulation 2.07AO by an approved special student
sponsor;
(b) a Subclass 571 (Schools Sector) visa,
Subclass 572 (Vocational Education and Training Sector) visa, Subclass 573
(Higher Education Sector) visa or Subclass 574 (Postgraduate Research
Sector) visa that is granted, or would be granted, to:
(i) a person designated under
regulation 2.07AO who already holds a visa of that Subclass; or
(ii) a member of the family unit of a
person designated under regulation 2.07AO who already holds a visa of that
Subclass;
for the purpose only of permitting the
change of a condition relating to the working rights of the person or member of
the family unit, or of permitting the change of an education provider.
1.20UB Application
of Division 3A of Part 2 of the Act
For section 140A of the Act, Division 3A of Part 2
of the Act applies to the following visas:
(a) a Subclass 571 (Schools Sector) visa the
applicant for which is:
(i) a person designated under
regulation 2.07AO; or
(ii) a member of the family unit of a
person designated under regulation 2.07AO;
(b) a Subclass 572 (Vocational Education and
Training Sector) visa the applicant for which is:
(i) a person designated under
regulation 2.07AO; or
(ii) a member of the family unit of a
person designated under regulation 2.07AO;
(c) a Subclass 573 (Higher Education Sector)
visa the applicant for which is:
(i) a person designated under
regulation 2.07AO; or
(ii) a member of the family unit of a
person designated under regulation 2.07AO;
(d) a Subclass 574 (Postgraduate Research Sector)
visa the applicant for which is:
(i) a person designated under
regulation 2.07AO; or
(ii) a member of the family unit of a
person designated under regulation 2.07AO.
Subdivision
1.4D.2 Becoming an approved special student sponsor
1.20UC Process for
making application to become an approved special student sponsor
(1) For subsection 140F (1) of the Act, a person or
organisation may apply to the Minister for approval as a sponsor of:
(a) a person designated under regulation 2.07AO
who applies for a visa of any of the following subclasses:
(i) a Subclass 571 (Schools Sector)
visa;
(ii) a Subclass 572 (Vocational
Education and Training Sector) visa;
(iii) a Subclass 573 (Higher Education
Sector) visa;
(iv) a Subclass 574 (Postgraduate
Research Sector) visa; and
(b) each person (if any) who is:
(i) a member of the family unit of the
person designated under regulation 2.07AO; and
(ii) an applicant for the relevant
student visa on the basis of meeting the secondary criteria for the visa.
(2) An application must be
made in writing.
Note There is no approved form for
the application, and no application fee.
(3) An application must:
(a) state that it relates to the sponsorship of:
(i) the person designated under
regulation 2.07AO; and
(ii) each person (if any) mentioned in
paragraph (1) (b); and
(b) include the undertakings mentioned in
regulation 1.20UF in respect of:
(i) the person designated under
regulation 2.07AO; and
(ii) each person (if any) mentioned in
paragraph (1) (b); and
(c) give any other information requested for the
purposes of the making of the application.
Note Details of the information to which
paragraph (c) relates will be provided to applicants by Immigration.
(4) An application must be
made by:
(a) posting the
application (with the correct pre‑paid postage) to the post office box
address specified in a Gazette Notice for this paragraph; or
(b) having the application delivered by a courier
service to the address specified in a Gazette Notice for this paragraph.
1.20UD Approving
an application to become an approved special student sponsor
(1) For section 140E of the
Act, the criteria for approval of a person or an organisation as an approved
special student sponsor are that the Minister is satisfied that:
(a) the applicant is:
(i) a natural person who is
permanently resident in Australia; or
(ii) an organisation; and
(b) the applicant has
given the undertakings mentioned in regulation 1.20UF; and
(c) the applicant is
capable of complying with the undertakings mentioned in regulation 1.20UF; and
(d) if the applicant
has previously been required to comply with the immigration laws of
Australia — the applicant has a satisfactory record of compliance.
Note Undertakings made by an approved special
student sponsor in relation to:
(a) a person designated
under regulation 2.07AO; or
(b) a
member of the family unit of a person designated under regulation 2.07AO;
do not have effect until a relevant
student visa is granted to the person or the member of the family unit (see subsection 140H (3) of the Act).
(2) As soon as practicable
after deciding an application for approval as an approved special student
sponsor, the Minister must give the applicant:
(a) a copy of the
written approval, or the decision to refuse the application; and
(b) if the Minister refuses the application — a statement of the reasons
for the decision.
Note Under section 140E of the Act, the
Minister must approve a person as an approved special student sponsor if the
criteria set out in regulation 1.20UD are satisfied.
1.20UE Terms of
approval as special student sponsor
(1) For subsection 140G (2) of the Act, an approval
as an approved special student sponsor ceases to have effect on the earlier of:
(a) the day on which
the application by the person designated under regulation 2.07AO for a relevant student visa mentioned in paragraph
1.20UC (1) (a) (the first visa) is finally determined
(within the meaning of subsection 5 (9) of the Act); and
(b) the end of the period of 12 months commencing
on the day on which the approval is given.
(2) However, the approval is taken to continue in force
after that day to the extent only that it would permit the person designated
under regulation 2.07AO to apply for the grant of a
relevant student visa mentioned in paragraph 1.20UC (1) (a) of the
same subclass as the first visa for the purpose only of permitting the
change of a condition relating to the working rights of the person or member of
the family unit, or of permitting the change of an education provider.
1.20UF Sponsorship
undertakings
For
subsection 140H (1) of the Act, the undertakings that an applicant
for approval as an approved special student sponsor must make are, in respect
of the period during which the person holds the relevant student visa or visas
(or would hold the relevant student visa or visas if granted):
(a) to pay all course
fees for each course in relation to which the relevant student visa would be
granted; and
(b) to ensure that the standard of living
(including the accommodation) of:
(i) the person mentioned in paragraph
1.20UC (1) (a); and
(ii) each person (if any) mentioned in
paragraph 1.20UC (1) (b);
while the person mentioned in subparagraph
(i) or (ii) holds the relevant student visa (if the visa is granted) is
consistent with a reasonable standard of living in Australia; and
(c) to pay all
reasonable education costs for each person (if any) mentioned in
paragraph 1.20UC (1) (b); and
(d) to make adequate
arrangements in Australia for health insurance during the period of the
intended stay in Australia of:
(i) the person designated under
regulation 2.07AO; and
(ii) each person (if any) mentioned in
paragraph 1.20UC (1) (b); and
(e) either:
(i) for an
application made before 1 November 2005 — to pay all medical or
hospital expenses for:
(A) the
person designated under regulation 2.07AO; and
(B) each
person (if any) mentioned in paragraph 1.20UC (1) (b);
(other
than expenses that are met in accordance with health insurance arrangements);
or
(ii) for an application made on or
after 1 November 2005 — to pay all medical or hospital expenses
for:
(A) the
person designated under regulation 2.07AO; and
(B) each
person (if any) mentioned in paragraph 1.20UC (1) (b);
arising
from treatment administered in a public hospital (other than expenses that are
met by health insurance or reciprocal health care arrangements); and
(f) to give the Secretary accurate information,
as soon as practicable, about:
(i) any
material change in the approved special student sponsor’s circumstances; or
(ii) any matter that may affect the
approved special student sponsor’s ability to carry out the undertakings
mentioned in this regulation; or
(iii) any material change in the
circumstances of:
(A) the person designated
under regulation 2.07AO; and
(B) each person (if any)
mentioned in paragraph 1.20UC (1) (b).
1.20UG Consequences
if approved special student sponsor or visa holder changes status — enforceability
of undertaking
For subsection
140Q (1) of the Act, an undertaking arising out of the sponsorship of the
holder of a relevant student visa remains enforceable against the approved
special student sponsor concerned until the time set out in the following
table.
|
Item
|
The undertaking set out in
|
Remains enforceable until
|
|
1
|
Paragraph 1.20UF (a)
|
The time when the full amount of the course fees has been
paid
|
|
2
|
Paragraph 1.20UF (b)
|
The time when the full amount necessary to ensure a
reasonable standard of living in Australia has been paid
|
|
3
|
Paragraph 1.20UF (c)
|
The time when the full amount of the education costs has
been paid
|
|
4
|
Paragraph 1.20UF (d)
|
The holder ceases to hold the last of the relevant student
visas
|
|
5
|
Paragraph 1.20UF (e)
|
The time when the full amount of the hospital and medical
expenses has been paid
|
|
6
|
Subparagraph 1.20UF (f) (i) or (ii)
|
The holder ceases to hold the last of the relevant student
visas
|
|
7
|
Subparagraph 1.20UF (f) (iii)
|
The earlier of:
(a) the time when the holder is granted a visa other
than a relevant student visa; and
(b) the time when the holder departs Australia
|
Note Undertakings made by an approved special
student sponsor in relation to:
(a) a person designated
under regulation 2.07AO; or
(b) a member of the family unit
of a person designated under regulation 2.07AO;
do not have effect until a relevant
student visa is granted to the person or the member of the family unit (see subsection 140H (3) of the Act).
Subdivision
1.4D.3 General
1.20UH Disclosure
of personal information
For section 140V of the
Act:
(a) personal
information that may be disclosed to an approved special student sponsor (a sponsor)
or a former approved special student sponsor (a former sponsor)
about the holder or former holder of a relevant student visa (the person)
is:
(i) details
of any breaches of visa conditions by the person; and
(ii) details of any hospital or medical
expenses for the person that the sponsor or former sponsor is required to pay;
and
(iii) details of any health insurance
arrangements made in relation to the person by the sponsor or former sponsor;
and
(iv) details of any course of study in
which the person was enrolled, including the fees for the course; and
(v) if the person held the visa on the
basis of meeting the secondary criteria for the visa — details of the
person’s enrolment at a school (if any); and
(vi) details of any costs incurred by
the Commonwealth in relation to the person; and
(vii) details of any non‑compliance
with the immigration laws of Australia by the person; and
(viii) if the person’s standard of
living, while the person was the holder of a relevant student visa was not
consistent with a reasonable standard of living in Australia — that
information; and
(ix) details of any material change in
the person’s circumstances; and
(x) details of any matter that affected
the person’s ability to comply with the conditions to which the person’s visa
was subject; and
(b) the
circumstances in which the Minister may disclose the personal information are
that the disclosure is necessary to allow the sponsor or former sponsor to meet
a liability relating to the sponsorship of the holder or former holder of the
relevant student visa; and
(c) the circumstance
in which the sponsor or former sponsor may use or disclose the information is
the circumstance set out in paragraph (b).
Division 1.4E Sponsorship: trade skills training
Subdivision 1.4E.1 Introductory
1.20UI Application of Division 3A of Part
2 of the Act
For section 140A of the Act, Division 3A of Part 2
of the Act applies to a Subclass 471 (Trade Skills Training) visa.
1.20UJ Definitions
for Division 1.4E
apprentice means a person who:
(a) is undertaking, or seeking to undertake, an
apprenticeship; and
(b) satisfies, or seeks to satisfy, the primary
criteria for the grant of a Subclass 471 (Trade Skills Training) visa.
apprenticeship means full‑time
employment and training undertaken in Australia under the New Apprenticeship
Scheme to obtain a trade qualification.
Australian Standard Classification of Occupations
means the standard published by AusInfo that is current when this definition
commences.
New Apprenticeship Scheme means the national
apprenticeship and traineeship arrangements that came into effect on 1 January
1998.
organisation means a body corporate or an
unincorporated body (other than an individual or a sole trader).
trade qualification means a qualification,
under the Australian Qualifications Framework, of at least the Certificate III
level for a skilled occupation in Major Group IV in the Australian Standard
Classification of Occupations.
Subdivision 1.4E.2 Becoming
an approved trade skills training sponsor
1.20UK Process for making application to
become an approved trade skills training sponsor
(1) For subsection 140F (1) of the Act, any of the
following may apply to the Minister for approval as an approved trade skills
training sponsor:
(a) an employer;
(b) a national, State, Territory or local organisation
that the Minister considers is representative of industry or of a regional area
of Australia.
Note Subdivision C of Division 3A of
Part 2 sets out rules dealing with the sponsorship obligations and rights of
unincorporated associations. In particular, section 140ZD imposes on members of
the management committee of an unincorporated association, in a member’s
personal capacity, the sponsorship obligations.
(2) An application must be made in accordance with
approved form 1262.
(3) An application must be accompanied by a fee of $1 050.
(4) An application must
be made by:
(a) posting the application (with the correct
pre‑paid postage) to the post office box address specified in a Gazette
Notice for this paragraph; or
(b) having the application delivered by a courier
service to the address specified in a Gazette Notice for this paragraph; or
(c) having the application sent by facsimile to
the address specified in a Gazette Notice for this paragraph.
(5) An application must state the number of persons that
the applicant seeks to sponsor as apprentices.
1.20UL Approving an application to become
an approved trade skills training sponsor
For section 140E of the Act, the criteria for
approval of an applicant as an approved trade skills training sponsor are that
the Minister is satisfied about each of the following matters:
(a) that the applicant is lawfully and actively
operating in Australia;
(b) if the applicant has previously been required
to comply with the immigration laws of Australia — that the applicant has
a satisfactory record of compliance;
(c) that nothing adverse is known to Immigration
about the applicant;
(d) that the applicant has the capacity to
provide, or to arrange apprenticeships for, the number of persons the applicant
seeks to sponsor as apprentices (see subregulation 1.20UK (5));
(e) if the applicant will also be the employer
of one or more apprentices — that the applicant has a satisfactory record
of, or a demonstrated commitment towards, training Australian citizens and Australian
permanent residents;
(f) that the applicant has given the
undertakings mentioned in regulation 1.20UO;
(g) that the applicant is capable of complying
with the undertakings mentioned in regulation 1.20UO;
(h) that the
applicant intends to comply with the undertakings mentioned in regulation 1.20UO.
Note Under section 140E of the Act, the
Minister must approve an applicant as an approved trade skills training sponsor
if the prescribed criteria are met.
1.20UM Notice
of decision concerning application
(1) As soon as practicable after deciding an application
under regulation 1.20UK, the Minister must give the applicant:
(a) a copy of the written approval or refusal of
the application; and
(b) if the application is refused, a statement of
the reasons for the refusal.
(2) The approval must state:
(a) the date on which the approval is granted;
and
(b) the number of persons that the sponsor is
approved to sponsor as apprentices.
1.20UN Terms of approval as approved trade
skills training sponsor
For subsection 140G (2) of the Act, an
approval as an approved trade skills training sponsor is on the following terms:
(a) the sponsor may, under the approval, sponsor
as apprentices a number of persons up to the number specified in the notice of
approval as the number that may be sponsored by the sponsor as apprentices; and
(b) the approval ceases to have effect on the
earliest of:
(i) the day when the last of those
persons is granted a Subclass 471 (Trade Skills Training visa); and
(ii) the end of 24 months, commencing
on the day the sponsor is approved; and
(iii) the day the approval is cancelled
as mentioned in paragraph 140L (a) or (b) of the Act.
1.20UO Sponsorship undertakings
For subsection 140H (1) of the Act, the
undertakings that an applicant for approval as an approved trade skills
training sponsor must make are as follows:
(a) to ensure that any person (a visa
holder) granted a Subclass 471 (Trade Skills Training) visa on the
basis of sponsorship by the applicant complies with the conditions of the visa;
(b) to ensure that a person sponsored by the
sponsor to be an apprentice is a genuine applicant and genuinely intends
to complete an apprenticeship in Australia;
(c) not to employ a person who would be in
breach of the immigration laws of Australia as a result of being so employed;
(d) to give Immigration accurate information, as
soon as practicable, about:
(i) any material change in the
sponsor’s circumstances; or
(ii) any matter that may affect the
sponsor’s ability to carry out the undertakings mentioned in this regulation;
or
(iii) any material change in the
circumstances of a visa holder, including changes to the visa holder’s
accommodation arrangements; or
(iv) any matter that may affect a visa
holder’s ability to comply with the conditions to which the visa is
subject;
(e) to notify Immigration of any change in a
visa holder’s location;
(f) to cooperate with Immigration’s monitoring
of:
(i) the sponsor; and
(ii) an employer of an apprentice
sponsored by the sponsor; and
(iii) the workplace of an apprentice
sponsored by the sponsor; and
(iv) a visa holder;
(g) to ensure that a visa holder maintains
health insurance cover in Australia that the Minister considers adequate;
(h) to ensure that a visa holder is accommodated
in Australia in accommodation arrangements that the Minister considers to be
consistent with a reasonable standard of living in Australia;
(i) to ensure that an apprentice sponsored by
the sponsor is employed in accordance with all relevant Commonwealth, State and
Territory legislation dealing with the employment and working conditions of the
apprentice;
(j) to ensure that the individual or
organisation operating the workplace in which an apprentice sponsored by
the sponsor is undertaking his or her apprenticeship:
(i) has a satisfactory record of
compliance with the immigration laws of Australia; and
(ii) is lawfully and actively operating
in Australia; and
(iii) has a satisfactory record of, or
a demonstrated commitment towards, training Australian citizens and Australian
permanent residents; and
(iv) has the capacity to provide the
apprenticeship;
(k) to ensure that:
(i) each person sponsored by the
sponsor to be an apprentice signs a New Apprenticeship/training contract; and
(ii) the contract is lodged for
registration in accordance with the relevant State or Territory legislation:
(A) if the Subclass 471 visa
is granted while the applicant is in Australia — within 3 months of the
grant of the Subclass 471 visa; or
(B) if the person arrives in
Australia as the holder of a Subclass 471 visa — within 3 months of the
person’s arrival in Australia; and
(iii) a New Apprenticeship/training
contract approved under the relevant State or Territory legislation remains in
force while the person continues to undertake the apprenticeship;
(l) to notify
Immigration within 10 days if an apprentice sponsored by the sponsor ceases
to be in the employment, or ceases to undertake the apprenticeship, in respect
of which the visa is granted.
Note The undertakings do not have effect
in relation to a person until a visa is granted to the person (see subsection 140H (3)
of the Act).
1.20UP Consequences if approved trade
skills training sponsor or visa holder changes status
For subsection 140Q (1) of the Act, an undertaking
under regulation 1.20UO in relation to the holder of a Subclass 471 (Trade
Skills Training) visa remains enforceable against the sponsor until the time
that the holder ceases to hold the visa.
Note Undertakings made by an approved trade
skills training sponsor in relation to a person do not have effect until a Subclass
471 (Trade Skills Training) visa is granted to the person (see subsection 140H (3)
of the Act).
Subdivision 1.4E.3 Cancelling
or barring approval as approved trade skills training sponsor
1.20UQ Cancelling or barring approval as a
sponsor
(1) For paragraphs
140J (2) (a) and 140K (1) (a) of the Act, the
circumstances in which the Minister may take one or more of the actions
mentioned in section 140L of the Act in relation to cancelling or barring
approval as an approved trade skills training sponsor are:
(a) the Minister is no longer satisfied as to the
matters mentioned in regulation 1.20UL; or
(b) the Minister is satisfied that an approved trade
skills training sponsor has breached an undertaking mentioned in regulation
1.20UO; or
(c) the Minister is no longer satisfied that the
sponsor is able to comply with an undertaking mentioned in regulation 1.20UO;
or
(d) the sponsor has provided false or misleading
information to Immigration:
(i) in the application for approval as
an approved trade skills training sponsor; or
(ii) during processing of the
application; or
(iii) in relation to the sponsor’s
sponsorship of a person to be an apprentice; or
(iv) in the performance of any of the
undertakings mentioned in regulation 1.20UO.
(2) For paragraphs 140J (2) (b) and 140K (1) (b)
of the Act, the criteria to be taken into account by the Minister in
determining what action to take under section 140L are:
(a) the severity of the breach or other conduct;
and
(b) the past conduct of the sponsor; and
(c) the impact (if any) that the taking of the
action may have on the Australian community; and
(d) whether barring the approved trade skills
training sponsor in a way mentioned in section 140L of the Act would be an
inadequate means of dealing with the matter, having regard to considerations
including:
(i) the
seriousness of the inability or failure to comply; and
(ii) the past
conduct of the approved trade skills training sponsor.
1.20UR Waiving a bar
(1) For subsection 140O (1) of the Act, a Subclass
471 (Trade Skills Training) visa is prescribed.
(2) For subsection 140O (2)
of the Act, a circumstance in which the Minister may waive a bar placed on an
approved trade skills training sponsor under section 140J or 140K of the Act is
that the sponsor, or former sponsor, has requested, in writing, that the bar be
waived.
(3) For subsection 140O (3)
of the Act, the criteria to be taken into account by the Minister in determining
whether to waive a bar are:
(a) whether there would be significant social,
economic or political benefits to Australia if the bar were waived; and
(b) whether there
has been a substantial change in the sponsor’s, or former sponsor’s, circumstances
significantly minimising the likelihood of further breaches or unacceptable
conduct in other circumstances; and
(c) whether the benefits to Australia and the
change in the sponsor’s, or former sponsor’s, circumstances outweigh the
severity of the breach of undertakings or other conduct that resulted in the
bar; and
(d) if the Minister has previously refused to
waive the bar — whether the Minister is satisfied that the circumstances
relevant to the criteria mentioned in paragraphs (a), (b) and (c) have changed
substantially since the refusal to waive the bar.
1.20US Giving notice about a bar, waiving a
bar or cancellation
(1) If the Minister takes action mentioned in section
140L or 140O of the Act in relation to an approved trade skills training
sponsor the Minister must give the sponsor or former sponsor notice of the
action in accordance with section 494B of the Act.
Note If the Minister gives a document to a
person by a method specified in section 494B of the Act, the person is
taken to have received the document at the time specified for the method in
section 494C of the Act.
(2) The notice must specify:
(a) which of the circumstances mentioned in
subregulation 1.20UQ (1) apply; and
(b) the specific action to be taken; and
(c) if the action is to bar the approved trade
skills training sponsor — the duration of the bar.
Subdivision 1.4E.4 General
1.20UT Disclosure of personal information
For section 140V of the Act:
(a) personal information that may be disclosed
to an approved trade skills training sponsor, or a former approved trade skills
training sponsor, about the holder or former holder (the person) of
a Subclass 471 (Trade Skills Training) visa who was granted the visa on the
basis of sponsorship by the sponsor is:
(i) details of any breaches of visa
conditions by the person; and
(ii) if the person no longer holds a
valid Subclass 471 (Trade Skills Training) visa and remains in Australia as an
unlawful non‑citizen — that information; and
(iii) details of any non‑compliance
by the person with the immigration laws of Australia; and
(iv) details of any material change in
the person’s circumstances, including details of a change in the person’s
accommodation arrangements; and
(v) details of any matter that affected
the person’s ability to comply with the conditions to which the person’s visa
was subject; and
(vi) information about the person’s
salary or other employment conditions; and
(b) the circumstances in which the Minister may
disclose the personal information are that the disclosure is necessary:
(i) to allow
the sponsor or former sponsor to respond to a claim about conduct that may lead
to action under section 140J or 140K of the Act against the sponsor or former
sponsor; or
(ii) to allow
the sponsor or former sponsor to meet a liability or perform an undertaking relating
to the sponsorship of the person; or
(iii) in
connection with a proceeding for review of a decision mentioned in paragraph
4.02 (4) (ha) of these Regulations; and
(c) the circumstances in which the sponsor or
former sponsor may use or disclose the information are the circumstances set
out in paragraph (b).
Division 1.5 Special provisions relating to domestic violence
1.21 Interpretation
(1) In this Division:
competent person means:
(a) in relation to domestic violence committed
against an adult:
(i) a person registered as a medical
practitioner under a law of a State or Territory providing for the registration
of medical practitioners; or
(ii) a person registered as a
psychologist under a law of a State or Territory providing for the registration
of psychologists; or
(iii) a
person who:
(A) is a registered nurse
within the meaning of section 3 of the Health Insurance Act 1973; and
(B) is performing the duties
of a registered nurse; or
(iv) a person who:
(A) is a member of the
Australian Association of Social Workers or is recognised by that Association
as a person who is eligible to be a member of that Association; and
(B) is performing the duties
of a social worker; or
(v) a person who is a court counsellor
under the Family Law Act 1975; or
(vi) a person holding a position of a
kind described in subregulation (2); or
(b) in relation to domestic violence committed
against a child:
(i) a person referred to in paragraph
(a); or
(ii) an officer of the child welfare or
child protection authorities of a State or Territory.
independent expert
means a person who:
(a) is suitably qualified to make independent
assessments of non‑judicially determined claims of domestic violence; and
(b) is employed by, or contracted to provide services
to, an organisation that is specified, in a Gazette Notice for this definition,
for the purpose of making independent assessments of non‑judicially
determined claims of domestic violence.
non‑judicially determined claim of domestic
violence has the meaning given by subregulation 1.23 (1A).
relevant domestic violence has the meaning
given by paragraph 1.23 (2) (b).
statutory declaration means a statutory
declaration under the Statutory Declarations Act 1959.
violence includes a threat of violence.
(2) The positions referred to in subparagraph (a) (vi)
of the definition of competent person in subregulation (1) are:
(a) manager or coordinator of:
(i) a women’s refuge; or
(ii) a crisis and counselling service
that specialises in domestic violence; or
(b) a position with:
(i) decision‑making
responsibility for:
(A) a women’s refuge; or
(B) a crisis and counselling
service that specialises in domestic violence;
that has a collective decision‑making
structure; and
(ii) responsibility for matters concerning
domestic violence within the operations of that refuge or crisis and
counselling service.
1.22 References
to person having suffered or committed domestic violence
(1) A reference in these Regulations to a person having
suffered domestic violence is a reference to a person being taken, under
regulation 1.23, to have suffered domestic violence.
(2) A reference in these Regulations to a person having
committed domestic violence in relation to a person is a reference to a person
being taken, under regulation 1.23, to have committed domestic violence in
relation to that person.
1.23 When
is a person taken to have suffered or committed domestic violence?
(1) For the purposes of these Regulations:
(a) a person (the alleged victim)
is taken to have suffered domestic violence; and
(b) another person (the alleged perpetrator)
is taken to have committed domestic violence in relation to the alleged victim;
if:
(c) on the application of the alleged victim, a
court has granted an injunction under paragraph 114 (1) (a), (b) or (c) of the Family
Law Act 1975 against the alleged perpetrator; or
(d) a court has made an order under a law of a
State or Territory against the alleged perpetrator for the protection of the
alleged victim from violence and, unless the alleged victim had, before 1
January 1998, claimed to Immigration to have suffered domestic violence
committed by the alleged perpetrator, that order was made after the court had
given the alleged perpetrator an opportunity to be heard, or otherwise to make
submissions to the court, in relation to the matter; or
(e) a court has convicted the alleged
perpetrator of, or has recorded a finding of guilt against the alleged
perpetrator in respect of, an offence of violence against the alleged victim;
or
(f) the Minister
is satisfied, for paragraph (1B) (a), that the alleged victim has
suffered relevant domestic violence; or
(g) the Minister is required by
subregulation (1C) to take as correct an opinion of an independent expert
that the alleged victim has suffered relevant domestic violence.
(1A) For these Regulations, an application for a visa is
taken to include a non‑judicially determined claim of domestic
violence if:
(a) the applicant seeks to satisfy a prescribed
criterion that the applicant, or another person mentioned in the criterion, has
suffered domestic violence; and
(b) either of the following circumstances exists:
(i) the alleged victim and the alleged
perpetrator have made a joint undertaking to a court in relation to proceedings
in which an allegation is before the court that the alleged perpetrator has
committed an act of violence against the alleged victim;
(ii) for an alleged victim who is a
person referred to in subregulation (2) — the alleged victim or another
person on the alleged victim’s behalf has presented evidence in accordance with
regulation 1.24 that:
(A) the alleged victim has
suffered relevant domestic violence; and
(B) the alleged perpetrator
has committed that relevant domestic violence.
(1B) If an application for a visa includes a non‑judicially
determined claim of domestic violence, the Minister must consider whether the
alleged victim has suffered relevant domestic violence (whichever of the
circumstances mentioned in paragraph (1A) (b) exists) and:
(a) if satisfied that the alleged victim has
suffered relevant domestic violence — consider the application on that
basis; or
(b) if not satisfied that the alleged victim has
suffered relevant domestic violence — seek the opinion of an independent
expert about whether the alleged victim has suffered relevant domestic
violence.
(1C) The Minister must take an independent expert’s opinion
on the matter mentioned in paragraph (1B) (b) to be correct for the
purposes of deciding whether the alleged victim satisfies a prescribed criterion
for a visa that requires the applicant for the visa, or another person
mentioned in the criterion, to have suffered domestic violence.
(2) In subparagraph (1A) (b) (ii):
(a) the persons referred to are the following:
(i) a spouse of the alleged
perpetrator;
(ii) a dependent child of:
(A) the alleged perpetrator;
or
(B) the spouse of the
alleged perpetrator; or
(C) both the alleged
perpetrator and his or her spouse; or
(D) a person in an
interdependent relationship with the alleged perpetrator;
(iii) a member of the family unit of a
spouse of the alleged perpetrator (being a member of the family unit who has
made a combined application for a visa with the spouse);
(iv) a person who is in an
interdependent relationship with the alleged perpetrator; and
(b) a reference to relevant domestic violence is
a reference to violence against the alleged victim or his or her property that
causes the alleged victim, or a member of the alleged victim’s family, to fear
for, or to be apprehensive about, the alleged victim’s personal well‑being
or safety.
1.24 Evidence
(1) The evidence referred
to in subparagraph 1.23 (1A) (b) (ii) is:
(a) a statutory declaration under regulation
1.25 (which deals with statutory declarations by or on behalf of alleged victims)
together with:
(i) a statutory declaration under
regulation 1.26 (which deals with statutory declarations by competent persons);
and
(ii) a copy of a record of an assault
on the alleged victim allegedly committed by the alleged perpetrator, being a record
kept by a police service of a State or Territory (other than a statement by the
alleged victim); or
(b) a statutory declaration under regulation
1.25, together with 2 statutory declarations under regulation 1.26.
(2) A person must not submit, for the purposes of an
application that relies on this Division, 2 statutory declarations by competent
persons who both have a qualification specified in:
(a) the same subparagraph of paragraph (a) of
the definition of competent person; or
(b) subparagraph (b) (ii) of that definition.
1.25 Statutory
declaration by alleged victim etc
(1) A statutory declaration under this regulation must
be made by:
(a) the spouse of the alleged perpetrator; or
(b) if the alleged perpetrator is in an
interdependent relationship with a person — that person.
(2) A statutory declaration under this regulation that
is made by a person who alleges that he or she is the victim of relevant
domestic violence (within the meaning of paragraph 1.23 (2) (b)) must:
(a) set out the allegation; and
(b) name the person alleged to have committed the
relevant domestic violence.
(3) A statutory declaration under this regulation that
is made by a person who alleges that another person is the victim of relevant
domestic violence (within the meaning of paragraph 1.23 (2) (b)) must:
(a) name that other person; and
(b) set out the allegation; and
(c) identify the relationship of the maker of
the statutory declaration to that other person; and
(d) name the person alleged to have committed the
relevant domestic violence; and
(e) set out the evidence on which the allegation
is based.
1.26 Statutory
declaration by competent person
A statutory declaration under this regulation:
(a) must be made by a competent person; and
(b) must set out the basis of the competent
person’s claim to be a competent person for the purposes of this Division; and
(c) must state that, in the competent person’s
opinion, relevant domestic violence (within the meaning of paragraph
1.23 (2) (b)) has been suffered by a person; and
(d) must name the person who, in the opinion of
the competent person, has suffered that relevant domestic violence; and
(e) must name the person who, in the opinion of
the competent person, committed that relevant domestic violence; and
(f) must set out the evidence on which the
competent person’s opinion is based.
1.27 Statutory
declaration or statement not admissible in evidence
A statutory declaration made under regulation 1.25
or 1.26, or an opinion of an independent expert mentioned in paragraph 1.23 (1B) (b),
is not admissible in evidence before a court or tribunal otherwise than in:
(a) an application for judicial review or merits
review of a decision to refuse to grant a visa the application for which
included the non‑judicially determined claim of domestic violence to
which the statutory declaration or opinion relates; or
(b) a prosecution of the maker of the statutory
declaration under section 11 of the Statutory Declarations Act 1959.
