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Migration Regulations 1994

Authoritative Version
  • - F2007C00313
  • In force - Superseded Version
  • View Series
SR 1994 No. 268 Regulations as amended, taking into account amendments up to SLI 2007 No. 129
Administered by: Immigration and Citizenship
Registered 25 May 2007
Start Date 24 May 2007
End Date 30 Jun 2007

Migration Regulations 1994

Statutory Rules 1994 No. 268 as amended

made under the

This compilation was prepared on 24 May 2007
taking into account amendments up to SLI 2007 No. 129

[Note: Regulation 2.12A ceases to be in force at the end of
30 June 2008 — see subsection 91D (4) of the Act]

The text of any of those amendments not in force
on that date is appended in the Notes section

This document has been split into 9 volumes
Volume 1 contains Parts 1–3 (Rr. 1.01–3.31),
Volume 2 contains Parts 4 and 5 (Rr. 4.01–5.44) and Schedule 1,
Volume 3 contains Schedule 2 (Subclasses 010–415),

Volume 4 contains Schedule 2 (Subclasses 416–801),
Volume 5 contains Schedule 2 (Subclasses 802–995),
Volume 6 contains Schedules 3–5B,
Volume 7 contains Schedules 6–9,
Volume 8 contains Schedules 10–12, Note 1, and
the Table of Instruments, and

Volume 9 contains the Table of Amendments and Tables A and B
Each volume has its own Table of Contents

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

 


Contents

Part 1                    Preliminary                                                                 

Division 1.1             Introductory                                                                    

                    1.01     Name of Regulations [see Note 1]                                   15

                    1.02     Commencement                                                            15

Division 1.2             Interpretation                                                                 

                    1.03     Definitions                                                                     15

                    1.04     Adoption                                                                       38

                  1.04A     AusAID recipients and AusAID students                          39

                  1.04B     Defence student                                                             41

                    1.05     Balance of family test                                                     42

                  1.05A     Dependent                                                                     44

                    1.06     References to classes of visas                                        44

                    1.07     References to subclasses of visas                                   45

                    1.08     Compelling need to work                                                 45

                    1.09     Criminal detention                                                          46

                  1.09A     Interdependent relationship                                             46

                    1.10     Labour market requirements                                            49

                    1.11     Main business                                                               49

                  1.11A     Ownership for the purposes of certain Parts of Schedule 2 50

                  1.11B     ETA‑eligible passport                                                     51

                    1.12     Member of the family unit                                                51

               1.12AA     Member of the immediate family                                      57

                  1.12A     Net employment benefit                                                  57

                    1.13     Meaning of nominator                                                     58

                    1.14     Orphan relative                                                               58

                    1.15     Remaining relative                                                          58

               1.15AA     Carer                                                                            59

                  1.15A     Spouse                                                                         61

                  1.15B     Vocational English                                                         65

Division 1.3             Administration                                                                

                    1.16     Delegation                                                                     66

               1.16AA     Appointment of Medical Officer of the Commonwealth        66

                  1.16A     Regional headquarters agreements                                  66

                  1.16B     Invest Australia Supported Skills agreements                   67

                    1.17     Specification of matters by Gazette Notice                       67

                    1.18     Approved forms                                                              67

                    1.19     Occupations requiring English list                                    67

Division 1.4             Sponsorship                                                                   

                    1.20     Sponsorship                                                                  68

Division 1.4A           Temporary business entry: sponsorship and nomination 

                  1.20A     Object of this Division                                                     70

                  1.20B     Interpretation                                                                 71

               1.20BA     Application of Division 3A of Part 2 of the Act                   73

                  1.20C     Application for approval as standard business sponsor      73

               1.20CA     Business sponsors — transitional arrangements for 1 July 2003          74

               1.20CB     Sponsorship undertakings                                               75

               1.20CC     Limit in relation to costs of location and detention             77

                  1.20D     Approval as standard business sponsor                           77

               1.20DA     Approval as standard business sponsor — overseas business 80

               1.20DB     Consequences if approved business sponsor or sponsored person changes status       83

                  1.20E     Term of approval as standard business sponsor                84

                  1.20F     Prescribed grounds for cancellation of approval as a business sponsor (Act s 137B)     84

                 1.20G     Nomination of business activities                                     85

               1.20GA     Nomination of business activities — certified regional employment       87

                  1.20H     Approval of nominations of business activities                   88

               1.20HA     Cancelling or barring approval as a sponsor if undertakings breached   90

               1.20HB     Cancelling or barring approval as a sponsor in circumstances other than those set out in regulation 1.20HA                                                                         91

