Contents
Part 1—Preliminary 1
Division 1.1—Introductory 1
1.01....................... Name of Regulations.......................................................... 1
Division 1.2—Interpretation 2
1.03....................... Definitions.......................................................................... 2
1.04....................... Adoption........................................................................... 22
1.04A.................... Foreign Affairs recipients and Foreign Affairs students... 23
1.04B..................... Defence student................................................................ 24
1.05....................... Balance of family test........................................................ 24
1.05A.................... Dependent......................................................................... 25
1.06....................... References to classes of visas........................................... 26
1.07....................... References to subclasses of visas..................................... 26
1.08....................... Compelling need to work.................................................. 27
1.09....................... Criminal detention............................................................. 27
1.09A.................... De facto partner and de facto relationship......................... 27
1.11....................... Main business................................................................... 28
1.11A.................... Ownership for the purposes of certain Parts of Schedule 2 29
1.11B..................... ETA‑eligible passport....................................................... 30
1.11C..................... eVisitor eligible passport.................................................. 30
1.12....................... Member of the family unit................................................ 30
1.12AA................. Member of the immediate family...................................... 33
1.13....................... Meaning of nominator...................................................... 33
1.13A.................... Meaning of adverse information...................................... 33
1.13B..................... Meaning of associated with.............................................. 34
1.14....................... Orphan relative................................................................. 35
1.14A.................... Parent and child................................................................ 35
1.15....................... Remaining relative............................................................ 36
1.15AA................. Carer................................................................................. 36
1.15A.................... Spouse.............................................................................. 37
1.15B..................... Vocational English............................................................ 38
1.15C..................... Competent English............................................................ 39
1.15D.................... Proficient English............................................................. 39
1.15EA.................. Superior English............................................................... 39
1.15F..................... Australian study requirement............................................ 40
1.15FA.................. Specified Subclass 462 work............................................ 40
1.15G.................... Superyachts...................................................................... 40
1.15I...................... Skilled occupation............................................................. 40
1.15J...................... Excluded maritime arrival................................................. 41
Division 1.3—Administration 42
1.16....................... Delegation......................................................................... 42
1.16AA................. Appointment of Medical Officer of the Commonwealth... 42
1.18....................... Approved forms............................................................... 42
Division 1.4—Sponsorship not applicable to Division 3A of Part 2 of the Act 43
1.20....................... Sponsorship undertakings................................................ 43
Division 1.4B—Limitation on certain sponsorships under Division 1.4 45
1.20J...................... Limitation on approval of sponsorships—spouse, partner, prospective marriage and interdependency visas....................................................... 45
1.20K..................... Limitation on sponsorships—remaining relative visas...... 46
1.20KA.................. Limitation on approval of sponsorship—partner (provisional or temporary) or prospective marriage (temporary) visas............................................... 47
1.20KB.................. Limitation on approval of sponsorship—child, partner and prospective marriage visas.......................................................................................... 48
1.20KC.................. Limitation on approval of sponsorship—prospective marriage and partner visas 51
1.20KD.................. Prospective marriage and partner visas—definition of significant criminal record 52
1.20L..................... Limitation on approval of sponsorship—Subclass 600 (Visitor) visas 53
1.20LAA............... Limitation on sponsorships—parent, aged dependent relative, contributory parent, aged parent and contributory aged parent visas......................... 54
Division 1.5—Special provisions relating to family violence 56
1.21....................... Interpretation..................................................................... 56
1.22....................... References to person having suffered or committed family violence 56
1.23....................... When is a person taken to have suffered or committed family violence? 56
1.24....................... Evidence........................................................................... 59
1.25....................... Statutory declaration by alleged victim etc........................ 59
1.27....................... Documents not admissible in evidence............................. 60
Division 1.6—Immigration Minister’s suspension certificate under Education Services for Overseas Students Act 2000 61
1.30....................... Prescribed non‑citizen....................................................... 61
Part 2—Visas 62
Division 2.1—Classes, criteria, conditions etc 62
2.01....................... Classes of visas................................................................ 62
2.02....................... Subclasses........................................................................ 63
2.03....................... Criteria applicable to classes of visas................................ 63
2.03A.................... Criteria applicable to de facto partners.............................. 65
2.03AA................. Criteria applicable to character tests and security assessments 66
2.03B..................... Protection visas—international instruments...................... 66
2.04....................... Circumstances in which a visa may be granted................. 67
2.05....................... Conditions applicable to visas........................................... 67
2.06....................... Non‑citizens who do not require visas to travel to Australia 68
2.06AAA.............. Entry to Australia—Maritime Crew (Temporary) (Class ZM) visas 68
2.06AAB............... Visa applications by holders and certain former holders of safe haven enterprise visas.......................................................................................... 69
2.06AAC............... Entry to Australia—persons entering to participate in, or support, offshore resources activities............................................................................ 71
Division 2.2—Applications 72
2.06A.................... Definition.......................................................................... 72
2.07....................... Application for visa—general........................................... 72
2.07A.................... Certain applications not valid bridging visa applications... 73
2.07AA................. Applications for certain visitor visas................................. 73
2.07AB.................. Applications for Electronic Travel Authority visas........... 73
2.07AC.................. Applications for Temporary Safe Haven and Temporary (Humanitarian Concern) visas.......................................................................................... 74
2.07AF.................. Applications for Student (Temporary) (Class TU) visas.. 75
2.07AG................. Applications for certain substantive visas by persons for whom condition 8503 or 8534 has been waived under subregulation 2.05(4AA) or (5A)...... 75
2.07AH................. Applications for certain substantive visas by persons for whom condition 8534 has been waived under subregulation 2.05(6) before 18 March 2018 76
2.07AI................... Applications for certain substantive visas by persons holding Subclass 173 or 884 visas.......................................................................................... 76
2.07AK.................. Applications for Referred Stay (Permanent) (Class DH) visas 77
2.07AL.................. Applications for certain visas by contributory parent newborn children 78
2.07AM................. Applications for Refugee and Humanitarian (Class XB) visas 78
2.07AP.................. Applications for Maritime Crew (Temporary) (Class ZM) visas 79
2.07AQ................. Applications for Resolution of Status (Class CD) visas... 79
2.07AR.................. Applications for Superyacht Crew (Temporary) (Class UW) visas 81
2.08....................... Application by newborn child........................................... 81
2.08AA................. Application by contributory parent newborn child............ 81
2.08A.................... Addition of certain applicants to certain applications for permanent visas 82
2.08AAA.............. Addition of certain applicants to certain applications for temporary protection visas and safe haven enterprise visas....................................................... 83
2.08B..................... Addition of certain dependent children to certain applications for temporary visas 84
2.08E..................... Certain applicants taken to have applied for Partner (Migrant) (Class BC) visas and Partner (Provisional) (Class UF) visas......................................... 85
2.08F..................... Certain applications for Protection (Class XA) visas taken to be applications for Temporary Protection (Class XD) visas............................................. 86
2.09....................... Oral applications for visas................................................ 88
2.10....................... Where application must be made....................................... 88
2.10AA................. Where application must be made for certain visas............. 89
2.10A.................... Notice of lodgment of application—person in immigration detention (Bridging E (Class WE) visa).................................................................................. 89
2.10B..................... Notice of lodgment of application—person in immigration detention (Bridging F (Class WF) visa).................................................................................. 90
2.10C..................... Time of making Internet application.................................. 90
2.11....................... Special provisions for certain visa applications that are refused 90
2.11A.................... Visa applications by unauthorised maritime arrivals......... 91
2.11B..................... Visa applications by transitory persons............................ 91
2.12....................... Certain non‑citizens whose applications refused in Australia (Act, s 48) 92
2.12AA................. Refusal or cancellation of visa—prohibition on applying for other visa (Act, s 501E).......................................................................................... 92
Division 2.2A—Visa application charge 93
2.12C..................... Amount of visa application charge.................................... 93
2.12D.................... Prescribed period for payment of unpaid amount of visa application charge (Act, subsection 64(2)).............................................................. 95
2.12F..................... Refund of first instalment of visa application charge........ 96
2.12G.................... When payment of second instalment of visa application charge not required 100
2.12H.................... Refund of second instalment of visa application charge.. 100
2.12JA................... Payment of visa application charge for Internet application 102
2.12K..................... Who is the person who pays an instalment of visa application charge 102
2.12L..................... Legal personal representative.......................................... 103
Division 2.2B—Priority consideration of certain visa applications on request 104
2.12M.................... Priority consideration of certain visa applications on request 104
2.12N.................... Fee for request for priority consideration of visa applications 105
2.12P..................... Refund of fee for request for priority consideration of visa applications 105
Division 2.3—Communication between applicant and Minister 106
2.13....................... Communication with Minister........................................ 106
2.14....................... Where written communication must be sent.................... 107
2.15....................... Response to invitation to give additional information or comments—prescribed periods........................................................................................ 108
2.16....................... Notification of decision on visa application.................... 109
Division 2.5—Bridging visas 111
2.20....................... Eligible non‑citizen (Act, s 72)....................................... 111
2.20A.................... Applications for Bridging R (Class WR) visas............... 115
2.20B..................... Applications for Bridging F (Class WF) visas............... 116
2.21....................... Most beneficial bridging visas (Act, s 68(4)(b)(ii))........ 116
2.21A.................... Grant of Bridging A (Class WA) visas without application 117
2.21B..................... Grant of Bridging A (Class WA), Bridging C (Class WC) and Bridging E (Class WE) visas without application.......................................................... 118
2.22....................... Invalid application for substantive visa........................... 118
2.23....................... Further application for bridging visa (Act, s 74)............. 119
2.24....................... Eligible non‑citizen in immigration detention.................. 119
2.25....................... Grant of Bridging E (Class WE) visas without application 121
2.25AA................. Grant of Bridging R (Class WR) visa without application 121
Division 2.5A—Special provisions relating to certain health criteria 122
2.25A.................... Referral to Medical Officers of the Commonwealth....... 122
Division 2.6—Prescribed qualifications—application of points system 123
2.26AC.................. Prescribed qualifications and number of points for Subclass 189, 190 and 489 visas........................................................................................ 123
2.26B..................... Relevant assessing authorities......................................... 125
2.27C..................... Skilled occupation in Australia....................................... 125
2.27D.................... Study in Australia........................................................... 126
2.28....................... Notice of putting application aside.................................. 126
Division 2.8—Special purpose visas 127
2.40....................... Persons having a prescribed status—special purpose visas (Act, s 33(2)(a)) 127
2.40A.................... Conditions applicable to special purpose visas............... 129
Division 2.9—Cancellation or refusal to grant visas 130
Subdivision 2.9.1—Cancellation under Subdivision C of Division 3 of Part 2 of the Act 130
2.41....................... Whether to cancel visa—incorrect information or bogus document (Act, s 109(1)(c))........................................................................................ 130
2.42....................... Notice of decision to cancel visa under s 109................. 130
Subdivision 2.9.2—Cancellation generally 131
2.43....................... Grounds for cancellation of visa (Act, s 116)................. 131
2.44....................... Invitation to comment—response................................... 138
2.45....................... Notification of decision (Act, s 127)............................... 138
2.46....................... Time to respond to notice of cancellation (Act, s 129(1)(c)) 139
2.47....................... Notice of cancellation (Act, s 129).................................. 139
2.48....................... Revocation of cancellation (Act, s 131(2))...................... 139
2.49....................... Notice of decision whether to revoke cancellation (Act, s 132) 139
2.49A.................... Additional personal powers for Minister to cancel visas—period to submit information, material and representations............................................ 140