Division 1.6 Immigration Minister’s suspension certificate under Education
Services for Overseas Students Act 2000
1.30 Prescribed
non‑citizen
For section 101 of
the Education Services for Overseas Students Act 2000, a non‑citizen
who is an applicant for, or the holder of, a student visa is prescribed.
Division 1.8 Special provisions for student visas
1.40 Definitions
(1) In this Division, a passport is an eligible
passport if:
(a) it is a valid passport of a kind specified
by Gazette Notice for the purposes of this subregulation; and
(b) the conditions (if any) specified by Gazette
Notice for passports of that kind are satisfied.
(2) In a provision mentioned in subregulation (4), if an
applicant for a student visa proposes to undertake a course of study that is a
registered course, the course is the principal course.
(3) For subregulation (2), if:
(a) an applicant for a student visa proposes to
undertake two or more courses of study that are registered courses; and
(b) either:
(i) one of the courses of study (course
A) is a prerequisite to another of the courses (course B);
or
(ii) one of the courses of study (course
B) may be taken only after the completion of another of the courses (course
A);
course B, not course A, is the principal course.
(4) Subregulation (2) applies to any of the following
provisions:
(a) a provision
of this Division;
(b) a provision of Part 442, 570, 571, 572, 573,
574 or 575 of Schedule 2;
(c) a provision of Schedule 5A.
1.40A Courses
for education sectors to be specified by Minister
The Minister must specify by Gazette Notice the
types of courses for each subclass of student visa, except Subclass 576 (AusAID
or Defence Sector).
1.41 Assessment
levels to be specified by Minister
(1) The Minister must specify by Gazette Notice an
assessment level for a kind of eligible passport, in relation to each subclass
of student visa, to which an applicant for a student visa who seeks to satisfy
the primary criteria will be subject, other than an applicant who:
(a) is a person designated under regulation
2.07AO; and
(b) applies for:
(i) a Subclass 571 (Schools Sector)
visa; or
(ii) a Subclass 572 (Vocational
Education and Training Sector) visa; or
(iii) a Subclass 573 (Higher Education
Sector) visa; or
(iv) a Subclass 574 (Postgraduate
Research Sector) visa.
(2) In specifying an assessment level, the Minister must
consider the risk posed by applicants who hold a kind of eligible passport in
terms of:
(a) their being genuine students; and
(b) their engaging, while in Australia, in
conduct (including omissions) not contemplated by the visa.
(3) In considering the risk, the Minister must have
regard to:
(a) 1 or more of the following statistics
prepared by the Secretary in relation to the kind of eligible passport:
(i) the number of former holders of
student visas who have become unlawful non‑citizens;
(ii) the number of student visas that
have been cancelled;
(iii) the number of applications for
student visas that have been refused;
(iv) the number of fraudulent documents
detected by Immigration in relation to applications for student visas;
(v) the number of holders of student
visas who have applied for protection visas or for permanent visas other than
Business Skills (Residence) (Class BH), Business Skills — Established
Business (Residence) (Class BH), Business Skills (Residence) (Class DF),
Business Skills — Business Talent (Migrant) (Class EA), Skilled —
Independent Overseas Student (Class DD) and Skilled — Australian‑sponsored
Overseas Student (Class DE) visas; and
(b) any other matters that the Minister considers
relevant.
(4) The assessment level specified for a kind of
eligible passport:
(a) must be a number from 1 to 5, with
assessment level 1 specified for a passport, holders of which pose a very low
risk and assessment level 5 specified for a passport, holders of which pose an
extremely high risk; and
(b) is not required to be the same for each subclass of student visa.
1.42 Assessment
level of applicant
(1) An
applicant for a student visa who seeks to satisfy the primary criteria is
subject to the assessment level specified by the Minister at the time of
application in relation to the relevant subclass of student visa for the
eligible passport that the applicant holds at the time of decision.
(2) Despite subregulation (1), an applicant is subject
to assessment level 2 if:
(a) the application is made in Australia before
31 December 2006; and
(b) the application is made on form 157A or 157A
(Internet); and
(c) the
applicant:
(i) is the holder of a Subclass 560
visa as a person who satisfied the primary criteria in Subdivisions 560.21 and
560.22; or
(ii) is the holder of a Subclass 562
visa; or
(iii) both:
(A) is the holder of a
Subclass 570, 571, 572, 573, 574, 575 or 576 visa (as a person who satisfied
the primary criteria for the subclass) that is subject to condition 8105; and
(B) was, immediately before
being granted the Subclass 570, 571, 572, 573, 574, 575 or 576 visa, the holder
of a Subclass 560 or 562 visa that was subject to condition 8101; and
(d) apart from this subregulation, the applicant
would be subject to assessment level 3, 4 or 5; and
(e) subregulation (3) or (4) applies to the
applicant.
(3) This subregulation applies to an applicant who:
(a) was assessed in relation to an application
for a student visa to undertake a package of courses of study; and
(b) was granted the student visa; and
(c) needs a further student visa to commence 1
or more courses in the package.
(4) This subregulation applies to an applicant who:
(a) has completed at least 50% of the principal
course for which the student visa held was granted; and
(b) needs a further student visa to complete that
course.
(5) Subregulation (6) applies to an applicant if:
(a) the application:
(i) is made on form 157A or 157A
(Internet); and
(ii) is made in Australia on or before
31 March 2002; and
(b) the applicant:
(i) would, but for this subregulation,
be subject to assessment level 3, 4 or 5; and
(ii) has, within the period beginning
on 1 July 2001 and ending on 31 March 2002, successfully completed a course of
study in Australia as the holder of a student visa.
(6) Despite subregulation (1), an applicant to whom this
subregulation applies is subject to assessment level 2 if:
(a) the applicant is the holder of:
(i) a Subclass 560 visa as a person
who satisfied the primary criteria; or
(ii) a Subclass 562 visa; or
(b) the applicant:
(i) is, as a person who satisfied the
primary criteria, the holder of a Subclass 570, 571, 572, 573, 574, 575 or 576
visa, the application for which was made on form 157P; and
(ii) was, immediately before being
granted that visa, the holder of a Subclass 560 or 562 visa; or
(c) the applicant:
(i) is, as a person who satisfied the
primary criteria, the holder of a Subclass 570, 571, 572, 573, 574, 575 or 576
visa, the application for which was made on form 157C; and
(ii) was, immediately before being
granted that visa, the holder of a Subclass 560 or 562 visa; or
(d) the applicant:
(i) is, as a person who satisfied the
primary criteria, the holder of a Subclass 570, 571, 572, 573, 574, 575 or 576
visa, the application for which was made on form 157P; and
(ii) was:
(A) immediately before being
granted that visa, the holder of a Subclass 570, 571, 572, 573, 574, 575 or 576
visa, the application for which was made on form 157C; and
(B) immediately before being
granted the visa mentioned in sub‑subparagraph (A), the holder of a
Subclass 560 or 562 visa; or
(e) the applicant:
(i) is, as a person who satisfied the
primary criteria, the holder of a Subclass 570, 571, 572, 573, 574, 575 or 576
visa, the application for which was made on form 157C; and
(ii) was:
(A) immediately before being
granted that visa, the holder of a Subclass 570, 571, 572, 573, 574, 575 or 576
visa, the application for which was made on form 157P; and
(B) immediately before being
granted the visa mentioned in sub‑subparagraph (A), the holder of a
Subclass 560 or 562 visa.
(7) Subregulations (1) to (6) do not apply to an
applicant who is a person designated under regulation 2.07AO.
1.43 Notification
of assessment level
(1) If, at the time of
decision, the applicant holds 2 or more eligible passports the Minister must:
(a) select the passport that is to be taken as
the applicant’s eligible passport for the purposes of the assessment level to
which the applicant will be subject; and
(b) notify the applicant of the passport selected
and the level of assessment of that passport.
(2) In selecting the passport, the Minister may have
regard to the following:
(a) the foreign country of which the applicant
is a citizen;
(b) the foreign country of which the applicant is
usually a resident;
(c) any other relevant matter.
1.44 Evidence
required
(1) An applicant for a student visa who seeks to satisfy
the primary criteria for a subclass of visa must give evidence about the
applicant’s English language proficiency and financial capacity, and about
other matters, in accordance with the requirements set out in Schedule 5A for
the subclass of visa and assessment level to which the applicant is subject.
(2) For Parts 573 and 574 of
Schedule 2, the Minister may specify by Gazette Notice a course of study that
is not conducted in English as a course:
(a) in relation to
which the applicant need not give evidence of his or her English language
proficiency; and
(b) that is relevant to an application for:
(i) a
Subclass 573 (Higher Education Sector) visa, in circumstances in which the
applicant is enrolled in a masters degree by coursework; or
(ii) a Subclass 574 (Postgraduate
Research Sector) visa.
Part 2 Visas
Division 2.1 Classes, criteria, conditions etc
2.01 Classes
of visas (Act, s 31)
For the purposes of section 31 of the Act, the
prescribed classes of visas are:
(a) such classes (other than those created by
the Act) as are set out in the respective items in Schedule 1; and
(b) the following classes:
(i) transitional (permanent); and
(ii) transitional (temporary).
Note For the classes created by the Act,
see ss. 32 to 38.
2.02 Subclasses
(1) Schedule 2 is divided into Parts, each identified by
the word “Subclass” followed by a 3‑digit number (being the number of the
subclass of visa to which the Part relates) and the title of the subclass.
(2) For the purposes of this Part and Schedules 1 and 2,
a Part of Schedule 2 is relevant to a particular class of visa if the Part of
Schedule 2 is listed under the subitem “Subclasses” in the item in Schedule 1
that refers to that class of visa.
2.03 Criteria
applicable to classes of visas
(1) For the purposes of subsection 31 (3) of the Act
(which deals with criteria for the grant of a visa), the prescribed criteria
for the grant to a person of a visa of a particular class are:
(a) the primary criteria set out in a relevant
Part of Schedule 2; or
(b) if a relevant Part of Schedule 2 sets out
secondary criteria, those secondary criteria.
(2) If a criterion in Schedule 2 refers to a criterion
in Schedule 3, 4 or 5 by number, a criterion so referred to must be satisfied
by an applicant as if it were set out at length in the first‑mentioned
criterion.
(3) If a criterion in Schedule 2 specifies that a person
is to be the holder of, or have held, a visa of a particular class or subclass,
that criterion is taken to be satisfied:
(a) if:
(i) before 1 September 1994, the
person held a visa
or entry permit that was granted under the
Migration (1993) Regulations, the Migration
(1989) Regulations or the Act as in force before 19 December 1989; and
(ii) the criteria that were applicable
to, or the grounds for the grant of, that visa or entry permit are the same in
effect as the criteria applicable to the new visa; and
(iii) the visa or entry permit was
continued in force
as a transitional visa on 1 September 1994 by
the Migration Reform (Transitional Provisions) Regulations; or
(b) if:
(i) before 1 September 1994, the
person applied for a visa or entry permit under the Migration (1993)
Regulations, the Migration (1989) Regulations or the Act as in force before 19
December 1989; and
(ii) the criteria that were applicable
to, or the grounds for the grant of, that visa or entry permit are the same in
effect as the criteria applicable to the new visa; and
(iii) either:
(A) in the case of an
application made before 19 December 1989 — the Minister had not made
a decision on the application; or
(B) in any other case —
the application had not been finally determined;
before 1 September 1994; and
(iv) on or after 1 September 1994 the
person was granted a transitional visa under the Migration Reform (Transitional
Provisions) Regulations on the basis that he or she had satisfied the criteria,
or the grounds, applicable to the visa or entry permit referred to in
subparagraph (i).
2.04 Circumstances
in which a visa may be granted
(Act, s 40)
For the purposes of section 40 of the Act, and
subject to these Regulations, the only circumstances in which a visa of a
particular class may be granted to a person who has satisfied the criteria in a
relevant Part of Schedule 2 are the circumstances set out in that Part of
Schedule 2.
2.05 Conditions
applicable to visas
(1) For the purposes of subsection 41 (1) of the Act
(which deals with conditions that apply to a visa), the conditions to which a
visa is subject are the conditions (if any) set out in, or referred to in, the
Part of Schedule 2 that relates to visas of the subclass in which the visa is
included.
(2) For the purposes of subsection 41 (3) of the Act
(which deals with conditions that may be imposed on a visa), the conditions
that the Minister may impose on a visa are the conditions (if any)
referred to as being conditions that may be imposed in the Part of Schedule 2
that relates to visas of the subclass in which the visa is included.
(3) For the purposes of subsections 29 (2) and (3) of
the Act (which deal with the period during which the holder of a visa may
travel to, enter and remain in Australia), the limits on the period within
which a person may:
(a) remain in Australia; or
(b) travel to, enter, and remain in Australia;
as the case requires, under the authority of a visa of a particular
subclass are specified in the relevant Part of Schedule 2.
(4) For subsection 41 (2A) of the Act, the
circumstances in which the Minister may waive a condition of a kind described
in paragraph 41 (2) (a) of the Act are that:
(a) since the person was granted the visa that
was subject
to the condition, compelling and compassionate circumstances have developed:
(i) over which the person had no
control; and
(ii) that resulted in a major change to
the person’s circumstances; and
(b) if the Minister has previously refused to
waive the condition, the Minister is satisfied that the circumstances mentioned
in paragraph (a) are substantially different from those considered previously;
and
(c) if the person asks the Minister to waive the
condition, the request is in writing.
(4A) However, the Minister must not waive:
(a) in relation to a Subclass 020 Bridging B
visa granted to a person who is an applicant for a Subclass 462 (Work and
Holiday) visa — condition 8540; and
(b) in relation to a Subclass 462 (Work and
Holiday) visa — conditions 8503
and 8540.
(5) For subsection 41 (2A) of the Act, further
circumstances in which the Minister may waive condition 8534 in relation to a
visa are that the holder of the visa:
(a) has, after holding a student visa to which
condition 8534 applies, been granted:
(i) a Subclass 497 (Graduate —
Skilled) visa; or
(ii) a Subclass 010 (Bridging A) visa
or a Subclass 020 (Bridging B) visa associated with the Subclass 497
(Graduate — Skilled) visa application; and
(b) has not, after holding a student visa to
which condition 8534 applies, been granted a protection visa.
(6) For subsection
41 (2A) of the Act, further circumstances in which the Minister may waive
condition 8534 in relation to a visa are that the holder of the visa is a
registered nurse, or satisfies the requirements for registration as a
registered nurse, in Australia.
Note Regulation 2.07AH deals with
applications for visas by persons for whom condition 8534 has been waived under
subregulation 2.05 (6).
2.06 Non‑citizens
who do not require visas to travel to Australia
For the purposes of subsection 42 (3) of the Act
(which deals with the classes of person who may travel to Australia without a
visa that is in effect), the following classes of non‑citizens are
prescribed:
(a) New Zealand citizens who hold and produce
New Zealand passports that are in force;
(b) non‑citizens who hold and produce
passports that are in force and are endorsed with an authority to reside
indefinitely on Norfolk Island.
2.06AA Decision
periods — decisions on protection visas
For paragraph 65A (1) (d) of the Act, and
for paragraph (b) of the definition of decision period in
subsection 91Y (10) of the Act, the table sets out:
(a) prescribed circumstances; and
(b) in the prescribed circumstances — the
day on which the 90 day period, to which paragraph 65A (1) (d) or
paragraph (b) of the definition relates, starts.
Note Under section 65A of the Act, the
Minister must make a decision under section 65 of the Act, in relation to a
protection visa, within a period of 90 days. In circumstances prescribed
by the regulations, the period of 90 days starts on a day prescribed by
the regulations.
Under paragraph (b) of the definition of decision period in
subsection 91Y (10) of the Act, the Secretary must give a report to
the Minister about decisions, in relation to protection visas, not made
within a period of 90 days. In circumstances prescribed by the
regulations, the period of 90 days starts on a day prescribed by the
regulations.
|
Item
|
Prescribed circumstance
|
Day on which the 90 day period starts
|
|
1
|
Both:
(a) an applicant for a
Protection (Class XA) visa is the holder of a Subclass 785 (Temporary
Protection) visa at the time of decision on the application for the
Protection (Class XA) visa; and
(b) the applicant
applied for the Protection (Class XA) visa during a continuous period of 30
months during which the applicant has held:
(i) a Subclass
785 (Temporary Protection) visa; or
(ii) that visa and
another Subclass 785 (Temporary Protection) visa.
|
If the Minister has
specified a shorter period for paragraph 866.228 (b) of
Schedule 2 — the first day after the end of the shorter period.
If the Minister has not
specified a shorter period for paragraph 866.228 (b) of
Schedule 2 — the first day after the day on which the applicant has
held:
(a) the Subclass 785
(Temporary Protection) visa; or
(b) that visa and
another Subclass 785 (Temporary Protection) visa;
for a continuous period of
30 months.
|
2
|
Both:
(a) an applicant for a Protection (Class XA) visa is the
holder of a Subclass 451 (Secondary Movement Relocation (Temporary))
visa at the time of decision on the application for the Protection (Class XA)
visa; and
|
If the Minister has specified a shorter period for
paragraph 866.228A (b) of Schedule 2 — the first day after the
end of the shorter period.
If the Minister has not specified a shorter period for
paragraph 866.228A (b) of Schedule 2 — the first day after the
day on which the applicant has held the Subclass 451 (Secondary Movement
Relocation (Temporary)) visa for a continuous period of 54 months.
|
|
|
(b) the applicant applied for the Protection (Class XA)
visa during a continuous period of 54 months during which the applicant has
held that Subclass 451 (Secondary Movement Relocation (Temporary)) visa.
|
|
|
3
|
Both:
(a) an applicant for a Protection (Class XA) visa, or a
member of the family unit of an applicant for a Protection
(Class XA) visa, has been offered a temporary stay in Australia by the
Australian Government for the purpose of an application for a Temporary
(Humanitarian Concern) (Class UO) visa, as provided for by
regulation 2.07AC; and
(b) the applicant applied for the Protection (Class XA)
visa not later than 30 months after the date on which the offer was
made.
|
If the Minister has specified a shorter period for
paragraph 866.229 (b) of Schedule 2 — the first day after the
end of the shorter period.
If the Minister has not specified a shorter period for
paragraph 866.229 (b) of Schedule 2 — the first day after the
end of the period of 30 months starting on the date on which the offer
was made.
|
Division 2.2 Applications
2.06A Definition
In this Division:
a diplomatic, consular
or migration office maintained by or on behalf of the Commonwealth outside
Australia means a diplomatic office, consular office (other than a
consular office headed by an honorary consul) or migration office maintained by
or on behalf of the Commonwealth outside Australia.
2.07 Application
for visa — general
(1) For the purposes of sections 45 and 46 of the Act
(dealing with application for a visa), if an application is required for a
particular class of visa, the following matters are set out in the relevant
Part of Schedule 1:
(a) the approved form (if any) to be completed
by an applicant;
(b) the visa application charge (if any) payable
in relation to an application;
(c) other matters relating to the application.
(3) An applicant must complete an approved form in
accordance with any directions on it.
(4) An application for a
visa that is made using an approved form is not a valid application if the
applicant does not set out his or her residential address:
(a) in the form; or
(b) in a separate document that accompanies the
application.
2.07A Certain
applications not valid bridging visa applications
An application for a substantive visa made on a
form mentioned in subitem 1301 (1), 1303 (1) or 1305 (1) is not a valid
application for a Bridging A (Class WA), Bridging C (Class WC) or Bridging E
(Class WE) visa in either of the following circumstances:
(a) the applicant was not in Australia when the
application for the substantive visa was made;
(b) the substantive visa is a visa of a kind that
can only be granted if the applicant is outside Australia.
Note Other provisions relating to the
making of applications for bridging visas are regulations 2.10A, 2.10B and
2.20A.
2.07AA Applications
for certain visitor visas
(2) Despite anything in regulation 2.07, for
sections 45 and 46 of the Act, an application for a Temporary Business
Entry (Class UC) visa is taken to have been validly made if:
(a) the applicant is:
(i) the holder of a valid passport
issued by a designated APEC economy; or
(ii) in the case of an applicant who is
a permanent resident of Hong Kong — the holder of any valid passport; and
(b) the applicant:
(i) has applied to the Government of
the designated APEC economy for an APEC Business Travel Card under arrangements
in force between Australia and designated APEC economies; or
(ii) in the case of an applicant who is
a permanent resident of Hong Kong — has applied to the Government of Hong
Kong for an APEC Business Travel Card under arrangements in force between
Australia and designated APEC economies; and
(c) that Government has sent to an office of
Immigration that is approved in writing by the Minister as an office to which
an application for a Temporary Business Entry (Class UC) visa may be made:
(i) that application, or a copy of
that application,
by written communication (including facsimile message); or
(ii) the information contained in that
application by electronic transmission using a computer; or
(iii) that application, or a copy of
that application, in any other manner approved in writing by the Minister.
(3) If:
(a) an applicant for a Temporary Business Entry
(Class UC) visa is described in paragraphs (2) (a) and (b); and
(b) the Government of the designated APEC economy
or the Government of Hong Kong has sent the material required under paragraph
(2) (c) to an office of Immigration that is approved in writing by the
Minister as an office to which an application for a Temporary Business Entry
(Class UC) visa may be made;
the application for the visa is taken to have been made at that
office of Immigration.
2.07AB Applications
for Electronic Travel Authority visas
(1) For the purposes of sections 45 and 46 of the Act,
an application for an Electronic Travel Authority (Class UD) visa that is made
in Australia (except in immigration clearance), or outside Australia, is taken
to have been validly made if the applicant, when seeking the grant of the visa,
whether:
(a) in person; or
(b) by telephone; or
(c) by written communication (including
facsimile message); or
(d) by electronic transmission using a computer;
or
(e) in any other manner approved in writing by
the Minister;
provides his or her passport details to:
(f) a diplomatic, consular or migration office
maintained by or on behalf of the Commonwealth outside Australia; or
(g) an office of an agent mentioned in paragraph
(3) (b).
(2) For the purposes of sections 45 and 46 of the Act,
an application for an Electronic Travel Authority (Class UD) visa that is made
by the applicant, in person, while in immigration clearance, is taken to have
been validly made if:
(a) the applicant presents to an officer an ETA‑eligible
passport;
(b) the passport is not endorsed with an
authority to reside indefinitely on Norfolk Island; and
(c) after reasonable enquiries, the officer does
not find that the applicant is the holder of a visa that is in effect; and
(d) the applicant asks an officer for an
Electronic Travel Authority (Class UD) visa.
(3) If a person makes an application for an Electronic
Travel Authority (Class UD) to:
(a) a diplomatic, consular or migration office
maintained by or on behalf of the Commonwealth outside Australia; or
(b) an office of an agent who is approved in
writing by the Minister as an agent with whom an application for an Electronic
Travel Authority (Class UD) visa may be made;
by telephone, in writing (including by fax), by electronic
transmission using a computer or in any other manner approved in writing by the
Minister for this subregulation, the person is taken to have made the
application at that office.
2.07AC Applications
for Temporary Safe Haven and Temporary (Humanitarian Concern) visas
(1) For subsection 46 (2) of the Act, each of the
following classes of visa is a prescribed class of visa:
(a) the Temporary Safe Haven (Class UJ) visa
class;
(b) the Temporary (Humanitarian Concern) (Class
UO) visa class.
(2) An application for a visa of a class mentioned in
subregulation (1) is taken to have been validly made by a person (the interviewee)
if:
(a) the interviewee indicates to an authorised
officer that he or she accepts the Australian Government’s offer of a temporary
stay in Australia; and
(b) the authorised officer endorses, in writing,
the interviewee’s acceptance of the offer.
(3) An application for a visa of a class mentioned in
subregulation (1) is also taken to have been validly made by a person if an
interviewee identifies the person as being a member of his or her family unit.
2.07AE Applications
for Designated Parent visas
For section 45 and subsection 46 (1) of the
Act, and in addition to regulation 2.07, an application for a Designated Parent
(Migrant) (Class BY) or Designated Parent (Residence) (Class BZ) visa is
validly made if the applicant:
(a) is invited in writing by the Minister to
apply for the visa; and
(b) indicates in writing to Immigration that he
or she accepts that invitation.
2.07AF Certain applications for Student (Temporary)
(Class TU) visas
(1) Despite anything in regulation 2.07, an application
for a student visa that, under paragraph 1222 (1) (a), may be made on form 157E
may be made on behalf of an applicant.
(2) An application that is made on form 157E is taken to
have been made outside Australia.
(3) An application made on form 157A, 157A (Internet),
157E or 157G by a person who seeks to satisfy the primary criteria (the primary
applicant) must include:
(a) the name, date of birth and citizenship of each
person who is a member of the family unit of the applicant at the time of the
application; and
(b) the relationship between the person and the
applicant.
(4) If a person becomes a member of the family unit of
the primary applicant after the time of application and before the time of
decision, the primary applicant must inform the Minister, in writing, of:
(a) the name, date of birth and citizenship of
the person and
(b) the relationship between the person and the
primary applicant.
(5) Subregulations (3) and (4) apply:
(a) whether or not the member of the family unit
is an applicant for a Student (Temporary) (Class TU) visa; and
(b) if the member of the family unit is not an
applicant for a Student (Temporary) (Class TU) visa — whether or not the
member of the family unit intends to become an applicant for a Student
(Temporary) (Class TU) visa.
Note member of the family unit of
an applicant for a Student (Temporary) (Class TU)
visa is defined in subregulation 1.12 (2).
(6) An application made under paragraph
1222 (3) (aa) of Schedule 1 is taken to have been made outside
Australia.
2.07AG Applications
for certain substantive visas by persons for whom condition 8534 has been
waived under subregulation 2.05 (5)
(1) For section 46 of the Act, an application for a
substantive visa by a person mentioned in subregulation (2) is a valid
application only if the application is for a Class
DD, Class DE or Class UX visa.
(2) The person:
(a) holds:
(i) a Subclass 497 (Graduate —
Skilled) visa; or
(ii) a Subclass 010 (Bridging A) visa
or a Subclass 020 (Bridging B) visa associated with the Subclass 497
(Graduate — Skilled) visa application; and
(b) is a person for whom condition 8534 has been
waived under subregulation 2.05 (5).
2.07AH Applications
for certain substantive visas by persons for whom condition 8534 has been
waived under subregulation 2.05 (6)
For section 46 of the Act, if:
(a) condition 8534 has been waived under
subregulation 2.05 (6) in relation to a visa held by a person; and
(b) the first application for a substantive visa
that the person makes after the waiver of the condition is made in Australia;
the application is taken to have been validly made only if it is an
application for a Subclass 457 (Business (Long Stay)) visa.
2.07AI Applications for certain substantive visas by persons
holding Subclass 173 or 884 visas
(1) For section 46 of the
Act, an application for a substantive visa by a person who has, at any time
since last entering Australia, held a Subclass 173 (Contributory Parent
(Temporary)) visa is a valid application only if the application is for:
(a) a Contributory
Parent (Migrant) (Class CA) visa; or
(b) a Medical Treatment (Visitor) (Class UB)
visa; or
(c) a protection visa.
(2) For section 46 of the
Act, an application for a substantive visa by a person who has, at any time
since last entering Australia, held a Subclass 884 (Contributory Aged Parent
(Temporary)) visa is a valid application only if the application is for:
(a) a Contributory
Aged Parent (Residence) (Class DG) visa; or
(b) a Medical Treatment (Visitor) (Class UB)
visa; or
(c) a protection visa.
2.07AJ Applications
for Witness Protection (Trafficking) (Temporary) (Class UM) visas
(1) For subsection 46 (2) of the Act, a Witness Protection
(Trafficking) (Temporary) (Class UM) visa is a prescribed class of visa.
Note Section 46 of the Act sets out the
circumstances in which an application for a visa is valid. Under subsection
46 (2) of the Act, an application for a visa is valid if:
· it is an
application for a class of visa that is prescribed for that subsection; and
· under the
regulations, the application is taken to have been validly made.
(2) An application for a visa of a class mentioned in
subregulation (1) is taken to have been validly made by a person only if
the requirements of subregulation (3) or (4) are met.
(3) The requirements of this subregulation are met for a
person if:
(a) the person is in Australia; and
(b) the person holds a criminal justice stay
visa; and
(c) the Attorney‑General has issued a
certificate in relation to the person to the effect that:
(i) the person made a significant
contribution to,
and cooperated closely with, the prosecution of a person who was alleged to
have trafficked a person or who was alleged to have forced a person into
exploitative conditions (whether or not the person was convicted); or
(ii) the person made a significant
contribution to, and cooperated closely with, an investigation in relation to
which the Director of Public Prosecutions has decided not to prosecute a person
who was alleged to have trafficked a person or who was alleged to have forced a
person into exploitative conditions; and
(d) the Attorney‑General’s certificate is
in force; and
(e) the person is not the subject of a
prosecution for an offence that is directly connected to the prosecution
mentioned in the Attorney‑General’s certificate; and
(f) the Minister is satisfied that the person
would be in danger if he or she returned to his or her home country; and
(g) an offer of temporary stay in Australia is
made to the person by an authorised officer; and
(h) the person indicates, in writing, to an
officer that he or she accepts the Australian Government’s offer
of a temporary stay in Australia.
Note A criminal justice stay visa is a
kind of criminal justice visa — see section 38 and Division 4 of Part 2 of
the Act.
(4) The requirements of this subregulation are met for
a person (the first person) if:
(a) a person (the second person) is
taken to have validly made an application for a visa of a class mentioned in
subregulation (1) in accordance with subregulation (3); and
(b) the second person identifies the first person
as being a member of the immediate family of the second person in the second
person’s written acceptance under paragraph (3) (h); and
(c) the first person is in Australia.
2.07AK Applications
for Witness Protection (Trafficking) (Permanent) (Class DH) visas
(1) For subsection 46 (2) of the Act, a Witness
Protection (Trafficking) (Permanent) (Class DH) visa is a prescribed class of
visa.
Note Section 46 of the Act sets out the
circumstances in which an application for a visa is valid. Under subsection
46 (2) of the Act, an application for a visa is valid if:
· it is an
application for a class of visa that is prescribed for that subsection; and
· under the
regulations, the application is taken to have been validly made.
(2) An application for a visa of a class mentioned in
subregulation (1) is taken to have been validly made by a person only if the
requirements of subregulation (3) or (4) are met.
(3) The requirements of this subregulation are met for a
person if:
(a) the person is in Australia; and
(b) the person holds a Witness Protection
(Trafficking) (Temporary) (Class UM) visa; and
(c) the Attorney‑General has issued a
certificate in relation to the person to the effect that:
(i) the person made a significant
contribution to,
and cooperated closely with, the prosecution of a person who was alleged to
have trafficked a person or who was alleged to have forced a person into
exploitative conditions (whether or not the person was convicted); or
(ii) the person made a significant
contribution to, and cooperated closely with, an investigation in relation to
which the Director of Public Prosecutions has decided not to prosecute a person
who was alleged to have trafficked a person or who was alleged to have forced a
person into exploitative conditions; and
(d) the Attorney‑General’s certificate is
in force; and
(e) the person is not the subject of a
prosecution for an offence that is directly connected to the prosecution
mentioned in the Attorney‑General’s certificate; and
(f) the Minister is satisfied that the person
would be in danger if he or she returned to his or her home country; and
(g) an offer of stay in Australia is made to the
person by an authorised officer; and
(h) the person indicates, in writing, to an
officer that he or she accepts the Australian Government’s offer
of a stay in Australia.
(4) The requirements of this subregulation are met for
a person (the first person) if:
(a) a person (the second person) is
taken to have validly made an application for a visa of a class mentioned in
subregulation (1) in accordance with subregulation (3); and
(b) the second person identifies the first person
as being a member of the immediate family of the second person in the second
person’s written acceptance under paragraph (3) (h); and
(c) the first person holds a Witness Protection
(Trafficking) (Temporary) (Class UM) visa; and
(d) the first person is in Australia.