               1.20HC     Waiving a bar                                                                 93

               1.20HD     Process for waiving a bar                                                94

                   1.20I     Exercise of Minister’s powers under this Division              94

                 1.20IA     Disclosure of personal information                                   95

Division 1.4B           Limitation on certain sponsorships and nominations     

                  1.20J     Limitation on approval of sponsorships — spouse, prospective spouse and interdependency visas                                                                                    96

                  1.20K     Limitation on sponsorships — remaining relative visas       98

                  1.20L     Limitation on approval of sponsorship — Subclass 679 (Sponsored Family Visitor) visas           98

Division 1.4C           Sponsorship: professional development                        

Subdivision 1.4C.1     Introductory                                                                                             

                1.20LA     Application of Division 3A of Part 2 of the Act                  100

                 1.20M     Definitions                                                                   100

Subdivision 1.4C.2     Becoming an approved professional development sponsor      

                  1.20N     Process for making application to become an approved professional development sponsor         102

               1.20NA     Approving an application to become an approved professional development sponsor      103

                 1.20O     Terms of approval as approved professional development sponsor        108

                  1.20P     Sponsorship undertakings                                             109

               1.20PA     Limit in relation to costs of location and detention           112

               1.20PB     Consequences if approved professional development sponsor or visa holder changes status       112

Subdivision 1.4C.3     Cancelling or barring an approved professional development sponsor    

                 1.20Q     Cancelling or barring approval as a sponsor                    113

                  1.20R     Waiving a bar                                                               114

                  1.20S     Giving notice about a bar, waiving a bar or cancellation    114

Subdivision 1.4C.4     General                                                                                                     

                  1.20T     Disclosure of personal information                                  115

Division 1.4D           Special student sponsorship                                          

Subdivision 1.4D.1     Introductory                                                                                             

               1.20UA     Definitions for Division 1.4D                                           116

               1.20UB     Application of Division 3A of Part 2 of the Act                  117

Subdivision 1.4D.2     Becoming an approved special student sponsor                          

               1.20UC     Process for making application to become an approved special student sponsor           118

               1.20UD     Approving an application to become an approved special student sponsor        119

               1.20UE     Terms of approval as special student sponsor                 120

                1.20UF     Sponsorship undertakings                                             120

               1.20UG     Consequences if approved special student sponsor or visa holder changes status — enforceability of undertaking                                                                  122

Subdivision 1.4D.3     General                                                                                                     

               1.20UH     Disclosure of personal information                                  123

Division 1.4E           Sponsorship: trade skills training                                   

Subdivision 1.4E.1     Introductory                                                                                             

                 1.20UI     Application of Division 3A of Part 2 of the Act                  124

                1.20UJ     Definitions for Division 1.4E                                           124

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      125

                1.20UL     Approving an application to become an approved trade skills training sponsor   126

               1.20UM     Notice of decision concerning application                       127

               1.20UN     Terms of approval as approved trade skills training sponsor 127

               1.20UO     Sponsorship undertakings                                             128

               1.20UP     Consequences if approved trade skills training sponsor or visa holder changes status    130

Subdivision 1.4E.3     Cancelling or barring approval as approved trade skills training sponsor               

               1.20UQ     Cancelling or barring approval as a sponsor                    130

               1.20UR     Waiving a bar                                                               131

               1.20US     Giving notice about a bar, waiving a bar or cancellation    132

Subdivision 1.4E.4     General                                                                                                     

                1.20UT     Disclosure of personal information                                  132

Division 1.5             Special provisions relating to domestic violence           

                    1.21     Interpretation                                                                134

                    1.22     References to person having suffered or committed domestic violence  136

                    1.23     When is a person taken to have suffered or committed domestic violence?       136

                    1.24     Evidence                                                                     138

                    1.25     Statutory declaration by alleged victim etc                      139

                    1.26     Statutory declaration by competent person                     140

                    1.27     Statutory declaration or statement not admissible in evidence 140

Division 1.6             Immigration Minister’s suspension certificate under Education Services for Overseas Students Act 2000                                                           

                    1.30     Prescribed non‑citizen                                                  141

Division 1.8             Special provisions for student visas                               

                    1.40     Definitions                                                                   141

                  1.40A     Courses for education sectors to be specified by Minister 142

                    1.41     Assessment levels to be specified by Minister                142

                    1.42     Assessment level of applicant                                       143

                    1.43     Notification of assessment level                                     146

                    1.44     Evidence required                                                         147

Part 2                    Visas                                                                            

Division 2.1             Classes, criteria, conditions etc                                      

                    2.01     Classes of visas (Act, s 31)                                           148

                    2.02     Subclasses                                                                 148

                    2.03     Criteria applicable to classes of visas                             148

                    2.04     Circumstances in which a visa may be granted (Act, s 40) 150

                    2.05     Conditions applicable to visas                                        150

                    2.06     Non‑citizens who do not require visas to travel to Australia 152

               2.06AA     Decision periods — decisions on protection visas           152

Division 2.2             Applications                                                                   

                  2.06A     Definition                                                                     155