2.50....................... Cancellation of business visas........................................ 140
2.50AA................. Cancellation of regional sponsored employment visas.... 140
Subdivision 2.9.3—Refusal or cancellation on character grounds 141
2.52....................... Refusal or cancellation of visa—representations in respect of revocation of decision by Minister (Act, s 501C and 501CA)................................ 141
2.53....................... Submission of information or material (Act, s 501D)..... 142
Division 2.10—Documents relating to cancellation of visas 144
2.54....................... Definitions for Division 2.10.......................................... 144
2.55....................... Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation..................................................................... 144
Part 2A—Sponsorship applicable to Division 3A of Part 2 of the Act 148
Division 2.11—Introductory 148
2.56....................... Application..................................................................... 148
2.57....................... Interpretation................................................................... 148
2.57A.................... Meaning of earnings...................................................... 154
Division 2.12—Classes of sponsor 155
2.58....................... Classes of sponsor.......................................................... 155
Division 2.13—Criteria for approval of sponsor 156
2.59....................... Criteria for approval as a standard business sponsor...... 156
2.60....................... Criterion for approval as a temporary activities sponsor. 156
2.60S..................... Additional criteria for all classes of sponsor—transfer, recovery and payment of costs........................................................................................ 157
Division 2.14—Application for approval as a sponsor 160
2.61....................... Application for approval as a sponsor............................ 160
2.62....................... Notice of decision........................................................... 161
Division 2.15—Terms of approval of sponsorship 162
2.63....................... Temporary activities sponsor or temporary work sponsor 162
2.63A.................... Standard business sponsor............................................. 162
2.64....................... Professional development sponsor................................. 162
2.64A.................... Special program sponsor................................................ 163
Division 2.16—Variation of terms of approval of sponsorship 164
2.65....................... Application..................................................................... 164
2.66....................... Process to apply for variation of terms of approval........ 164
2.67....................... Terms of approval that may be varied............................. 164
2.68A.................... Criteria for variation of terms of approval—temporary activities sponsor 164
2.68J...................... Additional criteria for variation of terms of approval—transfer, recovery and payment of costs................................................................................ 165
2.69....................... Notice of decision........................................................... 167
Division 2.17—Nominations 168
2.70....................... Application..................................................................... 168
2.72....................... Criteria for approval of nomination—Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa............... 168
2.72AA................. Labour market testing..................................................... 173
2.72A.................... Criteria for approval of nomination—Subclass 407 (Training) visa 173
2.72B..................... Criteria for approval of nomination—alternative criteria for Subclass 407 (Training) visa........................................................................................ 175
2.73....................... Process for nomination—Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa..................................... 177
2.73AA................. Refund of nomination fee and nomination training contribution charge—Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa........................................................................................ 180
2.73A.................... Process for nomination—Subclass 407 (Training) visa.. 182
2.74....................... Notice of decision........................................................... 182
2.75....................... Period of approval of nomination—Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa............... 183
2.75A.................... Period of approval of nomination—Subclass 407 (Training) visa 184
Division 2.18—Work agreements 185
2.76....................... Requirements.................................................................. 185
2.76A.................... Labour market testing and other work agreement requirements 185
Division 2.19—Sponsorship obligations 186
2.77....................... Preliminary..................................................................... 186
2.78....................... Obligation to cooperate with inspectors.......................... 186
2.79....................... Obligation to ensure equivalent terms and conditions of employment 187
2.80....................... Obligation to pay travel costs to enable sponsored persons to leave Australia 188
2.80A.................... Obligation to pay travel costs—domestic worker (executive) 193
2.81....................... Obligation to pay costs incurred by the Commonwealth to locate and remove unlawful non‑citizen...................................................................... 195
2.82....................... Obligation to keep records.............................................. 196
2.83....................... Obligation to provide records and information to the Minister 199
2.84....................... Obligation to provide information to Immigration when certain events occur 200
2.85....................... Obligation to secure an offer of a reasonable standard of accommodation 206
2.86....................... Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity....................................... 210
2.86A.................... Obligation to ensure primary sponsored person works or participates in activity in relation to which the visa was granted............................................. 213
2.87....................... Obligation not to recover, transfer or take actions that would result in another person paying for certain costs............................................................... 214
2.87C..................... Obligation not to engage in discriminatory recruitment practices 217
Division 2.19A—Publishing information about sanctions 218
2.87D.................... Publishing information about sanctions.......................... 218
Division 2.20—Circumstances in which sponsor may be barred or sponsor’s approval may be cancelled 219
2.88....................... Preliminary..................................................................... 219
2.89....................... Failure to satisfy sponsorship obligation........................ 219
2.90....................... Provision of false or misleading information.................. 220
2.91....................... Application or variation criteria no longer met................ 220
2.92....................... Contravention of law...................................................... 221
2.93....................... Unapproved change to professional development program or special program 222
2.94....................... Failure to pay additional security.................................... 223
2.94A.................... Failure to comply with certain terms of special program agreement or professional development agreement................................................... 224
Division 2.21—Process to bar sponsor or cancel sponsor’s approval 225
2.95....................... Preliminary..................................................................... 225
2.96....................... Notice of intention to take action..................................... 225
2.97....................... Decision.......................................................................... 225
2.98....................... Notice of decision........................................................... 225
Division 2.22—Waiving a bar on sponsor’s approval 227
2.99....................... Application..................................................................... 227
2.100..................... Circumstances in which a bar may be waived................. 227
2.101..................... Criteria for waiving a bar................................................ 227
2.102..................... Process to waive a bar.................................................... 227
Division 2.22A—Inspectors 228
2.102A.................. Period of appointment..................................................... 228
2.102B................... Identity cards.................................................................. 228
2.102C................... Purposes for which powers of inspectors may be exercised 228
Division 2.23—Disclosure of personal information 229
2.103..................... Disclosure of personal information by Minister............. 229
2.104..................... Circumstances in which the Minister may disclose personal information 230
2.105..................... Circumstances in which a recipient may use or disclose personal information 231
2.106..................... Disclosure of personal information to Minister.............. 231
Part 3—Immigration clearance and collection of information 233
Division 3.1—Information to be given 233
3.01....................... Provision of information (general requirement).............. 233
3.02....................... Passenger cards for persons entering Australia.............. 234
3.03....................... Evidence of identity and visa for persons entering Australia (Act s 166) 234
3.03AA................. Evidence of identity and providing information—non‑military ships (Act s 166) 236
3.04....................... Place and time for giving evidence (Act, s 167).............. 237
3.05....................... Allowed inhabitants of the Protected Zone (Act, s 168(2)) 237
3.06....................... Persons not required to comply with s 166 of the Act (Act, s 168(3)) 238
3.06A.................... Designated foreign dignitaries........................................ 238
3.07....................... Persons taken not to leave Australia (Act, s 80(c))......... 239
3.08....................... Offence—failure to complete a passenger card............... 239
3.09....................... Evidence of identity—domestic travel on overseas vessels 239
3.10....................... Use of information.......................................................... 240
3.10A.................... Access to movement records.......................................... 241
3.11....................... Production of deportee or removee................................. 242
3.12....................... Offences by master of vessel.......................................... 242
Division 3.2—Information about passengers and crew on overseas vessels 243
3.13....................... Interpretation................................................................... 243
3.13A.................... Information about passengers and crew to be given before arrival and departure of certain aircraft and ships............................................................. 244
3.13B..................... Obligation to report on persons arriving on ships—reporting periods for journey from last port outside Australia...................................................... 244
3.13C..................... Report on departing person to relate to flight or voyage from the last place in Australia to a place outside Australia.................................................... 245
3.13D.................... Obligation to report on persons departing from Australia—deadline for providing report........................................................................................ 245
3.14....................... Information about overseas passengers to be given on arrival of inbound civilian vessel........................................................................................ 246
3.15....................... Medical certificate........................................................... 247
3.16....................... Information about overseas passengers—outbound civilian vessel 247
3.17....................... Information about crew................................................... 248
Division 3.3—Examination, search and detention 249
3.19....................... Periods within which evidence to be shown to officer.... 249
3.20....................... Information to be provided—authorised officers carrying out identification tests 249
3.21....................... Procedure and requirements—identification test not carried out 249
Division 3.4—Identification of immigration detainees 251
3.30....................... Immigration detainees must provide personal identifiers 251
3.31....................... Authorised officers must require and carry out identification tests 251
Part 4—Review of decisions 252
Division 4.1—Review of decisions other than decisions relating to protection visas 252
4.01....................... Interpretation................................................................... 252
4.02....................... Part 5‑reviewable decisions and who may apply for review 252
4.10....................... Time for lodgment of applications with Tribunal (Act, s 347) 256
4.11....................... Giving the application to the Tribunal............................. 256
4.12....................... Combined applications for Tribunal review.................... 257
4.13....................... Tribunal review—fees and waiver.................................. 258
4.13A.................... Annual increases in fees................................................. 258
4.13B..................... Calculation of increase.................................................... 259
4.14....................... Refund of fees by Tribunal............................................. 259
4.15....................... Tribunal’s power to give directions................................ 260
4.16....................... Statement about decision under review........................... 261
4.17....................... Prescribed periods—invitation to comment or give additional information (Act, s 359B(2))........................................................................................ 261
4.18....................... Prescribed periods—invitation to comment or give additional information (Act, s 359B(3))........................................................................................ 262
4.18A.................... Prescribed periods—invitation to comment or give additional information (Act, s 359B(4))........................................................................................ 263
4.18B..................... Prescribed periods—invitation to comment or give additional information (Act, s 359B(5))........................................................................................ 264
4.19....................... Summons to attend before Tribunal................................ 264
4.21....................... Prescribed periods—notice to appear before Tribunal.... 265
4.23....................... Expedited review (close family visit visas)..................... 266
4.24....................... Expedited review (decisions to cancel visas).................. 266
4.25....................... Expedited review (certain applicants in immigration detention) 267
4.27....................... Prescribed period for making certain decisions (Act, s 367) 267
4.27B..................... Prescribed period for requesting written statement......... 267
Division 4.2—Review of Part 7‑reviewable decisions 268
Subdivision 4.2.1—Introductory 268
4.28....................... Interpretation................................................................... 268
Subdivision 4.2.3—General 268
4.31....................... Time for lodgement of application with Tribunal............ 268
4.31AA................. Giving application to the Tribunal................................... 268
4.31A.................... Combined applications for review by the Tribunal......... 269
4.31B..................... Review by the Tribunal—fee and waiver........................ 269
4.31BA.................. Annual increases in fees................................................. 270
4.31BB.................. Calculation of increase.................................................... 270
4.31C..................... Refund (or waiver) of fee for review by the Tribunal..... 271
4.33....................... Powers of Tribunal......................................................... 271
4.34....................... Statement about decision under review—number of copies 272
4.35....................... Prescribed periods—invitation to comment or give additional information 272
4.35A.................... Prescribed periods—invitation to comment or give additional information (Act, s 424B(3))........................................................................................ 273