2.07AL Applications
for certain visas by contributory parent newborn children
(1) For section 46 of the Act, an application by a
contributory parent newborn child for a Subclass 173 (Contributory Parent
(Temporary)) visa is a valid application only if the parent holds or held:
(a) a Subclass 173
(Contributory Parent (Temporary)) visa; or
(b) a bridging visa, and the last substantive
visa held by
that parent was a Subclass 173 (Contributory Parent (Temporary)) visa.
(2) For section 46 of the Act, an application by a
contributory parent newborn child for a Subclass 884 (Contributory Aged Parent
(Temporary)) visa is a valid application only if the parent holds or held:
(a) a Subclass 884
(Contributory Aged Parent (Temporary)) visa; or
(b) a bridging visa, and the last substantive
visa held by that parent was a Subclass 884 (Contributory Aged Parent
(Temporary)) visa.
2.07AM Applications
for Refugee and Humanitarian (Class XB) visas
An application made under paragraph 1402 (3) (a) of
Schedule 1 is taken to have been made outside Australia.
2.07AN Applications
for Return Pending (Temporary) (Class VA) visas
(1) For subsection 46 (2) of the Act, a Return Pending
(Temporary) (Class VA) visa is prescribed.
Note Section 46 of the Act sets out the
circumstances in which an application for a visa is valid. Under subsection
46 (2) of the Act, an application for a visa is valid if:
(a) it is an application for a class of visa that is
prescribed for that subsection; and
(b) under the regulations, the application is taken to have
been validly made.
(2) For subsection 46 (2) of the Act, and despite
anything in regulation 2.07 or any other regulation (other than regulation
2.08), an application for a Return Pending (Temporary) (Class VA) visa is taken
to have been validly made by a person only if:
(a) the person holds, or has held at any time:
(i) a Subclass 447 (Secondary Movement
Offshore Entry (Temporary)) visa; or
(ii) a Subclass 451 (Secondary Movement
Relocation (Temporary)) visa; or
(iii) a Subclass 785 (Temporary
Protection) visa; and
(b) if the person holds a visa — the only
substantive visa that the person holds is a visa mentioned in paragraph (a);
and
(c) the visa mentioned in paragraph (a) has not
been cancelled; and
(d) the person has not left Australia:
(i) since first holding a visa
mentioned in subparagraph (2) (a) (iii); or
(ii) since first entering Australia as
the holder of a visa mentioned in subparagraphs (2) (a) (i) or (ii);
and
(e) the person does not have a substantial
criminal record (within the meaning of subsection 501 (7) of the Act); and
(f) since being granted the visa mentioned in
paragraph (a), the person has applied for a Protection (Class XA) visa; and
(g) the Minister has refused to grant the
Protection (Class XA) visa on grounds other than the grounds set out in
section 501 of the Act; and
(h) the person is in Australia on the day on
which the Minister refuses to grant the Protection (Class XA) visa; and
(i) the person:
(i) has not been refused a visa; and
(ii) has not had a visa cancelled;
on grounds relying on 1 or more of Articles
1F, 32 or 33 (2) of the Refugees Convention.
(3) Subregulation (2)
applies whether or not the visa mentioned in paragraph (2) (a) is, or was,
subject to a condition mentioned in paragraph 41 (2) (a) of the Act relating to
the making of applications for other visas.
(4) The application for the Return Pending (Temporary)
(Class VA) visa is taken to have been made on the later of:
(a) the day on which this regulation commences;
and
(b) the day on which the Minister refuses to
grant the Protection (Class XA) visa mentioned in paragraph (2) (f).
2.07AO Applications
for certain substantive visas by specified persons
(1) For subsection
46 (2) of the Act, an application by a person mentioned in subregulation
(2) for a visa of a kind mentioned in subregulation (3) is a valid application.
Note Further provisions about
applications and criteria for the visas are set out in Division 2.2AA.
(2) The person is a person:
(a) who, on the day on which this regulation
commences, is in Australia and holds, or has held:
(i) a Subclass 447 (Secondary Movement
Offshore Entry (Temporary)) visa; or
(ii) a Subclass 451 (Secondary Movement
Relocation (Temporary)) visa; or
(iii) a Subclass 785 (Temporary
Protection) visa; and
(b) whose visa mentioned in paragraph (a) has not
been cancelled; and
(c) who has not left Australia between first
holding the visa mentioned in paragraph (a) and the time of first applying for
a visa mentioned in subregulation (3); and
(d) to whom the Minister has not refused to grant
a Protection (Class XA) visa on the grounds set out in section 501 of the Act;
and
(e) who, at the time of first making an
application for a visa of a kind mentioned in subregulation (3), holds:
(i) a Subclass 447 (Secondary Movement
Offshore Entry (Temporary)) visa; or
(ii) a Subclass 451 (Secondary Movement
Relocation (Temporary)) visa; or
(iii) a Subclass 785 (Temporary
Protection) visa; or
(iv) a Return Pending (Temporary) (Class
VA) visa; and
(f) who:
(i) has not been refused a visa; and
(ii) has not had a visa cancelled;
on grounds relying on 1 or more of Articles
1F, 32 or 33 (2) of the Refugees Convention.
(3) The visas are:
(a) a Subclass 415 (Foreign Government Agency)
visa; and
(b) a Subclass 418 (Educational) visa; and
(c) a Subclass 419 (Visiting Academic) visa; and
(d) a Subclass 420 (Entertainment) visa; and
(e) a Subclass 421 (Sport) visa; and
(f) a Subclass 422 (Medical Practitioner) visa;
and
(g) a Subclass 423 (Media and Film Staff) visa;
and
(i) a Subclass 427 (Domestic Worker
(Temporary) — Executive) visa; and
(j) a Subclass 428 (Religious Worker) visa; and
(k) a Subclass 442 (Occupational Trainee) visa;
and
(l) a Subclass 445 (Dependent Child) visa; and
(m) a Subclass 457 (Business (Long Stay)) visa;
and
(ma) a Subclass 471 (Trade Skills Training) visa;
and
(n) a Subclass 571 (Schools Sector) visa; and
(o) a Subclass 572 (Vocational Education and
Training Sector) visa; and
(p) a Subclass 573 (Higher Education Sector)
visa; and
(q) a Subclass 574 (Postgraduate Research Sector)
visa; and
(r) a Subclass 580 (Student Guardian) visa; and
(ra) a Subclass 676 (Tourist) visa; and
(s) a Subclass 685 (Medical Treatment (Long Stay))
visa; and
(t) a Subclass 686 (Tourist (Long Stay)) visa;
and
(u) a Subclass 801 (Spouse) visa; and
(v) a Subclass 802 (Child) visa; and
(w) a Subclass 804 (Aged Parent) visa; and
(x) a Subclass 814 (Interdependency) visa; and
(y) a Subclass 820 (Spouse) visa; and
(z) a Subclass 826 (Interdependency) visa; and
(za) a Subclass 837 (Orphan Relative) visa; and
(zb) a Subclass 838 (Aged Dependant Relative)
visa; and
(zc) a Subclass 855 (Labour Agreement) visa; and
(zd) a Subclass 856
(Employer Nomination Scheme) visa; and
(ze) a Subclass 857 (Regional Sponsored Migration
Scheme) visa; and
(zf) a Subclass 858 (Distinguished Talent) visa;
and
(zg) a Subclass 864 (Contributory Aged Parent)
visa; and
(zh) a Subclass 884 (Contributory Aged Parent (Temporary))
visa; and
(zi) a Subclass 890 (Business Owner) visa; and
(zj) a Subclass 892 (State/Territory Sponsored
Business Owner) visa.
2.08 Application
by newborn child
(1) If:
(a) a non‑citizen applies for a visa; and
(b) after the
application is made, but before it is decided, a child, other than a
contributory parent newborn child, is born to the non‑citizen;
then:
(c) the child is taken to have applied for a
visa of the same class at the time he or she was born; and
(d) the child’s application is taken to be
combined with the non‑citizen’s application.
(2) Despite any provision in Schedule 2, a child
referred to in subregulation (1):
(a) must satisfy the criteria to be satisfied at
the time of decision; and
(b) at the time of decision must satisfy a
criterion (if any) applicable at the time of application that an applicant must
be sponsored, nominated or proposed.
Note Regulations 2.07AL and 2.08AA apply in
relation to an application by a contributory parent newborn child.
2.08AA Application
by contributory parent newborn child
(1) Despite any provision
in Schedule 2, a contributory parent newborn child who applies for a
Contributory Parent (Temporary) (Class UT) visa or a Contributory Aged Parent
(Temporary) (Class UU) visa:
(a) does not have to
satisfy the secondary criteria in Schedule 2 that would, but for this
subregulation, need to be satisfied at the time of application; and
(b) must satisfy the applicable secondary
criteria to be satisfied at the time of decision.
(2) Despite any provision in Schedule 1, a contributory
parent newborn child:
(a) who is the holder
of a Subclass 173 (Contributory Parent (Temporary)) visa or a Subclass 884
(Contributory Aged Parent (Temporary)) visa; and
(b) whose parent has applied for a Contributory
Parent (Migrant) (Class CA) visa or a Contributory Aged Parent (Residence)
(Class DG) visa, and either:
(i) that
application has not been finally determined; or
(ii) the parent has been granted the
permanent visa;
is taken to have made a combined application
for the permanent visa, mentioned in paragraph (b), with the parent.
(3) For subregulation
(2), the contributory parent newborn child is taken to have made the
application:
(a) if the child was
in Australia when the temporary visa was granted — on the grant of the
temporary visa to the child; or
(b) if the child was outside Australia when the
temporary visa was granted — immediately after the child is immigration
cleared.
2.08AB Application
for visa — prescribed circumstances
For paragraph 46 (2A) (a) of the Act, the
circumstance is that the application is for a visa that is not:
(a) a bridging visa; or
(b) a Witness Protection (Trafficking)
(Permanent) (Class DH) visa; or
(c) a Witness Protection (Trafficking)
(Temporary) (Class UM) visa.
Note Section 46 of the Act sets out the
conditions for a valid visa application. Subsection 46 (2A) provides that a
visa application is invalid in prescribed circumstances, if the other
conditions mentioned in that subsection also apply.
2.08AC Application
for visa — personal identifiers
For subsection 46 (2C) of the Act:
(a) the circumstance is that the application is
for a visa that is not:
(i) a bridging visa; or
(ii) a Witness Protection (Trafficking)
(Permanent) (Class DH) visa; or
(iii) a Witness Protection
(Trafficking) (Temporary) (Class UM) visa; and
(b) a personal identifier is one of the
following types:
(i) a photograph or other image of the
applicant’s face and shoulders;
(ii) the applicant’s signature.
Note Section 46 of the Act sets out the
conditions for a valid visa application. Subsection 46 (2C) provides that, in
prescribed circumstances, prescribed types of personal identifiers may be
provided by an applicant otherwise than by way of an identification test
carried out by an authorised officer (in accordance with subsection 46 (2B)),
if the applicant complies with any requirements that are prescribed relating to
the provision of the personal identifier.
2.08A Addition
of spouses and dependent children to certain applications for permanent visas
(1) If:
(a) a person (in this regulation called the
original applicant) applies for a permanent visa of a class for which
Schedule 1 permits combined applications; and
(b) after the application is made, but before it
is decided, the Minister receives, in writing in accordance with Division 2.3,
a request from the original applicant to have the spouse, or a dependent child,
of the original applicant (in this regulation called the additional
applicant) added to the original applicant’s application; and
(c) the request includes a statement that the
original applicant claims that the additional applicant is the spouse or
dependent child, as the case requires, of the original applicant; and
(d) at the time when the Minister receives the
request, the additional applicant satisfies the provisions of Schedule 1 that
relate to the whereabouts of an applicant at the time of application and apply
to a visa of the same class;
then:
(e) the additional applicant is taken to have
applied for a visa of the same class; and
(f) the application of the additional applicant:
(i) is taken to have been made at the
time when the Minister receives the request; and
(ii) is taken to be combined with the
application of the original applicant; and
(iii) is taken to have been made at the
same place as, and on the same form as, the application of the original
applicant.
(2) Despite any provision in Schedule 2, the additional
applicant:
(a) must be, at the time when the application is
taken to be made under subparagraph (1) (f) (i), a person who satisfies the
applicable secondary criteria to be satisfied at the time of application; and
(b) must satisfy the applicable secondary
criteria to be satisfied at the time of decision.
(2A) Subregulations (1) and (2) do not apply to an
applicant for:
(a) subject to subregulation (3) — a
Resolution of Status (Residence) (Class BL) visa; or
(b) a Skilled — Independent Overseas Student
(Residence) (Class DD) visa; or
(c) a Skilled — Australian‑sponsored
Overseas Student (Residence) (Class DE) visa; or
(d) a Contributory Parent (Migrant) (Class CA)
visa, being an applicant who holds a Subclass 173 (Contributory Parent
(Temporary)) visa at the time of the application; or
(e) a Contributory Aged Parent (Residence)
(Class DG)
visa, being an applicant who holds a Subclass 884 (Contributory Aged Parent
(Temporary)) visa at the time of the application.
Note Regulations 2.07AL and 2.08AA apply in
relation to an application by a contributory parent newborn child.
(3) Subregulations (1) and (2) apply to an applicant for
a Resolution of Status (Residence) (Class BL) visa, so as to allow the
applicant to make a request to have a dependent child of the applicant added to
the application, only if the Minister is satisfied that compelling and
compassionate circumstances exist for the dependent child to be added to the
applicant’s application.
2.08B Addition
of dependent children to certain applications for temporary visas
(1) If:
(a) a person (the original applicant)
applies for:
(i) an Extended Eligibility
(Temporary) (Class TK) visa; or
(ii) an Interdependency (Provisional)
(Class UG) visa; or
(iii) a Prospective Marriage
(Temporary) (Class TO) visa; or
(iv) a Resolution of Status (Temporary)
(Class UH) visa; or
(v) a Spouse (Provisional) (Class UF)
visa; or
(vi) a Partner (Provisional) (Class UF)
visa; or
(vii) a Partner (Temporary) (Class UK) visa;
or
(viii) a Business Skills (Provisional)
(Class UR) visa; or
(ix) a Skilled —
Independent Regional (Provisional) (Class UX) visa; and
(b) the Minister
receives, in writing in accordance with Division 2.3, a request from the
original applicant to have a dependent child of the original applicant (the dependent
child) added to the original applicant’s application; and
(ba) the request is received:
(i) for a request in relation to an
application other
than an application for a Resolution of Status (Temporary) (Class UH)
visa — after the application is made but before it is decided; or
(ii) for a request in relation to an
application for a Resolution of Status (Temporary) (Class UH) visa:
(A) after the application
is made but before it is decided; or
(B) after a decision to
grant the visa is made; and
(c) the request includes a statement that the
original applicant claims that the dependent child is the dependent child of
the original applicant; and
(d) at the time when the Minister receives the
request, the dependent child satisfies the provisions of Schedule 1 that relate
to the whereabouts of an applicant at the time of application and apply to a
visa of the same class; and
(da) where the visa applied for by the original
applicant is a Resolution of Status (Temporary) (Class UH) visa, the Minister
is satisfied that compelling and compassionate circumstances exist for the dependent
child to be added to the applicant’s application;
then:
(e) the dependent child is taken to have applied
for a visa of the same class; and
(f) the
application of the dependent child:
(i) is taken to have been made at the
time when the Minister receives the request; and
(ii) is taken to be combined with the
application of the original applicant; and
(iii) is taken to have been made at the
same place as, and on the same form as, the application of the original
applicant.
(2) Despite any provision in Schedule 2, the dependent
child:
(a) must be, at the time when the application is
taken to be made under subparagraph (1) (f) (i), a person who satisfies the
applicable secondary criteria to be satisfied at the time of application; and
(b) must satisfy the applicable secondary
criteria to be satisfied at the time of decision.
2.08BA Certain
holders of Subclass 450 visas taken to have applied for Resolution of Status
(Residence) (Class BL) visas
Despite any provision in Schedule 1, a
person who is the holder of a Subclass 450 (Resolution of Status — Family
Member (Temporary)) visa is taken to have made a valid application
for a Resolution of Status (Residence) (Class BL) visa immediately after the
person is immigration cleared in relation to the person’s first entry into
Australia as the holder of a Subclass 450 visa.
2.08C Certain
applicants taken to have applied also for Employer Nomination (Migrant) (Class
AN) visas and Labour Agreement (Migrant) (Class AU) visas
(1) This regulation applies to a person (the applicant):
(a) who has applied for:
(i) an Independent (Migrant) (Class
AT) visa; or
(ii) a Skilled — Independent
(Migrant) (Class BN) visa; or
(iii) a Skilled — Australian‑sponsored
(Migrant) (Class BQ) visa; or
(iv) a Skill Matching (Migrant) (Class
BR) visa; and
(b) for whom the requirements mentioned in
subregulation (2) are met.
(2) The requirements are that:
(a) the applicant was less than 45 years old at
the time of the application for the Class AT, BN, BQ or BR visa; and
(b) a decision to grant, or refuse to grant, to
the applicant a Subclass 126 (Independent), Subclass 134 (Skill Matching),
Subclass 136 (Skilled — Independent) or Subclass 138 (Skilled —
Australian‑sponsored) visa has not been made; and
(c) for an applicant for a Class AT or BN
visa — the applicant:
(i) has been assessed in relation to a
Subclass 126 (Independent) or Subclass 136 (Skilled — Independent) visa
under Subdivision B of Division 3 of Part 2 of the Act; and
(ii) was given an assessed score that was
at least the applicable pool mark at the time the score was assessed; and
(d) the applicant:
(i) for a Class AT visa:
(A) has functional English;
and
(B) has a diploma (within
the meaning
of subregulation 2.26 (5)) or higher qualification; and
(ii) for a Class BN visa:
(A) has vocational English;
and
(B) has a diploma (within
the meaning
of subregulation 2.26A (6)) or higher qualification; and
(iii) for a Class BQ visa:
(A) has vocational English;
and
(B) has a diploma (within
the meaning of subregulation 2.26A (6)) or higher qualification; and
(iv) for a Class BR visa:
(A) has functional English;
and
(B) has a diploma (within
the meaning
of subregulation 2.26A (6)) or higher qualification.
(3) Subregulation (4)
applies to an applicant who has been nominated by an employer for an
appointment in the business of the employer, if the appointment is an approved
appointment in accordance with subregulation 5.19 (2) or (4).
(4) The applicant is taken also to have applied for an
Employer Nomination (Migrant) (Class AN) visa on the day when Immigration
receives the employer nomination.
(5) If subregulation (4) applies to an applicant for a
Class AT, BN, BQ or BR visa:
(a) the applicant’s application for an Employer
Nomination (Migrant) (Class AN) visa is taken to have been made outside
Australia; and
(b) any other person included in the applicant’s
application for a Class AT, BN, BQ or BR visa is taken also to be included in
the applicant’s application for an Employer Nomination (Migrant) (Class AN)
visa.
(6) Subregulation (7) applies
to an applicant who seeks to enter Australia in accordance with a labour
agreement, an RHQ agreement or an IASS agreement, if Immigration has received
evidence of the applicant’s appointment by an employer authorised under the
labour agreement, RHQ agreement or IASS agreement to recruit persons.
(7) The applicant is taken also to have applied for a
Labour Agreement (Migrant) (Class AU) visa on the day when Immigration receives
the evidence mentioned in subregulation (6).
(8) If subregulation (7) applies to an applicant for a
Class AT, BN, BQ or BR visa:
(a) the applicant’s application for an Labour
Agreement (Migrant) (Class AU) visa is taken to have been made outside
Australia; and
(b) any other person included in the applicant’s
application for a Class AT, BN, BQ or BR visa is taken also to be included in
the applicant’s application for an Labour Agreement (Migrant) (Class AU) visa.
2.08CA Certain
applicants for Skilled — New Zealand Citizen (Residence) (Class DB) visas
taken to have applied also for Employer Nomination (Residence) (Class BW) visas
(1) An applicant for a
Skilled — New Zealand Citizen (Residence) (Class DB) visa, who has been
nominated by an employer in respect of an appointment in the business of that
employer but is not sponsored by a person, is taken also to have applied for an
Employer Nomination (Residence) (Class BW) visa on the day when Immigration
receives the employer nomination, if each of the following requirements is
satisfied as at that date:
(a) the applicant was less than 45 years of age
at the time of the application for the Class DB visa;
(b) a decision to grant, or refuse to grant, to
the applicant a Subclass 861 (Skilled — Onshore Independent New Zealand
Citizen) visa has not been made;
(c) the
applicant:
(i) has been assessed in relation to a
Subclass 861 visa under Subdivision B of Division 3 of Part 2 of the Act; and
(ii) was given an assessed score that
is more than or equal to the applicable pool mark at the time when the score
was assessed;
(d) the appointment for which the applicant has
been nominated is an approved appointment for regulation 5.19 on the basis that
the nomination meets the requirements of subregulation (4) of that regulation;
(e) the applicant:
(i) has vocational English; and
(ii) has a diploma (within the meaning
of subregulation 2.26A (6)) or a higher qualification.
(2) If subregulation (1) applies to an applicant for a
Class DB visa, any other person included in the applicant’s application is
taken also to be included in the applicant’s application for an Employer
Nomination (Residence) (Class BW) visa.
2.08CB Certain
applicants taken to have applied also for Employer Nomination (Residence)
(Class BW) visas
(1) This regulation applies to a person (the applicant)
who:
(a) either:
(i) has applied for a Skilled —
Independent Overseas Student (Residence) (Class DD) visa; or
(ii) both:
(A) has applied for a
Skilled — Australian‑sponsored Overseas Student (Residence) (Class
DE) visa; and
(B) seeks to satisfy the
primary criteria for the grant of a Subclass 881 (Skilled — Australian‑sponsored
Overseas Student) visa; and
(b) has been nominated by an employer in respect
of an appointment in the business of that employer that is an approved
appointment for regulation 5.19 on the basis that the nomination meets the
requirements of subregulation 5.19 (4).
(2) An applicant is taken also to have applied for an
Employer Nomination (Residence) (Class BW) visa on the day on which the
appointment mentioned in paragraph (1) (b) is approved, if each of the
following requirements is satisfied as at that day:
(a) the applicant was less than 45 at the time
of the application for the Class DD or Class DE visa;
(b) a decision to grant, or refuse to grant, to
the applicant a Subclass 880 (Skilled — Independent Overseas Student) visa
or a Subclass 881 (Skilled — Australian‑sponsored Overseas Student)
visa has not been made;
(c) the applicant:
(i) has vocational English; and
(ii) has a diploma (within the meaning
of subregulation 2.26A (6)) or a higher qualification.
(3) If subregulation (2) applies to an applicant for a
Class DD or Class DE visa, any other person included in the applicant’s
application is taken also to be included in the applicant’s application for an
Employer Nomination (Residence) (Class BW) visa.
2.08CC Certain
applicants taken to have applied also for Labour Agreement (Residence) (Class
BV) visas
(1) This regulation applies to a person (the applicant)
who:
(a) either:
(i) has applied for a Skilled —
Independent Overseas Student (Residence) (Class DD) visa; or
(ii) both:
(A) has applied for a
Skilled — Australian‑sponsored Overseas Student (Residence) (Class
DE) visa; and
(B) seeks to satisfy the
primary criteria for the grant of a Subclass 881 (Skilled — Australian‑sponsored
Overseas Student) visa; and
(b) seeks to enter Australia in accordance with a
labour agreement, an RHQ agreement or an IASS agreement.
(2) An applicant to whom this regulation applies is
taken also to have applied for a Labour Agreement (Residence) (Class BV) visa
on the day on which Immigration receives evidence of the applicant’s
appointment by an employer authorised under the labour agreement, RHQ agreement
or IASS agreement to recruit persons, if each of the following requirements is
satisfied as at that date:
(a) the applicant was less than 45 at the time
of the application for the Class DD or Class DE visa;
(b) a decision to grant, or refuse to grant, to
the applicant a Subclass 880 (Skilled — Independent Overseas Student) visa
or a Subclass 881 (Skilled — Australian‑sponsored Overseas Student)
visa has not been made;
(c) the applicant:
(i) has vocational English; and
(ii) has a diploma (within the meaning
of subregulation 2.26A (6)) or a higher qualification.
(3) If subregulation (2) applies to an applicant for a
Class DD or Class DE visa, any other person included in the applicant’s
application is taken also to be included in the applicant’s application for a
Labour Agreement (Residence) (Class BV) visa.
2.08D Certain
applicants for Independent (Migrant) (Class AT) or Skilled –
Australian‑linked (Migrant) (Class AJ) visas may make further application
(1) This regulation applies to a person if:
(a) the person applied for an Independent
(Migrant) (Class AT) visa or a Skilled – Australian‑linked (Migrant)
(Class AJ) visa; and
(b) on or after 1 July 1999, the Minister made an
assessment under subsection 93 (1) of the Act in relation to that
application; and
(c) the Minister has refused to grant the visa,
or the application was taken to be put into a pool under paragraph
94 (3) (b) of the Act; and
(d) the Minister is satisfied, from information
available to the Minister, that, if the person had applied for:
(i) a Skilled — Independent
(Migrant) (Class BN) visa; or
(ii) a Skilled — Australian‑sponsored
(Migrant) (Class BQ) visa; or
(iii) a Skilled — Designated Area‑sponsored
(Provisional) (Class UZ) visa;
it is likely that the visa would have been
granted.
(2) The Minister may invite the person to make an
application (a further application) for:
(a) a Skilled — Independent (Migrant)
(Class BN) visa; or
(b) a Skilled — Australian‑sponsored
(Migrant) (Class BQ) visa; or
(c) a Skilled — Designated Area‑sponsored
(Provisional) (Class UZ) visa.
Note If the Minister gives a person a
document by a method specified in section 494B of the Act, the person is taken
to have received the document at the time specified in section 494C of the Act
in respect of the method.
(3) If the person is invited to make a further
application, and wishes to make the application, the application must be made
not later than 12 months after the day on which the invitation is received.
2.08DA Certain
applicants for Skilled — Independent (Migrant) (Class BN) visas may
make further application
(1) This regulation applies
to a person if:
(a) the person applied
for a Skilled — Independent (Migrant) (Class BN) visa; and
(b) the Minister made an assessment under
subsection 93 (1) of the Act for that application; and
(c) the person was given an assessed score that
is more than or equal to the applicable pool mark at the time when the score
was assessed; and
(d) the Minister
is satisfied that, on the basis of information available to the Minister, if
the person had applied for a Skilled — Independent Regional (Provisional)
(Class UX) visa, it is likely that the visa would have been granted.
(2) The Minister may, in
writing, invite the person to make an application (a further application)
for a Skilled — Independent Regional (Provisional) (Class UX) visa.
Note If the Minister gives a person a document
by a method specified in section 494B of the Act, the person is taken to have
received the document at the time specified in section 494C of the Act for the
method.
(3) If the person is invited
to make a further application, and wishes to make the application in response
to the invitation, the application must be made not later than 6 months after
the day when the invitation is received.
Note If the person does not make an application,
in response to the invitation, within the 6 months, the person may still make
an application for the visa. However, making an application within the 6 months
has an effect on the amount of the visa application charge payable by the
person.
2.08E Certain
applicants taken to have applied for Partner (Migrant) (Class BC) visas and
Partner (Provisional) (Class UF) visas
(1) For subsection 46 (2) of the Act, the Partner
(Migrant) (Class BC) visa and the Partner (Provisional) (Class UF) visa are
prescribed classes of visa.
(2) If:
(a) a person (the applicant)
applies for a Prospective Marriage (Temporary) (Class TO) visa; and
(b) after the application is made, but before it
is decided, the applicant marries the person who was specified as the
applicant’s prospective spouse in the application for that visa; and
(c) the marriage is recognised as valid for the
purposes of the Act;
then:
(d) the applicant is taken also to have applied
for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF)
visa on the day Immigration receives notice of the marriage; and
(e) the applications are taken to be validly
made.
(2A) Subregulation (2B) applies if:
(a) a person (the applicant)
applies for a Prospective Marriage (Temporary) (Class TO) visa (the visa
application); and
(b) the Minister refuses to grant the visa; and
(c) the applicant or the sponsor of the
applicant makes an application for review of the Minister’s decision to the
Migration Review Tribunal (the review application); and
(d) the review application is made in accordance
with the Act; and
(e) in the period after the Minister’s decision
is made and before the review application is finally determined, the applicant
marries the person who was specified, in the application for the visa, as the
applicant’s prospective spouse; and
(f) the applicant notifies the Migration Review
Tribunal of the marriage; and
(g) the marriage is recognised as valid for the
purposes of the Act.
(2B) For paragraph
349 (2) (c) of the Act, the Migration Review Tribunal must remit the
visa application to the Minister for reconsideration, with the direction that
the application be taken also to be an application:
(a) for:
(i) a Partner (Migrant) (Class BC)
visa; and
(ii) for a Partner (Provisional) (Class
UF) visa; and
(b) that is made on the day that the visa
application is remitted to the Minister.
(3) The amount paid by the applicant as the first
instalment of the visa application charge for the Prospective Marriage
(Temporary) (Class TO) visa application is taken to be payment of the first
instalment of the visa application charge for the Partner (Migrant) (Class BC)
visa application.
2.08F Certain
holders of Subclass 785 (Temporary Protection) visas taken to have applied for
Protection (Class XC) visas
(1) Subregulation (2) applies to a person only if:
(a) the person holds a Subclass 785 (Temporary
Protection) visa that was granted before 19 September 2001; and
(b) the person is in Australia but is not in
immigration clearance; and
(c) the visa has not been cancelled; and
(d) within 36 months after the date of grant of
the visa, the person makes, or has made, an application for a Protection (Class
XA) visa; and
(e) the application has not yet been finally
determined.
(2) The person is taken also to have applied for a
Protection (Class XC) visa on the later of:
(a) the day when he or she makes, or made, the
application mentioned in paragraph (1) (d); and
(b) 1 November 2002.
2.08G Certain persons taken to have applied for Partner
(Migrant) (Class BC) visas
(1) This regulation applies if:
(a) a person held, before 9 December 2002:
(i) a
Subclass 309 (Spouse (Provisional)) visa; or
(ii) a Subclass 310 (Interdependency
(Provisional)) visa;
which the
Minister decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to
grant to the person; and
(b) the person lodged form 47SP in Australia,
after the Minister’s decision mentioned in paragraph (a) and before 9 December
2002; and
(c) the first instalment of the visa application
charge in relation to the lodgment of the form was paid before 9 December
2002.
(2) On and after 9 December
2002, the lodgment of the form is taken to be a valid application by the person
for a Partner (Migrant) (Class BC) visa.
(3) This regulation applies in addition to regulation
2.08E.
2.09 Oral
applications for visas
(1) Subject to subregulation (2), if an item in Schedule
1 authorises oral application for a class of visa by a person in a specified
class of persons, a person in that class may apply for a visa of that class by
telephone to, or attendance at, an office of Immigration in Australia specified
by Gazette Notice as an office at which an oral application may be made, but
only at a time, or during a period, specified by Gazette Notice as a time at
which, or period during which, an oral application may be made at that office.
(2) An oral application for a Return (Residence) (Class
BB) visa may be made:
(a) at an office of Immigration in Australia
(whether specified by Gazette Notice for the purposes of subregulation (1) or
not); and
(b) only by attendance at that office.
2.10 Where
application must be made
(1) For section 46 of the Act, an application for a visa
(not being an Internet application) must be made in accordance with this
regulation.
(2) If an application for a visa is made outside
Australia, the application must be made:
(a) in accordance with any requirements in:
(i) this Division; or
(ii) the item in Schedule 1 that
relates to the visa;
about where to make the application; or
(b) if there are no requirements of that kind —
at a diplomatic, consular or migration office maintained by or on behalf of the
Commonwealth outside Australia.
Note 1 Schedule 1 explains whether
applications for particular visas may be made in Australia, outside Australia,
or in or outside Australia.
Note 2 A provision in this Division or in
Schedule 1 may also state that an application is taken to have been made at a
particular place if specified requirements are met.
(2A) If an application for a visa is made in Australia,
the application must be made:
(a) in accordance with any requirements in:
(i) this Division; or
(ii) the item in Schedule 1 that
relates to the visa;
about where to make the application; or
(b) if there are no requirements of that kind —
at an office of Immigration in Australia.