                    2.07     Application for visa — general                                        155

                  2.07A     Certain applications not valid bridging visa applications    155

               2.07AA     Applications for certain visitor visas                                156

               2.07AB     Applications for Electronic Travel Authority visas             157

               2.07AC     Applications for Temporary Safe Haven and Temporary (Humanitarian Concern) visas    158

               2.07AE     Applications for Designated Parent visas                        159

                2.07AF     Certain applications for Student (Temporary) (Class TU) visas 159

               2.07AG     Applications for certain substantive visas by persons for whom condition 8534 has been waived under subregulation 2.05 (5)                                          160

               2.07AH     Applications for certain substantive visas by persons for whom condition 8534 has been waived under subregulation 2.05 (6)                                          160

                 2.07AI     Applications for certain substantive visas by persons holding Subclass 173 or 884 visas            161

                2.07AJ     Applications for Witness Protection (Trafficking) (Temporary) (Class UM) visas 161

               2.07AK     Applications for Witness Protection (Trafficking) (Permanent) (Class DH) visas 163

                2.07AL     Applications for certain visas by contributory parent newborn children  164

               2.07AM     Applications for Refugee and Humanitarian (Class XB) visas 165

               2.07AN     Applications for Return Pending (Temporary) (Class VA) visas 165

               2.07AO     Applications for certain substantive visas by specified persons            167

                    2.08     Application by newborn child                                         169

               2.08AA     Application by contributory parent newborn child             169

               2.08AB     Application for visa — prescribed circumstances             170

               2.08AC     Application for visa — personal identifiers                       171

                  2.08A     Addition of spouses and dependent children to certain applications for permanent visas 171

                  2.08B     Addition of dependent children to certain applications for temporary visas         173

               2.08BA     Certain holders of Subclass 450 visas taken to have applied for Resolution of Status (Residence) (Class BL) visas                                                           175

                  2.08C     Certain applicants taken to have applied also for Employer Nomination (Migrant) (Class AN) visas and Labour Agreement (Migrant) (Class AU) visas           175

               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   178

               2.08CB     Certain applicants taken to have applied also for Employer Nomination (Residence) (Class BW) visas                                                                           179

               2.08CC     Certain applicants taken to have applied also for Labour Agreement (Residence) (Class BV) visas                                                                                  180

                  2.08D     Certain applicants for Independent (Migrant) (Class AT) or Skilled – Australian‑linked (Migrant) (Class AJ) visas may make further application                181

               2.08DA     Certain applicants for Skilled — Independent (Migrant) (Class BN) visas may make further application                                                                   182

                  2.08E     Certain applicants taken to have applied for Partner (Migrant) (Class BC) visas and Partner (Provisional) (Class UF) visas                                        183

                  2.08F     Certain holders of Subclass 785 (Temporary Protection) visas taken to have applied for Protection (Class XC) visas                                                           184

                 2.08G     Certain persons taken to have applied for Partner (Migrant) (Class BC) visas    185

                    2.09     Oral applications for visas                                             185

                    2.10     Where application must be made                                   186

               2.10AA     Where application must be made for certain gazetted visas 187

                  2.10A     Notice of lodgment of application — person in immigration detention (Bridging E (Class WE) visa)                                                                                  188

                  2.10B     Notice of lodgment of application — person in immigration detention (Bridging F (Class WF) visa)                                                                                  188

                  2.10C     Time of making Internet application                                188

                    2.11     Special provisions for certain visa applications that are refused            189

                    2.12     Certain non‑citizens whose applications refused in Australia (Act, s 48)           191

               2.12AA     Refusal or cancellation of visa — prohibition on applying for other visa (Act, s 501E)      192

                  2.12A     Safe third country and prescribed connection (Act s 91D) 192

Division 2.2AA        Special provisions relating to persons designated under regulation 2.07AO       

               2.12BB     Application of Division 2.2AA                                         193

               2.12BC     Place to which application for visa by person mentioned in paragraph 2.12BB (a), (b) or (c) is to be sent                                                                            194

               2.12BD     Visas that may be held by person mentioned in paragraph 2.12BB (a) at time of application      194