4.35B..................... Prescribed periods—invitation to comment or give additional information (Act, s 424B(4))........................................................................................ 273
4.35C..................... Prescribed periods—invitation to comment or give additional information (Act, s 424B(5))........................................................................................ 274
4.35D.................... Prescribed periods—notice to appear before Tribunal.... 274
4.35F..................... Prescribed period for requesting written statement......... 275
4.36....................... Duties, powers and functions of officers of Tribunal..... 275
Division 4.3—Service of documents 276
4.39....................... Address for service......................................................... 276
Division 4.4—Review of protection visa decisions by the Immigration Assessment Authority 277
4.41....................... New information not required to be given to referred applicant 277
4.42....................... Periods for giving information or comments.................. 277
4.43....................... Permissible directions on remittal................................... 277
Part 5—Miscellaneous 279
Division 5.1—Service of documents 279
5.01....................... Definition for Division 5.1............................................. 279
5.02....................... Service of document on person in immigration detention 279
Division 5.2—Procedure of commissioners and prescribed authorities 280
5.04....................... Power of Commissioner to send for witnesses and documents 280
5.05....................... Duty of witness to continue in attendance....................... 280
5.06....................... Arrest of witness failing to appear.................................. 280
5.07....................... Witnesses’ fees............................................................... 281
5.08....................... Power to examine on oath or affirmation........................ 281
5.09....................... Offences by witnesses.................................................... 281
5.10....................... Statements of person not admissible in evidence against the person 282
5.11....................... Representation by counsel etc......................................... 282
5.12....................... Offences in relation to Commissioners........................... 282
5.13....................... Protection of Commissioners, barristers and witnesses.. 282
5.14....................... Procedure of prescribed authorities................................. 282
Division 5.3—General 284
5.15....................... Behaviour concern non‑citizen........................................ 284
5.15A.................... Special category visas—declared classes of New Zealand citizens 284
5.15C..................... Excised offshore places.................................................. 285
5.16....................... Prescribed diseases—health concern non‑citizen (Act, s 5(1)) 285
5.17....................... Prescribed evidence of English language proficiency (Act, s 5(2)(b)) 285
5.18....................... Prescribed laws relating to control of fishing.................. 286
5.19....................... Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa 286
5.19A.................... Designated investment.................................................... 294
5.19B..................... Complying investment.................................................... 294
5.19C..................... Complying significant investment................................... 295
5.19D.................... Complying premium investment..................................... 297
5.19E..................... Complying entrepreneur activity..................................... 298
Division 5.3A—Offences and civil penalties in relation to work by non‑citizens 300
5.19G.................... Allowing an unlawful non‑citizen to work..................... 300
5.19H.................... Allowing a lawful non‑citizen to work in breach of a work‑related condition 301
5.19J...................... Referring an unlawful non‑citizen for work.................... 301
5.19K..................... Referring a lawful non‑citizen for work in breach of a work‑related condition 302
Division 5.3B—Offences and civil penalties in relation to sponsored visas 304
5.19L..................... Classes of sponsor.......................................................... 304
5.19M.................... Kinds of sponsored visa................................................. 304
5.19N.................... Sponsorship‑related events............................................. 304
Division 5.4—Infringement notice penalties 305
5.20....................... Offences......................................................................... 305
5.20A.................... Civil penalty provisions.................................................. 305
Division 5.5—Infringement notices 307
5.21....................... Interpretation................................................................... 307
5.22....................... When can an infringement notice be served?.................. 308
5.23....................... What must an infringement notice contain?..................... 308
5.24....................... Can the time for payment be extended?........................... 309
5.25....................... What happens if the infringement notice penalty is paid? 309
5.26....................... Can an infringement notice be withdrawn?..................... 309
5.27....................... Refund of infringement notice penalty if notice withdrawn 310
5.28....................... Evidence......................................................................... 310
5.29....................... Can there be more than one infringement notice for the same offence or contravention of a civil penalty provision?................................................... 310
5.30....................... What if payment is made by cheque?.............................. 311
5.31....................... Infringement notice not compulsory............................... 311
Division 5.6—Miscellaneous 312
5.32....................... Search warrants (Act, ss 223(14) and 251(4))................ 312
5.32A.................... Work performed by unlawful non‑citizen in detention centre.. 312
5.33....................... Document for purposes of s 274(3)(a) of Act................ 312
5.34....................... Application of Chapter 2 of the Criminal Code.............. 312
5.34D.................... Disclosure of information to prescribed bodies.............. 312
5.34E..................... Disclosure of information to prescribed international organisations 312
5.34F..................... Disclosure of information to police and Australian Crime Commission 313
5.35....................... Medical treatment of persons in detention under the Act 313
5.35AA................. Decisions that are not privative clause decisions............. 314
5.35AB.................. Tax file numbers............................................................. 314
Division 5.6A—Powers under an agreement or arrangement with a foreign country 316
5.35A.................... Definitions...................................................................... 316
5.35B..................... Exercise of power to restrain an individual..................... 316
5.35C..................... Exercise of power to search an individual....................... 316
5.35D.................... Protection of persons when acts done in good faith........ 317
5.35E..................... Powers when boarding certain foreign ships (Act s 245F(14)) 317
5.35F..................... Powers when boarding certain foreign ships on the high seas (Act s 245G(4)) 317
Division 5.7—Charges and fees 319
5.36....................... Payment of visa application charges, and fees, in foreign currencies 319
5.37....................... Employer nomination fee................................................ 320
5.37A.................... Refund of employer nomination fee and nomination training contribution charge 320
5.38....................... Sponsorship fee.............................................................. 322
5.40....................... Fees for assessment of a person’s work qualifications and experience etc 322
5.41....................... Fee for further opinion of Medical Officer of the Commonwealth in merits review........................................................................................ 323
5.41A.................... Credit card surcharge...................................................... 323
5.41B..................... PayPal surcharge............................................................ 324
5.41C..................... Fees for performing functions relating to certain international travellers using gateway airports............................................................................ 324
Division 5.7A—Nomination training contribution charge 326
5.42....................... Nominations that attract nomination training contribution charge 326
Division 5.8—Multiple parties in migration litigation 327
5.43....................... Meaning of family (Act s 486B)..................................... 327
5.44....................... Prescription of other persons (Act s 486B).................... 327
Division 5.8A—Review of these Regulations 328
5.44A.................... Review of these Regulations........................................... 328
Division 5.9—Transitional arrangements 329
5.45....................... Operation of Schedule 13............................................... 329
Schedule 1—Classes of visa 330
Part 1—Permanent visas 330
1104AA................ Business Skills—Business Talent (Permanent) (Class EA) 330
1104BA................. Business Skills (Permanent) (Class EC)......................... 331
1104B.................... Business Skills (Residence) (Class DF)......................... 334
1108...................... Child (Migrant) (Class AH)........................................... 336
1108A................... Child (Residence) (Class BT)......................................... 338
1111...................... Confirmatory (Residence) (Class AK)............................ 340
1112...................... Distinguished Talent (Migrant) (Class AL).................... 342
1113...................... Distinguished Talent (Residence) (Class BX)................ 343
1114B.................... Employer Nomination (Permanent) (Class EN).............. 344
1114C.................... Regional Employer Nomination (Permanent) (Class RN) 346
1118A................... Special Eligibility (Class CB)......................................... 348
1123A................... Other Family (Migrant) (Class BO)............................... 349
1123B.................... Other Family (Residence) (Class BU)............................ 350
1124...................... Parent (Migrant) (Class AX).......................................... 352
1124A................... Aged Parent (Residence) (Class BP).............................. 353
1124B.................... Partner (Residence) (Class BS)...................................... 354
1127AA................ Resolution of Status (Class CD)..................................... 358
1128...................... Return (Residence) (Class BB)....................................... 359
1129...................... Partner (Migrant) (Class BC)......................................... 360
1130...................... Contributory Parent (Migrant) (Class CA)..................... 361
1130A................... Contributory Aged Parent (Residence) (Class DG)........ 365
1131...................... Territorial Asylum (Residence) (Class BE).................... 368
1133...................... Referred Stay (Permanent) (Class DH).......................... 369
1136...................... Skilled (Residence) (Class VB)...................................... 369
1137...................... Skilled—Independent (Permanent) (Class SI)................ 371
1138...................... Skilled—Nominated (Permanent) (Class SN)................ 375
Part 2—Temporary visas (other than bridging visas) 377
1201...................... Border (Temporary) (Class TA)..................................... 377
1202A................... Business Skills (Provisional) (Class UR)....................... 377
1202B.................... Business Skills (Provisional) (Class EB)....................... 378
1206...................... Diplomatic (Temporary) (Class TF)............................... 383
1208A................... Electronic Travel Authority (Class UD)......................... 384
1211...................... Extended Eligibility (Temporary) (Class TK)................. 384
1212B.................... Investor Retirement (Class UY)..................................... 385
1214A................... Medical Treatment (Visitor) (Class UB)......................... 386
1214BA................. New Zealand Citizen Family Relationship (Temporary) (Class UP) 387
1214C.................... Partner (Temporary) (Class UK).................................... 388
1215...................... Prospective Marriage (Temporary) (Class TO).............. 389
1216...................... Resident Return (Temporary) (Class TP)....................... 390
1217...................... Retirement (Temporary) (Class TQ)............................... 392
1218...................... Tourist (Class TR).......................................................... 392
1218AA................ Visitor (Class TV).......................................................... 394
1219...................... Special Category (Temporary) (Class TY)..................... 395
1220A................... Partner (Provisional) (Class UF).................................... 396
1221...................... Contributory Parent (Temporary) (Class UT)................. 396
1221A................... Contributory Aged Parent (Temporary) (Class UU)...... 398
1222...................... Student (Temporary) (Class TU).................................... 399
1223B.................... Temporary Safe Haven (Class UJ)................................. 401
1223C.................... Temporary (Humanitarian Concern) (Class UO)............ 401
1224...................... Transit (Temporary) (Class TX)..................................... 401
1224A................... Work and Holiday (Temporary) (Class US)................... 402
1225...................... Working Holiday (Temporary) (Class TZ)..................... 403
1227...................... Maritime Crew (Temporary) (Class ZM)....................... 404
1228...................... Skilled (Provisional) (Class VF).................................... 404
1229...................... Skilled (Provisional) (Class VC).................................... 405
1230...................... Skilled—Regional Sponsored (Provisional) (Class SP). 407
1231...................... Temporary Work (Short Stay Specialist) (Class GA)..... 410
1234...................... Temporary Work (International Relations) (Class GD).. 411
1236...................... Visitor (Class FA).......................................................... 413
1237...................... Temporary Activity (Class GG)..................................... 415
1238...................... Training (Class GF)........................................................ 418
1240...................... Temporary Skill Shortage (Class GK)............................ 420
Part 3—Bridging visas 424
1301...................... Bridging A (Class WA).................................................. 424
1302...................... Bridging B (Class WB).................................................. 425
1303...................... Bridging C (Class WC).................................................. 426
1304...................... Bridging D (Class WD).................................................. 427
1305...................... Bridging E (Class WE)................................................... 428
1306...................... Bridging F (Class WF)................................................... 429
1307...................... Bridging R (Class WR).................................................. 431
Part 4—Protection, Refugee and Humanitarian visas 432
1401...................... Protection (Class XA).................................................... 432
1402...................... Refugee and Humanitarian (Class XB)........................... 433
1403...................... Temporary Protection (Class XD).................................. 434
1404...................... Safe Haven Enterprise (Class XE).................................. 436
Part 1—Preliminary
Division 1.1—Introductory
1.01 Name of Regulations
These Regulations are the Migration Regulations 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:
AASES form, for a secondary exchange student, means an Acceptance Advice of Secondary Exchange Student form from the relevant State or Territory education authority, containing the following declarations:
(a) a declaration made by the student’s exchange organisation, accepting the student;
(b) a declaration made by the student’s parents, or the person or persons having custody of the student, agreeing to the exchange.
academic year means a period that is specified by the Minister as an academic year in an instrument in writing for this definition.
additional applicant charge means the charge explained in subregulation 2.12C(4).