Note 1 Schedule 1 explains whether
applications for particular visas may be made in Australia, outside Australia,
or in or outside Australia.
Note 2 A provision in this Division or in
Schedule 1 may also state that an application is taken to have been made at a
particular place if specified requirements are met.
(3) An unlawful non‑citizen who is located by an
officer of Immigration may apply for a bridging visa directly to that officer.
(4) For Division 2.2 (not including regulation 2.09) and
Schedule 1, an office occupied by an officer of Immigration at an airport
or a detention centre is an office of Immigration.
Note Requirements
about where the applicant must be when making an Internet application are in
Schedule 1.
2.10AA Where
application must be made for certain gazetted visas
(1) This regulation applies to:
(a) a person who is:
(i) outside Australia; and
(ii) a citizen of, or residing in, a
foreign country specified by Gazette Notice for the purposes of this
subparagraph; and
(iii) in that foreign country; and
(b) an application (other than an Internet
application) made by the person for a visa that is specified by Gazette Notice
for the purposes of this paragraph.
(2) The application must be made by:
(a) posting the application (with the correct
pre‑paid postage) to a post office box address specified for the visa by
Gazette Notice for the purposes of this paragraph; or
(b) having the application delivered by a courier
service to an address specified for the visa by Gazette Notice for the purposes
of this paragraph.
(3) The application is taken to have been made outside
Australia.
2.10A Notice
of lodgment of application — person in immigration detention (Bridging E
(Class WE) visa)
(1) This regulation applies in the case of an
application for a Bridging E (Class WE) visa that is made by a person who
is in immigration detention (the applicant).
(2) The person lodging the application (whether or not
the person is the applicant) must give written notice of the application to an
officer of Immigration appointed by the Secretary to be a detention review
officer in the State or Territory in which the applicant is detained.
2.10B Notice of
lodgment of application — person in immigration detention (Bridging F
(Class WF) visa)
(1) This regulation applies in
the case of an application for a Bridging F (Class WF) visa that is made
by a person who is in immigration detention (the applicant).
(2) The person lodging the
application (whether or not the person is the applicant) must give written
notice of the application to an officer of Immigration appointed by the
Secretary to be an authorised officer for this regulation.
2.10C Time of
making Internet application
For these Regulations, an
Internet application is taken to have been made:
(a) if Australian
Eastern Standard Time is in effect in Australia — at the time, identified
using Australian Eastern Standard Time, that corresponds to the time at which
the Internet application is made; or
(b) if Australian Eastern Standard Time
incorporating Daylight Saving Time in the Australian Capital Territory is in
effect in Australia — at the time, identified using Australian Eastern
Standard Time incorporating Daylight Saving Time in the Australian Capital
Territory, that corresponds to the time at which the Internet application is
made.
2.11 Special provisions for certain visa applications
that are refused
(1) If:
(a) any of the following applications for a visa
(a first application) has been made:
(i) an application for a visa by a non‑citizen
made outside Australia;
(ii) an application for any of the
following visas made by a non‑citizen in Australia:
(A) a
Skilled — Independent Overseas Student (Residence) (Class DD) visa;
(B) a
Skilled — Australian‑sponsored Overseas Student (Residence) (Class
DE) visa;
(C) a
Skilled — Independent Regional (Provisional) (Class UX) visa;
(D) a
Skilled — Independent (Migrant) (Class BN) visa;
(E) a
Skill Matching (Migrant) (Class BR) visa;
(F) a
Skilled — Australian‑sponsored (Migrant) (Class BQ) visa;
(G) a
Skilled — New Zealand Citizen (Residence) (Class DB) visa; and
(b) the first application has been refused; and
(c) it appears to the Minister, on the basis of
the information available to the Minister, that, if the non‑citizen had
applied for a visa of a different class, the visa would be likely to have been
granted;
the Minister may invite the non‑citizen
to make an application (a further application) for a visa of the
different class.
(2) An invitation made under subregulation (1) is to be
an invitation:
(a) if subparagraph (a) (i) applies, and
the first application was for a permanent visa — to make an application
for a permanent visa; or
(b) if subparagraph (a) (i) applies, and the
first application was for a temporary visa — to make an application for a
temporary visa; or
(c) if subparagraph (a) (ii) applies —
to make an application for a visa of a class mentioned in that subparagraph.
(2A) However:
(a) if the first application was for a Prospective
Marriage (Temporary) (Class TO) visa, the Minister may invite the applicant to
make a further application for both a Spouse (Provisional) (Class UF) visa and
a Spouse (Migrant) (Class BC) visa; and
(b) if the first application was for both a Spouse
(Provisional) (Class UF) visa and a Spouse (Migrant) (Class BC) visa, the
Minister may invite the applicant to make a further application for a
Prospective Marriage (Temporary) (Class TO) visa; and
(c) if the first application was for a Return
(Residence) (Class BB) visa, the Minister may invite the applicant to make
a further application for a Resident Return (Temporary) (Class TP) visa.
(3) A review authority is not to invite a further
application under subregulation (1).
(4) The non‑citizen must make the further
application within 28 days (or, if the Minister in the circumstances of
the case so decides, 70 days) after the day on which the non‑citizen is
notified of the invitation to make that application.
(5) The actual amount that is payable by the applicant
by way of the visa application charge in relation to the further application is
the amount (if any) by which liability for the visa application charge in
relation to the further application exceeds the actual amount of the visa
application charge paid on the first application.
(6) If the first instalment of the visa application
charge payable in relation to the further application is less than the actual
amount paid in relation to the first application, no refund is payable in
respect of the difference.
2.12 Certain
non‑citizens whose applications refused in Australia (Act, s 48)
(1) For section 48 of the Act the following classes of
visas are prescribed:
(c) Protection (Class XA);
(ca) subject to subregulation (3), Medical
Treatment (Visitor) (Class UB);
(e) Territorial Asylum (Residence) (Class BE);
(f) Border (Temporary) (Class TA);
(g) Special Category (Temporary) (Class TY);
(h) Bridging A (Class WA);
(j) Bridging B (Class WB);
(k) Bridging C (Class WC);
(l) Bridging D (Class WD);
(m) Bridging E (Class WE);
(ma) Bridging F (Class
WF);
(mb) Bridging R (Class WR);
(n) Resolution of Status (Temporary) (Class UH);
(o) Resolution of Status (Residence) (Class BL);
(p) Child (Residence) (Class BT);
(q) Return Pending (Temporary) (Class VA).
Note Section 48 of the Act limits
further applications by a person whose visa has been cancelled, or whose
application for a visa has been refused.
(3) Paragraph (1) (ca) applies to a person if and only
if he or she meets the requirements of subclause 685.212 (6) or (7) of Schedule
2.
(4) For section 48 of the Act
the following classes of visas are prescribed if, and only if, the person has
received an invitation under regulation 2.11 to apply for a visa of that class:
(a) a Skilled — Independent
Overseas Student (Residence) (Class DD) visa;
(b) a Skilled — Australian‑sponsored
Overseas Student (Residence) (Class DE) visa;
(c) a Skilled — Independent Regional
(Provisional) (Class UX) visa;
(d) a Skilled — Independent (Migrant) (Class
BN) visa;
(e) a Skill Matching (Migrant) (Class BR) visa;
(f) a Skilled — Australian‑sponsored
(Migrant) (Class BQ) visa;
(g) a Skilled — New Zealand Citizen
(Residence) (Class DB) visa.
Note Section 48 of the Act limits further
applications by a person whose visa has been cancelled, or whose application
for a visa has been refused.
2.12AA Refusal
or cancellation of visa — prohibition on applying for other visa (Act, s
501E)
For paragraph 501E (2) (b) of the Act, a
Bridging R (Class WR) visa is specified.
2.12A Safe
third country and prescribed connection (Act s 91D)
(1) For paragraph 91D (1) (a) of the Act, PRC is a safe
third country in relation to a person who:
(a) either:
(i) is, or has been, a Vietnamese
refugee settled in PRC; or
(ii) is a close relative of, or is
dependent on, a person who is, or has been, a Vietnamese refugee settled in
PRC;
as covered by the agreement between
Australia and PRC; and
(b) entered Australia without lawful authority on
or after 1 January 1996.
(2) For paragraph 91D (1) (b) of the Act, a
person mentioned in subregulation (1) has a prescribed connection with PRC if
the person, or a parent of the person, resided in PRC at any time before the
person entered Australia.
(3) In this regulation:
(a) agreement between Australia and PRC
means the agreement constituted by the Memorandum of Understanding the English
text of which is set out in Schedule 11, together with the exchange of letters
between representatives of Australia and PRC dated 17 March 2006 and 20 March
2006 the text of which is set out in Schedule 12; and
(b) the use of the word Vietnamese
is a reference to nationality or country of origin, and is not an ethnic
description.
Note 1 PRC is defined in
regulation 1.03.
Note 2 This regulation ceases to be in
force at the end of 30 June 2008 — see subsection 91D (4) of the Act.
Division 2.2AA Special provisions relating
to persons designated under regulation 2.07AO
2.12BB Application
of Division 2.2AA
This Division applies to:
(a) an application made by a person designated
under regulation 2.07AO for a visa of any of the subclasses mentioned in
subregulation 2.07AO (3); or
(b) an application made by a member of the family
unit of a person designated under regulation 2.07AO, who applies in Australia for
a visa of the same subclass as the visa applied for by the person designated
under regulation 2.07AO on the basis of satisfying the secondary criteria for
the grant of that visa; or
(c) an application made by a member of the family unit of a person designated
under regulation 2.07AO, who applies outside Australia for a visa of the same
subclass as the visa applied for by the person designated under regulation
2.07AO on the basis of satisfying the secondary criteria for the grant of that
visa; or
(d) a person:
(i) who is not an applicant for a
visa; and
(ii) who is a
member of the family unit of a person designated under regulation
2.07AO; and
(iii) who is the subject of a criterion
in Schedule 2 that applies to all members of the
family unit of the person designated under regulation 2.07AO, whether or
not those members are applicants for a visa.
2.12BC Place to
which application for visa by person mentioned in paragraph
2.12BB (a), (b) or (c) is to be sent
Despite anything in regulation 2.10, or paragraphs
1113 (3) (aa), 1205 (3) (c) and 1211 (3) (ab) of Schedule
1, relating to the place at which an application for the visa is to be made, an
application by a person mentioned in paragraph 2.12BB (a), (b) or (c) for
a visa mentioned in subregulation 2.07AO (3) must be made by:
(a) posting the application (with the correct
pre‑paid postage) to the post office box address specified in a Gazette
Notice for this paragraph; or
(b) having the
application delivered by a courier service to the address specified in a
Gazette Notice for this paragraph.
2.12BD Visas
that may be held by person mentioned in paragraph 2.12BB (a) at time of
application
Despite anything in Schedule 2 relating to the
visas that an applicant for a visa mentioned in subregulation 2.07AO (3)
is required to hold at the time of application, a person mentioned in paragraph
2.12BB (a) may meet the requirement by holding any of the following visas
at the time of application for a visa mentioned in subregulation
2.07AO (3):
(a) a Subclass 447 (Secondary Movement Offshore
Entry (Temporary)) visa;
(b) a Subclass 451 (Secondary Movement Relocation
(Temporary)) visa;
(c) a Subclass 785 (Temporary Protection) visa;
(d) a Subclass 695 (Return Pending) visa.
2.12BE Application
of public interest criterion 4004 to person mentioned in regulation 2.12BB
Despite anything in Schedule 2 or 4 relating to
whether a person is required to satisfy public interest criterion 4004, a person
mentioned in regulation 2.12BB is not required to satisfy that criterion in
relation to an application for a visa mentioned in subregulation
2.07AO (3).
2.12BF Application
of public interest criterion 4007 to person mentioned in regulation 2.12BB
(1) Subregulation (2) applies if a person mentioned in
paragraph 2.12BB (a), (b) or (c) applies for a visa of any of the
following subclasses:
(a) a Subclass 415 (Foreign Government Agency)
visa;
(b) a Subclass 418 (Educational) visa;
(c) a Subclass 419 (Visiting Academic) visa;
(d) a Subclass 420 (Entertainment) visa;
(e) a Subclass 421 (Sport) visa;
(f) a Subclass 422 (Medical Practitioner) visa;
(g) a Subclass 423 (Media and Film Staff) visa;
(i) a Subclass 427 (Domestic Worker
(Temporary) — Executive) visa;
(j) a Subclass 428 (Religious Worker) visa;
(k) a Subclass 442 (Occupational Trainee) visa;
(l) a Subclass 457 (Business (Long Stay)) visa;
(m) a Subclass 571 (Schools Sector) visa;
(n) a Subclass 572 (Vocational Education and
Training Sector) visa;
(o) a Subclass 573 (Higher Education Sector)
visa;
(p) a Subclass 574 (Postgraduate Research Sector)
visa;
(q) a Subclass 580 (Student Guardian) visa;
(qa) a Subclass 676 (Tourist) visa;
(r) a Subclass 686 (Tourist (Long Stay)) visa;
(s) a Subclass 804 (Aged Parent) visa;
(t) a Subclass 837 (Orphan Relative) visa;
(u) a Subclass 838 (Aged Dependant Relative)
visa;
(v) a Subclass 855 (Labour Agreement) visa;
(w) a Subclass 856 (Employer Nomination Scheme)
visa;
(x) a Subclass 857 (Regional Sponsored Migration
Scheme) visa;
(y) a Subclass 858 (Distinguished Talent) visa;
(z) a Subclass 864 (Contributory Aged Parent)
visa;
(za) a Subclass 884 (Contributory Aged Parent
(Temporary)) visa.
(2) Despite anything in Schedule 2 or 4 relating to
whether an applicant for a visa is required to satisfy public interest
criterion 4005 or 4006A:
(a) a person mentioned in paragraph 2.12BB (a),
(b) or (c) must satisfy public interest criterion 4007, instead of public
interest criterion 4005, in relation to an application for a visa mentioned in
subregulation (1); and
(b) a person mentioned in paragraph 2.12BB (a),
(b) or (c) must satisfy public interest criterion 4007, instead of public
interest criterion 4006A, in relation to an application for a visa mentioned in
subregulation (1).
(3) Despite anything in Schedule 2 or 4 relating to
whether a person who is the subject of a criterion in Schedule 2 that applies
to all members of the family unit of a person
designated under regulation 2.07AO, whether or not those members are applicants
for a visa, is required to satisfy public interest criterion 4005 or 4006A:
(a) the person who is the subject of the
criterion must satisfy public interest criterion 4007, instead of public
interest criterion 4005, in relation to the application for that visa; and
(b) the person who is the subject of the
criterion must satisfy public interest criterion 4007, instead of public
interest criterion 4006A, in relation to the application for that visa.
Division 2.2A Visa application charge
2.12C Amount
of visa application charge (Act, section 45B)
The visa
application charge (if any) in relation to an application for a visa of a class
to which an item of Schedule 1 relates is the sum of:
(a) the amount (if any) specified in subitem (2)
of that item as the first instalment (which is payable when the application is
made); and
(b) the amount (if any) specified in that subitem
as the second instalment (which is payable before the grant of the visa).
Note See regulation 5.36 in relation to
the countries and currencies in which payment of an instalment of the visa
application charge may be made.
2.12D Prescribed
period for payment of unpaid amount of visa application charge (Act, subsection
64 (2))
For the purposes of
paragraphs 64 (2) (a) and (c) of the Act, the following periods are prescribed as
the periods within which an applicant must pay the second instalment of the
visa application charge:
(a) if the notice given by the Minister under
subsection 64 (2) is sent from a place in Australia to an address in
Australia — the period beginning on the day on which the applicant is
taken to have received notice and ending at the end of the 28th day after that
day;
(b) if the notice given by the Minister under
subsection 64 (2) is sent from:
(i) a place outside Australia to an
address in Australia; or
(ii) a place in Australia to an address
outside Australia; or
(iii) a place outside Australia to an
address outside Australia;
the period beginning on the day on which
the applicant is taken to have received notice and ending at the end of the
70th day after that day.
Note If the Minister gives a person a
document by a method specified in section 494B of the Act, the person is taken
to have received the document at the time specified in section 494C of the Act
in respect of the method.
2.12E Payment
of first instalment of visa application charge not required for certain
combined applications
In spite of any
other provision of these Regulations, an applicant is not liable to pay the
first instalment of the visa application charge in relation to an application
for a visa if:
(a) the application is combined with another
application in a way permitted by the relevant item in Schedule 1, or by
regulation 2.08, 2.08A or 2.08B; and
(b) the first instalment (if any) of the visa
application charge in relation to that other application has been paid.
2.12F Refund
of first instalment of visa application charge
(1) The Minister must refund the amount paid by way of
the first instalment of the visa application charge in relation to an
application for a visa if:
(a) any of the circumstances mentioned in
subregulation (2) exists; and
(b) the Minister receives a written request for a
refund from:
(i) the person who paid the amount
(the payer); or
(ii) if the payer has died, or the
payer has a serious physical or mental incapacity, the payer’s legal personal
representative; or
(iii) if the payer is a bankrupt within
the meaning of the Bankruptcy Act 1966, the trustee of the estate of the
payer.
Note See regulation 2.12K in relation to
who is the person who pays an amount by way of an instalment of visa
application charge.
(2) For paragraph (1) (a), the circumstances are as
follows:
(a) the application is, for any reason,
unnecessary;
(b) the application is made because of a mistake
made by Immigration;
(c) the applicant dies before a decision is made
on the application;
(d) the application is an application made in
Australia for a Tourist (Class TR) visa or a Medical
Treatment (Visitor) (Class UB) visa by an applicant who:
(i) satisfies
the Minister that the applicant meets the requirements of subclause 675.221 (4),
676.221 (3) or 685.221 (6) of Schedule 2; and
(ii) is granted the further visa
referred to in that subclause.
(3) The Minister may refund the amount paid by way of
the first instalment of the visa application charge in relation to an
application for a visa if:
(a) the application was made because of a
mistake by the applicant; and
(b) the applicant withdraws the application in
writing; and
(c) after the withdrawal, the Minister receives
a written request for a refund from:
(i) the person who paid the amount
(the payer); or
(ii) if the payer has died, or the
payer has a serious physical or mental incapacity, the payer’s legal personal
representative; or
(iii) if the payer is a bankrupt within
the meaning of the Bankruptcy Act 1966, the trustee of the estate of the
payer.
(4) If the request for a refund is made on the basis
that the applicant died before a decision was made on the application, the
request must be accompanied by evidence, in a form that satisfies the
requirements of the law in the place where the request is made, of the death of
the applicant.
(5) If the request for a refund is made by the legal
personal representative of a payer who has died, the request must be accompanied
by evidence, in a form that satisfies the requirements of the law in the place
where the request is made, of the death of the payer.
(6) A refund under this regulation must be paid to the
person who made the request for the refund.
(7) If:
(a) in the opinion of the Minister, there is no
doubt about the identity of the payer; and
(b) the Minister pays the amount of the refund to
the payer or to a person mentioned in subparagraph (1) (b) (ii) or
(iii), or subparagraph (3) (c) (ii) or (iii);
a receipt that is given by the person to whom the refund is paid
is, for all purposes, a valid discharge of any liability of the Commonwealth in
relation to the payment of the amount of the refund.
(8) A refund under this regulation may be paid:
(a) in Australian currency; or
(b) if the amount of the instalment in respect of
which the refund is being paid was paid in another currency, in that other
currency.
2.12G When
payment of second instalment of visa application charge not required
(1) In spite of any other provision of these
Regulations, an applicant is not liable to pay the second instalment of the
visa application charge in relation to an application for a visa if:
(a) the applicant withdraws the application
before the second instalment is paid; or
(b) the application, having been finally
determined within the meaning of subsection 5 (9) of the Act, is refused.
(2) For the purpose of this regulation, an application
is taken not to have been finally determined if, for any reason, a court remits
the application to the Minister to be decided.
2.12H Refund
of second instalment of visa application charge
(1) The Minister must refund the amount paid by way of
the second instalment of the visa application charge in relation to an
application for a visa if:
(a) any of the circumstances mentioned in
subregulation (2) exists; and
(b) the Minister receives a written request for a
refund from:
(i) the person who paid the amount
(the payer); or
(ii) if the payer has died, or the
payer has a serious physical or mental incapacity, the payer’s legal personal
representative; or
(iii) if the payer is a bankrupt within
the meaning of the Bankruptcy Act 1966, the trustee of the estate of the
payer.
Note See regulation 2.12K in relation to
who is the person who pays an amount by way of an instalment of visa
application charge.
(2) For paragraph (1) (a), the circumstances are as
follows:
(a) the applicant withdraws the application in
writing before the application is decided;
(b) the applicant dies before first entering Australia
as the holder of the visa;
(c) the application has been finally determined
within the meaning of subsection 5 (9) of the Act and the visa is not
granted;
(d) the visa is granted, and later cancelled,
before the applicant first enters Australia as the holder of the visa;
(e) the visa is granted, and otherwise ceases,
before the applicant first enters Australia as the holder of the visa.
(3) For this regulation, an application is taken not to
have been finally determined if, for any reason, a court remits the application
to the Minister to be decided.
(4) If the request for a refund is made on the basis
that the applicant died before first entering Australia as the holder of the
visa, the request must be accompanied by evidence, in a form that satisfies the
requirements of the law in the place where the request is made, of the death of
the applicant.
(5) If the request for a refund is made by the legal
personal representative of a payer who has died, the request must be
accompanied by evidence, in a form that satisfies the requirements of the law
in the place where the request is made, of the death of the payer.
(6) A refund under this regulation must be paid to the
person who made the request for the refund.
(7) If:
(a) in the opinion of the Minister, there is no
doubt about the identity of the payer; and
(b) the Minister pays the amount of the refund to
the payer or to a person mentioned in subparagraph (1) (b) (ii) or
(iii);
a receipt that is given by the person to whom the refund is paid is,
for all purposes, a valid discharge of any liability of the Commonwealth in
relation to the payment of the amount of the refund.
(8) A refund under this regulation may be paid:
(a) in Australian currency; or
(b) if the amount of the instalment in respect of
which the refund is being paid was paid in another currency, in that other
currency.
2.12I Partial
refund of second instalment of visa application charge
(1) The Minister must make a partial refund of the
amount paid by way of the second instalment of the visa application charge in
relation to an application for a visa if:
(a) any of the circumstances mentioned in
subregulation (2) exists; and
(b) the Minister receives a written request for a
refund from:
(i) the person who paid the amount
(the payer); or
(ii) if the payer has died, or the
payer has a serious physical or mental incapacity, the payer’s legal personal
representative; or
(iii) if the payer is a bankrupt within
the meaning of the Bankruptcy Act 1966, the trustee of the estate of the
payer.
Note See regulation 2.12K in relation to
who is the person who pays an amount by way of an instalment of visa
application charge.
(2) For paragraph (1) (a), the circumstances are as
follows:
(a) the applicant dies before commencing a
course of English language tuition to which the applicant is entitled under
section 4C of the Immigration (Education) Act 1971;
(b) the visa is granted, and later cancelled,
before the applicant commences a course of English language tuition to which
the applicant is entitled under section 4C of the Immigration (Education)
Act 1971;
(c) subject to subregulation (3), the visa is
granted, and ceases to have effect, before the applicant commences a course of
English language tuition to which the applicant is entitled under section 4C of
the Immigration (Education) Act 1971;
(d) the obligation of the Commonwealth to the
applicant under section 4C of the Immigration (Education) Act 1971 has
ceased, by operation of paragraph 4D (1) (a) of that Act, without the
applicant receiving any English language tuition in an approved English course
provided under that Act.
(3) Paragraph (2) (c) does not apply if, before the
visa ceases to have effect, the Commonwealth’s obligation under section 4C of
the Immigration (Education) Act 1971, in relation to the applicant,
has ceased by operation of paragraph 4D (1) (b), (c) or (d) or
subsection 4D (2) of that Act.
(4) If the request for a refund is made on the basis
that the applicant died before commencing a course of English language tuition
to which the applicant was entitled under section 4C of the Immigration
(Education) Act 1971, the request must be accompanied by evidence, in a
form that satisfies the requirements of the law in the place where the request
is made, of the death of the applicant.
(5) If the request for a refund is made by the legal
personal representative of a payer who has died, the request must be
accompanied by evidence, in a form that satisfies the requirements of the law
in the place where the request is made, of the death of the payer.
(6) A refund under this regulation must be paid to the
person who made the request for the refund.
(7) The amount of the refund is the relevant amount set
out in Schedule 8A.
(8) If:
(a) in the opinion of the Minister, there is no
doubt about the identity of the payer; and
(b) the Minister pays the amount of the refund to
the payer or to a person mentioned in subparagraph (1) (b) (ii) or
(iii);
a receipt that is given by the person to whom the refund is paid
is, for all purposes, a valid discharge of any liability of the Commonwealth in
relation to the payment of the amount of the refund.
(9) A refund under this regulation may be paid:
(a) in Australian currency; or
(b) if the amount of the instalment in respect of
which the refund is being paid was paid in another currency, in that other
currency.
2.12J Refund
of first and second instalments of visa application charge for Resolution of
Status (Temporary) (Class UH) visas
(1) Without limiting regulation 2.12F or 2.12H, the
Minister must refund the amount paid by way of the first and second instalments
of the visa application charge in relation to an application for a Resolution
of Status (Temporary) (Class UH) visa if:
(a) the applicant is the holder of a permanent
visa other than a Resolution of Status (Residence) (Class BL) visa; and
(b) at the time of the grant of the permanent
visa, the person was the holder of a Subclass 450 (Resolution of Status —
Family Member (Temporary)) visa, or a Subclass 850 (Resolution of Status
(Temporary)) visa, that was granted on the basis of an application made after
the application for that permanent visa; and
(c) the Minister receives a written request for
a refund from:
(i) the person who paid the amount
(the payer); or
(ii) if the payer has died, or the
payer has a serious physical or mental incapacity, the payer’s legal personal
representative; or
(iii) if the payer is a bankrupt within
the meaning of the Bankruptcy Act 1966, the trustee of the estate of the
payer.
Note See regulation 2.12K in relation to
who is the person who pays an amount by way of an instalment of visa
application charge.
(2) If the request for a refund is made by the legal
personal representative of a payer who has died, the request must be
accompanied by evidence, in a form that satisfies the requirements of the law
in the place where the request is made, of the death of the payer.
(3) A refund under this regulation must be paid to the
person who made the request for the refund.
(4) If:
(a) in the opinion of the Minister, there is no
doubt about the identity of the payer; and
(b) the Minister pays the amount of the refund to
the payer or to a person mentioned in subparagraph (1) (c) (ii) or (iii);
a receipt that is given by the person to whom the refund is paid
is, for all purposes, a valid discharge of any liability of the Commonwealth in
relation to the payment of the amount of the refund.
(5) A refund under this regulation of the amount of the
second instalment of the visa application charge may be paid:
(a) in Australian currency; or
(b) if the amount of the instalment was paid in
another currency, in that other currency.
2.12JA Payment
of visa application charge for Internet application
(1) The visa application charge in relation to an
Internet application must be paid by:
(a) credit card, in accordance with the
instructions given to the applicant as part of making the Internet application;
or
(b) funds transfer, in accordance with the
instructions given to the applicant as part of making the Internet application.
(2) If the visa application charge is paid in accordance
with paragraph (1) (a), the charge is taken not to have been received
until the payment has been confirmed by the issuer of the credit card.
(3) If the visa application charge is paid in accordance
with paragraph (1) (b), the charge is taken not to have been received
until the payment is electronically matched to the applicant’s Internet
application form.
2.12K Who
is the person who pays an instalment of visa application charge
For regulations 2.12F, 2.12H, 2.12I and 2.12J, the
person who pays an amount by way of an instalment of visa application charge in
relation to an application for a visa is:
(a) if the payment is made by an agent (whether
or not a registered agent within the meaning of Part 3 of the Act) on behalf of
the applicant — the applicant; and
(b) in any other case:
(i) if the payment is made by
cheque — the drawer of the cheque; and
(ii) if the payment is made by a credit
or debit card — the person named on the card; and
(iii) if the payment is made in
cash — the person presenting the cash; and
(iv) if the payment is made by bank
cheque, bank draft, money order, or other similar instrument:
(A) the person presenting
the instrument; or
(B) if that person is not
the person named on the instrument as the purchaser of the instrument (the purchaser),
the purchaser.
Division 2.3 Communication between applicant and Minister
2.13 Communication
with Minister
(1) For the purposes of section 52 of the Act (which
deals with the way in which an applicant or interested person must communicate
with the Minister), an applicant or interested person must communicate with the
Minister about a visa application in the way provided by this regulation.
(2) Except as provided by subregulation (3), the
communication must be in writing.
(3) The communication may be oral if it is:
(a) a communication about an application for a
bridging visa; or
(b) an enquiry about the stage reached in the
consideration of a visa application; or
(c) an oral application; or
(d) a communication about an application for an
Electronic Travel Authority (Class UD) visa.
(4) A written communication must include:
(a) the applicant’s full name, as set out in the
application; and
(b) the applicant’s date of birth; and
(c) one of the following:
(i) the applicant’s client number;
(ii) the Immigration file number;
(iii) the number of the receipt issued
by Immigration when the visa application was made; and
(d) if the application was made outside
Australia, the name of the office at which the application was given to the
Minister.
(5) Subject to subregulation
(6), a document accompanying a written communication must be:
(a) the original; or
(b) a copy of the original certified in writing
to be a true copy by:
(i) a Justice of the Peace; or
(ii) a Commissioner for Declarations;
or
(iii) a person before whom a statutory
declaration may be made under the Statutory Declarations Act 1959; or
(iv) a registered migration agent whose
registration is not:
(A) suspended; or
(B) subject to a caution;
or
(v) if the copy is certified in a
place outside Australia:
(A) a registered migration
agent mentioned in subparagraph (iv); or
(B) a person who is the
equivalent of a Justice of the Peace or Commissioner for Declarations in that
place.
Note Section 303 of the Act provides that
the Migration Agents Registration Authority may suspend the registration of a
registered migration agent or caution him or her. If a registered
migration agent is subject to a suspension of his or her registration, or a
caution, particulars of the suspension or caution are shown on the Register of
Migration Agents: subsection 287 (2) of the Act. These particulars must be
removed once the suspension or caution is no longer in effect: subsection
287 (5) of the Act.
(6) If an applicant or
interested person is required or permitted to produce a document in connection
with the visa application, the document and the written communication that
accompanies it may be in the form of an electronic communication only if:
(a) the document is in
a class of documents specified by Gazette Notice as documents that may be sent
by electronic communication; or
(b) the Minister has permitted the applicant or
interested person to send the document by electronic communication.
(7) For subregulation (6), if
the Minister requires an applicant or interested person to give the Minister
the original of a document that has already been given by electronic
communication:
(a) the giving of the
original, otherwise than by electronic communication, is a prescribed way of
communication; and
(b) subregulation (5) applies to the original of
the document.
Note This regulation is subject to
sections 56 and 58 of the Act, which provide that the Minister may specify the
way in which additional information or comments about an application may be
given by an applicant. If the Minister specifies a way in which further
information or comments must be given for the purposes of either of those
sections, the information or comments must be given in that way. Regulation
2.13 then does not apply.
2.14 Where
written communication must be sent
For the purposes of section 52 of the Act (which
deals with the way in which an applicant or interested person must communicate
with the Minister), a written communication to the Minister about an
application must be sent to or left at:
(a) the office at which the application was
given to the Minister; or
(b) if the Minister has notified the applicant in
writing of another office in substitution for that office — that other
office.