               2.12BE     Application of public interest criterion 4004 to person mentioned in regulation 2.12BB   195

                2.12BF     Application of public interest criterion 4007 to person mentioned in regulation 2.12BB   195

Division 2.2A           Visa application charge                                                 

                  2.12C     Amount of visa application charge (Act, section 45B)       197

                  2.12D     Prescribed period for payment of unpaid amount of visa application charge (Act, subsection 64 (2))                                                                                  197

                  2.12E     Payment of first instalment of visa application charge not required for certain combined applications                                                                                  198

                  2.12F     Refund of first instalment of visa application charge         198

                 2.12G     When payment of second instalment of visa application charge not required     200

                  2.12H     Refund of second instalment of visa application charge    200

                   2.12I     Partial refund of second instalment of visa application charge  202

                  2.12J     Refund of first and second instalments of visa application charge for Resolution of Status (Temporary) (Class UH) visas                                        204

                2.12JA     Payment of visa application charge for Internet application 205

                  2.12K     Who is the person who pays an instalment of visa application charge  206

Division 2.3             Communication between applicant and Minister           

                    2.13     Communication with Minister                                         207

                    2.14     Where written communication must be sent                   209

                    2.15     Response to invitation to give information or comments — prescribed periods   209

                    2.16     Notification of decision on visa application                      212

Division 2.4             Evidence of visas                                                           

                    2.17     Ways of giving evidence of a visa                                   213

                    2.18     Re‑evidencing of resident return visas                             214

                    2.19     Evidence of visa need not be given in certain cases         216

Division 2.5             Bridging visas                                                                

                    2.20     Eligible non‑citizen (Act, s 72)                                       217

                  2.20A     Applications for Bridging R (Class WR) visas                  225

                  2.20B     Applications for Bridging F (Class WF) visas                   226

                    2.21     Most beneficial bridging visas (Act, s 68 (4) (b) (ii))          226

                  2.21A     Grant of Bridging A (Class WA) visas without application 227

                  2.21B     Grant of Bridging A (Class WA), Bridging C (Class WC) and Bridging E (Class WE) visas without application                                                                   229

                    2.22     Invalid application for substantive visa                             229

                    2.23     Further application for bridging visa (Act, s 74)                230

                    2.24     Eligible non‑citizen in immigration detention (Act, s 75)   230

                    2.25     Grant of Bridging E (Class WE) visas without application 231

Division 2.5A           Special provisions relating to certain health criteria     

                  2.25A     Referral to Medical Officers of the Commonwealth           232

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                    233

                  2.26A     Prescribed qualifications and number of points for skilled permanent visas and Skilled — Independent Regional (Provisional) (Class UX) visa          238

                  2.26B     Relevant assessing authorities                                      242

                  2.26C     Designated securities                                                   243

                    2.27     Combination of scores — points system: applicants for Skilled – Australian‑linked (Migrant) (Class AJ) visas                                                                     243

                  2.27A     Combination of scores — points system: applicants for skilled permanent visas           244

                  2.27B     Skills assessment for skilled occupations                      244

                  2.27C     Skilled occupation in Australia                                       246

                    2.28     Notice of putting application aside                                  246

                  2.29A     Application of Skilled — Australian‑sponsored Overseas Student (Residence) (Class DE) visa from 1 July 2003                                                                  247

                  2.29B     Application of Skilled — Independent Overseas Student (Residence) (Class DD) visa from 1 July 2003                                                                           247

                  2.29C     Application of Graduate — Skilled (Temporary) (Class UQ) visa from 1 July 2003          248

                  2.29D     Application of Subclass 134 (Skill Matching) visa from 1 July 2003      248

                  2.29E     Application of Subclass 136 (Skilled — Independent) visa from 1 July 2003      248

                  2.29F     Application of Subclass 137 (Skilled — State/Territory‑nominated Independent) visa from 1 July 2003                                                                           249

                 2.29G     Application of Subclass 138 (Skilled — Australian‑sponsored) visa from 1 July 2003     249

                  2.29H     Application of Subclass 139 (Skilled — Designated Area‑sponsored) visa from 1 July 2003        249

                   2.29I     Application of Subclass 861 (Skilled — Onshore Independent New Zealand Citizen) visa from 1 July 2003                                                                           250

                  2.29J     Application of Subclass 862 (Skilled — Onshore Australian‑sponsored New Zealand Citizen) visa from 1 July 2003                                                           250

                  2.29K     Application of Subclass 863 (Skilled — Onshore Designated Area‑sponsored New Zealand Citizen) visa from 1 July 2003                                                    251

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                                                                251