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.
adverse information has the meaning given by regulation 1.13A.
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) does not have a spouse or de facto partner; 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.
annual market salary rate, for a proposed occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19, means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full‑time basis for a year in the same workplace at the same location.
ANZSCO has the meaning specified by the Minister in an instrument in writing for this definition.
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 in a legislative instrument made by the Minister in relation to the grant of visas of that class.
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.
Arts Minister means the Minister responsible for administering the National Gallery Act 1975.
ASCO means the Australian Standard Classification of Occupations, Second Edition, published by the Australian Bureau of Statistics on 31 July 1997.
Note: At the time this definition commenced, the standard was available at http://www.abs.gov.au.
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.
assistance notice means a notice in writing, issued by the Minister, the Secretary or an SES employee or acting SES employee of the Department, in relation to a non‑citizen, advising that:
(a) the non‑citizen is required in Australia to assist in the administration of criminal justice in relation to human trafficking, slavery or slavery‑like practices; and
(b) satisfactory arrangements have been made to meet the cost of keeping the non‑citizen in Australia.
associated entity, of a person, means an entity that is an associated entity of the person under section 50AAA of the Corporations Act 2001, determined as if that section applied in relation to entities including a body of the Commonwealth, a State or a Territory.
associated with has a meaning affected by regulation 1.13B.
assurance of support, in relation to an application for the grant of a visa, means 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 body that was known as the Australian Agency for International Development.
AusAID Minister means a Minister who was responsible for administering AusAID.
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 Subdivision C parenting order; or
(b) a State child order.
Australian International Shipping Register means the Register established by subsection 56(2) of the Shipping Registration Act 1981.
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.
Australian relative, for an applicant, means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Australian study requirement has the meaning given by regulation 1.15F.
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.
base application charge means the charge explained in subregulation 2.12C(3).
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.
business innovation and investment points test means the test set out in Schedule 7A.
Note: This test relates to Business Skills (Provisional) (Class EB) visas.
business visitor activity:
(a) means any of the following activities undertaken by a person:
(i) making a general business or employment enquiry;
(ii) investigating, negotiating, entering into, or reviewing a business contract;
(iii) an activity carried out as part of an official government to government visit;
(iv) participation in a conference, trade fair or seminar in Australia unless the person is being paid by an organiser for participation; but
(b) does not include either of the following activities:
(i) an activity that is, or includes, undertaking work for, or supplying services to, an organisation or other person based in Australia;
(ii) an activity that is, or includes, the sale of goods or services directly to the general public.
Note: An example for paragraph (b) is making a general business enquiry of an organisation based in Australia and also undertaking work for the organisation as part of investigating a business opportunity.
carer has the meaning given by regulation 1.15AA.
CEO of Austrade means the Chief Executive Officer of the Australian Trade and Investment Commission referred to in section 7B of the Australian Trade and Investment Commission Act 1985.
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 an electronic system maintained by or on behalf of Immigration.
close relative, in relation to a person, means:
(a) the spouse or de facto partner of the person; or
(b) a child, parent, brother or sister of the person; or
(c) a step‑child, step‑brother or step‑sister of the person.
CNI number means a central names index number generated by the National Automated Fingerprint Identification System maintained by or on behalf of the Australian Crime Commission.
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.
competent English has the meaning given by regulation 1.15C.
complying entrepreneur activity: see regulation 5.19E.
complying investment—see regulation 5.19B.
complying premium investment: see regulation 5.19D.
complying significant investment: see regulation 5.19C.
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.
confirmation of enrolment, in relation to a student and a registered provider, means a confirmation by the registered provider that the student is enrolled in a registered course provided by the registered provider, as required by section 19 of the Education Services for Overseas Students Act 2000.
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 child (other than an adopted 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 child (other than an adopted 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, of a person, means the child or step‑child of the person (other than a child or step‑child who is engaged to be married or has a spouse or de facto partner), being a child or step‑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 or step‑child’s bodily or mental functions.
designated APEC economy means an APEC economy specified in a legislative instrument made by the Minister for the purposes of this definition.
designated area means an area specified as a designated area by the Minister in an instrument in writing for this definition.
designated foreign dignitary means a person to whom subregulation 3.06A(1) or (5) applies.
earnings has a meaning affected by regulation 2.57A.
Education means the Department administered by the Education Minister.
Education Minister means the Minister administering the Australian Education Act 2013.
education provider, for a registered course in a location, means each institution, body or person that is a registered provider of the course in that location, for the Education Services for Overseas Students Act 2000.
electronic communication has the same meaning as in the Electronic Transactions Act 1999.
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 is a protected SCV holder within the meaning of section 7 of the Social Security Act 1991.
Employment Minister means the Minister administering the Fair Entitlements Guarantee Act 2012.
entertainment sponsor means a person who:
(a) is an approved sponsor; and
(b) is approved as a sponsor in relation to the entertainment sponsor class by the Minister under subsection 140E(1) of the Act, on the basis of an application made before 19 November 2016.
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.
eVisitor eligible passport has the meaning given by regulation 1.11C.
financial institution means a body corporate that, as part of its normal activities, takes money on deposit and makes advances of money:
(a) under a regulatory regime:
(i) governed by the central bank (or its equivalent) of the country in which the body corporate operates; and
(ii) that the Minister is satisfied provides effective prudential assurance; and
(b) in a way that the Minister is satisfied complies with effective prudential assurance requirements.
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 Affairs recipient: see subregulation 1.04A(2).
Foreign Affairs student: see subregulation 1.04A(3).
foreign armed forces dependant means a person who:
(a) is the spouse or de facto partner 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 de facto partner, 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.
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.
gateway airport has the meaning given by subregulation 5.41C(3).
General Skilled Migration visa means a Subclass 175, 176, 189, 190, 475, 476, 485, 487, 489, 885, 886 or 887 visa, granted at any time.
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.
human trafficking includes activities such as trafficking in persons, organ trafficking and debt bondage.
IELTS test means the International English Language Testing System test.
Immigration means the Department administered by the Minister administering the Migration Act 1958.
international air carrier has the meaning given by subsection 504(6) of the Act.
international traveller has the meaning given by subregulation 5.41C(3).
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 formal agreement entered into between:
(a) the Minister, or the Employment Minister; and
(b) a person or organisation in Australia;
under which an employer is authorised to recruit persons to be employed by that employer in Australia.
long stay activity sponsor means a person who:
(a) is an approved sponsor; and
(b) is approved as a sponsor in relation to the long stay activity sponsor class by the Minister under subsection 140E(1) of the Act, on the basis of an application made before 19 November 2016.
long‑term partner relationship, in relation to an applicant for a visa, means a relationship between the applicant and another person, each as the spouse or de facto partner 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 3 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.
managed fund means an investment to which all of the following apply:
(a) the investment is made by a member:
(i) acquiring interests in a managed investment scheme (within the meaning of the Corporations Act 2001); or
(ii) acquiring a financial product mentioned in paragraph 764A(1)(d), (e) or (f) of the Corporations Act 2001 that may result in a payment from an approved benefit fund (within the meaning of the Life Insurance Act 1995), or a statutory fund maintained under the Life Insurance Act 1995;
(b) the investment is not able to be traded on a financial market (within the meaning of section 767A of the Corporations Act 2001);
(c) if the investment is interests in a managed investment scheme—no representation has been made to any member of the scheme that the interests will be able to be traded on a financial market;
(d) the issue of the interest or the financial product is covered by an Australian financial services licence issued under section 913B of the Corporations Act 2001.
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 or superyacht:
(a) means any of the following persons:
(i) a person who is involved in the usual day to day routine maintenance or business of the ship or superyacht while it is at sea, including a supernumerary member of the crew;
(ii) for a ship described in subparagraph (a)(ii) of the definition of non‑military ship—a person who is engaged in scientific research conducted on or from the ship;
whether the person works as an employee, a contractor or in another capacity; but
(b) does not include a person who only works on a ship or superyacht while it is in port or dry dock unless that person:
(i) travelled with the ship or superyacht to reach the port or dry dock; or
(ii) travels with the ship or superyacht after completing the work in port or dry dock.
member of the family unit has the meaning set out in regulation 1.12.
Note: For member of the same family unit, see subsection 5(1) of the Act.
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.
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‑Internet application charge means the charge explained in subregulations 2.12C(7) to (9).
non‑military ship:
(a) means a ship:
(i) that is engaged in:
(A) commercial trade; or
(B) the carriage of passengers for reward; or
(ii) that is owned and operated by a foreign government for the purposes of scientific research; or
(iii) that has been accorded public vessel status by Foreign Affairs; or
(iv) that:
(A) has been imported under section 49A of the Customs Act 1901; and
(B) is registered in the Australian International Shipping Register; or
(v) that:
(A) has been entered for home consumption under section 71A of that Act; and
(B) is registered in the Australian International Shipping Register; and
(b) does not include a ship:
(i) that:
(A) has been imported under section 49A of the Customs Act 1901; and
(B) is not registered in the Australian International Shipping Register; or
(ii) that:
(A) has been entered for home consumption under section 71A of that Act; and
(B) is not registered in the Australian International Shipping Register.
non‑monetary benefits has the meaning given by subregulation 2.57A(3).
office of Immigration includes an office occupied by an officer of Immigration at an airport or a detention centre.
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.
outstanding: a parent visa application is outstanding if none of the following has occurred:
(a) the application has been withdrawn;
(b) each decision that has been made in respect of the application is not, or is no longer, subject to any form of review by the Tribunal or judicial review proceedings (including proceedings on appeal);
(c) a decision that has been made in respect of the application was subject to review by the Tribunal or judicial review proceedings (including proceedings on appeal) but the period within which such a review or such review proceedings could be instituted has ended without a review or review proceedings having been instituted as prescribed.
overseas business sponsor means a standard business sponsor who was lawfully operating a business outside Australia and was not lawfully operating a business in Australia at the time:
(a) the approval as a standard business sponsor was granted; or
(b) if a term of the approval as a standard business sponsor has been varied—of the most recent variation.
overseas flight has the meaning given by subregulation 5.41C(3).
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.
parenting order has the meaning given by subsection 64B(1) of the Family Law Act 1975.