2.15 Response to invitation to give information
or comments — prescribed periods
(1) For the purposes of subsection 58 (2) of the Act
(which deals with invitations to make comments or give further information),
and subject to subregulation (2), the prescribed period for giving additional
information or comments in response to an invitation is:
(a) in the case of an application for a
substantive visa that was made by an applicant who is in immigration
detention — 3 working days after the applicant is notified of the
invitation; or
(b) in the case of
an application made by a person who is in Australia, other than a person
referred to in paragraph (a):
(i) if the invitation is given at an
interview — 7 days after the interview; or
(ii) if the invitation is given
otherwise than at an interview:
(A) in the case of an
application for a Tourist (Class TR) visa or a Medical Treatment (Visitor)
(Class UB) visa — 7 days after the applicant is notified of the
invitation; or
(B) in the case of an
application for a Temporary Business Entry (Class UC) visa made by an applicant
who seeks a visa to remain in Australia (whether or not also a visa to travel
to and enter Australia) for a period, or periods, of 3 months or less — 7
days after the applicant is notified of the invitation; or
(C) in any other case —
28 days after the applicant is notified of the invitation; or
(c) in the case of an application made by an
applicant who is not in Australia:
(i) 28 days; or
(ii) if the Minister so decides in the
circumstances of the case — 70 days;
after the applicant is notified of the
invitation.
(2) Subregulation (1) does not apply to a request for
information or comments to be obtained from a third party regarding the
following matters:
(a) the applicant’s health;
(b) the satisfaction by the applicant of public
interest criteria;
(c) the satisfaction of criteria relating to the
applicant’s capacity to communicate in English;
(d) assessment of the applicant’s skills or
qualifications.
(3) For the purposes of paragraph 58 (3) (b) of the Act
(which deals with the time in which an interview is to take place), the
prescribed period is:
(a) in the case of an application for a
substantive visa that was made by an applicant who is in immigration
detention — 3 working days after the applicant is notified of the
invitation; or
(b) in the case of an application made by an
applicant who is in Australia, other than a person referred to in paragraph
(a):
(i) in the case of an application for
a Tourist (Class TR) visa or a Medical Treatment (Visitor) (Class UB)
visa — 7 days after the applicant is notified of the invitation; or
(ii) in the case of an application for
a Temporary Business Entry (Class UC) visa made by an applicant who seeks a
visa to remain in Australia (whether or not also a visa to travel to and enter
Australia) for a period, or periods, of 3 months or less — 7 days after
the applicant is notified of the invitation; or
(iii) in any other case — 28 days
after the applicant is notified of the invitation; or
(c) in the case of an application made by an
applicant who is not in Australia:
(i) 28 days; or
(ii) if the Minister so decides in the
circumstances of the case — 70 days;
after the applicant is notified of the
invitation.
(4) For the purposes of subsection 58 (4) or (5) of the
Act (dealing with extending the period to respond to an invitation or attend
for interview), the prescribed further period is:
(a) if the applicant is in immigration
detention — 2 working days; or
(b) if the applicant is in Australia but is not
in immigration detention — 7 days; or
(c) if the applicant is not in Australia:
(i) 7 days; or
(ii) if
the Minister so decides in the circumstances of the case — 28 days;
after the applicant is notified of the invitation.
Note If the Minister gives a person a
document by a method specified in section 494B of the Act, the person is taken
to have received the document at the time specified in section 494C of the Act
in respect of the method.
2.16 Notification
of decision on visa application
(1) For subsections 66 (1) and 501G (3) of the
Act (which deal with giving notice of decisions), this regulation sets out the
way of notifying a person of a decision to grant or refuse to grant a visa.
Grant of visa
(2) The Minister must notify the applicant of the grant
of the visa in one of the following ways:
(a) if the visa
is a bridging visa granted at the same time as a substantive visa — by:
(i) notifying the applicant of the
grant of the substantive visa; or
(ii) giving the applicant evidence of
the substantive visa;
(b) in any other
case — by:
(i) telling the applicant orally that
the visa has been granted; or
(ii) notifying the applicant by one of
the methods specified in section 494B of the Act; or
(iii) giving
the applicant evidence of the visa.
Note If the Minister gives a person a
document by a method specified in section 494B of the Act, the person is taken
to have received the document at the time specified in section 494C of the Act
in respect of the method.
Refusal to grant visa
(3) The Minister must notify an applicant of a decision
to refuse to grant a visa by one of the methods specified in section 494B of
the Act.
Note If the Minister gives a person a
document by a method specified in section 494B of the Act, the person is taken
to have received the document at the time specified in section 494C of the Act
in respect of the method.
Division 2.4 Evidence of visas
2.17 Ways
of giving evidence of a visa
(1) For the purposes of
subsection 71 (1) of the Act (which deals with giving evidence of the grant of
a visa), evidence of a visa that has been granted to a non‑citizen may be
given:
(a) in the way
(if any) specified in the relevant Part of Schedule 2 for a visa of that
subclass; or
(b) if the
relevant Part of Schedule 2 does not specify a way of giving evidence —
by:
(i) a label that is affixed to the non‑citizen’s
passport by an officer; or
(ii) an imprint that is stamped in the
non‑citizen’s passport by an officer; or
(iii) a document that is given to the
non‑citizen by an officer.
(2) Evidence of the grant of a substantive visa (other
than a transitional visa) that is given by means of a visa label must include:
(a) a statement of the period for which the visa
is in effect; and
(b) a statement of the class and the subclass to
which the visa belongs; and
(c) if the visa allows the holder to travel to
and enter Australia — a statement of that fact.
(3) In a statement for the purposes of paragraph (2)
(b):
(a) the class to which a visa belongs may be
identified by the 2‑letter code specified in the heading of the relevant
item of Schedule 1; and
(b) the subclass to which a visa belongs may be
identified by the 3‑digit code of the relevant Part of Schedule 2.
(4) Every document of the kind referred to in
subparagraph (1) (b) (iii) must be uniquely identified (for example,
by a distinctive number).
(5) If the Minister has given to a non‑citizen to
whom a visa has been granted a written statement of the conditions (if any) to
which the grant of the visa is subject, it is not necessary for the evidence of
the visa to set out those conditions.
(6) If:
(a) evidence of the grant of a visa (other than
a transitional visa or a visa of a class referred to in regulation 2.18) to a
non‑citizen has been given to the non‑citizen; and
(b) either:
(i) the evidence, or the passport or
document in which it was given, has been damaged, defaced, lost, stolen or
destroyed, or otherwise cannot, for good reason, be presented for travel
purposes; or
(ii) the passport or document has
expired, or has been cancelled, or is no longer applicable to that person;
replacement evidence may be given to the
non‑citizen in any way mentioned in the Part of Schedule 2 that
relates to visas of the same subclass as the visa that was granted.
(7) In the case of a substantive visa, the replacement
evidence must include:
(a) a statement of the period for which the visa
is in effect; and
(b) a statement of the class and the subclass to
which the visa belongs; and
(c) if the visa allows the holder to travel to
and enter Australia, a statement of that fact.
2.18 Re‑evidencing
of resident return visas
(1) If:
(a) evidence of a resident return visa has been
given in a passport; and
(b) either:
(i) the evidence, or the passport, has
been damaged, defaced, lost, stolen or destroyed, or otherwise cannot, for good
reason, be presented for travel purposes; or
(ii) the passport has expired, or has
been cancelled, or is no longer applicable to that person;
the person to whom the visa was granted may
apply to the Minister for evidence of the visa to be given to the person in a
passport of that person.
(2) If the application is an
Internet application:
(a) the application must be in accordance with
approved form 1085E; and
(b) the applicant must be in Australia at the
time of making the application; and
(c) the fee payable on
an application is $60.
(2A) If the application is not an
Internet application, and the applicant is in Australia at the time of
making the application:
(a) the application must:
(i) be in accordance with approved
form 1085; or
(ii) be made orally, by attending an
office of Immigration in Australia and presenting a valid passport; or
(iii) be made in writing:
(A) delivered to an office
of Immigration in Australia; and
(B) accompanied by
presentation of a valid passport; and
(b) the fee payable on an application is $60.
(3) If the application is not
an Internet application, and the applicant is not in Australia at the
time of making the application:
(a) the application must be in accordance with
approved form 1085; and
(b) the fee payable on
application is $70.
(4) In this regulation, resident return visa
means:
(a) a Return (Residence) (Class BB) visa; or
(b) a Resident Return (Temporary) (Class TP)
visa; or
(c) a Group 1.4
(resident return (permanent entry) or Class 159 (resident return (F)) visa
granted under the Migration (1993) Regulations that is continued in force under
the Migration Reform (Transitional Provisions) Regulations as a transitional
(temporary) or transitional (permanent) visa, as the case requires; or
(d) a visa of one of the following classes
granted under the Migration (1989) Regulations:
(i) return visa, class A (code number
154);
(ii) return visa, class B (code number
155);
(iii) return visa, class C (code number
156);
(iv) return visa, class D (code number
157);
(v) return visa, class E (code number
158);
(vi) return visa, class F (code number
159);
that is continued in force under the
Migration Reform (Transitional Provisions) Regulations as a transitional
(temporary) or transitional (permanent) visa, as the case requires; or
(e) a transitional (permanent) visa that is
taken to have been granted under regulation 9 of the Migration Reform
(Transitional Provisions) Regulations; or
(f) a Subclass 156 (One Year Return) visa.
2.19 Evidence
of visa need not be given in certain cases
No evidence of the grant of a visa need be given:
(a) if the relevant Part of Schedule 2 so
provides; or
(b) if the relevant Part of Schedule 2 requires
the evidence to be placed in a passport, and the holder of the visa:
(i) does not produce a passport to an
officer; or
(ii) produces to an officer a document
that the Minister has directed, under subsection 71 (3) of the Act, is not to
be taken to be a passport for the purposes of the clause of Schedule 2 under
which evidence is to be given of the visa;
until the holder produces a passport to an
officer; or
(c) if the visa:
(i) is not a Return (Residence) (Class
BB) visa; and
(ii) is granted on the basis of an oral
application.
Note Under subsection 71 (3) of the Act,
the Minister may declare that a specified document is not to be taken to be a
passport for the purposes of a provision of the Regulations that provides that
evidence of a visa may be given by endorsing a valid passport or other valid
travel document.
Division 2.5 Bridging visas
2.20 Eligible
non‑citizen (Act, s 72)
(1) For the purposes of the definition of eligible non‑citizen
in section 72 of the Act (which deals with persons eligible to be granted a
bridging visa), the classes of persons described in subregulations (2) to (12)
and (14) and (15) are prescribed.
(2) This subregulation applies to a non‑citizen
who, before 1 September 1994:
(a) was in custody under Division 4B of Part 2
of the Act as in force immediately before 1 September 1994; and
(b) was released from custody on expiry of a
period referred to in subsection 54Q (1) or (2) of that Act (which deals with
the release of designated persons from custody); and
(c) has not departed Australia since being
released from custody; and
(d) has not subsequently been granted a visa or
entry permit.
(3) This subregulation applies to a non‑citizen:
(a) who is, or has been, in immigration
detention under Division 6 of Part 2 of the Act (which deals with the
immigration detention of designated persons); and
(b) in respect of whom the period mentioned in
subsection 182 (1) or (2) of the Act expires on or after 1 September 1994;
from the day 2 working days before the expiry of the period
mentioned in whichever of those subsections applies to the non‑citizen.
(4) This subregulation applies to a non‑citizen:
(a) who is:
(i) in immigration detention under
Division 6 of Part 2 of the Act; and
(ii) the spouse of an Australian
citizen, an Australian permanent resident or an eligible New Zealand citizen,
if the Minister is satisfied that the relationship is genuine and continuing;
and
(iii) nominated by the Australian
citizen, Australian permanent resident or eligible New Zealand citizen referred
to in subparagraph (ii); or
(b) who is a member of the family unit of a
person referred to in paragraph (a).
(5) This subregulation applies to a non‑citizen:
(a) who is in immigration detention under
Division 6 of Part 2 of the Act; and
(b) who has not turned 18; and
(c) in respect of whom a child welfare authority
of a State or Territory has certified that release from detention is in the
best interests of the non‑citizen; and
(d) in respect of whom the Minister is satisfied
that:
(i) arrangements have been made
between the non‑citizen and an Australian citizen, Australian permanent
resident or eligible New Zealand citizen for the care and welfare of the non‑citizen;
and
(ii) those arrangements are in the best
interests of the non‑citizen; and
(iii) the grant of a visa to the non‑citizen
would not prejudice the rights and interests of any person who has, or may
reasonably be expected to have, custody or guardianship of, or access to, the
non‑citizen.
(6) This subregulation applies to a non‑citizen
who:
(a) either:
(i) bypassed immigration clearance on
or after 1 September 1994 and has not subsequently been granted a
substantive visa; or
(ii) entered Australia without
authority before 1 September 1994 and has not subsequently been granted a
substantive visa or entry permit; and
(d) has not come to the notice of Immigration as
an illegal entrant or an unlawful non‑citizen within 45 days of entering
Australia.
(6A) This subregulation
applies to a non‑citizen who:
(a) last held a student visa that was cancelled
under section 137J of the Act; and
(b) has been refused immigration clearance.
(7) This subregulation applies to a non‑citizen:
(a) who, on or after 1 September 1994:
(i) was refused immigration clearance;
or
(ii) bypassed immigration clearance and
came to the notice of Immigration as an unlawful non‑citizen within 45
days of entering Australia; and
(b) if:
(i) on or
after 1 September 1994:
(A) the
non‑citizen made a Protection (Class AZ) visa application that is not
finally determined; or
(B) the
non‑citizen applied for judicial review of a decision to refuse a
Protection (Class AZ) visa; or
(C) the
Minister has applied for judicial review of a decision in relation to the non‑citizen’s
Protection (Class AZ) visa application; or
(ii) on or
after 20 October 1999:
(A) the
non‑citizen made a Protection (Class XA) visa application that is not
finally determined; or
(B) the
non‑citizen applied for judicial review of a decision to refuse a
Protection (Class XA) visa; or
(C) the
Minister has applied for judicial review of a decision in relation to the non‑citizen’s
Protection (Class XA) visa application; and
(c) who has not
turned 18; and
(d) in respect of whom a child welfare authority of
a State or Territory has certified that release from detention is in the best
interests of the non‑citizen; and
(e) in respect of whom the Minister is satisfied
that:
(i) arrangements have been made
between the non‑citizen and an Australian citizen, Australian permanent
resident or eligible New Zealand citizen for the care and welfare of the non‑citizen;
and
(ii) those arrangements are in the best
interests of the non‑citizen; and
(iii) the grant of a visa to the non‑citizen
would not prejudice the rights and interests of any person who has, or may
reasonably be expected to have, custody or guardianship of, or access to, the
non‑citizen.
(8) This subregulation applies to a non‑citizen:
(a) who, on or after 1 September 1994:
(i) was refused immigration clearance;
or
(ii) bypassed immigration clearance and
came to the notice of Immigration as an unlawful non‑citizen within 45
days of entering Australia; and
(b) if:
(i) on or
after 1 September 1994:
(A) the
non‑citizen made a Protection (Class AZ) visa application that is not
finally determined; or
(B) the
non‑citizen applied for judicial review of a decision to refuse a
Protection (Class AZ) visa; or
(C) the
Minister has applied for judicial review of a decision in relation to the non‑citizen’s
Protection (Class AZ) visa application; or
(ii) on or
after 20 October 1999:
(A) the
non‑citizen made a Protection (Class XA) visa application that is not
finally determined; or
(B) the
non‑citizen applied for judicial review of a decision to refuse a
Protection (Class XA) visa; or
(C) the
Minister has applied for judicial review of a decision in relation to the non‑citizen’s
Protection (Class XA) visa application; and
(c) who has turned 75; and
(d) in respect of whom the Minister is satisfied
that adequate arrangements have been made for his or her support in the
community.
(9) This subregulation applies to a non‑citizen:
(a) who, on or after 1 September 1994:
(i) was refused immigration clearance;
or
(ii) bypassed immigration clearance and
came to the notice of Immigration as an unlawful non‑citizen within 45
days of entering Australia; and
(b) if:
(i) on or
after 1 September 1994:
(A) the
non‑citizen made a Protection (Class AZ) visa application that is not
finally determined; or
(B) the
non‑citizen applied for judicial review of a decision to refuse a
Protection (Class AZ) visa; or
(C) the
Minister has applied for judicial review of a decision in relation to the non‑citizen’s
Protection (Class AZ) visa application; or
(ii) on or after
20 October 1999:
(A) the
non‑citizen made a Protection (Class XA) visa application that is not
finally determined; or
(B) the
non‑citizen applied for judicial review of a decision to refuse a
Protection (Class XA) visa; or
(C) the
Minister has applied for judicial review of a decision in relation to the non‑citizen’s
Protection (Class XA) visa application; and
(c) who has a special need (based on health or
previous experience of torture or trauma) in respect of which a medical
specialist appointed by Immigration has certified that the non‑citizen
cannot properly be cared for in a detention environment; and
(d) in respect of whom the Minister is satisfied
that adequate arrangements have been made for his or her support in the
community.
(10) This subregulation applies to a non‑citizen:
(a) who, on or after 1 September 1994:
(i) was refused immigration clearance;
or
(ii) bypassed immigration clearance and
came to the notice of Immigration as an unlawful non‑citizen within 45
days of entering Australia; and
(b) if:
(i) on or
after 1 September 1994:
(A) the
non‑citizen made a Protection (Class AZ) visa application that is not
finally determined; or
(B) the
non‑citizen applied for judicial review of a decision to refuse a
Protection (Class AZ) visa; or
(C) the
Minister has applied for judicial review of a decision in relation to the non‑citizen’s
Protection (Class AZ) visa application; or
(ii) on
or after 20 October 1999:
(A) the
non‑citizen made a Protection (Class XA) visa application that is not
finally determined; or
(B) the
non‑citizen applied for judicial review of a decision to refuse a
Protection (Class XA) visa; or
(C) the
Minister has applied for judicial review of a decision in relation to the non‑citizen’s
substantive visa application; and
(c) who is the spouse of an Australian citizen,
Australian permanent resident or eligible New Zealand citizen; and
(d) in relation to whom the Minister is satisfied
that the non‑citizen’s relationship with that Australian citizen, Australian
permanent resident or eligible New Zealand citizen is genuine and continuing;
and
(e) who is nominated by that Australian citizen,
Australian permanent resident or eligible New Zealand citizen.
(11) This subregulation applies to a non‑citizen who
is a member of the family unit of a non‑citizen to whom subregulation
(10) applies.
(12) This subregulation applies to a non‑citizen if:
(a) the non‑citizen is in immigration
detention; and
(b) the Minister is satisfied that the non‑citizen’s
removal from Australia is not reasonably practicable at that time; and
(c) the Minister is satisfied that the non‑citizen
will do everything possible to facilitate the non‑citizen’s removal from
Australia; and
(e) any visa applications made by the non‑citizen,
other than an application made following the exercise of the Minister’s power
under section 48B of the Act, have been finally determined.
(13) For paragraph (12) (b), a non‑citizen’s removal
from Australia is not to be taken to be not reasonably practicable only because
the non‑citizen is a party to proceedings in a court or tribunal related
to an issue in connection with a visa.
(14) This subregulation applies to:
(a) a non‑citizen:
(i) who is outside Australia; and
(ii) in relation to whom an officer of:
(A) the Australian Federal
Police; or
(B) a police force of a
State or Territory; or
(C) the office of the
Director of Public Prosecutions of the Commonwealth, a State or a Territory; or
(D) a
body of the Commonwealth, a State or a Territory that has functions similar to
those of an office of a Director of Public Prosecutions;
has told Immigration in writing
that:
(E) the non‑citizen
is a person of interest in relation to an offence, or alleged offence,
involving:
(I) people
trafficking; or
(II) sexual
servitude; or
(III) deceptive
recruiting; and
(F) suitable arrangements
have been made for the care, safety and welfare of the non‑citizen in
Australia for the proposed period of the bridging visa; and
(b) a non‑citizen
(a family member):
(i) who is outside Australia; and
(ii) who is a member of the immediate
family of a non‑citizen mentioned in paragraph (a); and
(iii) in relation to whom the Minister
has been told in writing, by an officer of the authority that told Immigration
for the purposes of paragraph (a), that suitable arrangements have been made
for the care, safety and welfare of the family member in Australia for the
proposed period of the bridging visa.
(15) This subregulation applies to:
(a) a non‑citizen:
(i) who is in Australia; and
(ii) is the subject of a valid criminal
justice stay certificate under Division 4 of Part 2 of the Act; and
(iii) whom the Minister is satisfied
needs to travel outside Australia for compelling and compassionate reasons; and
(iv) in relation to whom an officer of:
(A) the Australian Federal
Police; or
(B) a police force of a
State or Territory; or
(C) the office of the
Director of Public Prosecutions of the Commonwealth, a State or a Territory; or
(D) a body of the
Commonwealth, a State or a Territory that has functions similar to those of an
office of a Director of Public Prosecutions;
has told Immigration in writing
that suitable arrangements have been made for the care, safety and welfare of
the non‑citizen in Australia for the proposed period of the bridging
visa; and
(b) a non‑citizen
(a family member):
(i) who is a member of the immediate
family of a non‑citizen mentioned in paragraph (a); and
(ii) in
relation to whom the Minister has been told in writing, by an officer of the
authority that told Immigration for the purposes of subparagraph (a) (iv),
that suitable arrangements have been made for the care, safety and welfare of
the family member in Australia for the proposed period of the bridging visa.
2.20A Applications
for Bridging R (Class WR) visas
(1) For subsection 46 (2) of the Act, a Bridging R
(Class WR) visa is a prescribed class of visa.
(2) An application for a Bridging R (Class WR) visa is
taken to have been validly made by a person if:
(a) the person has been given an invitation in
writing by the Minister, by one of the methods specified in section 494B
of the Act, to apply for the visa; and
(b) the person indicates in writing to
Immigration, not later than 7 days after the person is taken to have received
that invitation, that he or she accepts the invitation.
Note See section 494C of the Act for when
a person is taken to have received a document given by one of the methods
specified in section 494B of the Act.
2.20B Applications
for Bridging F (Class WF) visas
(1) For subsection 46 (2) of the Act, a Bridging F
(Class WF) visa is a prescribed class of visa.
(2) Despite regulation 2.07 and Schedule 1, and as an
alternative to item 1306 of Schedule 1, an application for a Bridging F (Class WF)
visa is taken to have been validly made by a non‑citizen to whom
subregulation 2.20 (14) or (15) applies, or a non‑citizen to whom
subregulation 2.20 (15) would have applied if the non‑citizen had
not been immigration cleared, if:
(a) the non‑citizen has been given an
invitation in writing by the Minister, by one of the methods specified in
section 494B of the Act, to apply for the visa; and
(b) the non‑citizen
indicates in writing to Immigration, not later than 7 days after the non‑citizen
is taken to have received that invitation, that he or she accepts the
invitation.
Note See section 494C of the Act for when
a person is taken to have received a document given by one of the methods
specified in section 494B of the Act.
2.21 Most
beneficial bridging visas (Act, s 68 (4) (b) (ii))
(1) For the purposes of subparagraph 68 (4) (b) (ii) of
the Act (which deals with the order in which bridging visas are reactivated),
if a non‑citizen holds more than 1 bridging visa, the bridging visa that
is the most beneficial is to be determined as set out in this regulation.
(2) The order of classes
from most beneficial to least beneficial is:
(a) Bridging B (Class WB) visa;
(b) Bridging A (Class WA) visa;
(c) Bridging C (Class WC) visa;
(d) Bridging D (Class WD) visa;
(da) Bridging R (Class WR) visa;
(e) Bridging E (Class WE) visa;
(f) Bridging F (Class
WF) visa.
(3) A bridging visa of Class WA, WB or WC that confers
an unlimited right to work is taken to be more beneficial than another bridging
visa of the same class that confers a limited right to work, and a bridging
visa of one of those classes that confers a limited right to work is taken to
be more beneficial than one of the same class that confers no right to work.
(4) A bridging visa of Class WA, WB or WC is taken to be
more beneficial than another bridging visa of the same class that is subject to
the same work conditions if the first‑mentioned visa was granted before
the second‑mentioned visa.
(5) If a non‑citizen holds 2 or more Bridging E
visas, the one that is granted later or latest is taken to be the more or most
beneficial.
2.21A Grant
of Bridging A (Class WA) visas without application
(1) This regulation applies to a person:
(a) who is in Australia, but not in immigration
clearance; and
(b) whose application for a Spouse (Migrant)
(Class BC) visa, a Partner (Migrant) (Class BC) visa or an Interdependency
(Migrant) (Class BI) visa was withdrawn, or refused (except under section 501,
501A or 501B of the Act), when the person was in Australia; and
(c) who was, immediately before that withdrawal
or refusal, the holder of a Subclass 309 (Spouse (Provisional)) or Subclass 310
(Interdependency (Provisional)) visa; and
(d) who has not
already been granted a visa under this regulation in relation to the withdrawal
or refusal.
(2) This regulation also applies to a person:
(a) who is in Australia, but not in immigration
clearance; and
(b) whose application for an Aged Parent
(Residence) (Class BP) visa was withdrawn:
(i) while the person was in Australia;
and
(ii) at the same time as the person
applied for a Contributory Aged Parent (Residence) (Class DG) visa or a
Contributory Aged Parent (Temporary) (Class UU) visa; and
(c) who was, immediately before that withdrawal,
the holder of a Subclass 010 (Bridging A) visa or a Subclass 020
(Bridging B) visa that was granted in association with the application for an
Aged Parent (Residence) (Class BP) visa mentioned in paragraph (b); and
(d) who does not hold a substantive visa; and
(e) who has not
already been granted a Subclass 010 (Bridging A) visa under this
regulation in relation to:
(i) the withdrawal of the application
for an Aged Parent (Residence) (Class BP) visa mentioned in paragraph (b);
and
(ii) the
application for a Contributory Aged Parent (Residence) (Class DG) visa or a
Contributory Aged Parent (Temporary) (Class UU) visa mentioned in paragraph
(b).
(3) This regulation also applies to a person:
(a) who is in Australia, but not in immigration
clearance; and
(b) whose application for a Contributory Aged
Parent (Residence) (Class DG) visa or a Contributory Aged Parent (Temporary)
(Class UU) visa was withdrawn:
(i) while the person was in Australia;
and
(ii) at the same time as the person
applied for an Aged Parent (Residence) (Class BP) visa; and
(c) who was, immediately
before that withdrawal, the holder of a Subclass 010 (Bridging A) visa or a
Subclass 020 (Bridging B) visa that was granted in association with the
application for a Contributory Aged Parent (Residence) (Class DG) visa or a
Contributory Aged Parent (Temporary) (Class UU) visa mentioned in paragraph
(b); and
(d) who does not hold a substantive visa; and
(e) who has not already been granted a Subclass
010 (Bridging A) visa under this regulation in relation to:
(i) the withdrawal of the application
for a Contributory Aged Parent (Residence) (Class DG) visa or a Contributory
Aged Parent (Temporary) (Class UU) visa mentioned in paragraph (b); and
(ii) the application for an Aged Parent
(Residence) (Class BP) visa mentioned in paragraph (b).
(4) Despite Schedule 1, the Minister must grant a
Bridging A (Class WA) visa in relation to the person mentioned in subregulation
(1), (2) or (3).
2.21B Grant
of Bridging A (Class WA), Bridging C (Class WC) and Bridging E (Class WE)
visas without application
(1) This regulation applies if a non‑citizen who
is in Australia, but not in immigration clearance, has made:
(a) a valid
application for a visa on form 157P, form 601, form 601E or form
1182; or
(b) a valid oral application for a Tourist (Class
TR) visa;
and the application has not been finally determined.
(2) Despite anything in Schedule 1, the Minister may
grant
the non‑citizen a Bridging A (Class WA) visa, a Bridging C (Class WC)
visa or a Bridging E (Class WE) visa if the Minister is satisfied that:
(a) at the time of decision, the non‑citizen
meets:
(i) the criteria to be satisfied by an
applicant for the visa at the time of application; and
(ii) the criteria to be satisfied by an
applicant for the visa at the time of decision; and
(b) the circumstances applicable to the grant
exist in relation to the non‑citizen.
2.22 Invalid
application for substantive visa
(1) Subject to subregulation (2), a non‑citizen is
taken to have applied for a Bridging D (Class WD) visa if:
(a) the non‑citizen is in Australia but is
not in immigration or criminal detention; and
(b) he or she applies for a substantive visa of a
class that may be granted in Australia; and
(c) the application:
(i) is given to the Minister in a way
other than by personal attendance at an office of Immigration; and
(ii) is invalid as an application for a
substantive visa of that class; and
(d) the invalidity of the application is not by
reason of its purporting to have been made contrary to section 48 or 48A of the
Act (whether or not the Minister has made a determination under subsection 48B
(1) of the Act in relation to the application or action has been taken by any
person to seek the making of such a determination).
(2) A reference in subregulation (1) to an
application does not include the following:
(a) an oral application, or an oral
communication that purports to be an oral application;
(b) an Internet application, or an electronic
communication that purports to be an Internet application;
(c) an application for a Graduate — Skilled
(Temporary) (Class UQ) visa;
(d) an application for a Skilled —
Independent Overseas Student (Residence) (Class DD) visa;
(e) an application for a Skilled —
Australian‑sponsored Overseas Student (Class DE) visa.
2.23 Further
application for bridging visa (Act, s 74)
For the purposes of subsection 74 (2) of the Act
(which deals with a further application for a bridging visa), the prescribed
circumstances are that the Minister is satisfied that, although the non‑citizen
has not made a further application for a Bridging E (Class WE) visa after being
refused a visa of that class, the non‑citizen now satisfies the criteria
for the grant of a visa of that class.
2.24 Eligible
non‑citizen in immigration detention (Act, s 75)
(1) For paragraph 75 (1) (a)
of the Act (which deals with the class of bridging visa that may be granted to
a non‑citizen in immigration detention), the prescribed classes of
bridging visa are:
(a) Bridging E (Class
WE) visa; and
(b) Bridging F (Class WF) visa.
(2) For the purposes of paragraph 75 (1) (b) of the Act
(which deals with the time in which the Minister must make a decision on a
bridging visa application), the prescribed period is:
(a) in the case of an application by:
(i) a non‑citizen who has been
immigration cleared; or
(ii) a non‑citizen who is an
eligible non‑citizen referred to in subregulation 2.20 (6);
2 working days; or
(b) in any other case — 28 days.
Note The prescribed conditions for the
purposes of section 75 are set out in:
(a) clause 050.612 in Schedule 2
(for a Bridging E (Class WE) visa); and
(b) clause 060.611 in Schedule 2
(for a Bridging F (Class WF) visa).
2.25 Grant
of Bridging E (Class WE) visas without application
(1) This regulation applies to:
(a) a non‑citizen who is in criminal detention;
or
(b) a non‑citizen
who:
(i) is unwilling or unable to make a
valid application for a Bridging E (Class WE) visa; and
(ii) is not barred from making a valid
application for a Bridging E (Class WE) visa by a provision in the Act or these
Regulations, other than in item 1305 of Schedule 1.
(2) Despite anything in Schedule 1, the Minister may
grant the non‑citizen a Bridging E (Class WE) visa if the Minister is
satisfied that, at the time of decision:
(a) the non‑citizen satisfies:
(i) the criteria set out in clauses
050.211, 050.212, 050.223, 050.224 and 050.411 of Schedule 2; and
(ii) the interview criterion; or
(b) the non‑citizen satisfies the criteria
set out in clauses 051.211, 051.212, 051.213, 051.221 and 051.411 of
Schedule 2.
(3) The non‑citizen satisfies the interview
criterion if an officer who is authorised by the Secretary for the
purposes of subclause 050.222 (1) of Schedule 2 has either:
(a) interviewed the non‑citizen; or
(b) decided that it is not necessary to interview
the non‑citizen.
Division 2.5A Special provisions relating to certain health criteria
2.25A Referral
to Medical Officers of the Commonwealth
(1) In determining whether an applicant satisfies the
criteria for the grant of a visa, the Minister must seek the opinion of a
Medical Officer of the Commonwealth on whether a person (whether the applicant
or another person) meets the requirements of paragraph 4005 (a), 4005 (b), 4005
(c), 4006A (1) (a), 4006A (1) (b), 4006A (1) (c), 4007 (1) (a), 4007 (1) (b) or
4007 (1) (c) of Schedule 4 unless:
(a) the application is for a temporary visa and
there is no information known to Immigration (either through the application or
otherwise) to the effect that the person may not meet any of those
requirements; or
(b) the application is for a permanent visa that
is made from a country (whether Australia or a foreign country) specified by
Gazette Notice for the purposes of this paragraph and there is no information
known to Immigration (either through the application or otherwise) to the
effect that the person may not meet any of those requirements.