                    2.31     Form of certain assurances of support                            252

                    2.32     Duration of assurances of support                                  252

                    2.33     Effect of assurance of support                                       252

                    2.34     Earlier liabilities not affected                                          253

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                                                                253

                    2.36     Form and duration of assurance of support                     254

                    2.37     Persons in respect of whom assurance of support may be given          254

                    2.38     Liability of person giving assurance of support                 255

                    2.39     Bond (required assurances)                                           256

Division 2.8             Special purpose visas                                                    

                    2.40     Persons having a prescribed status — special purpose visas (Act, s 33 (2) (a)) 257

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             

                    2.41     Whether to cancel visa — incorrect information or bogus document (Act, s 109 (1) (c))  264

                    2.42     Notice of decision to cancel visa under s 109                  265

Subdivision 2.9.2       Cancellation generally                                                                          

                    2.43     Grounds for cancellation of visa (Act, s 116)                   265

                    2.44     Invitation to comment — response                                 271

                    2.45     Notification of decision (Act, s 127)                                272

                    2.46     Time to respond to notice of cancellation (Act, s 129 (1) (c)) 272

                    2.47     Notice of cancellation (Act, s 129)                                 273

                    2.48     Revocation of cancellation (Act, s 131 (2))                      273

                    2.49     Notice of decision whether to revoke cancellation (Act, s 132) 273

                    2.50     Cancellation of business visas                                       274

               2.50AA     Cancellation of regional sponsored employment visas      276

Subdivision 2.9.2A     Automatic cancellation of student visas                                         

                  2.50A     Meaning of office of Immigration                                     276

Subdivision 2.9.3       Refusal or cancellation on character grounds                              

                    2.51     Notification by Administrative Appeals Tribunal (Act, s 500) 277

                    2.52     Revocation of decisions by Minister (Act, s 501C)           277

                    2.53     Submission of information or material (Act, s 501D)         279

Division 2.10           Documents relating to cancellation of visas                   

                    2.54     Definition for Division 2.10                                             280

                    2.55     Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation                                                                                  280

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)                  283

                    3.02     Passenger card                                                            284

                    3.03     Evidence of identity and visa for persons entering Australia (Act s 166)            285

                  3.03A     Evidence of identity and visa for persons entering Australia — personal identifiers         287

                    3.04     Place and time for giving evidence (Act, s 167)                288

                    3.05     Allowed inhabitants of the Protected Zone (Act, s 168 (2)) 288

                    3.06     Persons not required to comply with s 166 of the Act (Act, s 168 (3))   288

                    3.07     Persons taken not to leave Australia (Act, s 80 (c))         289

                    3.08     Offence — failure to complete a passenger card              289

                    3.09     Evidence of identity — domestic travel on overseas vessels 289

                    3.10     Use of information                                                        290

                  3.10A     Access to movement records                                        292

                    3.11     Production of deportee or removee                                 293

                    3.12     Offences by master of vessel                                         293

Division 3.2             Information about passengers and crew on overseas vessels     

                    3.13     Interpretation                                                                294

                  3.13A     Information about passengers and crew to be given before arrival of international passenger aircraft                                                                                  294

                  3.13B     Information about passengers and crew to be given before arrival of international passenger cruise ship                                                                            295

                  3.13C     Information about passengers and crew to be given before arrival of international cargo ship       296

                    3.14     Information about overseas passengers to be given on arrival of inbound civilian vessel   296

                    3.15     Medical certificate                                                        298

                    3.16     Information about overseas passengers — outbound civilian vessel      299

                    3.17     Information about crew                                                  299

Division 3.3             Examination, search and detention                               

                    3.19     Periods within which evidence to be shown to officer        300

                  3.19A     Circumstances in which an officer must require personal identifiers      300

                    3.20     Information to be provided — authorised officers carrying out identification tests            301

                    3.21     Information to be provided — authorised officers not carrying out identification tests      302

Division 3.4             Identification of immigration detainees                         

                    3.30     Immigration detainees must provide personal identifiers   303

                    3.31     Authorised officers must require and carry out identification tests        303

 

 


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 member of the immediate family of the official guest of the Australian Government, who is accompanying the official guest.

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, the Republic of the Philippines, 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, the Republic of the Philippines, 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:

                          (i)    in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and

                         (ii)    signed by the medical adviser who carried it out; or

               (b)    it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider 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:

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.

 

Item

The action 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

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

   2

Paragraph 140L (g) of the Act

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;

 

 

 

   (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

 

 

   (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

 

   2

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;

 

 

   (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 Apprenticeships 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 Apprenticeships 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