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
(aa) a Resolution of Status (Class CD) 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.
personal identifier has the meaning given by section 5A of the Act.
petroleum has the same meaning as in the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
petroleum export tanker crew member: a person is a petroleum export tanker crew member if:
(a) the person is a member of the crew of a non‑military ship; and
(b) the person enters one or more areas while on board the ship to participate in, or support, an offshore resources activity in relation to that area or those areas involving the recovery of petroleum; and
(c) under subsection 9A(1) of the Act, the person is taken, for the purposes of the Act, to be in the migration zone while the person is in the area or those areas to participate in, or support, such an activity; and
(d) before the person so enters the area, or the first of the areas, the ship’s last port of departure was a port outside Australia; and
(e) the recovered petroleum will be received by the ship for export; and
(f) the person will depart from the area, or the last of the areas, on board the ship for a port outside Australia.
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.
primary sponsored person has the meaning given by subregulation 2.57(1).
professional development sponsor means a person who:
(a) is an approved sponsor; and
(b) is approved as a sponsor in relation to the professional development sponsor class by the Minister under subsection 140E(1) of the Act, on the basis of an application made before 19 November 2016.
proficient English has the meaning given by regulation 1.15D.
program of seasonal work means arrangements for the performance of seasonal work in Australia that have been approved, in writing, by the Secretary of a Commonwealth Department as a program of seasonal work for the purposes of this definition.
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.
protection visa has the meaning given by section 35A of the Act.
Note: Section 35A of the Act covers the following:
(a) permanent protection visas (classified by these Regulations as Protection (Class XA) visas when this definition commenced);
(b) other protection visas formerly provided for by subsection 36(1) of the Act;
(c) temporary protection visas (classified by these Regulations as Temporary Protection (Class XD) visas when this definition commenced);
(d) any additional classes of permanent or temporary visas that are prescribed as protection visas by the regulations.
See also section 36 and Subdivision AL of Division 3 of Part 2 of the Act.
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 Division 3 of Part 2 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 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 body:
(a) the activities of which reflect that it is a body instituted for the promotion of a religious object; and
(b) the beliefs and practices of the members of which constitute a religion due to those members:
(i) believing in a supernatural being, thing or principle; and
(ii) accepting the canons of conduct that give effect to that belief, but that do not offend against the ordinary laws; and
(c) that meets the requirements of section 50‑50 of the Income Tax Assessment Act 1997; and
(d) the income of which is exempt from income tax under section 50‑1 of that Act.
remaining relative has the meaning set out in regulation 1.15.
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.
score, in relation to a language test, means any score or result, however described, from the test, including any combination of scores or results from the test or components of the test.
secondary exchange student means an overseas secondary school student participating in a secondary school student exchange program approved by the State or Territory education authority that administers the program.
secondary sponsored person has the meaning given by subregulation 2.57(1).
Secretary of Social Services means the Secretary of the Department that is administered by the Minister administering section 1061ZZGD of the Social Security Act 1991.
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 has the meaning given by regulation 1.15I.
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 processing area has the meaning given by subregulation 5.41C(3).
special program sponsor means a person who:
(a) is an approved sponsor; and
(b) is approved as a sponsor in relation to the special program sponsor class by the Minister under subsection 140E(1) of the Act, on the basis of an application made before 19 November 2016.
special return criterion means a criterion set out in a clause 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.
specified Subclass 462 work means work that:
(a) was carried out in one or more areas of Australia specified for the purposes of this definition by the Minister under regulation 1.15FA; and
(b) was of one or more kinds specified for the purposes of this definition by the Minister under regulation 1.15FA.
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.
standard business sponsor means a person who:
(a) is an approved sponsor; and
(b) is approved as a sponsor in relation to the standard business sponsor class by the Minister under subsection 140E(1) of the Act.
statutory function has the meaning given by subregulation 5.41C(3).
step‑child, in relation to a parent, means:
(a) a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or
(b) a person who is not the child of the parent but:
(i) who is the child of the parent’s former spouse or former de facto partner; and
(ii) who has not turned 18; and
(iii) in relation to whom the parent has:
(A) a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child’s long‑term or day‑to‑day care, welfare and development; or
(B) 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 any of the following subclasses of visa:
(aa) a Subclass 500 (Student) visa;
(a) a Subclass 570 (Independent ELICOS Sector) visa;
(b) a Subclass 571 (Schools Sector) visa;
(c) a Subclass 572 (Vocational Education and Training Sector) visa;
(d) a Subclass 573 (Higher Education Sector) visa;
(e) a Subclass 574 (Postgraduate Research Sector) visa;
(f) a Subclass 575 (Non‑Award Sector) visa;
(g) a Subclass 576 (Foreign Affairs or Defence Sector) visa.
Subclass 420 (Entertainment) visa includes a Subclass 420 (Temporary Work (Entertainment)) visa.
Note: Amendments of these Regulations that commenced on 24 November 2012 renamed the Subclass 420 (Entertainment) visa.
Subclass 576 (Foreign Affairs or Defence Sector) visa includes a Subclass 576 (AusAID or Defence Sector) visa.
Note: Amendments of these Regulations that commenced on 1 July 2014 renamed the Subclass 576 (AusAID or Defence Sector) visa.
subsequent temporary application charge means the charge explained in subregulations 2.12C(5) and (6).
substituted Subclass 600 visa means:
(a) a Subclass 600 (Visitor) visa that was granted following a decision by the Minister to substitute a more favourable decision under section 345, 351, 417 or 501J of the Act; or
(b) a Subclass 676 (Tourist) visa that was granted, before 23 March 2013, following a decision by the Minister to substitute a more favourable decision under section 345, 351, 417 or 501J of the Act.
Note: Before these Regulations were amended on 23 March 2013, a visa described in paragraph (b) was referred to as a “substituted Subclass 676 visa”.
superior English has the meaning given by regulation 1.15EA.
superyacht means a sailing ship or motor vessel of a kind that is specified by the Minister under regulation 1.15G to be a superyacht.
superyacht crew sponsor means a person who:
(a) is an approved sponsor; and
(b) is approved as a sponsor in relation to the superyacht crew sponsor class by the Minister under subsection 140E(1) of the Act, on the basis of an application made before 19 November 2016.
temporary activities sponsor means a person who:
(a) is an approved sponsor; and
(b) is approved as a sponsor in relation to the temporary activities sponsor class by the Minister under subsection 140E(1) of the Act.
temporary work sponsor means any of the following:
(a) a special program sponsor;
(b) an entertainment sponsor;
(c) a superyacht crew sponsor;
(d) a long stay activity sponsor;
(e) a training and research sponsor.
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.
training and research sponsor means a person who:
(a) is an approved sponsor; and
(b) is approved as a sponsor in relation to the training and research sponsor class by the Minister under subsection 140E(1) of the Act, on the basis of an application made before 19 November 2016.
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.
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 Foreign Affairs recipients and Foreign Affairs students
(1) In this regulation:
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.
Foreign Affairs student visa means a student visa granted to a person who, as an applicant:
(a) satisfied the primary criteria for the grant of the visa; and
(b) was a student in a full‑time course of study or training under a scholarship scheme or training program approved by the Foreign Minister or AusAID Minister.
(2) A person is a Foreign Affairs recipient if:
(a) either:
(i) the person is the holder of a Foreign Affairs 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 Foreign Minister or AusAID Minister in substitution for that course; or
(ii) if the person is not the holder of a Foreign Affairs student visa—the person has in the past been the holder of a Foreign Affairs student visa and has ceased:
(A) the full‑time course of study or training to which the last Foreign Affairs student visa held by the person related; or
(B) another course approved by the Foreign Minister or 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 a Foreign Affairs student if:
(a) the person has been approved by the Foreign Minister or AusAID Minister to undertake a full‑time course of study or training under a scholarship scheme or training program approved by the Foreign Minister or AusAID Minister; and
(b) the person is:
(i) the holder of a Foreign Affairs 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 Foreign Minister or 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 student 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 or step‑child of:
(i) the parent; or
(ii) a current spouse or current de facto partner of the parent; and
(b) if the whereabouts of a child of the parent are unknown, the child is taken to be resident in the child’s last known usual country of residence.
(2) For this regulation:
(a) a child of the parent is an eligible child if the child is:
(i) an Australian citizen; or
(ii) an Australian permanent resident usually resident in Australia; or
(iii) an eligible New Zealand citizen usually resident in Australia; and
(b) any other child of the parent is an ineligible child.
(2A) An ineligible child is taken to be resident overseas.
(2B) The overseas country in which an ineligible child is taken to reside is:
(a) the overseas country in which the child is usually resident; or
(b) the last overseas country in which the child was usually resident; or
(c) if the child no longer has a right of return to the country mentioned in paragraph (a) or (b)—the child’s country of citizenship.
(2C) A parent satisfies the balance of family test if the number of eligible children is greater than or equal to the number of ineligible children.
(2D) However, if the greatest number of children who are:
(a) ineligible children; and
(b) usually resident in a particular overseas country;
is less than the number of eligible children, then the parent satisfies the balance of family test.
(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:
(i) is resident in a refugee camp operated by the United Nations High Commissioner for Refugees; and
(ii) is registered by the Commissioner as a refugee.
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 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, a Special Program (Temporary) (Class TE) visa may be referred to as a Class TE visa.
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 for the grant of the visa, or the grant of the visa in a stream, set out in the Part of Schedule 2 that bears the number of the subclass.
Note: The criteria for the grant of the visa may include criteria described as a ‘stream’: see subregulation 2.03(1A).
(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 for the grant of the visa, or the grant of the visa in a stream, set out in the Part of Schedule 2 that bears the number of the subclass.
Note: The criteria for the grant of the visa may include criteria described as a ‘stream’: see subregulation 2.03(1A).
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
(d) he or she:
(i) is an applicant for a Temporary Business Entry (Class UC) visa who seeks to satisfy the criteria for the grant of a Subclass 457 (Temporary Work (Skilled)) visa; and
(ii) is identified in an approved nomination of an occupation made by:
(A) a standard business sponsor; or
(B) a former standard business sponsor; or
(C) a party to a labour agreement;
who is specified in the application for that visa; and
(iii) appears to the Minister, on the basis of information contained in the application, to satisfy the criteria for the grant of 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 De facto partner and de facto relationship
(1) For subsection 5CB(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB(2)(a), (b), (c) and (d) of the Act exist.
Note 1: See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2: The effect of subsection 5CB(1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB(2) sets out conditions about whether a de facto relationship exists, and subsection 5CB(3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(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 person in 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 the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being in a de facto relationship with each other; and
(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; 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 see the relationship as a long‑term one.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
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 or de facto partner, in the business is or was:
(i) if the business is operated by a publicly listed company—at least 10% of the total value of the business; or
(ii) if:
(A) the business is not operated by a publicly listed company; and
(B) the annual turnover of the business is at least AUD400 000;
at least 30% of the total value of the business; or
(iii) if:
(A) the business is not operated by a publicly listed company; and
(B) the annual turnover of the business is less than AUD400 000;
at least 51% 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, 188, 888, 890, 891, 892 and 893 of Schedule 2, ownership by an applicant, or the applicant’s spouse or de facto partner, 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 or de facto partner, 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 or de facto partner, 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 in a legislative instrument made by the Minister as an ETA‑eligible passport; and
(b) the conditions (if any) specified in a legislative instrument made by the Minister 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 in a legislative instrument made by the Minister to be an ETA‑eligible passport for that Subclass.
(3) A passport is an ETA‑eligible passport for the purposes of regulation 1.15J if it is a valid passport of a kind specified for paragraph (1)(a).