Note foreign country is
defined in paragraph 22 (1) (f) of the Acts Interpretation Act
1901 as any country (whether or not an independent sovereign state) outside
Australia and the external Territories.
(2) In determining whether an applicant satisfies the
criteria for the grant of a Medical Treatment (Visitor) (Class UB) visa, the
Minister must seek the opinion of a Medical Officer of the Commonwealth on
whether the applicant meets the requirements of:
(a) subparagraphs 675.221 (2) (f) (i) and
675.221 (2) (g) (i), (ii) and (iii) of Schedule 2; or
(b) subparagraphs 685.221 (2) (f) (i) and 685.221
(2) (g) (i), (ii) and (iii) of Schedule 2;
if there is information known to Immigration (either through the
application or otherwise) to the effect that the applicant may not meet any of
those requirements or be able to satisfy the Minister as to those matters.
(3) The Minister is to take the opinion of the Medical
Officer of the Commonwealth on a matter referred to in subregulation (1) or (2)
to be correct for the purposes of deciding whether a person meets a requirement
or satisfies a criterion.
Division 2.6 Prescribed qualifications — application of points system
2.26 Prescribed
qualifications and number of points — Independent (Migrant) (Class AT) and
Skilled – Australian‑linked (Migrant) (Class AJ) visas
(1A) This regulation applies to an applicant for an
Independent (Migrant) (Class AT) or a Skilled – Australian‑linked
(Migrant) (Class AJ) visa.
(1) For the purposes of subsection 93 (1) of the Act
(which deals with determination of an applicant’s points score):
(a) each qualification specified in column 2 of
an item in Part 1, 2, 3, 4, 5, 6, or 7 of Schedule 6 is prescribed as a qualification
in relation to the grant, to the applicant, of a Subclass 105 (Skilled –
Australian Linked) visa; and
(b) each qualification specified in column 2 of
an item in
Part 1, 2, or 3 of Schedule 6 is prescribed as a qualification in relation to
the grant, to the applicant, of a
Subclass 126 (Independent), or Subclass 135 (State/Territory‑Nominated
Independent), visa.
(2) In relation to a prescribed qualification specified
in column 2 of an item in Schedule 6, the number of points specified in column
3 of that item is prescribed.
(3) For the purposes of subsection 93 (1) of the Act
(which deals with determination of an applicant’s points score), the Minister:
(a) is not to give the applicant a prescribed
number of points for more than one prescribed qualification in each Part of
Schedule 6; and
(b) is to give the applicant only the number of
points applicable to the prescribed qualification that meets the applicant’s
circumstances and for which the prescribed number of points is the highest for
any such prescribed qualification; and
(c) is to deduct
25 points from the total number of points otherwise obtained by the applicant
if the usual occupation of the applicant is that of medical practitioner
(including specialist medical practitioner); and
(d) in relation to the determination of the
points score of the applicant for a Subclass 105 (Skilled – Australian
Linked) or Subclass 126 (Independent) visa, must add 5 points to the total
number of points otherwise obtained by the applicant if the applicant holds an
award (being an Australian degree, higher degree, diploma or trade certificate)
obtained after a period of at least 1 year of full‑time study in
Australia for that award.
(4) If:
(a) the applicant cannot provide the evidence
that is required by an item in Part 3 of Schedule 6; or
(b) the Minister determines that it is not
reasonably practicable, or not necessary, for the applicant to sit for an
ACCESS test or an IELTS test;
the Minister may determine that the applicant has a level of
English proficiency equivalent to that mentioned in an item in that Part.
(5) In Part 1 of Schedule 6:
associate diploma means:
(a) a formal educational qualification awarded
by an Australian educational institution as an associate diploma for which:
(i) the entry level to the course
leading to the qualification is satisfactory completion of year 12 in the
Australian school system or of equivalent schooling; and
(ii) 2 years of full‑time study,
or the equivalent period of part‑time study, is required; or
(b) a formal educational qualification that is of
an equivalent standard awarded by an educational institution outside Australia.
certificate or
advanced certificate means:
(a) a formal educational qualification awarded
by an Australian educational institution as a certificate or advanced
certificate for which:
(i) in the case of a qualification
that is an advanced certificate — the entry level to the course leading to
the qualification is completion of year 10 in the Australian school system or
of equivalent schooling; and
(ii) in any case — for which 1
year of full‑time study, or the equivalent period of part‑time
study, is required; or
(b) a formal educational qualification that is of
an equivalent standard awarded by an educational institution outside Australia.
degree means:
(a) a formal educational qualification awarded
by an Australian educational institution as a degree or a postgraduate diploma
for which:
(i) the entry level to the course
leading to the qualification is:
(A) in the case of a bachelor’s
degree — satisfactory completion of year 12 in the Australian school
system or of equivalent schooling; and
(B) in the case of a
master’s degree — satisfactory completion of a bachelor’s degree awarded
at an Australian tertiary educational institution or of an equivalent award;
and
(C) in the case of a
doctoral degree — satisfactory completion of a bachelor’s degree awarded
with honours, or a master’s degree, at an Australian tertiary educational
institution or of an equivalent award; and
(D) in the case of a
postgraduate diploma — satisfactory completion of a bachelor’s degree or
diploma awarded at an Australian tertiary educational institution or of an
equivalent award; and
(ii) in the case of a bachelor’s
degree, not less than 3 years of full‑time study, or the equivalent
period of part‑time study, is required; or
(b) a formal educational qualification that is of
an equivalent standard awarded by an educational institution outside Australia.
diploma means:
(a) a formal educational qualification awarded
by an Australian educational institution as a diploma for which:
(i) the entry level to the course
leading to the qualification is satisfactory completion of year 12 in the
Australian school system or of equivalent schooling; and
(ii) 3 years of full‑time study,
or the equivalent period of part‑time study, is required; or
(b) a formal educational qualification that is of
an equivalent standard awarded by an educational institution outside Australia.
professional‑equivalent occupation
means an occupation specified by an instrument in writing for this definition
as a professional‑equivalent occupation.
priority occupation means an occupation
specified by an instrument in writing for this definition as a priority
occupation.
relevant Australian authority means:
(a) Education, or a body appointed in writing by
Education to assess educational qualifications or work experience; or
(b) the Department of
Employment and Workplace Relations; or
(c) if the circumstances of a case preclude an
authority referred to in paragraph (a) or (b) from making an assessment, the
Minister.
technical‑equivalent occupation means
an occupation specified by an instrument in writing for this definition as a
technical‑equivalent occupation.
trade certificate
means:
(a) an Australian trade qualification obtained
as a result of the completion of:
(i) an indentured apprenticeship; or
(ii) a training contract;
that is required by State or Territory
industrial training legislation or a relevant Federal, State or Territory industrial
award and involves:
(iii) part‑time formal training
at a technical college or a college of technical and further education; and
(iv) employment within the meaning of:
(A) an industrial award
under a law of the Commonwealth or of a State or Territory; or
(B) a law of a State or
Territory dealing with commercial or industrial training; or
(b) a qualification obtained outside Australia
that is of an equivalent standard.
usual occupation means an occupation that the
applicant has engaged in for gain or reward for a continuous period of at least
6 months during the period of 2 years immediately preceding the relevant
application for a visa.
(6) In Part 4 of Schedule 6:
(a) a reference to adoption is a reference to an
adoption occurring before the person adopted turned 18; and
(b) a reference to
a step‑relationship is a reference to a step‑relationship in which
the applicant and the relevant step‑relative of the applicant have been
members of the same family unit for a reasonable period.
2.26A Prescribed
qualifications and number of points for skilled permanent visas and Skilled —
Independent Regional (Provisional) (Class UX) visa
(1) This regulation applies to an applicant for any of
the following visas:
(a) a Skilled — Australian‑sponsored
(Migrant) (Class BQ) visa;
(b) a Skilled — Independent (Migrant) (Class
BN) visa;
(c) a Skilled — New Zealand Citizen
(Residence) (Class DB) visa;
(d) a Skilled — Independent Overseas Student
(Residence) (Class DD) visa;
(e) a Skilled — Australian‑sponsored
Overseas Student (Residence) (Class DE) visa;
(f) a Skilled —
Independent Regional (Provisional) (Class UX) visa.
(2) For subsection 93 (1) of the Act (which deals
with determination of an applicant’s points score):
(a) each qualification specified in column 2 of
an item in Part 1, 2, 3, 4, 5, 6, 7, 8 or 10
of Schedule 6A is prescribed as a qualification in relation to the grant, to
the applicant, of:
(i) a Subclass 136 (Skilled —
Independent) visa; or
(ii) a Subclass 137 (Skilled —
State/Territory‑nominated Independent) visa; or
(iii) a Subclass 861 (Skilled —
Onshore Independent New Zealand Citizen) visa; or
(iv) a Subclass 880 (Skilled —
Independent Overseas Student) visa; and
(b) each qualification specified in column 2 of
an item in Part 1, 2, 3, 4, 5, 6, 7, 8, 9 or 10
of Schedule 6A is prescribed as a qualification in relation to the grant,
to the applicant, of:
(i) a Subclass 138 (Skilled —
Australian‑sponsored) visa; or
(ii) a Subclass 862 (Skilled —
Onshore Australian‑sponsored New Zealand Citizen) visa; or
(iii) a Subclass 881 (Skilled —
Australian‑sponsored Overseas Student) visa; and
(c) each qualification specified in column 2 of
an item in Part 1, 2, 3, 4, 5, 6, 7, 8, 9A or 10 of Schedule 6A is
prescribed as a qualification in relation to the grant, to the applicant, of a
Subclass 495 (Skilled — Independent Regional
(Provisional)) visa.
(3) The number of points prescribed for a qualification
specified in column 2 in an item in Schedule 6A is specified in column 3 in the
item.
(4) For subsection 93 (1) of the Act, the Minister:
(a) must not give the applicant a prescribed
number of points for more than 1 prescribed qualification in each Part of
Schedule 6A; and
(b) must give the applicant only the number of
points applicable to the prescribed qualification that meets the applicant’s
circumstances and for which the prescribed number of points is the highest for
any such prescribed qualification; and
(c) must not give the applicant a prescribed
number of points for item 6A12 or 6A13 in Part 1 of Schedule 6A unless:
(i) in the case of
item 6A12 — the applicant is assessed by the relevant assessing
authority as holding a degree that is equivalent to a degree of an Australian
tertiary educational institution; and
(ii) in the case of
item 6A13 — the applicant is assessed by the relevant assessing
authority as holding a diploma or advanced diploma that is equivalent to a
diploma or advanced diploma of an Australian educational institution.
(5) The Minister may determine that the applicant is
proficient in English to a level equivalent to that mentioned in an item in
Part 3 of Schedule 6A, if the Minister determines that it is not reasonably
practicable, or not necessary, for the applicant to be tested using the IELTS
test.
(5AA) In working out the
number of points to be given to an applicant for Part 7 of
Schedule 6A, the Minister must have regard to whichever of the following
are more favourable to the applicant:
(a) the occupations that were specified as
migration occupations in demand at the time the application was made;
(b) the occupations that are specified as
migration occupations in demand at the time the assessment mentioned in
subsection 93 (1) of the Act is made.
(5A) For
Part 8 of Schedule 6A, if:
(a) an application for
a visa was made, but not finally determined (within the meaning of subsection 5 (9)
of the Act), before 1 November 2005; and
(b) the Minister made an assessment under
subsection 93 (1) of the Act in relation to the application before 1
November 2005;
the prescribed number of points for the
purposes of that assessment is taken to be the sum of the number of points
included in the assessment and the number of points (if any) to which the
applicant would have been entitled, under item 6A82 of Part 8 of Schedule 6A,
if that item had been in force at the time of the assessment.
Note Item 6A82 of Part 8 of Schedule 6A
commenced on 1 November 2005.
(6) In Part 6 of Schedule 6A:
degree means a formal educational
qualification, under the Australian Qualifications Framework, awarded by an
Australian educational institution as a degree or a postgraduate diploma for
which:
(a) the entry level to the course leading to the
qualification is:
(i) in the case of a bachelor’s
degree — satisfactory completion of year 12 in the Australian school
system or of equivalent schooling; and
(ii) in the case of a master’s
degree — satisfactory completion of a bachelor’s degree awarded at an
Australian tertiary educational institution or of an equivalent award; and
(iii) in the case of a doctoral
degree — satisfactory completion of a bachelor’s degree awarded with
honours, or a master’s degree, at an Australian tertiary educational
institution or of an equivalent award; and
(iv) in the case of a postgraduate
diploma — satisfactory completion of a bachelor’s degree or diploma
awarded at an Australian tertiary educational institution or of an equivalent
award; and
(b) in the case of a bachelor’s degree, not less
than 3 years of full‑time study, or the equivalent period of part‑time
study, is required.
diploma means:
(a) an associate diploma, or a diploma, within
the meaning of the Register of Australian Tertiary Education (as current when
this definition commences), that is awarded by a body authorised to award
diplomas of those kinds; or
(b) a diploma, or an advanced diploma, under the
Australian Qualifications Framework, that is awarded by a body authorised to
award diplomas of those kinds.
trade qualification means:
(a) an Australian trade qualification obtained
as a result of the completion of:
(i) an indentured apprenticeship; or
(ii) a training contract;
that is required by State or Territory
industrial training legislation or a relevant Federal, State or Territory
industrial award and involves:
(iii) part‑time formal training
at a technical college or a college of technical and further education; and
(iv) employment
within the meaning of:
(A) an industrial award
under a law of the Commonwealth or of a State or Territory; or
(B) a law of a State or
Territory dealing with commercial or industrial training; or
(b) a
qualification, under the Australian Qualifications Framework, of at least the
Certificate III level for a skilled occupation in Major Group IV in the
Australian Standard Classification of Occupations that is:
(i) published by AusInfo; and
(ii) current when this definition
commences.
(7) In Parts 4, 5 and 8 of Schedule 6A:
employed means engaged in an occupation for
remuneration for at least 20 hours weekly.
(7A) In
Parts 5, 6 and 10 of Schedule 6A:
course of study means a full‑time registered course of study.
Note registered course is
defined in regulation 1.03.
(8) In Part 9 of Schedule 6A:
(a) a reference to adoption is a reference to an
adoption occurring before the adopted person turned 18; and
(b) a reference to a step‑relationship is a
reference to a step‑relationship in which the applicant, or the
applicant’s spouse, and the relevant step‑relative of the applicant, or
of the applicant’s spouse, have been members of the same family unit for a reasonable
period.
2.26B Relevant
assessing authorities
(1) The Minister may, by an instrument in writing for
this subregulation, specify a person or body as the relevant assessing
authority for a skilled occupation if the person or body is approved in writing
by the Minister or Education as the relevant assessing authority for the
occupation.
(2) The standards against which the skills of a person
are assessed by a relevant assessing authority for a skilled occupation must be
the standards set by the relevant assessing authority for the skilled
occupation.
2.26C Designated
securities
(1) The Minister may, by an instrument in writing for
this subregulation, specify a security issued by an Australian State or
Territory government authority as a security in which an investment is a
designated security for the purposes of Part 8 of Schedule 6A.
(2) The Minister must not specify a security unless:
(a) an investment in the security matures in not
less than 1 year from its date of issue; and
(b) repayment of principal is guaranteed by the
issuing authority; and
(c) an investment in the security cannot be
transferred or redeemed before maturity except by operation of law or under
other conditions acceptable to the Minister; and
(d) investment in the security is open to the
general public at commercially competitive rates of return; and
(e) the Minister is satisfied that the
Commonwealth will not be exposed to any liability as a result of an investment
in the security by a person.
2.27 Combination
of scores — points system: applicants for Skilled – Australian‑linked
(Migrant) (Class AJ) visas
If:
(a) an applicant to whom regulation 2.26 applies
(in this regulation called the applicant) does not receive the
pass mark or pool mark (as the case requires) under that regulation; and
(b) the spouse of the applicant is an applicant
for a visa of the same class;
the applicant is taken to have received the pass mark or pool mark
(as the case requires) if the sum of:
(c) the points which the spouse could receive
under Parts 1, 2 and 3 of Schedule 6; and
(d) the points
which the applicant receives under Parts 4, 5, 6 and 7 of Schedule 6;
is equal to, or exceeds the pass mark or pool mark (as the case
requires).
2.27A Combination
of scores — points system: applicants for skilled permanent visas
(1) This regulation
applies if:
(a) an applicant for a Skilled — Australian‑sponsored
(Class BQ) or Skilled — Australian‑sponsored Overseas Student
(Residence) (Class DE) visa, or an applicant for a Skilled — New Zealand
Citizen (Residence) (Class DB) visa who has been sponsored, (the primary
applicant) does not receive the pass or pool mark under
regulation 2.26A; and
(b) the spouse of the primary applicant is also
an applicant for a visa of that class; and
(c) the applicant’s visa application was made
before 1 October 2006.
(2) The primary applicant is taken to have received the
pass or pool mark if the sum of the following points equals or exceeds the pass
or pool mark:
(a) the points that the spouse could receive
under Parts 1, 2, 3, 4, 5, 6, 7, 8 and 10 of Schedule 6A;
(b) the points that the primary applicant
receives under Part 9 of Schedule 6A.
Note Pool marks and pass marks are set
from time to time by the Minister by notice in the Gazette (Act,
s 96).
2.27B Skills
assessment for skilled occupations
(1) This regulation applies to a person if:
(a) the person’s skills for a skilled occupation
have been assessed by a relevant assessing authority; and
(b) the authority has certified that those skills
are suitable for the occupation; and
(c) the person is an applicant for:
(i) a Skilled — Australian‑sponsored
(Migrant) (Class BQ) visa; or
(ii) a Skilled — Independent
(Migrant) (Class BN) visa; or
(iii) a Skilled — New Zealand
Citizen (Residence) (Class DB) visa; or
(iv) a
Skilled — Independent Overseas Student (Residence) (Class DD) visa; or
(v) a Skilled — Australian‑sponsored
Overseas Student (Residence) (Class DE) visa; or
(vi) a Skilled —
Independent Regional (Provisional) (Class UX) visa; or
(vii) a
Skilled — Designated Area‑sponsored (Provisional) (Class UZ) visa;
and
(d) the Minister is satisfied, on the basis of
the person’s educational qualifications and work history, that:
(i) the applicant has qualifications
or experience in a skilled occupation that has not been nominated in the visa
application; and
(ii) the occupation is a skilled
occupation for which persons are required to be licensed or registered under a
law of the Commonwealth, or of a State or Territory, to engage in the
occupation; and
(iii) it would be appropriate for the
applicant to be assessed by the relevant assessing authority for that skilled
occupation.
(2) The Minister may invite the person in writing to
have his
or her skills for a skilled occupation that is mentioned in subparagraph
(1) (d) (ii) assessed by the relevant assessing authority for the
occupation.
(3) If, under subregulation (2), the Minister invites
the person to have his or her skills assessed for a skilled occupation, that
occupation is taken to be the skilled occupation nominated by the person in his
or her visa application.
(4) If the person gives an assessment of the person’s
skills to the Minister in response to the Minister’s invitation, that
assessment is taken to be an assessment accompanying the visa application made
by the person.
2.27C Skilled
occupation in Australia
In determining whether an applicant satisfies a
criterion that the applicant has been employed in a skilled occupation for a
certain period, a period of employment in Australia must not be counted unless
the applicant:
(a) held:
(i) a
substantive visa; or
(ii) a
Subclass 010 Bridging A visa; or
(iii) a
Subclass 020 Bridging B visa;
authorising him
or her to work during that period; and
(b) complied with the conditions of that visa.
2.28 Notice
of putting application aside
(1) If the Minister puts an application aside under
paragraph 94 (3) (a) of the Act, he or she must notify the applicant
in writing that he or she has done so.
(2) A notification under subregulation (1) must set out:
(a) the decision of the Minister; and
(b) the reason for the decision; and
(c) that the decision can be reviewed; and
(d) the time in which an application for review
may be made; and
(e) who can apply for the review; and
(f) where the application for review can be
made.
2.29A Application
of Skilled — Australian‑sponsored Overseas Student (Residence)
(Class DE) visa from 1 July 2003
Paragraphs 1128BA (3) (i) and (j) in
Schedule 1, as in force immediately before 1 July 2003, continue to apply in relation
to a person:
(a) who was undertaking full‑time study in
Australia on or before 31 March 2003; and
(b) who applies for:
(i) a Graduate — Skilled
(Temporary) (Class UQ) visa; or
(ii) a Skilled — Australian‑sponsored
Overseas Student (Residence) (Class DE) visa;
on or after 1 July 2003 and before 1 April
2004.
Note Item 1128BA was amended with effect
from 1 July 2003. The two versions of item 1128BA, before and after 1 July
2003, have substantially different effects, and the purpose of this regulation
is to ensure that certain persons are not disadvantaged by the effect of the
new version.
2.29B Application
of Skilled — Independent Overseas Student (Residence) (Class DD) visa from
1 July 2003
Paragraphs 1128CA (3) (j) and (l) in
Schedule 1, as in force immediately before 1 July 2003, continue to apply in
relation to a person:
(a) who was undertaking full‑time study in
Australia on or before 31 March 2003; and
(b) who applies
for:
(i) a Graduate — Skilled
(Temporary) (Class UQ) visa; or
(ii) a Skilled — Independent
Overseas Student (Residence) (Class DD) visa;
on or after 1 July 2003 and before 1 April
2004.
Note Item 1128CA was amended with effect
from 1 July 2003. The two versions of item 1128CA, before and after 1 July
2003, have substantially different effects, and the purpose of this regulation
is to ensure that certain persons are not disadvantaged by the effect of the
new version.
2.29C Application
of Graduate — Skilled (Temporary) (Class UQ) visa from 1 July 2003
Paragraph 1212A (3) (h) in Schedule 1, as
in force immediately before 1 July 2003, continues to apply in relation to a
person:
(a) who was undertaking full‑time study in
Australia on or before 31 March 2003; and
(b) who applies for a Graduate — Skilled
(Temporary) (Class UQ) visa on or after 1 July 2003 and before 1 April 2004.
Note Item 1212A was amended with effect
from 1 July 2003. The two versions of item 1212A, before and after 1 July 2003,
have substantially different effects, and the purpose of this regulation is to
ensure that certain persons are not disadvantaged by the effect of the new
version.
2.29D Application
of Subclass 134 (Skill Matching) visa from 1 July 2003
Subclauses 134.215
(2) and 134.222A (2) in Schedule 2, as in force immediately before 1 July 2003,
continue to apply in relation to a person:
(a) who was undertaking full‑time study in
Australia on or before 31 March 2003; and
(b) who applies for a Skill Matching (Migrant)
(Class BR) visa on or after 1 July 2003 and before 1 April 2004.
Note Part 134 in Schedule 2 was amended
with effect from 1 July 2003. The two versions of the Part, before and after 1
July 2003, have substantially different effects, and the purpose of this
regulation is to ensure that certain persons are not disadvantaged by the
effect of the new version.
2.29E Application
of Subclass 136 (Skilled — Independent) visa from 1 July 2003
Subclauses 136.213 (2) and 136.223A (2)
in Schedule 2, as in force immediately before 1 July 2003, continue to apply in
relation to a person:
(a) who was undertaking full‑time study in
Australia on or before 31 March 2003; and
(b) who applies for a Skilled — Independent
(Migrant) (Class BN) visa on or after 1 July 2003 and before 1 April 2004.
Note Part 136 in Schedule 2 was amended
with effect from 1 July 2003. The two versions of the Part, before and after 1
July 2003, have substantially different effects, and the purpose of this
regulation is to ensure that certain persons are not disadvantaged by the
effect of the new version.
2.29F Application
of Subclass 137 (Skilled — State/Territory‑nominated Independent)
visa from 1 July 2003
Subclauses 137.214 (2) and 137.221A (2)
in Schedule 2, as in force immediately before 1 July 2003, continue to apply in
relation to a person:
(a) who was undertaking full‑time study in
Australia on or before 31 March 2003; and
(b) who applies for a Skilled — Independent
(Migrant) (Class BN) visa on or after 1 July 2003 and before 1 April 2004.
Note Part 137 in Schedule 2 was amended
with effect from 1 July 2003. The two versions of the Part, before and after 1
July 2003, have substantially different effects, and the purpose of this
regulation is to ensure that certain persons are not disadvantaged by the
effect of the new version.
2.29G Application
of Subclass 138 (Skilled — Australian‑sponsored) visa from 1 July
2003
Subclauses 138.216 (2) and 138.225A (2)
in Schedule 2, as in force immediately before 1 July 2003, continue to apply in
relation to a person:
(a) who was undertaking full‑time study in
Australia on or before 31 March 2003; and
(b) who applies for a Skilled — Australian‑sponsored
(Migrant) (Class BQ) visa on or after 1 July 2003 and before 1 April 2004.
Note Part 138 in Schedule 2 was amended
with effect from 1 July 2003. The two versions of the Part, before and after 1
July 2003, have substantially different effects, and the purpose of this
regulation is to ensure that certain persons are not disadvantaged by the
effect of the new version.
2.29H Application
of Subclass 139 (Skilled — Designated Area‑sponsored) visa from 1
July 2003
Subclauses 139.217 (2) and 139.225A (2)
in Schedule 2, as in force immediately before 1 July 2003, continue to apply in
relation to a person:
(a) who was undertaking full‑time study in
Australia on or before 31 March 2003; and
(b) who applies for a Skilled — Australian‑sponsored
(Migrant) (Class BQ) visa on or after 1 July 2003 and before 1 April 2004.
Note Part 139 in Schedule 2 was amended
with effect from 1 July 2003. The two versions of the Part, before and after 1
July 2003, have substantially different effects, and the purpose of this
regulation is to ensure that certain persons are not disadvantaged by the
effect of the new version.
2.29I Application
of Subclass 861 (Skilled — Onshore Independent New Zealand Citizen) visa
from 1 July 2003
Subclause 861.213 (2) in Schedule 2, as in
force immediately before 1 July 2003, continues to apply in relation to a
person:
(a) who was undertaking full‑time study in
Australia on or before 31 March 2003; and
(b) who applies for a Skilled — New Zealand
Citizen (Residence) (Class DB) visa on or after 1 July 2003 and before 1 April
2004.
Note Part 861 in Schedule 2 was amended
with effect from 1 July 2003. The two versions of the Part, before and after 1
July 2003, have substantially different effects, and the purpose of this
regulation is to ensure that certain persons are not disadvantaged by the
effect of the new version.
2.29J Application
of Subclass 862 (Skilled — Onshore Australian‑sponsored New Zealand
Citizen) visa from 1 July 2003
Subclause 862.216 (2) in Schedule 2, as in
force immediately before 1 July 2003, continues to apply in relation to a
person:
(a) who was undertaking full‑time study in
Australia on or before 31 March 2003; and
(b) who applies for a Skilled — New Zealand
Citizen (Residence) (Class DB) visa on or after 1 July 2003 and before 1 April
2004.
Note Part 862 in Schedule 2 was amended with
effect from 1 July 2003. The two versions of the Part, before and after 1 July
2003, have substantially different effects, and the purpose of this regulation
is to ensure that certain persons are not disadvantaged by the effect of the
new version.
2.29K Application
of Subclass 863 (Skilled — Onshore Designated Area‑sponsored New
Zealand Citizen) visa from 1 July 2003
Subclause 863.217 (2) in Schedule 2, as in
force immediately before 1 July 2003, continues to apply in relation to a
person:
(a) who was undertaking full‑time study in
Australia on or before 31 March 2003; and
(b) who applies for a Skilled — New Zealand
Citizen (Residence) (Class DB) visa on or after 1 July 2003 and before 1 April
2004.
Note Part 863 in Schedule 2 was amended
with effect from 1 July 2003. The two versions of the Part, before and after 1
July 2003, have substantially different effects, and the purpose of this
regulation is to ensure that certain persons are not disadvantaged by the
effect of the new version.
Division 2.7 Assurances of support
Subdivision
2.7.1 Assurances of support given in relation to applications lodged before
20 December 1991
2.30 Interpretation
In this Subdivision:
assurance of support means:
(a) an assurance of support given under the
Migration (1989) Regulations, the Migration (1993) Regulations or these
Regulations in relation to an application lodged before 20 December 1991;
or
(b) a maintenance
guarantee that:
(i) was given on or before 18 December
1989 under regulations that were in force under the Act or under any of the
Acts repealed by the Act; and
(ii) is expressed, or otherwise
purports, to have effect after 19 December 1991.
2.31 Form
of certain assurances of support
An assurance of support given under this
Subdivision must be in the form approved by the Minister.
2.32 Duration
of assurances of support
An assurance of support that:
(a) was given under the Migration (1989)
Regulations before 20 December 1991 and, at the end of 19 December 1991,
had been in force for less than 2 years; or
(b) was given under Division 1 of Part 6 of the
Migration (1989) Regulations on or after 20 December 1991; or
(c) was given under Division 1 of Part 5 of the
Migration (1993) Regulations; or
(d) is given under this Subdivision;
ceases to have effect at the end of 2 years after:
(e) the day when the applicant enters Australia;
or
(f) the grant of the relevant visa; or
(g) if he or she is granted an entry permit
before 1 September 1994, the grant of that entry permit;
whichever happens latest.
2.33 Effect
of assurance of support
If, while an assurance of support has effect after
19 December 1991 in respect of a person, that person has received support in
the form of:
(a) a job search allowance payable under Part
2.11 of the Social Security Act 1991; or
(b) a newstart allowance payable under Part 2.12
of that Act; or
(c) a special benefit payable under Part 2.15 of
that Act; or
(d) a widow allowance under Part 2.8A of that
Act; or
(e) a PP (partnered) under Part 2.10 of that
Act; or
(f) a mature age allowance under Part 2.12A or
2.12B of that Act; or
(g) a partner allowance under Part 2.15A of that
Act; or
(h) a parenting allowance under Part 2.18 of
that Act; or
(i) a youth training allowance under Part 8 of
the Student and Youth Assistance Act 1973; or
(j) a youth allowance under Part 2.11 of the Social
Security Act 1991; or
(k) an austudy payment under Part 2.11A of that
Act; or
(l) a crisis payment under Part 2.23A of the Social
Security Act 1991;
an amount equal to the value of the support provided (less any
amount paid in respect of the support by or on behalf of that person to the
Commonwealth) is a debt due and payable to the Commonwealth by the person who
gave the assurance, and may be recovered by action in a Court of competent
jurisdiction.
2.34 Earlier
liabilities not affected
Nothing in this Subdivision affects any liability
incurred under, or in respect of, an assurance of support before 20 December
1991.
Subdivision
2.7.2 Assurances of support given in relation to applications lodged after
19 December 1991 and accepted by the Minister before 1 July 2004
2.35 Interpretation
In this Subdivision:
assurance of support means an assurance of
support that is given in relation to an application lodged after 19 December 1991
and accepted by the Minister before 1 July 2004.
required assurance means an assurance of
support that is an unconditional requirement prescribed in Schedule 2 for the
grant of a visa.
relevant visa, in relation to an assurance of
support, means:
(a) the visa for the grant of which the giving
of the assurance of support was required; or
(b) the entry permit or entry visa for the grant
of which under the Migration (1989) Regulations or the Migration (1993)
Regulations the giving of the assurance of support was required; or
(c) the entry
permit the grant of which on entry under the Migration (1989) Regulations or
the Migration (1993) Regulations was a consequence of the grant of a travel‑only
visa for the grant of which the giving of the assurance of support was
required.
2.36 Form
and duration of assurance of support
(1) An assurance of support:
(a) must be on the approved form; and
(b) if the application to which the assurance
relates is an application for a Contributory Parent (Migrant) (Class CA) or
Contributory Aged Parent (Residence) (Class DG) visa — has effect for 10
years from the later of:
(i) the day when the person enters
Australia; or
(ii) the day when the person is granted
the relevant visa; and
(c) in any other case — has effect for 2
years from the later of:
(i) the day when the person enters
Australia; or
(ii) the day when the person is granted
the relevant visa.
(2) A required assurance is taken not to have been given
unless the bond (if any) required by regulation 2.39 in relation to it has been
lodged.