1.11C eVisitor eligible passport
A passport is an eVisitor eligible passport if:
(a) it is a valid passport of a kind specified by the Minister in an instrument in writing for this paragraph to be an eVisitor eligible passport; and
(b) the conditions (if any) specified in the instrument are satisfied.
1.12 Member of the family unit
Scope
(1) This regulation has effect for the purposes of the definition (the main definition) of member of the family unit in subsection 5(1) of the Act.
General rule
(2) A person is a member of the family unit of another person (the family head) if the person:
(a) is a spouse or de facto partner of the family head; or
(b) is a child or step‑child of the family head or of a spouse or de facto partner of the family head (other than a child or step‑child who is engaged to be married or has a spouse or de facto partner) and:
(i) has not turned 18; or
(ii) has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or
(iii) has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or
(c) is a dependent child of a person who meets the conditions in paragraph (b).
This subregulation has effect subject to the later subregulations of this regulation.
Protection, refugee and humanitarian visas
(3) Subregulation (4) has effect for the purposes of the main definition so far as it is relevant to a provision of the Act or these Regulations applying in relation to any of the following visas:
(a) a Protection (Class XA) visa;
(b) a Refugee and Humanitarian (Class XB) visa;
(c) a Temporary Protection (Class XD) visa;
(d) a Safe Haven Enterprise (Class XE) visa;
(e) a Resolution of Status (Class CD) visa;
(f) a Temporary Safe Haven (Class UJ) visa;
(g) a Temporary (Humanitarian Concern) (Class UO) visa;
(h) a Territorial Asylum (Residence) (Class BE) visa.
(4) A person is a member of the family unit of another person (the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of:
(i) the family head; or
(ii) a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of:
(i) the family head; or
(ii) a spouse or de facto partner of the family head; or
(d) a relative, of the family head or of a spouse or de facto partner of the family head, who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head’s household; and
(iii) is dependent on the family head.
Member of the family unit of applicant for a new visa on the basis of earlier status as member of the family unit
(5) In addition to subregulation (2), a person is a member of the family unit, of an applicant for a visa (the new visa) described in column 1 of an item of the following table who seeks to satisfy the primary criteria for the new visa, if, at the time of the application for the new visa, the person:
(a) is included in the application for the new visa; and
(b) holds a visa (the old visa) described in column 2 of the item granted on the basis that the person was a member of the family unit of a person who held a visa of the same kind as the old visa.
| Members of the family units of applicants for new visas |
| | Column 1
New visa applied for | Column 2
Old visa person holds at time of application for new visa |
| 1 | Contributory Parent (Migrant) (Class CA) visa | Contributory Parent (Temporary) (Class UT) visa |
| 2 | Contributory Aged Parent (Residence) (Class DG) visa | Contributory Aged Parent (Temporary) (Class UU) visa |
| 3 | Business Skills (Residence) (Class DF) visa | Business Skills (Provisional) (Class UR) visa |
| 4 | Business Skills (Permanent) (Class EC) visa | Business Skills (Provisional) (Class EB) visa |
| 5 | Employer Nomination (Permanent) (Class EN) visa | Any of the following visas: (a) Subclass 457 (Temporary Work (Skilled)) visa; (b) Subclass 482 (Temporary Skill Shortage) visa |
| 6 | Regional Employer Nomination (Permanent) (Class RN) visa | Any of the following visas: (a) Subclass 457 (Temporary Work (Skilled)) visa; (b) Subclass 482 (Temporary Skill Shortage) visa |
| 7 | Skilled (Residence) (Class VB) visa | Any of the following visas: (a) Skilled—Independent Regional (Provisional) (Class UX) visa; (b) Bridging A (Class WA) visa or Bridging B (Class WB) visa granted on the basis of a valid application for: (i) a Skilled—Independent Regional (Provisional) (Class UX) visa; or (ii) a Skilled (Provisional) (Class VC) visa; or (iii) a Skilled—Regional Sponsored (Provisional) (Class SP) visa; (c) Skilled—Designated Area‑sponsored (Provisional) (Class UZ) visa; (d) Subclass 475 (Skilled—Regional Sponsored) visa; (e) Subclass 487 (Skilled—Regional Sponsored) visa; (f) Skilled—Regional Sponsored (Provisional) (Class SP) visa |
| 8 | Subclass 482 (Temporary Skill Shortage) visa | Any of the following visas: (a) Subclass 457 (Temporary Work (Skilled)) visa; (b) Subclass 482 (Temporary Skill Shortage) visa |
Student (Temporary) (Class TU) visas
(6) A person is a member of the family unit of an applicant for, or of a holder of, a Student (Temporary) (Class TU) visa if the person is:
(a) a spouse or de facto partner of the applicant or holder; or
(b) a dependent child of the applicant or holder, or of that spouse or de facto partner of the applicant or holder, who is unmarried and has not turned 18.
Distinguished talent visas
(7) A person is a member of the family unit of an applicant for a Distinguished Talent (Migrant) (Class AL) visa or a Distinguished Talent (Residence) (Class BX) visa who has not turned 18 at the time of application if:
(a) the person is:
(i) a parent of the applicant who has made a combined application with the applicant for the visa; or
(ii) under subregulation (2), a member of the family unit of a parent of the applicant who has made a combined application with the applicant for the visa; and
(b) no person is being treated under subregulation (2) as a member of the family unit of the applicant, in relation to the applicant’s application for the visa; and
(c) no other parent of the applicant is being treated as a member of the family unit of the applicant in accordance with this subregulation.
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 or de facto partner 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.
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.
1.13A Meaning of adverse information
(1) Adverse information about a person is any adverse information relevant to the person’s suitability as:
(a) an approved sponsor; or
(b) a nominator (within the meaning of regulation 5.19).
(2) Without limiting subregulation (1), adverse information about a person includes information that the person:
(a) has contravened a law of the Commonwealth, a State or a Territory; or
(b) is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law; or
(c) has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory authority that administers or enforces the law; or
(d) has become insolvent (within the meaning of section 95A of the Corporations Act 2001); or
(e) has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a bogus document, or information that is false or misleading in a material particular.
(3) Nothing in this regulation affects the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).
(4) In this regulation:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the matters the Minister may consider when making a decision under the Act or these Regulations, whether or not the decision is made because of that information.
Note: For the definition of bogus document, see subsection 5(1) of the Act.
1.13B Meaning of associated with
(1) Two persons are associated with each other if:
(a) they:
(i) are or were spouses or de facto partners; or
(ii) are or were members of the same immediate, blended or extended family; or
(iii) have or had a family‑like relationship; or
(iv) belong or belonged to the same social group, unincorporated association or other body of persons; or
(v) have or had common friends or acquaintances; or
(b) one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of:
(i) the other; or
(ii) any corporation or other body in which the other is or was involved (including as an officer, employee or member); or
(c) a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them; or
(d) they are or were related bodies corporate (within the meaning of the Corporations Act 2001); or
(e) one is or was able to exercise influence or control over the other; or
(f) a third person is or was able to exercise influence or control over both of them.
(2) For the purposes of subregulation (1), it does not matter if a person has ceased to exist.
(3) This regulation does not limit the circumstances in which persons are associated with each other.
(4) In this regulation:
officer has the meaning given by section 9 of the Corporations Act 2001.
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 or de facto partner; 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.
1.14A Parent and child
(1) A reference in these Regulations to a parent includes a step‑parent.
(2) For subsection 5CA(2) of the Act, if a child has been adopted under formal adoption arrangements mentioned in paragraph 1.04(1)(a) or (b) by a person or persons (the adoptive parent or parents):
(a) the child is taken to be the child of the adoptive parent or parents; and
(b) the child is taken not to be the child of any other person (including a person who had been the child’s parent or adoptive parent before the adoption).
Note 1: A child cannot have more than 2 parents (other than step‑parents) unless the child has been adopted under arrangements mentioned in paragraph 1.04(1)(c).
Note 2: Parent is defined in subsection 5(1) of the Act, and child is defined in section 5CA of the Act.
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‑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 or de facto partner (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‑brother or step‑sister of the applicant or of the applicant’s spouse or de facto partner (if any); or
(b) a child (including a step‑child) of the applicant or of the applicant’s spouse or de facto partner (if any), being a child who:
(i) has turned 18 and is not a dependent child of the applicant or the applicant’s spouse or de facto partner (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 or de facto partner (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 (within the meaning of subsection 23(1) of the Social Security Act 1991), 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
(ba) the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(c) the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister 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:
(i) provided by 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) obtained 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.
1.15A Spouse
(1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(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 person in 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 the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(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; 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 see the relationship as a long‑term one.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
1.15B Vocational English
(1) A person has vocational English if:
(a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(b) the person is an applicant for a visa; and
(ba) for a person who was invited by the Minister under these Regulations, in writing, to apply for the visa—the test was conducted in the 3 years immediately before the date of the invitation; and
(bb) for a person to whom paragraph (ba) does not apply—the test was conducted in the 3 years immediately before the day on which the application was made; and
(c) the person achieved a score specified in the instrument.
(2) A person also has vocational English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.
1.15C Competent English
(1) A person has competent English if:
(a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(b) the person is an applicant for a visa; and
(ba) for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under these Regulations, in writing, to apply for the visa—the test was conducted in the 3 years immediately before the date of the invitation; and
(bb) for a person to whom paragraph (ba) does not apply—the test was conducted in the 3 years immediately before the day on which the application was made; and
(c) the person achieved a score specified in the instrument.
(2) A person also has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.
1.15D Proficient English
A person has proficient English if:
(a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(aa) the person is an applicant for a visa; and
(b) the test was conducted in the 3 years immediately before the day on which the Minister invited the person under these Regulations, in writing, to apply for the visa; and
(c) the person achieved a score specified in the instrument.
1.15EA Superior English
A person has superior English if:
(a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(aa) the person is an applicant for a visa; and
(b) the test was conducted in the 3 years immediately before the day on which the Minister invited the person under these Regulations, in writing, to apply for the visa; and
(c) the person achieved a score specified in the instrument.
1.15F Australian study requirement
(1) A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:
(a) that are registered courses; and
(b) that were completed in a total of at least 16 calendar months; and
(c) that were completed as a result of a total of at least 2 academic years study; and
(d) for which all instruction was conducted in English; and
(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
Note: Academic year is defined in regulation 1.03.
(2) In this regulation:
completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.
Note: The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.
degree has the meaning given in subregulation 2.26AC(6).
diploma has the meaning given in subregulation 2.26AC(6).
trade qualification has the meaning given in subregulation 2.26AC(6).
1.15FA Specified Subclass 462 work
The Minister may, by legislative instrument, specify areas of Australia and kinds of work for the purposes of the definition of specified Subclass 462 work in regulation 1.03.
1.15G Superyachts
The Minister may, by instrument in writing, specify that:
(a) a sailing ship of a particular kind is a superyacht for the purposes of these Regulations; or
(b) a motor vessel of a particular kind is a superyacht for the purposes of these Regulations.
1.15I Skilled occupation
(1) A skilled occupation, in relation to a person, means an occupation of a kind:
(a) that is specified by the Minister in an instrument in writing to be a skilled occupation; and
(b) if a number of points are specified in the instrument as being available—for which the number of points are available; and
(c) that is applicable to the person in accordance with the specification of the occupation.
(2) Without limiting subregulation (1), the Minister may specify in the instrument any matter in relation to an occupation, or to a class of persons to which the instrument relates, including:
(a) that an occupation is a skilled occupation for a class of persons;
(b) that an occupation is a skilled occupation for a person who is nominated by a State or Territory government agency.
1.15J Excluded maritime arrival
For paragraph 5AA(3)(c) of the Act, the following classes of persons are prescribed:
(a) persons who:
(i) enter Australia on or after the day this regulation commences; and
(ii) hold and produce an ETA‑eligible passport;
(b) persons who:
(i) enter Australia on or after the day this regulation commences; and
(ii) at the time of entry into Australia, are accompanied by another person who holds and produces an ETA‑eligible passport; and
(iii) are included in that ETA‑eligible passport.
Note 1: A person who is in one of these classes is an excluded maritime arrival and is not an unauthorised maritime arrival: see section 5AA of the Act.
Note 2: Subregulation 1.11B(3) sets out which passports are ETA‑eligible passports for the purposes of this regulation.
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.
1.18 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;
(c) a set of questions in a form that:
(i) is stored in an electronic format; and
(ii) is approved by the Minister for use in making an application for the visa.
Division 1.4—Sponsorship not applicable to Division 3A of Part 2 of the Act
1.20 Sponsorship undertakings
(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 Skilled—Regional Sponsored (Provisional) (Class SP) visa, or a permanent visa (other than a Partner (Migrant) (Class BC) 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) or Extended Eligibility (Temporary) (Class TK) visa)—the sponsor undertakes to accept 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 (other than a person who is a sponsor of an applicant for a visa mentioned in subregulation (3A), or a Skilled—Regional Sponsored (Provisional) (Class SP) visa) 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.
(3A) A person who is a sponsor of an applicant for:
(a) a Skilled (Migrant) (Class VE) visa; or
(b) a Skilled (Residence) (Class VB) visa; or
(c) a Skilled (Provisional) (Class VF) visa; or
(d) a Skilled (Provisional) (Class VC) visa;
must complete the relevant approved form and give it to the Minister prior to the Minister approving the person as a sponsor.
(4) This regulation does not apply to a visa in the following classes or subclasses:
(b) Business Skills—Business Talent (Migrant) (Class EA);
(c) Business Skills—Established Business (Residence) (Class BH);
(e) Business Skills (Residence) (Class DF);
(f) Business Skills (Provisional) (Class UR);
(fb) Superyacht Crew (Temporary) (Class UW);
(ga) Special Program (Temporary) (Class TE);
(gb) Subclass 401 (Temporary Work (Long Stay Activity));
(gc) Subclass 402 (Training and Research);
(gca) Subclass 407 (Training);
(gcb) Subclass 408 (Temporary Activity);
(gd) Subclass 420 (Temporary Work (Entertainment));
(h) Subclass 457 (Temporary Work (Skilled));
(i) Subclass 482 (Temporary Skill Shortage).
Division 1.4B—Limitation on certain sponsorships under Division 1.4
1.20J Limitation on approval of sponsorships—spouse, partner, prospective marriage and interdependency visas
(1AA) This regulation applies in relation to an application for:
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Prospective Marriage (Temporary) (Class TO) visa; or
(e) an Extended Eligibility (Temporary) (Class TK) visa; or
(f) a Partner (Temporary) (Class UK) visa.
(1) Subject to subregulations (2) and (3), if a person applies for a visa mentioned in subregulation (1AA) as the spouse, de facto partner or prospective spouse of the sponsor, the Minister must not approve the sponsorship of the applicant unless the Minister is satisfied that:
(a) not more than 1 other person has been granted a relevant permission as:
(i) the spouse, de facto partner or prospective spouse of 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 family violence committed by the sponsor; and
(b) if another person has been granted a relevant permission in the circumstances referred to in paragraph (a)—not less than 5 years has passed since the date of making the application for that relevant permission; and
(c) if the sponsor was granted a relevant permission as the spouse, de facto partner or prospective spouse of 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 subregulation (1AA) 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 subregulation (1AA) 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.
1.20K Limitation on sponsorships—remaining relative visas
(1) The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if the applicant is sponsored for the visa by a person:
(a) who is an Australian relative for the applicant; and
(b) to whom the Minister has granted any of the following:
(i) a Subclass 104 visa;
(ii) a Subclass 115 (Remaining Relative) visa;
(iii) a Subclass 806 visa;
(iv) a Subclass 835 (Remaining Relative) visa.
(2) The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if the applicant is sponsored for the visa by a person:
(a) who is an Australian relative for the applicant; and
(b) who has sponsored another applicant for any of the following:
(i) a Subclass 104 visa;
(ii) a Subclass 115 (Remaining Relative) visa;
(iii) a Subclass 806 visa;
(iv) a Subclass 835 (Remaining Relative) visa; and
(c) the Minister granted the visa to the other applicant.
(3) The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if:
(a) the applicant is sponsored for the visa by a person who is the spouse or de facto partner of an Australian relative for the applicant; and
(b) the Australian relative for the applicant is a person to whom the Minister has granted any of the following:
(i) a Subclass 104 visa;
(ii) a Subclass 115 (Remaining Relative) visa;
(iii) a Subclass 806 visa;
(iv) a Subclass 835 (Remaining Relative) visa.
(4) The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if:
(a) the applicant is sponsored for the visa by a person who is the spouse or de facto partner of an Australian relative for the applicant; and
(b) the Australian relative for the applicant has sponsored another applicant for any of the following:
(i) a Subclass 104 visa;
(ii) a Subclass 115 (Remaining Relative) visa;
(iii) a Subclass 806 visa;
(iv) a Subclass 835 (Remaining Relative) visa; and
(c) the Minister granted the visa to the other applicant.
(5) The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if:
(a) the applicant is sponsored for the visa by the spouse or de facto partner of an Australian relative for the applicant; and
(b) the spouse or de facto partner has sponsored another applicant who is a relative of the Australian relative for the applicant for any of the following:
(i) a Subclass 104 visa;
(ii) a Subclass 115 (Remaining Relative) visa;
(iii) a Subclass 806 visa;
(iv) a Subclass 835 (Remaining Relative) visa; and
(c) the Minister granted the visa to the other applicant.
(6) In this regulation:
Subclass 104 visa means a Subclass 104 (Preferential Family) visa that could have been granted by the Minister under these Regulations, as in force immediately before 1 November 1999.
Subclass 806 visa means a Subclass 806 (Family) visa that could have been granted by the Minister under these Regulations, as in force immediately before 1 November 1999.
1.20KA Limitation on approval of sponsorship—partner (provisional or temporary) or prospective marriage (temporary) visas
(1) This regulation applies if:
(a) a person is granted a specified visa on or after 1 July 2009; and
(b) the person seeks approval to sponsor the relevant applicant on or after 1 July 2009; and
(c) the person was the spouse or de facto partner of the relevant applicant on or before the day the specified visa was granted to the person.
(2) The Minister must not approve sponsorship by the person of the relevant applicant within 5 years after the day when the person was granted the specified visa.
(3) Despite subregulation (2), the Minister may approve sponsorship by the person of the relevant applicant:
(a) if the relevant applicant had compelling reasons, other than reasons related to his or her financial circumstances, for not applying for a specified visa at the same time as the person applied for his or her specified visa; or
(b) if:
(i) the relevant applicant applied for a specified visa at the same time as the sponsor; and
(ii) the relevant applicant withdrew the application for the specified visa before it was granted; and
(iii) the relevant applicant had compelling reasons, other than reasons related to his or her financial circumstances, for withdrawing the application for the specified visa.
(4) In this regulation:
relevant applicant means the applicant for:
(a) a Partner (Provisional) (Class UF) visa; or
(b) a Partner (Temporary) (Class UK) visa; or
(c) a Prospective Marriage (Temporary) (Class TO) visa.
specified visa means:
(a) a Subclass 143 (Contributory Parent) visa; or
(b) a Subclass 864 (Contributory Aged Parent) visa.
1.20KB Limitation on approval of sponsorship—child, partner and prospective marriage visas
(1) This regulation applies in relation to:
(a) an application for any of the following visas:
(i) a Child (Migrant) (Class AH) visa;
(ii) a Child (Residence) (Class BT) visa;
(iii) an Extended Eligibility (Temporary) (Class TK) visa;
(iv) a Partner (Temporary) (Class UK) visa;
(v) a Prospective Marriage (Temporary) (Class TO) visa;
(vi) a Partner (Provisional) (Class UF) visa;
if the primary applicant or secondary applicant is under 18 at the time of the application; and
(b) an application for the approval of a sponsorship in relation to that application for a visa.
Sponsor charged with registrable offence
(2) If the sponsor has been charged with a registrable offence, the Minister must refuse to approve the sponsorship of all of the applicants for the visa unless:
(a) none of the applicants is under 18 at the time of the decision on the application for approval of the sponsorship; or
(b) the charge has been withdrawn, dismissed or otherwise disposed of without the recording of a conviction.
Sponsor convicted of registrable offence
(3) Subject to subregulations (4) and (5), if the sponsor has been convicted of a registrable offence, the Minister must refuse to approve the sponsorship of all of the applicants for the visa unless:
(a) none of the applicants is under 18 at the time of the decision on the application for approval of the sponsorship; or
(b) the conviction has been quashed or otherwise set aside.
(4) Despite subregulation (3), the Minister may decide to approve the sponsorship if:
(a) the sponsor completed the sentence imposed for the registrable offence (including any period of release under recognisance, parole, or licence) more than 5 years before the date of the application for approval of the sponsorship; and
(b) the sponsor has not been charged with a registrable offence since the sponsor completed that sentence; and
(c) there are compelling circumstances affecting the sponsor or the applicant.
(5) Despite subregulation (3), the Minister may decide to approve the sponsorship if:
(a) the sponsor completed the sentence imposed for the registrable offence (including any period of release under recognisance, parole, or licence) more than 5 years before the date of the application for approval of the sponsorship; and
(b) if the sponsor has been charged with a registrable offence since the sponsor completed that sentence—the charge has been withdrawn, dismissed or otherwise disposed of without the recording of a conviction; and
(c) there are compelling circumstances affecting the sponsor or the applicant.
(6) Subregulations (7) to (10) do not apply in relation to an application for any of the following visas:
(a) a Partner (Temporary) (Class UK) visa;
(b) a Prospective Marriage (Temporary) (Class TO) visa;
(c) a Partner (Provisional) (Class UF) visa.
Spouse or de facto partner charged with registrable offence
(7) If the spouse or de facto partner of the sponsor has been charged with a registrable offence, the Minister must refuse to approve the sponsorship of all of the applicants for the visa unless:
(a) none of the applicants is under 18 at the time of the decision on the application for approval of the sponsorship; or
(b) the charge has been withdrawn, dismissed or otherwise disposed of without the recording of a conviction.
Spouse or de facto partner convicted of registrable offence
(8) Subject to subregulations (9) and (10), if the spouse or de facto partner of the sponsor has been convicted of a registrable offence, the Minister must refuse to approve the sponsorship of all of the applicants for the visa unless:
(a) none of the applicants is under 18 at the time of the decision on the application for approval of the sponsorship; or
(b) the conviction has been quashed or otherwise set aside.