2.37 Persons
in respect of whom assurance of support may be given
(1) Subject to subregulation (2), a person must not give
assurances of support having effect at the same time in respect of more than 2
persons.
(2) A person does not count for the purposes of
subregulation (1) if that person:
(a) has not turned 18; and
(b) is included in an assurance of support given
in respect of another person.
2.38 Liability
of person giving assurance of support
(1) If a person receives support in the form of:
(a) a job search allowance payable under Part
2.11 of the Social Security Act 1991; or
(b) a newstart allowance payable under Part 2.12
of that Act; or
(c) a special benefit payable under Part 2.15 of
that Act; or
(d) a widow allowance under Part 2.8A of that
Act; or
(e) a partner allowance under Part 2.15A of that
Act; or
(f) a parenting allowance under Part 2.18 of
that Act; or
(g) a youth training allowance under Part 8 of
the Student and Youth Assistance Act 1973; or
(h) a PP (partnered) under Part 2.10 of the Social
Security Act 1991; or
(i) a mature age allowance under Part 2.12A or
2.12B of that Act; or
(j) a youth allowance under Part 2.11 of that
Act; or
(k) an austudy payment under Part 2.11A of that
Act; or
(l) a crisis payment under Part 2.23A of the Social
Security Act 1991;
and an assurance of support has effect in respect of the person
when he or she receives the support, the person who gave the assurance is
liable, subject to this regulation, to pay to the Commonwealth the amount of
the support.
(2) A person is not liable to pay an amount that would
otherwise be payable under subregulation (1) in respect of a required assurance
until the Commonwealth has taken all reasonable steps to enforce the bond
lodged in respect of the assurance.
(3) An amount payable under subregulation (1) is reduced
by:
(a) any amount obtained by the Commonwealth
under the bond that has not been applied to reduce a person’s liability to the
Commonwealth; and
(b) any amount paid to the Commonwealth in
respect of the support.
2.39 Bond
(required assurances)
(1) A person who gives a required assurance in respect
of an applicant for a visa who has turned 18 must lodge with the Minister a
bond in accordance with this regulation.
(2) The bond must be lodged before a decision is made on
the application to which the required assurance relates.
(3) The bond must be in a form approved by the Minister
that secures the payment to the Commonwealth, on demand, of any amount (up to
the amount of the bond) due to the Commonwealth under regulation 2.38 in
respect of:
(a) the applicant; and
(b) if the assurance has effect also in relation
to a person who has not turned 18, that person.
(4) The amount of a bond is:
(a) unless paragraph (b) or (c)
applies — $3 500; or
(b) unless paragraph (c) applies, if the
application to which the assurance relates depends on another person holding or
being granted a visa of the same class as that sought in the application —
$1 500; or
(c) if the application to which the assurance
relates is an application for a Contributory Parent (Migrant) (Class CA) or
Contributory Aged Parent (Residence) (Class DG) visa:
(i) for
an applicant seeking to satisfy the primary criteria for grant of the
visa — $10 000; or
(ii) for an applicant seeking to
satisfy the secondary criteria for grant of the visa — $4 000.
Division 2.8 Special purpose visas
2.40 Persons
having a prescribed status — special purpose visas (Act, s 33 (2) (a))
Persons who hold prescribed status
(1) For the purposes of paragraph 33 (2) (a) of the Act
(which deals with persons who are taken to have been granted special purpose
visas), and subject to this regulation, each non‑citizen who is included
in one of the following classes of person has a prescribed status:
(a) members of the Royal Family;
(b) members of the Royal party;
(c) guests of Government;
(d) SOFA forces members;
(e) SOFA forces civilian component members;
(f) Asia‑Pacific forces members;
(g) Commonwealth forces members;
(h) foreign armed forces dependants;
(j) foreign naval forces members;
(k) members of the crew of non‑military
ships (other than ships being imported into Australia);
(kaa) spouses and dependent children of members of
the crew of non‑military ships (other than ships being imported into
Australia);
(ka) members of the crew of ships being imported
into Australia;
(l) airline positioning crew members;
(m) airline crew members;
(n) transit passengers who belong to a class of
persons specified in a Gazette Notice for the purposes of this paragraph;
(p) persons visiting Macquarie Island;
(q) children born in Australia:
(i) of a mother who at the time of the
birth holds a special purpose visa, if only the mother is in Australia at that
time; or
(ii) to parents both of whom, at the
time of the birth, hold special purpose visas, if at that time both parents are
in Australia;
(t) Indonesian traditional fishermen visiting
the Territory of Ashmore and Cartier Islands.
Note the terms used in paragraphs
(1) (a) to (n) are defined in regulation 1.03.
Armed forces members
(2) A person included in a class of persons specified in
paragraph (1) (d), (e), (f), (g) or (j) has a prescribed status only while he
or she is not absent without leave.
Armed forces dependants
(3) A person included in a class of persons specified in
paragraph (1) (h) has a prescribed status only while the person of whom he or
she is a spouse, or on whom he or she is dependent, is not absent without
leave.
Persons must not work in Australia
(4) A person included in a class of persons specified in
paragraph (1) (d), (e), (f), (g), (j), (k), (kaa), (ka), (l) or (m) has a
prescribed status only while he or she does not perform work in Australia
(other than work of a kind that he or she normally performs during the course
of his or her duties as a person of a kind referred to in the relevant
paragraph).
Foreign naval forces members
(5) A person included in a class of persons specified in
paragraph (1) (j) has a prescribed status if and only if the vessel on
which he or she enters the migration zone has the prior approval of the
Australian government to do so.
Crew members of visiting non‑military
ships
(6) A person included in a class of persons specified
in paragraph (1) (k) has a prescribed status if, and only if:
(a) the ship of whose crew he or she is a
member:
(i) enters Australia at:
(A) a
proclaimed port; or
(B) if
permission for it to do so has been given in advance by the Australian Customs
Service under section 58 of the Customs Act 1901 — a port other
than a proclaimed port; and
(ii) will
leave Australia for a place outside Australia during the course of the voyage;
and
(b) the person has been issued with:
(i) a
passport that is in force; and
(ii) a document that identifies the
person as a seafarer employed on that ship; and
(c) either:
(i) the
passport and the document are on the ship at the time the ship enters Australia
in accordance with subparagraph (a) (i); or
(ii) at the time the person is signed
on to the ship in Australia, in accordance with subregulation (6A), the person:
(A) is
a lawful non‑citizen in the migration zone; and
(B) has
been issued with:
(I) a
passport that is in force; and
(II) a document
that identifies the person as a seafarer employed on the ship.
(6A) For paragraph (6) (c), a person is taken to
have been signed on to a ship when an officer (within the meaning of section 5
of the Act) confirms that:
(a) the person is recorded in the crew list
attachment sheet, or supernumerary crew list attachment sheet, of the ship; and
(b) the person has been issued with:
(i) a passport that is in force; and
(ii) a document that identifies the
person as a seafarer employed on the ship.
Note A crew list attachment sheet and a
supernumerary crew list attachment sheet are documents that are appended to a
ship’s crew list or supernumerary crew list.
Crew members who sign off ships
(7) A person included in a class of persons specified in
paragraph (1) (k) or (ka) who has signed off the ship of whose crew he or she
is a member has a prescribed status:
(a) if and only if the master, owner, agent or
charterer of the ship provides a letter of guarantee that the person will leave
Australia within 30 days after signing off; and
(b) only for the shorter of the following
periods:
(i) the period specified in the letter
of guarantee as the period within which he or she will leave Australia;
(ii) 30 days after he or she signs off
the ship.
Crew
members of imported ships
(8) A person included in
a class of persons specified in paragraph (1) (ka) has a prescribed
status:
(a) if, and only
if:
(i) the
ship of whose crew he or she is a member enters Australia at:
(A) a
proclaimed port; or
(B) if
permission for it to do so has been given in advance by the Australian Customs
Service under section 58 of the Customs Act 1901 — a port other
than a proclaimed port; and
(ii) the person has been issued with:
(A) a
passport that is in force; and
(B) a
document that identifies the person as a seafarer employed on that ship; and
(iii) the
passport and the document are located on the ship at the time the ship enters
Australia in accordance with subparagraph (i); and
(b) for 5 working days
after an agreement is made between the person and the ship’s master under
section 46 of the Navigation Act 1912.
Spouses and dependants of crew members of non‑military ships
(8A) A person included in a class of persons specified in
paragraph (1) (kaa) has a prescribed status:
(a) if and only if:
(i) the person enters Australia on the
ship of whose crew the relevant primary person is a member; and
(ii) the ship enters Australia at:
(A) a proclaimed port; or
(B) a port other than a
proclaimed port, if permission for it to do so has been given in advance by the
Australian Customs Service under section 58 of the Customs Act 1901; and
(iii) the master of the ship:
(A) identifies the person as
being the spouse or a dependent child of a member of the crew of the ship; and
(B) undertakes in writing to
ensure that the person leaves Australia; and
(b) only until the earlier of the following
events:
(i) the person leaves Australia; or
(ii) the relevant primary person ceases
to have a prescribed status.
(8B) In subregulation (8A):
relevant primary person, in relation to a
person included in the class of persons specified in paragraph (1) (kaa), means
the person on whom that person is dependent, or of whom that person is the
spouse.
Airline positioning crew members
(9) A person included in a class of persons specified in
paragraph (1) (l) has a prescribed status for the period of 5 working days
beginning when he or she disembarks from the aircraft on which he or she
travelled to Australia if and only if he or she:
(a) holds a passport that is in force; and
(b) carries a letter from his or her employer
certifying aircrew status and setting out the purpose of the person’s travel to
Australia and the arrangements for the person to leave Australia.
Airline crew members
(10) A person included in a class of persons mentioned in
paragraph (1) (m) has a prescribed status for 30 days, beginning when
he or she disembarks from the aircraft on which he or she travelled to
Australia, if and only if he or she:
(a) holds a passport that is in force; and
(b) holds:
(i) a valid airline identity card
issued by his or her employer; or
(ii) for a person who is an aircraft
safety inspector:
(A) a valid government
identity document showing that he or she is employed by a foreign government;
or
(B) an ICAO Safety Inspector
Certificate; and
(c) is included in a list of members of the crew
of the aircraft provided to Immigration by or for the international air carrier
that operates the aircraft.
Transit passengers
(11) A person included in a class of persons specified in
paragraph (1) (n) has a prescribed status only while he or she remains in the
airport transit lounge.
Macquarie Island visitors
(12) A person included in a class of persons specified in
paragraph (1) (p) has a prescribed status:
(a) only while he or she remains on Macquarie
Island; and
(b) only if the Secretary of the Department of
the Environment and Land Management of the State of Tasmania has granted
written permission in advance for the person to visit that Island.
Children born in Australia
(13) A person included in a class of persons specified in
paragraph (1) (q) has a prescribed status:
(a) in the case of a child referred to in
subparagraph (1) (q) (i) — until the child’s mother ceases to have a
prescribed status; or
(b) in the case of a child referred to in
subparagraph (1) (q) (ii) — until whichever of the child’s parents last
ceases to have a prescribed status ceases to have that status.
Indonesian traditional fishermen
(16) A person included in the class of persons specified
in paragraph (1) (t) has a prescribed status only if the person:
(a) is a traditional fisherman within the
meaning of the Memorandum of Understanding made at Jakarta on 7 November
1974 between Australia and the Republic of Indonesia regarding the operations
of Indonesian fishermen in areas of the Australian Exclusive Fishing Zone and
Continental Shelf; and
(b) when visiting the Territory of Ashmore and
Cartier Islands, is engaged in an activity described in the Memorandum of
Understanding, as varied by the 1989 Practical Guidelines for Implementation
contained in the Annex to the Agreed Minutes of Meeting between officials of
Australia and Indonesia on fisheries of 29 April 1989.
Note The Memorandum, as varied by
the Guidelines, has the general effect of accommodating a traditional fisherman
engaged in taking fish or marine sedentary organisms by a method that has been
a traditional method over decades of time, who is:
(a) actually taking fish or marine sedentary organisms; or
(b) sheltering within the territorial sea of the Territory;
or
(c) on shore at the island known as West Islet, for the
purpose only of getting fresh water.
Expressly excluded is fishing using a motorised, or motor‑assisted,
vessel or method.
Division 2.9 Cancellation or refusal to grant visas
Subdivision 2.9.1 Cancellation under
Subdivision C of Division 3 of Part 2 of the Act
Note The obligations of a visa holder
under Subdivision C of Division 3 of Part 2 of the Act are: to supply correct
information on his or her application form (s 101), including answers on
passenger cards (s 102); not to give bogus documents (s 103); to notify changes
in circumstances (s 104); and, if incorrect information is given, to correct it
(s 105). The obligation is not affected by other sources of information being
available (s 106). If the Minister gives a visa holder a notice under s 107 (1)
stating that there may have been non‑compliance and asking the visa
holder for a response, the answers must be correct (s 107 (2)).
2.41 Whether
to cancel visa — incorrect information or bogus document (Act, s 109 (1)
(c))
For the purposes of paragraph 109 (1) (c) of the
Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) the likely effect on a decision to grant a
visa or immigration clear the visa holder of the correct information or the
genuine document;
(d) the circumstances in which the non‑compliance
occurred;
(e) the present circumstances of the visa
holder;
(f) the subsequent behaviour of the visa holder
concerning his or her obligations under Subdivision C of Division 3 of Part 2
of the Act;
(g) any other instances of non‑compliance
by the visa holder known to the Minister;
(h) the time that has elapsed since the non‑compliance;
(j) any breaches of the law since the non‑compliance
and the seriousness of those breaches;
(k) any contribution made by the holder to the
community.
Note Under s. 109 of the Act, the
Minister may cancel a visa if there was non‑compliance by the holder of a
kind set out in Subdivision C of Division 3 of Part 2 of the Act. The
Minister is to have regard to the prescribed circumstances in considering
whether to cancel the visa.
2.42 Notice
of decision to cancel visa under s 109
(1) If the Minister cancels a visa under section 109 of
the Act, the Minister must notify the former holder of the visa in writing that
the visa has been cancelled.
(2) A notification under subregulation (1) must set out
the ground for the cancellation.
Note 1 Regulation 2.55 applies
to the giving of a document relating to:
·
the proposed cancellation of a visa under the Act; or
·
the cancellation of a visa under the Act; or
·
the revocation of the cancellation of a visa under the Act.
Note 2 A document given to a person
in immigration detention is given in the manner specified in regulation 5.02.
Subdivision 2.9.2 Cancellation generally
2.43 Grounds
for cancellation of visa (Act, s 116)
(1) For the purposes of paragraph 116 (1) (g) of the Act
(which deals with circumstances in which the Minister may cancel a visa), the
grounds prescribed are:
(a) that the Foreign Minister has personally
determined that:
(i) in the case of a visa other than a
relevant visa — the holder of the visa is a person whose presence in
Australia:
(A) is, or would be,
contrary to Australia’s foreign policy interests; or
(B) may be directly or
indirectly associated with the proliferation of weapons of mass destruction; or
(ii) in the case of a relevant visa —
the holder of the visa is a person whose presence in Australia may be directly
or indirectly associated with the proliferation of weapons of mass destruction;
Note A relevant visa is
explained in subregulation (3).
(b) that the
holder of the visa has been assessed by the Australian Security Intelligence
Organisation to be directly or indirectly a risk to security, within the
meaning of section 4 of the Australian Security Intelligence
Organisation Act 1979;
(d) in the case of a visa granted before 1
September 1994 that:
(i) was continued in force on and
after 1 September 1994 as a Transitional (Temporary) visa under
the Migration Reform (Transitional Provisions) Regulations; and
(ii) allowed multiple entries to
Australia;
that, at some time before 1 September 1994,
the holder exceeded the period of stay in Australia permitted by the visa;
(e) in the case of:
(i) the
holder of an Electronic Travel Authority (Class UD) visa who is under the
age of 18 years; or
(ii) the holder of a Long Stay
(Visitor) (Class TN) visa, that was applied for using form 601E, who is under
the age of 18 years; or
(iii) the holder of a Tourist (Class
TR) visa, that was applied for using form 601E, who is under the age of 18
years;
that either:
(iv) both of
the following apply:
(A) the
law of the visa holder’s home country did not permit the removal of the visa
holder;
(B) at
least 1 of the persons who could lawfully determine where the additional
applicant is to live did not consent to the grant of the visa; or
(v) the grant
of the visa was inconsistent with any Australian child order in force in
relation to the visa holder;
(f) in the case of:
(i) the
holder of an Electronic Travel Authority (Class UD) visa who is under the age
of 18 years and is not accompanied by his or her parent or guardian; or
(ii) the
holder of a Long Stay (Visitor) (Class TN) visa, that was applied for using a
form 601E, who:
(A) is
under the age of 18 years; and
(B) is
not accompanied by his or her parent or guardian; or
(iii) the
holder of a Tourist (Class TR) visa, that was applied for using a form 601E,
who:
(A) is
under the age of 18 years; and
(B) is
not accompanied by his or her parent or guardian;
that the holder
of that visa does not have adequate funds, or adequate arrangements have not
been made, for the holder’s maintenance, support and general welfare during the
holder’s proposed visit in Australia;
(g) in the case of a temporary visa held by a
person other than a visa holder mentioned in paragraph (h) — that the visa
holder asks the Minister, in writing, to cancel the visa;
(h) in the case of a temporary visa held by a
person who is under the age of 18 years and is not a spouse, a former spouse or
engaged to be married — that:
(i) a person who is at least 18 years
of age, and who can lawfully determine where the visa holder is to live, asks
the Minister, in writing, to cancel the visa; and
(ii) the Minister is satisfied that
there is no compelling reason to believe that the cancellation of the visa
would not be in the best interests of the visa holder;
(i) in the case of the holder of:
(i) a Subclass 456 (Business (Short
Stay)) visa; or
(ia) a Subclass 459 (Sponsored Business
Visitor (Short Stay)) visa; or
(ii) a
Subclass 956 (Electronic Travel Authority (Business Entrant — Long
Validity)) visa; or
(iii) a Subclass 977 (Electronic Travel
Authority (Business Entrant — Short Validity)) visa —
that, despite the grant of the visa, the
Minister is satisfied that the visa holder did not have, at the time of the
grant of the visa, or has ceased to have, an intention only to stay in, or
visit, Australia temporarily for business purposes;
(j) in the case of the holder of:
(i) a
Subclass 676 (Tourist) visa; or
(ii) a Subclass 676 (Tourist (Short
Stay)) visa; or
(iii) a Subclass 679 (Sponsored Family
Visitor) visa; or
(iv) a Subclass 686 (Tourist (Long
Stay)) visa;
that, despite the grant of the visa, the
Minister is satisfied that the visa holder did not have, at the time of the
grant of the visa, or has ceased to have, an intention only to visit, or remain
in, Australia as a visitor temporarily for the purpose of visiting an
Australian citizen, or Australian permanent resident, who is a parent, spouse,
child, brother or sister of the visa holder or for another purpose, other than
a purpose related to business or medical treatment;
(k) in the case of the holder of a Subclass 976
(Electronic Travel Authority (Visitor)) visa — that, despite the grant of
the visa, the Minister is satisfied that the visa holder did not have, at the
time of the grant of the visa, or has ceased to have, an intention only to
visit Australia temporarily for tourism purposes;
(l) in the case of the holder of a Subclass 457
(Business (Long Stay)) visa who was granted the visa on the basis of being
employed in Australia by a business sponsor, and in respect of whom there is a
nomination of an activity under regulation 1.20G or 1.20GA — that the visa
holder’s current business sponsor:
(i) has not complied, or is not
complying, with the undertaking given by the business sponsor in accordance
with approved form 1067, 1196 or 1196 (Internet); or
(ia) does not continue to satisfy the
requirements for approval as a business sponsor; or
(ii) gave incorrect information to
Immigration in relation to:
(A) the application (if any)
under regulation 1.20C for approval as a business sponsor; or
(B) any other matter
relating to the business sponsor;
(la) in the case of the holder of a Subclass 457
(Business (Long Stay)) visa who was granted the visa on the basis of being
employed in Australia by a business sponsor, and in respect of whom there is a
nomination of an activity under regulation 1.20GA — that the visa holder
is living or working within an area specified in a Gazette Notice for this
paragraph;
(lb) in the case of the holder of a Subclass 471
(Trade Skills Training) visa who was granted the visa on the basis of
sponsorship by an approved trade skills training sponsor — that the
sponsor:
(i) has failed to comply with an
undertaking under regulation 1.20UO; or
(ii) does not continue to satisfy the
requirements for approval as an approved trade skills training sponsor; or
(iii) has provided incorrect or
misleading information to Immigration;
(m) that the Minister reasonably suspects that
the holder of the visa has committed an offence under section 232A, 233, 233A,
234 or 236 of the Act;
(n) that:
(i) a certificate is in force under
paragraph 271 (1) (l) of the Act, stating that a computer program was
not functioning correctly; and
(ii) both of the following apply:
(A) the visa was granted at
the time, or during the period, that is specified in the certificate;
(B) the grant of the visa is
an outcome from
the operation of that program, under an arrangement made under subsection
495A (1) of the Act, that is specified in the certificate;
(o) that the Minister reasonably suspects that
the visa has been obtained as a result of the fraudulent conduct of any person.
(2) For subsection 116 (3) of the Act, the circumstances
in which the Minister must cancel a visa are:
(a) in the case of a visa other than a relevant
visa — each of the circumstances comprising the grounds set out in:
(i) sub‑subparagraphs (1) (a) (i) (A)
and (B); and
(ii) paragraph
(1) (b); and
(aa) in the case of a relevant visa — the
circumstance comprising the grounds set out in subparagraph (1) (a) (ii);
and
(b) in the case of a Student (Temporary) (Class
TU) visa:
(i) that the Minister is satisfied
that the visa holder has not complied with condition 8104 or 8105 (if the
condition applies to the visa); or
(ii) that the Minister is satisfied
that:
(A) the visa holder has not
complied with condition 8202; and
(B) the non‑compliance
was not due to exceptional circumstances beyond the visa holder’s control.
(3) In this regulation:
business sponsor
means:
(a) a person approved as a pre‑qualified
business sponsor, or a standard business sponsor, in accordance with regulation
1.20D or 1.20DA (whether or not the approval has ceased to have effect); or
(b) a person (except a person mentioned in
paragraph (a)) who has given an undertaking in accordance with approved form
1067.
relevant visa means a visa of any of the
following subclasses:
(a) Subclass 200;
(b) Subclass 201;
(c) Subclass 202;
(d) Subclass 203;
(e) Subclass 204;
(f) Subclass 447;
(g) Subclass 449;
(h) Subclass 451;
(i) Subclass 785;
(j) Subclass 786;
(k) Subclass 866.
2.44 Invitation
to comment — response
(1) For the purposes of subsection 121 (2) of the Act
(which deals with the time in which a holder must give comments, other than at
interview), the periods set out in subregulation (2) are prescribed.
(2) The periods referred to in subregulation (1) begin
when the visa holder is notified under subsection 119 (2), or receives an
invitation under subsection 120 (2), as the case requires, and are:
(a) if the visa holder is in Australia — 5
working days; or
(b) if the visa holder is outside Australia:
(i) where the cancellation of his or
her visa is being considered in Australia — 28 days; or
(ii) where the cancellation of his or
her visa is being considered at a diplomatic, consular or migration office
maintained by or on behalf of the Commonwealth in the country in which the visa
holder is present — 5 working days; or
(iii) where the cancellation of his or
her visa is being considered at a diplomatic, consular or migration office
maintained by or on behalf of the Commonwealth in another country than the
country in which the visa holder is present — 28 days.
(3) For the purposes of subsection 121 (4) of the Act
(which deals with extension of time to give comments), 5 working days is
prescribed.
Note 1 Regulation 2.55 applies
to the giving of a document relating to:
·
the proposed cancellation of a visa under the Act; or
·
the cancellation of a visa under the Act; or
·
the revocation of the cancellation of a visa under the Act.
Note 2 A document given to a person
in immigration detention is given in the manner specified in regulation 5.02.
2.45 Notification
of decision (Act, s 127)
For the purposes of section 127 of the Act (which
deals with notification of decisions to cancel a visa), the way of notifying
the visa holder of a decision is in writing.
Note 1 Regulation 2.55
applies to the giving of a document relating to:
·
the proposed cancellation of a visa under the Act; or
·
the cancellation of a visa under the Act; or
·
the revocation of the cancellation of a visa under the Act.
Note 2 A document given to a person
in immigration detention is given in the manner specified in regulation 5.02.
2.46 Time
to respond to notice of cancellation (Act, s 129 (1) (c))
For the purposes of paragraph 129 (1) (c) of the
Act (which deals with response to cancellation of a visa), the following
periods are prescribed:
(a) if the former holder of the visa is outside
Australia when he or she is given a notice of the cancellation — 28 days;
(b) if he or she is in Australia when he or she
is given notice of the cancellation:
(i) if he or she wishes the
cancellation to be reconsidered while he or she is in Australia —
5 minutes; or
(ii) if he or she wishes the
cancellation to be reconsidered while he or she is outside Australia, and he or
she departs Australia as soon as possible after being given a notice of the
cancellation — 28 days;
beginning when the former holder of the visa is given a notice of
the cancellation.
2.47 Notice
of cancellation (Act, s 129)
For the purposes of subsection 129 (2) of the Act
(which deals with giving notice of cancellation of a visa), the way of giving
the former holder of the visa a notice of the cancellation is in writing.
Note 1 Regulation 2.55
applies to the giving of a document relating to:
·
the proposed cancellation of a visa under the Act; or
·
the cancellation of a visa under the Act; or
·
the revocation of the cancellation of a visa under the Act.
Note 2 A document given to a person
in immigration detention is given in the manner specified in regulation 5.02.
2.48 Revocation
of cancellation (Act, s 131 (2))
For the purposes of subsection 131 (2) of the Act
(which deals with the circumstances in which cancellation of a visa must not be
revoked), the circumstance is that the visa was cancelled on a ground
prescribed under subsection 116 (3).
Note The grounds prescribed under
subsection 116 (3) are grounds
on which a visa must be cancelled. For those grounds, see
subregulation 2.39 (2).
2.49 Notice
of decision whether to revoke cancellation (Act, s 132)
For the purposes of section 132 of the Act (which
deals with notification of a decision about cancellation of a visa), the way of
notifying the visa holder of a decision is in writing.
Note 1 Regulation 2.55 applies
to the giving of a document relating to:
·
the proposed cancellation of a visa under the Act; or
·
the cancellation of a visa under the Act; or
·
the revocation of the cancellation of a visa under the Act.
Note 2 A document given to a person
in immigration detention is given in the manner specified in regulation 5.02.
2.50 Cancellation
of business visas
(1) In this regulation:
old business skills
entry permit means:
(a) an entry permit granted under the Migration
(1993) Regulations (including an entry visa of any of those classes that
operated as an entry permit) of any of the following classes:
(i) Class 127 (business skills);
(ii) Class 128 (business skills (senior
executive));
(iii) Class 129 (State/Territory
sponsored business skills);
(iv) Class 130 (State/Territory
sponsored business skills (senior executive));
(b) an entry permit granted under the Migration
(1989) Regulations of any of the following classes:
(i) business (general) (code number
123);
(ii) business (joint venture) (code
number 122);
(iii) business skills (code number
127);
(iv) business skills (senior executive)
(code number 128).
old business skills visa means:
(a) a visa granted under the Migration (1993)
Regulations of any of the following classes:
(i) Class 127 (business skills);
(ii) Class 128 (business skills (senior
executive));
(iii) Class 129 (State/Territory
sponsored business skills);
(iv) Class 130 (State/Territory
sponsored business skills (senior executive));
(b) a visa granted under the Migration (1989)
Regulations of any of the following classes:
(i) business (general) (code number
123);
(ii) business (joint venture) (code
number 122);
(iii) business skills (code number
127);
(iv) business skills (senior executive)
(code number 128).
(2) For paragraph (a) of the definition of business
visa in subsection 134 (10) of the Act, the following classes of
visas are prescribed:
(a) Business Skills (Migrant) (Class AD);
(b) Business Skills — Business Talent
(Migrant) (Class EA);
(c) Business Skills — Established Business
(Residence) (Class BH);
(d) Business Skills (Residence) (Class BH);
(e) Business Skills (Provisional) (Class UR).
(3) For the purposes of paragraph (b) of the definition
of business visa in subsection 134 (10) of the Act, the
prescribed kinds of visas, and the prescribed provisions of the Migration
Reform (Transitional Provisions) Regulations that apply to each of those kinds
of visas, are the kinds of visas and the provisions of those Regulations set
out in the following paragraphs:
(a) a transitional (permanent) visa (being a
visa to which regulation 4 of those Regulations applies) that a person is taken
to hold because he or she held an old business skills entry permit;
(b) a transitional (permanent) visa (being a visa
to which regulation 6 of those Regulations applies) that a person is taken to
hold because he or she held an old business skills visa;
(c) a
transitional (permanent) visa (being a visa to which regulation 7 of those
Regulations applies) that a person is taken to hold because he or she held a
permanent return visa granted on the basis of holding an old business skills
visa;
(d) a transitional (permanent) visa (being a visa
to which regulation 22 of those Regulations applies) that a person is granted
because:
(i) the person:
(A) applied for an old
business skills visa; or
(B) applied for a permanent
return visa on the basis of holding an old business skills visa; and
(ii) the application was not decided
before 1 September 1994.
(4) For the definition of return visa in
subsection 134 (10) of the Act:
return visa
means:
(a) a Return (Residence) (Class BB) visa; or
(b) a Resident Return (Temporary) (Class TP)
visa.
2.50AA Cancellation
of regional sponsored employment visas
(1) For paragraph (b) of
the definition of regional sponsored employment visa in
subsection 137Q (3) of the Act, the kinds of visas are:
(a) a Subclass 119
(Regional Sponsored Migration Scheme) visa; and
(b) a Subclass 857 (Regional Sponsored Migration
Scheme) visa.
(2) For paragraph
137Q (1) (a) of the Act, the period is:
(a) for a Subclass 119
(Regional Sponsored Migration Scheme) visa — 6 months from the date on
which the holder of the visa first entered Australia as the holder of the visa;
and
(b) for a Subclass 857 (Regional Sponsored
Migration Scheme) visa — 6 months from the date of grant of the visa.
Note This is the period within
which the holder of a regional sponsored employment visa must commence the
employment referred to in the employer nomination.
Subdivision 2.9.2A Automatic
cancellation of student visas
2.50A Meaning
of office of Immigration
For paragraph 137J (2) (b) of the Act, office
of Immigration means a regional or area office of Immigration.
Subdivision 2.9.3 Refusal
or cancellation on character grounds
2.51 Notification
by Administrative Appeals Tribunal (Act, s 500)
(1) For subsection 500 (6E) of the Act, the
Minister is notified in accordance with subregulation (2).
(2) The notice must be:
(a) in the form set out in
subregulation (3); and
(b) accompanied by a copy of the application made
to the Administrative Appeals Tribunal; and
(c) either:
(i) personally delivered to the office
of the Secretary in Canberra; or
(ii) sent by facsimile transmission to
the Secretary at the number, or one of the numbers, last notified to the
Administrative Appeals Tribunal for that purpose; and
(d) received by the Secretary within 7 working
days after the application is made to the Administrative Appeals Tribunal.
(3) The form of the
notice is:
‘To the Minister for Immigration and
Multicultural Affairs:
Notice is given that an application for
review of a decision under section 501 of the Migration Act 1958, a copy
of which is attached to this notice, was made to the Administrative Appeals
Tribunal on [insert date].
Signed: [insert signature of signatory]
Date: [insert date on which notice is
signed]’.
2.52 Revocation
of decisions by Minister (Act, s 501C)
(1) This regulation applies to representations made to
the Minister under paragraph 501C (3) (b) of the Act.
(2) The representations must be made within 7 days after
the person is given the notice under subparagraph
501C (3) (a) (i) of the Act.
(3) The representations must be in writing, and:
(a) in English; or
(b) if the representations are in a language
other than English — accompanied by an accurate English translation.
(4) The representations must include the following
information:
(a) the full name of the person to whom the
representations relate;
(b) the date of birth of that person;
(c) one of the following:
(i) the applicant’s client number;
(ii) the Immigration file number;
(iii) the number of the receipt issued
by Immigration when the visa application was made;
(d) if the visa application was made outside
Australia — the name of the Australian mission or Immigration office at
which the visa application was given to the Minister;
(e) a statement
of the reasons on which the person relies to support the representations.
(5) A document accompanying the representations must be:
(a) the original document; or
(b) a copy of the original document that is certified
in writing to be a true copy by:
(i) a Justice of the Peace; or
(ii) a Commissioner for Declarations;
or
(iii) a person before whom a statutory
declaration may be made under the Statutory Declarations Act 1959; or
(iv) if the copy is certified in a place
outside Australia:
(A) a person who is the
equivalent of a Justice
of the Peace or a Commissioner for Declarations in that place; or
(B) a Notary Public.
(6) If a document accompanying the representations is in
a language other than English, the document must be accompanied by an accurate
English translation.
(7) For section 501C of the Act (see
subsection (10)), a person is not entitled to make representations about
revocation of an original decision if:
(a) the person is not a detainee; and
(b) the person is a non‑citizen in
Australia; and
(c) either:
(i) the person has been refused a visa
under section 501 or 501A of the Act; or
(ii) the last visa held by the person
has been cancelled under either of those sections.
2.53 Submission
of information or material (Act, s 501D)
(1) For section 501D of the Act, information or material
must be:
(a) in writing; and
(b) received by the Minister or Immigration
within 14 days after the person is invited by the Minister or Immigration
to submit information or material.
(2) A document containing the information or material
must be:
(a) the original document; or
(b) a copy of the original document that is
certified in writing to be a true copy by:
(i) a Justice of the Peace; or
(ii) a Commissioner for Declarations;
or
(iii) a person before whom a statutory
declaration may be made under the Statutory Declarations Act 1959; or
(iv) if the copy is certified in a place
outside Australia:
(A) a person who is the
equivalent of a Justice
of the Peace or a Commissioner for Declarations in that place; or
(B) a Notary Public.
(3) The document must
contain, or be accompanied by, the following written information:
(a) the full name of the person who is the
subject of the decision to which the information or material contained in the
document relates;
(b) the date of birth of that person;
(c) one of the following:
(i) the applicant’s client number;
(ii) the Immigration file number;
(iii) the number of the receipt issued
by Immigration when the visa application was made;
(d) if the visa application was made outside
Australia — the name of the Australian mission or Immigration office at
which the visa application was given to the Minister.
(4) If the document is submitted in a language other
than English, it must be accompanied by an accurate English translation.
Division 2.10 Documents relating to cancellation of visas
2.54 Definition
for Division 2.10
In this Division:
document includes:
(a) a letter; and
(b) an invitation, notice, notification,
statement or summons, if it is in writing.
2.55 Giving
of documents relating to proposed cancellation, cancellation or revocation of
cancellation
(1) This regulation applies to:
(a) the
giving of a document to a holder or former holder of a visa relating to the
proposed cancellation or the cancellation of a visa under the Act; and
(b) the
giving of a document under subsection 501G (3) of the Act relating to a
decision to cancel a visa under subsection 501 (1) or (2)
or 501A (2) or section 501B or 501F of the Act; and
(c) the
giving of a document to a holder or former holder of a visa relating to the
revocation of the cancellation of a visa under the Act.
(2) However, this regulation does not apply in relation
to:
(a) a notice to which section 137J of the Act
relates; or
(b) a person who
is in immigration detention.
Note See regulation 5.02.
(3) For a document mentioned in paragraph (1) (a)
or (c), the Minister must give the document in one of the following ways:
(a) by handing it to the person personally;
(b) by handing it to another person who:
(i) is at the person’s last
residential or business address known to the Minister; and
(ii) appears to live there (in the case
of a residential address) or work there (in the case of a business address);
and
(iii) appears to be at least 16 years
of age;
(c) by dating it, and then dispatching it:
(i) within 3 working days (in the
place of dispatch) of the date of the document; and
(ii) by prepaid post or by other
prepaid means;
to the person’s last residential address,
business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) e‑mail; or
(iii) other electronic means;
to the last fax number, e‑mail
address or other electronic address known to the Minister.
(4) For a document
mentioned in paragraph (1) (b):
(a) if the person has held the visa for less
than 1 year when the document is to be given, the Minister must give the
document in one of the ways mentioned in subregulation (3); and
(b) if the person has held the visa for at least
1 year when the document is to be given:
(i) Immigration must try to find the
person; and
(ii) the Minister must give the
document in one of the ways mentioned in subregulation (3).
(5) If the Minister gives a document to a person by
handing it to the person, the person is taken to have received the document
when it is handed to the person.
(6) If the Minister gives a document to a person by
handing it to another person at a residential or business address, the person
is taken to have received the document when it is handed to the other person.
(7) If the Minister gives
a document to a person by dispatching it by prepaid post or by other prepaid
means, the person is taken to have received the document:
(a) if the document was dispatched from a place
in Australia to an address in Australia — 7 working days (in the
place of that address) after the date of the document; or
(b) in any other case — 21 days after the
date of the document.
(8) If the Minister gives
a document to a person by transmitting it by fax, e‑mail or other
electronic means, the person is taken to have received the document at the end
of the day on which the document is transmitted.
Part 3 Immigration
clearance and collection of information
Division 3.1 Information to be given by arriving persons
3.01 Provision
of information (general requirement)
(1) In this regulation:
officer includes a clearance officer.
(2) This regulation applies to:
(a) a person who is an overseas passenger:
(i) arriving on board a vessel at a
port in Australia in the course of, or at the conclusion of, an overseas flight
or an overseas voyage; or
(ii) leaving Australia on board a
vessel bound for or calling at a place outside Australia; and
(b) a person on board an aircraft arriving at, or
departing from, an airport in Australia, being an aircraft operated by an
international air carrier;
other than:
(c) a person included in a class of persons set
out in an item in Part 1 of Schedule 9, being an item in which the word “no”
appears in column 4; and
(d) a person who, under regulation 3.06, is not
required to complete a passenger card.
(3) A person to whom this regulation applies must:
(a) complete a passenger card:
(i) in relation to the person and to
any other person that person is in charge of on the relevant flight or voyage;
and
(ii) in accordance with directions set
out on the passenger card; and
(b) give the completed passenger card to an
officer.
(4) An officer may require a person to whom this
regulation applies to provide to the officer information about that person in
respect of any of the following matters:
(a) name;
(b) date of birth and country of birth;
(c) citizenship;
(d) sex and marital status;
(e) usual occupation;
(f) passport number;
(g) if the person is not:
(i) an Australian citizen; or
(ii) a person who is eligible for the
grant of a Special Category visa or a Permanent Resident of Norfolk Island
visa; or
(iii) a person who will on entry be
taken to hold a special purpose visa;
the number of the Australian visa held by
the person;
(h) flight number of aircraft or name of ship in
relation to the relevant flight or voyage;
(i) country in which the person boarded, or
intends to disembark from, the aircraft or ship;
(j) if the person is entering Australia —
the intended address of the person in Australia.
3.02 Passenger
card
(1) A passenger card must include the following
questions, or substantially similar questions:
(a) “Do you currently suffer from
tuberculosis?”;
(b) “Do you have any criminal conviction/s?”.
(2) The questions set out in subregulation (1):
(a) may be printed on the passenger card in any
order; and
(b) may be numbered in any way.
(3) A passenger card may include instructions for
completing it, including instructions that questions are to be answered by
ticks or other symbols.
3.03 Evidence
of identity and visa for persons entering Australia (Act s 166)
(1) For paragraph 166 (1) (b) of the Act,
the information required to be given to a clearance officer is that set out in
regulation 3.02.
Note Under section 166, a person who
enters Australia (other than a person referred to in sections 168 and
169 — broadly, persons who have left Australia only for short periods
without going to a foreign country, persons in prescribed classes (see below)
and allowed inhabitants of the Protected Zone) must give evidence of their
identity and provide certain information, and must do so in a prescribed way.
(1A) For paragraph 166 (1) (aa) of the Act, the
circumstance is that the person is in immigration clearance.
(1B) For subsection 166 (1C) of the Act:
(a) the circumstance is that an automated
identification processing system is available for the immigration clearance of non‑citizens
who:
(i) are airline crew members or
airline positioning crew members; and
(ii) have been registered for the
system; and
(b) a personal identifier is one of the
following types:
(i) a photograph or other image of the
non‑citizen’s face and shoulders;
(ii) the non‑citizen’s signature;
(iii) any other personal identifier
contained in the non‑citizen’s passport or other travel document.
Note Subsection 166 (1C) provides that,
in prescribed circumstances, prescribed types of personal identifiers may be
provided by an applicant otherwise than by way of an identification test
carried out by an authorised officer (in accordance with subsection 166 (1B)),
if the applicant complies with any requirements that are prescribed relating to
the provision of the personal identifier.
(2) For subsection 166 (2) of the Act, an
Australian citizen who is required to comply with section 166 of the Act
must give a clearance officer a completed passenger card.
(3) For
subsection 166 (2) of the Act, a non‑citizen who is required to
comply with section 166 of the Act must:
(a) if the non‑citizen
is taken to hold a special purpose visa:
(i) give a clearance officer a
completed passenger card where required by Part 1 of Schedule 9; and
(ii) show
the clearance officer:
(A) if the non‑citizen
is a person who is registered for an automated identification processing
system — evidence of his or her identity using the system; or
(B) evidence of the person’s
identity, as specified in Part 1 of Schedule 9; and
(b) if the non‑citizen is eligible to hold
a special category visa:
(i) show a clearance officer a New
Zealand passport that is in force; and
(ii) give the clearance officer a
completed passenger card; and
(c) if the non‑citizen has the right of
permanent residence on Norfolk Island:
(i) show a clearance officer a
passport that is in force and is endorsed with an authority to reside
indefinitely on Norfolk Island; and
(ii) give the clearance officer a
completed passenger card; and
(d) if the non‑citizen holds an Electronic
Travel Authority (Class UD) visa:
(i) show a clearance officer evidence
of the person’s identity, as specified in Part 1 of Schedule 9; and
(ii) give the clearance officer a
completed passenger card; and
(e) if the non‑citizen is a person
mentioned in paragraph 1223A (1) (c) of Schedule 1 who holds a Temporary
Business Entry (Class UC) visa:
(i) show a clearance officer evidence
of the person’s identity, as specified in Part 1 of Schedule 9; and
(ii) give the clearance officer a
completed passenger card; and
(f) if the non‑citizen holds a Subclass
417 (Working Holiday) or Subclass 676 (Tourist) visa granted on the basis of an
Internet application:
(i) show a clearance officer evidence
of the person’s identity, as specified in Part 1 of Schedule 9; and
(ii) give the clearance officer a
completed passenger card; and
Note Internet application is
defined in regulation 1.03.
(g) if subregulation (6) or (7) applies to the
non‑citizen:
(i) show a clearance officer evidence
of the person’s identity, as specified in Part 1 of Schedule 9; and
(ii) give the clearance officer a
completed passenger card.
(4) For
subsection 166 (2) of the Act, a non‑citizen who is required to
comply with section 166 of the Act, other than a non‑citizen
mentioned in subregulation (3), must:
(a) show a clearance officer:
(i) the person’s passport; and
(ii) if the person’s visa is evidenced
by a label and a clearance officer asks for the label to be shown — the
label; and
(b) give the clearance officer a completed
passenger card.
3.03A Evidence
of identity and visa for persons entering Australia — personal identifiers
For paragraph 166 (1AA) (d) of the Act,
the following types of personal identifiers are prescribed:
(a) fingerprints or handprints of the person
(including those taken using paper and ink or digital livescanning
technologies);
(b) an iris scan.
Note Under paragraph 166 (1) (aa) of the
Act, if a person who is a non‑citizen enters Australia in prescribed
circumstances, the person must comply with any requirement of a clearance
officer to provide one
or more personal identifiers. Personal identifiers are mentioned in
subsection 166 (1AA), and include any prescribed personal
identifiers.
3.04 Place
and time for giving evidence (Act, s 167)
For the purposes of subsection 167 (2) of the Act
(which deals with the time and place at which a person who enters Australia
must comply with section 166):
(a) the place at which a person who is required
to comply with section 166 must do so is:
(i) a regional or area office of
Immigration; or
(ii) at any place where there is a
clearance officer, including a port; and
(b) the period within which the person must do so
is 2 working days after he or she enters Australia.
3.05 Allowed
inhabitants of the Protected Zone (Act, s 168 (2))
For the purposes of subsection 168 (2) of the Act
(which deals with compliance with section 166 by allowed inhabitants of the
Protected Zone):
(a) the place at which an allowed inhabitant of
the Protected Zone who is required to comply with section 166 must do so is:
(i) a regional or area office of
Immigration; or
(ii) at any place where there is a
clearance officer, including a port; and
(b) the period within which the inhabitant must
do so is 5 working days after he or she goes to a part of the migration
zone outside the protected area.
3.06 Persons
not required to comply with s 166 of the Act (Act, s 168 (3))
For the purposes of subsection 168 (3) of the Act
(which deals with the classes of person not required to give information under
section 166), each class of person set out in Part 2 of Schedule 9 is
prescribed.
3.07 Persons
taken not to leave Australia (Act, s 80 (c))
For the purposes of paragraph 80 (c) of the Act,
the prescribed period is 30 days.
3.08 Offence —
failure to complete a passenger card
(1) A person who is required by these Regulations to
complete a passenger card must not fail to do so.
Penalty: 10 penalty units.
(2) Strict liability applies to subregulation (1).
3.09 Evidence
of identity — domestic travel on overseas vessels
(1) In this regulation:
boarding pass
means a document that permits a person to board an aircraft, given to the
person by the operator of the aircraft.
officer includes a clearance officer.
overseas vessel has the meaning given by
section 165 of the Act.
Note Vessel includes an
aircraft: see s 5 (1) of the Act.
(2) Subregulation (2A) applies in relation to a person
who travels, or appears to intend to travel, on an overseas vessel from a port
in Australia to another port in Australia without calling at a port outside
Australia.
(2A) The person may be required by an officer at either
port or both ports in Australia to provide evidence of his or her identity to
the officer by producing a document of a kind mentioned in subregulation (3)
that:
(a) bears a photograph
and the full name of the person; and
(b) is in force.
(3) For subregulation (2A), the kinds of document are
the following:
(a) a passport issued
to the person that is in the form in which it was issued;
(b) a licence to drive a motor vehicle issued
under a law of the Commonwealth, or a State or Territory;
(c) a document issued by the Commonwealth, or a
State or Territory, or by a Commonwealth, State or Territory authority, that
identifies the person;
(d) if the vessel is an aircraft — an
aviation security identity card issued by:
(i) the
operator of the aircraft; or
(ii) the operator of an airport in
Australia.
(4) If a person to whom this regulation applies is
boarding or disembarking from an overseas vessel that is an aircraft, an
officer may require the person to show the officer the person’s boarding pass.
(5) An officer may require a person who is travelling
with a person:
(a) who is under 18;
and
(b) in respect of whom a document cannot be
produced to the officer as required;
to write on the boarding pass issued to the first‑mentioned
person the full name of the second‑mentioned person.
3.10 Use
of information
(1) With the written consent of the Minister, use may be
made of information collected under this Part in respect of persons, being
information that:
(a) is collected from passenger cards or
passports, or contained in notified data bases (or both), by an officer of any
Department or authority of the Commonwealth, or of a State or Territory; and
(b) is concerned with any of the following
matters, namely law enforcement, national security, national intelligence,
education, health, community services, social welfare, employment, labour,
taxation, statistics, quarantine, customs, excise.
(2) The consent of the Minister for the use of
information concerned with a matter specified in subregulation (1) may be given
in respect of a particular occasion or any number of occasions.
(3) If:
(a) the Commonwealth has entered into an
agreement with another country in relation to the provision of information
concerning international movements of air traffic and persons on international
flights; and
(b) the Minister is satisfied that the provision
to that country of the information specified in subregulation (4) would
facilitate the handling of aircraft or of persons travelling to destinations
outside Australia;
the Minister may cause that information to be provided to the
immigration authorities of that country.
(3A) If:
(a) the Commonwealth has entered into an
agreement with an international air carrier in relation to the provision of
information concerning persons on international flights; and
(b) the Minister is satisfied that the provision
to that international air carrier of the information specified in subregulation
(4) would facilitate the handling of persons travelling to destinations outside
Australia;
the Minister may cause that information to be provided to that
international air carrier.
(4) For paragraph (3) (b), in relation to a person
travelling to (or to and beyond) the country mentioned in that paragraph, and
for paragraph (3A) (b), in relation to a person travelling with the
international air carrier mentioned in that paragraph, the following
information is specified:
(a) name;
(b) date of birth;
(c) citizenship;
(ca) sex;
(cb) class and subclass
of visa;
(cc) when
the visa ceases to be in effect;
(d) passport number;
(e) date of departure from Australia;
(f) flight number;
(g) place of intended disembarkation;
(h) ultimate destination.
Note Under the Act, a visa is an
Australian visa issued in accordance with the Act.
(5) If the Commonwealth enters into an agreement of a
kind referred to in paragraph (3) (a) or (3A) (a):
(a) the Minister must, as soon as is practicable,
cause notice of the fact to be published in the Gazette; and
(b) information must not be made available under
the agreement earlier than the day after the day on which the notice is
published.
3.10A Access
to movement records
(1) For subparagraph 488 (2) (a) (vii) of
the Act, Commonwealth, State or Territory legislation specified by the Minister
in a Gazette Notice for this subregulation is prescribed.
Note Under subsection 488 (1) of the
Act, a person must not read, examine, reproduce, use or disclose any part of
the movement records. However, subparagraph 488 (2) (a) (vii) of
the Act permits the Minister to authorise an officer to perform 1 or more of
those actions for the purposes of prescribed Commonwealth, State or Territory legislation.
(2) For paragraph 488 (2) (g) of the Act:
(a) an agency of the Commonwealth, a State or a
Territory specified by the Minister in a Gazette Notice for this paragraph is
prescribed; and
(b) an employee of a prescribed agency who is
specified by the Minister in a Gazette Notice for this paragraph is prescribed;
and
(c) a purpose specified by the Minister in a
Gazette Notice for this paragraph is prescribed.
Note Under subsection 488 (1) of the
Act, a person must not read, examine, reproduce, use or disclose any part of
the movement records. However, paragraph 488 (2) (g) of the Act
permits the Minister to authorise a prescribed employee of a prescribed agency
of the Commonwealth, or of a State or Territory, to perform 1 or more of those
actions for a prescribed purpose.
3.11 Production
of deportee or removee
(1) If a person has been placed on board a vessel for
the purpose of:
(a) deportation from Australia under an order
made by the Minister under the Act; or
(b) removal from Australia;
an officer may require the master to produce the deportee or
removee to the officer at any time before the vessel’s departure from its last
port of call in Australia.
(2) The master must not fail to comply with a
requirement under subregulation (1).
Penalty: 10 penalty units.
(3) Subregulation (2) does not apply if the master
has a reasonable excuse.
Note A defendant bears an evidential
burden in relation to the matter in subregulation (3) (see
subsection 13.3 (3) of the Criminal Code).
3.12 Offences
by master of vessel
The master of a vessel must not:
(a) refuse or neglect to afford all reasonable
facilities to an officer for the performance of the officer’s duties; or
(b) deliver to an officer, under these
Regulations, a list or statement that is incorrect in a material particular.
Penalty: 10 penalty units.
Division 3.2 Information about passengers and crew on overseas vessels
3.13 Interpretation
In this Division:
civilian vessel means a vessel other than a
vessel of the regular armed forces of a Government recognised by Australia.
master
includes owner, charterer, and agent in Australia.
Note Vessel includes an
aircraft: see the Act, s 5 (1).
3.13A Information
about passengers and crew to be given before arrival of international passenger
aircraft
(1) For subsection 245I (1) of the Act, an international
passenger aircraft is a kind of aircraft to which Division 12B of the Act
applies.
Note The operator of an aircraft to which
Division 12B applies that is due to arrive at an airport in Australia from a place
outside Australia must, before the arrival of the aircraft, give the Department
a report that includes particular information about passengers and crew aboard
the aircraft (see section 245L of the Act).
(2) In this regulation:
international passenger aircraft means an
aircraft that is being used to provide a regular international passenger air
service or an international passenger charter air service.
international passenger charter air service
means a service of providing air transportation of persons from a place outside
Australia to an airport in Australia that:
(a) is provided:
(i) by an airline operator that
provides a regular international passenger air service; and
(ii) in return for a fee payable by
persons using the service; and
(b) is not conducted in accordance with an
international airline licence granted under regulation 15 of the Air
Navigation Regulations 1947.
regular international passenger air service means
a service of providing air transportation of persons from a place outside Australia
to an airport in Australia that:
(a) is provided in return for a fee payable by
persons using the service; and
(b) is conducted in accordance with:
(i) an international airline licence
granted under regulation 15 of the Air Navigation Regulations 1947; and
(ii) fixed schedules from fixed
airports outside Australia over specific routes to fixed airports in Australia;
and
(c) is available to the general public on a
regular basis.
3.13B Information
about passengers and crew to be given before arrival of international passenger
cruise ship
(1) For subsection 245I (1) of the Act, an
international passenger cruise ship is a kind of ship to which
Division 12B of the Act applies.
Note The operator of a ship to which
Division 12B applies that is due to arrive at a port in Australia from a
place outside Australia must, before the arrival of the ship, give the
Department a report that includes particular information about passengers and
crew aboard the ship (see section 245L of the Act).
(2) In this regulation:
international passenger cruise ship means a
ship that:
(a) has sleeping facilities for at least 100
persons (other than crew members); and
(b) is being used to provide an international
passenger sea transportation service.
international passenger sea transportation service
means a service of providing sea transportation of persons from a place outside
Australia to a port in Australia that:
(a) is provided in return for a fee payable by
persons using the service; and
(b) is available to the general public.
3.13C Information
about passengers and crew to be given before arrival of international cargo
ship
(1) For subsection 245I (1) of the Act, an
international cargo ship is a kind of ship to which Division 12B of the
Act applies.
Note The operator of a ship to which
Division 12B applies that is due to arrive at a port in Australia from a
place outside Australia must, before the arrival of the ship, give the
Department a report that includes particular information about passengers and crew
aboard the ship (see section 245L of the Act).
(2) In this regulation:
international cargo ship:
(a) means a civilian vessel that:
(i) has a gross tonnage of at least
500 tons; and
(ii) either:
(A) is used wholly or
principally to provide sea transportation of cargo; or
(B) is used to provide
services to ships or shipping; and
(b) does not
include any of the following:
(i) an international passenger cruise
ship within the meaning of subregulation 3.13B (2);
(ii) a fishing vessel;
(iii) a fishing support vessel;
(iv) a pleasure craft.
3.14 Information
about overseas passengers to be given on arrival of inbound civilian vessel
(1) If:
(a) a civilian vessel arrives at a port in
Australia (in this regulation called the relevant port); and
(b) the vessel carries overseas passengers;
the master must, on the request of an officer, give the officer, to
the best of the master’s knowledge and belief, the particulars set out in
subregulation (2), (3) or (4), as the case requires.
Penalty: 10 penalty units.
(2) If the last port entered by the vessel before its
arrival at the relevant port was outside Australia, the particulars are:
(a) each passenger’s full name; and
(b) each passenger’s date of birth; and
(c) the country of issue and number of each passenger’s
passport; and
(d) the citizenship of each passenger; and
(e) the intended address in Australia (if any)
of each passenger; and
(f) the place in Australia (if any) at which
each passenger’s journey in the vessel ends.
(3) If there are overseas passengers on the vessel whose
journey is to end at the relevant port, the particulars in respect of each of
those passengers are:
(a) his or her full name; and
(b) his or her date of birth; and
(c) the country of issue and number of his or
her passport; and
(d) his or her citizenship; and
(e) his or her intended address in Australia.
(4) If:
(a) there are passengers on the vessel who:
(i) were on board the vessel when it
left a place outside Australia; and
(ii) intend to travel in the vessel
beyond Australia; and
(b) the master has not previously been asked by
an officer to give particulars of those passengers;
the particulars of each of those passengers are:
(c) his or her full name; and
(d) his or her date of birth; and
(e) the country of issue and number of his or
her passport; and
(f) his or her citizenship.
(5) The master must, if
asked to do so by an officer, give the officer a specified number (not
exceeding 6) of copies of a document containing particulars given under this regulation.
Penalty: 10 penalty units.
3.15 Medical
certificate
(1) If a list is given to an officer under subregulation
3.14 (2), the medical officer of the vessel must also give the officer a
certificate signed by him or her that certifies that, in his or her opinion:
(a) no passenger on the vessel; or
(b) no passenger on the vessel other than a
passenger named in the certificate;
is suffering from:
(c) tuberculosis; or
(d) a disease or condition that is, or may result
in the applicant being, a threat to public health in Australia or a danger to
the Australian community; or
(e) a disease or condition that, during the
person’s proposed period of stay in Australia, would be likely to:
(i) result in a significant cost to
the Australian community in the areas of health care or community services; or
(ii) prejudice the access of an
Australian citizen or permanent resident to health care or community services.
(2) If a passenger is named in the certificate as
suffering from a disease or condition referred to in paragraph (1) (c), (d) or
(e), the certificate must also set out the disease or condition from which the
passenger is suffering.
(3) If a vessel has no medical officer, the certificate
must be signed and given by the master to the best of his or her knowledge and
belief.
(4) If an officer has required the master of a vessel to
provide copies of a document under subregulation 3.14 (5), the medical officer
or master must provide the same number of copies of the certificate.
Penalty: 10 penalty units.
3.16 Information
about overseas passengers — outbound civilian vessel
(1) If:
(a) a civilian vessel leaves a port in Australia
on an overseas voyage or an overseas flight; and
(b) the vessel carries overseas passengers:
(i) who were on board the vessel when
it left a place outside Australia, and who intend to travel in the vessel
beyond Australia; or
(ii) who joined the vessel at that
port;
the master of the vessel must give an officer a list setting out,
to the best of the master’s knowledge and belief, the following particulars of
each of those passengers:
(c) his or her full name;
(d) his or her date of birth;
(e) the country of issue and number of his or
her passport;
(f) his or her citizenship;
(g) the place where his or her journey in the
vessel ends.
(2) The master must, if asked to do so by an officer,
give the officer a specified number (not exceeding 6) of copies of a document
containing particulars given under this regulation.
Penalty: 10 penalty units.
3.17 Information
about crew
(1) The master of a civilian vessel that enters
Australia must, at any port of call in Australia, if so requested by an
officer:
(a) give the officer a list showing the number
of members of the crew and showing, in respect of each member of the crew:
(i) his or her full name; and
(ii) his or her date of birth; and
(iii) his or her citizenship; and
(iv) the country of issue and number of
his or her passport; and
(b) if the vessel is a ship, produce to the
officer the ship’s articles.
(2) The master of a civilian vessel that is a ship must,
at the first port of call in Australia of the ship, give an officer a list
signed by the master showing the name and citizenship of every person on board
other than:
(a) a passenger; or
(b) a member of the crew whose name appears on
the ship’s articles as a member of the crew for discharge at a port outside
Australia.
Penalty: 10 penalty units.
Division 3.3 Examination, search and detention
3.19 Periods
within which evidence to be shown to officer
For subsections 188
(2) and (3) of the Act, the periods are:
(a) if the requirement is oral — 5 minutes;
or
(b) if the requirement is in writing — 48
hours.
3.19A Circumstances in which an officer must
require personal identifiers
For subsection 188 (4) of the Act, the
circumstances are that the officer knows or reasonably suspects that the person
is a non‑citizen and:
(a) the officer knows or reasonably suspects
that the person has refused or failed to comply with a requirement to provide
evidence under subsection 188 (1) of the Act within:
(i) the period mentioned in regulation
3.19; or
(ii) any further period allowed under
subsection 188 (2) of the Act; or
(b) during the period or further period the
person advises the officer that the person refuses to, or is unable to, comply
with a requirement under subsection 188 (1) of the Act; or
(c) during the period or further period the
person has provided evidence in order to comply with a requirement under
subsection 188 (1) of the Act, and the officer is not reasonably satisfied
that the evidence is:
(i) authentic; or
(ii) reliable.
3.20 Information
to be provided — authorised officers carrying out identification tests
(1) For paragraph 258B (1) (b) of the Act, the matters
are:
(a) the reason why a personal identifier is
required to be provided; and
(b) how a personal identifier may be collected;
and
(c) how any personal identifier that is
collected may be used; and
(d) the circumstances in which a personal
identifier may be disclosed to a third party; and
(e) notification that a personal identifier may
be produced in evidence in a court or tribunal in relation to the non‑citizen
who provided the personal identifier; and
(f) notification
that the Privacy Act 1988 applies to a personal identifier, and that the
non‑citizen has a right to make a complaint to the Privacy Commissioner
about the handling of personal information; and
(g) notification that the Freedom of
Information Act 1982 gives a person access to certain information and
documents in the possession of the Government of the Commonwealth and of its
agencies, and that the non‑citizen has a right under that Act to seek
access to that information or those documents under that Act, and to seek amendment
of records containing personal information that is incomplete, incorrect, out
of date or misleading; and
(h) if the non‑citizen is a minor or
incapable person — information concerning how a personal identifier is to
be obtained from a minor or incapable person.
Note Subsections 261AL (4) and 261AM (3)
require a parent, guardian or independent person to be informed, before giving
consent for a minor or an incapable person to provide a personal identifier, of
the matters of which a minor or incapable person must be informed under section
258B.
(2) For subsection 258B (3) of the Act, if a form is to
be given to a non‑citizen, it must be given to the non‑citizen at a
time that gives the non‑citizen enough time to read and understand the
form before the identification test is conducted.
3.21 Information
to be provided — authorised officers not carrying out identification tests
(1) For subsection 258C (1) of the Act, the matters
are:
(a) the reason why a personal identifier is
required to be provided; and
(b) how a personal identifier may be collected;
and
(c) how any personal identifier that is
collected may be used; and
(d) the circumstances in which a personal
identifier may be disclosed to a third party; and
(e) notification that a personal identifier may
be produced in evidence in a court or tribunal in relation to the non‑citizen
who provided the personal identifier; and
(f) notification that the Privacy Act 1988
applies to a personal identifier, and that the non‑citizen has a right to
make a complaint to the Privacy Commissioner about the handling of personal
information; and
(g) notification that the Freedom of
Information Act 1982 gives a person access to certain information and
documents in the possession of the Government of the Commonwealth and of its
agencies, and that the non‑citizen has a right under that Act to seek
access to that information or those documents under that Act, and to seek amendment
of records containing personal information that is incomplete, incorrect, out
of date or misleading; and
(h) information concerning how a personal
identifier is to be obtained from a minor or incapable person.
(2) For subsection 258C (1) of the Act, the manner of
informing a non‑citizen is in writing.
Division 3.4 Identification of immigration detainees
3.30 Immigration
detainees must provide personal identifiers
(1) For subsection 261AA (1)
of the Act, the circumstances are that the non‑citizen is in the company
of and restrained by:
(a) an officer; or
(b) in the case of a particular non‑citizen —
another person directed by the Secretary to accompany and restrain the non‑citizen.
(2) For paragraph 261AA (1A) (e) of the Act,
an iris scan is prescribed.
Note Under subsection 261AA (1) of
the Act, a non‑citizen who is in immigration detention must (other than
in the prescribed circumstances) provide to an authorised officer one or more
personal identifiers. Personal identifiers are mentioned in subsection
261AA (1A) of the Act, and include any prescribed personal identifiers.
3.31 Authorised
officers must require and carry out identification tests
For paragraph 261AB
(1) (a) of the Act, the types of personal identifiers are as follows:
(a) fingerprints or handprints of the non‑citizen
(including those taken using paper and ink or digital livescanning
technologies);
(b) a measurement of the non‑citizen’s
height and weight;
(c) a photograph or other image of the non‑citizen’s
face and shoulders;
(d) the non‑citizen’s signature.