(9) Despite subregulation (8), the Minister may decide to approve the sponsorship if:
(a) the spouse or de facto partner completed the sentence imposed for the registrable offence (including any period of release under recognisance, parole, or licence) more than 5 years before the date of the application for approval of the sponsorship; and
(b) the spouse or de facto partner has not been charged with a registrable offence since the sponsor completed that sentence; and
(c) there are compelling circumstances affecting the sponsor or the applicant.
(10) Despite subregulation (8), the Minister may decide to approve the sponsorship if:
(a) the spouse or de facto partner completed the sentence imposed for the registrable offence (including any period of release under recognisance, parole, or licence) more than 5 years before the date of the application for approval of the sponsorship; and
(b) if the spouse or de facto partner has been charged with a registrable offence since the spouse or de facto partner completed that sentence—the charge has been withdrawn, dismissed or otherwise disposed of without the recording of a conviction; and
(c) there are compelling circumstances affecting the sponsor or the applicant.
Evidence of charge or conviction
(11) To determine whether a sponsor, or the spouse or de facto partner of a sponsor, has been charged with, or convicted of, a registrable offence, the Minister may request the sponsor, or the spouse or de facto partner of the sponsor, to provide a police check from:
(a) a jurisdiction in Australia specified in the request; or
(b) a country, specified in the request, in which the sponsor or the spouse or de facto partner has lived for a period, or a total period, of at least 12 months.
(12) In addition to other reasons set out in this regulation for refusing to approve a sponsorship, the Minister may refuse to approve the sponsorship of all applicants for a visa if:
(a) the Minister has requested a police check for the sponsor or the sponsor’s spouse or de facto partner; and
(b) the sponsor or the sponsor’s spouse or de facto partner does not provide the police check within a reasonable time.
(13) In this regulation:
primary applicant, for a visa, means the applicant seeking to satisfy the primary criteria for the visa.
registrable offence means any of the following:
(a) an offence that is a registrable offence within the meaning of any of the following Acts:
(i) the Child Protection (Offenders Registration) Act 2000 (NSW);
(ii) the Sex Offenders Registration Act 2004 (Vic);
(iii) the Child Sex Offenders Registration Act 2006 (SA);
(iv) the Crimes (Child Sex Offenders) Act 2005 (ACT);
(b) an offence that would be a registrable offence under paragraph (a) if it were committed in a jurisdiction mentioned in that paragraph;
(c) an offence that is a reportable offence within the meaning of any of the following Acts:
(i) the Child Protection (Offender Reporting) Act 2004 (Qld);
(ii) the Community Protection (Offender Reporting) Act 2004 (WA);
(iii) the Community Protection (Offender Reporting) Act 2005 (Tas);
(iv) the Child Protection (Offender Reporting and Registration) Act (NT);
(d) an offence that would be a reportable offence under paragraph (c) if it were committed in a jurisdiction mentioned in that paragraph.
secondary applicant, for a visa, means an applicant seeking to satisfy the secondary criteria for the visa in relation to the primary applicant.
1.20KC Limitation on approval of sponsorship—prospective marriage and partner visas
Applications for which visas?
(1) This regulation applies in relation to the approval of a sponsorship for one or more applications for any of the following visas:
(a) a Prospective Marriage (Temporary) (Class TO) visa;
(b) a Partner (Provisional) (Class UF) visa;
(c) a Partner (Temporary) (Class UK) visa.
Relevant offences
(2) This regulation applies in relation to an offence (a relevant offence) against a law of the Commonwealth, a State, a Territory or a foreign country, involving any of the following matters:
(a) violence against a person, including (without limitation) murder, assault, sexual assault and the threat of violence;
(b) the harassment, molestation, intimidation or stalking of a person;
(c) the breach of an apprehended violence order, or a similar order, issued under a law of a State, a Territory or a foreign country;
(d) firearms or other dangerous weapons;
(e) people smuggling;
(f) human trafficking, slavery or slavery‑like practices (including forced marriage), kidnapping or unlawful confinement;
(g) attempting to commit an offence involving any of the matters mentioned in paragraphs (a) to (f), or paragraph (h);
(h) aiding, abetting, counselling or procuring the commission of an offence involving any of the matters mentioned in paragraphs (a) to (g).
Sponsor has significant criminal record in relation to relevant offence
(3) The Minister must refuse to approve the sponsorship of each applicant for the visa if:
(a) the sponsor has been convicted of a relevant offence or relevant offences; and
(b) the sponsor has a significant criminal record in relation to the relevant offence or relevant offences (see regulation 1.20KD).
(4) Despite subregulation (3), the Minister may decide to approve the sponsorship if the Minister considers it reasonable to do so, having regard to matters including the following (without limitation):
(a) the length of time since the sponsor completed the sentence (or sentences) for the relevant offence or relevant offences;
(b) the best interests of the following:
(i) any children of the sponsor;
(ii) any children of the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned;
(c) the length of the relationship between the sponsor and the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned.
Police check
(5) To determine whether a sponsor has been convicted of a relevant offence, and whether the sponsor has a significant criminal record in relation to a relevant offence, the Minister may, on one or more occasions, request the sponsor to provide a police check relating to the sponsor from any, or all, of the following:
(a) a jurisdiction in Australia specified in the request;
(b) a foreign country, specified in the request, in which the sponsor has lived for a period, or a total period, of at least 12 months since the latest of the following dates:
(i) 10 years before the date of the request;
(ii) the date the sponsor turned 16.
(6) In addition to subregulation (3), the Minister may refuse to approve the sponsorship of each applicant for the visa if:
(a) the Minister has requested a police check from the sponsor under subregulation (5); and
(b) the sponsor does not provide the police check within a reasonable time.
1.20KD Prospective marriage and partner visas—definition of significant criminal record
(1) For the purposes of regulation 1.20KC, a sponsor has a significant criminal record in relation to a relevant offence or relevant offences if, for that offence or those offences:
(a) the sponsor has been sentenced to death; or
(b) the sponsor has been sentenced to imprisonment for life; or
(c) the sponsor has been sentenced to a term of imprisonment of 12 months or more; or
(d) the sponsor has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.
Concurrent sentences
(2) For the purposes of subregulation (1), if a sponsor has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A sponsor is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of subregulation (1), the total of those terms is 6 months.
Periodic detention
(3) For the purposes of subregulation (1), if a sponsor has been sentenced to periodic detention, the sponsor’s term of imprisonment is taken to be equal to the number of days the sponsor is required under that sentence to spend in detention.
Residential schemes or programs
(4) For the purposes of subregulation (1), if a sponsor has been convicted of a relevant offence, and the court orders the sponsor to participate in:
(a) a residential drug rehabilitation scheme; or
(b) a residential program for the mentally ill;
the sponsor is taken to have been sentenced to a term of imprisonment equal to the number of days the sponsor is required to participate in the scheme or program.
Pardons etc.
(5) For the purposes of subregulation (1), a sentence imposed on a sponsor for a relevant offence, or the conviction of a sponsor for a relevant offence, is to be disregarded if:
(a) the conviction concerned has been quashed or otherwise nullified; or
(b) both:
(i) the sponsor has been pardoned in relation to the conviction concerned; and
(ii) the effect of that pardon is that the sponsor is taken never to have been convicted of the offence.
1.20L Limitation on approval of sponsorship—Subclass 600 (Visitor) visas
(1) The Minister must not approve the sponsorship by a sponsor of an applicant for a Subclass 600 (Visitor) visa if:
(a) the sponsor has previously sponsored the applicant, or another applicant, for:
(i) a Subclass 600 (Visitor) visa; or
(ii) a Sponsored (Visitor) (Class UL) visa; and
(b) the visa mentioned in paragraph (a) was granted; and
(c) either:
(i) subject to subregulation (3)—the visa is still in effect; or
(ii) subject to subregulation (4)—each of the following applies:
(A) the visa has ceased to be in effect;
(B) the previous applicant did not comply with a condition of the visa;
(C) a period of 5 years has not passed since the grant of the visa.
(3) Despite subparagraph (1)(c)(i), the Minister may approve the sponsorship by the sponsor of the applicant if:
(a) the previous applicant holds a Subclass 600 (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 a Subclass 600 (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.
1.20LAA Limitation on sponsorships—parent, aged dependent relative, contributory parent, aged parent and contributory aged parent visas
(1) This regulation applies to the following visas:
(a) a Subclass 103 (Parent) visa;
(b) a Subclass 114 (Aged Dependent Relative) visa;
(c) a Subclass 143 (Contributory Parent) visa;
(d) a Subclass 173 (Contributory Parent (Temporary)) visa;
(e) a Subclass 804 (Aged Parent) visa;
(f) a Subclass 838 (Aged Dependent Relative) visa;
(g) a Subclass 864 (Contributory Aged Parent) visa;
(h) a Subclass 884 (Contributory Aged Parent (Temporary)) visa.
(2) The Minister must not approve a sponsorship for a subclass of visa to which this regulation applies if:
(a) the Minister is satisfied that the sponsor of the applicant for the visa is:
(i) a holder or former holder of a Subclass 802 (Child) visa whose application for that visa was supported by a letter of support from a State or Territory government welfare authority; or
(ii) a cohabitating spouse or de facto partner of that holder or former holder; or
(iii) a guardian of that holder or former holder; or
(iv) a guardian of a person who is a cohabitating spouse or de facto partner of that holder or former holder; or
(v) a community organisation; and
(b) the Minister is satisfied that the applicant for the visa is or was a parent of a holder or former holder of a Subclass 802 (Child) visa whose application for that visa was supported by a letter of support from a State or Territory government welfare authority.
(3) Despite subregulation (2), the Minister may approve a sponsorship for a subclass of visa mentioned in subregulation (1) if the Minister is satisfied that there are compelling circumstances affecting the sponsor or the applicant to justify the approval of the sponsorship of the applicant for the visa.
(4) In this regulation:
letter of support means a letter of support provided by a State or Territory government welfare authority that:
(a) supports a child’s application for permanent residency in Australia; and
(b) sets out:
(i) the circumstances leading to the involvement of the State or Territory government welfare authority in the welfare of the child; and
(ii) the State or Territory government welfare authority’s reasons for supporting the child’s application for permanent residency in Australia; and
(c) describes the nature of the State or Territory government welfare authority’s continued involvement in the welfare of the child; and
(d) shows the letterhead of the State or Territory government welfare authority; and
(e) is signed by a manager or director employed by a State or Territory government welfare authority.
Division 1.5—Special provisions relating to family violence
1.21 Interpretation
In this Division:
independent expert means a person who:
(a) is suitably qualified to make independent assessments of non‑judicially determined claims of family violence; and
(b) is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non‑judicially determined claims of family violence.
non‑judicially determined claim of family violence has the meaning given by subregulations 1.23(8) and (9).
relevant family violence means conduct, whether actual or threatened, towards:
(a) the alleged victim; or
(b) a member of the family unit of the alleged victim; or
(c) a member of the family unit of the alleged perpetrator; or
(d) the property of the alleged victim; or
(e) the property of a member of the family unit of the alleged victim; or
(f) the property of a member of the family unit of the alleged perpetrator;
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.
statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.
violence includes a threat of violence.
1.22 References to person having suffered or committed family violence
(1) A reference in these Regulations to a person having suffered family violence is a reference to a person being taken, under regulation 1.23, to have suffered family violence.
(2) A reference in these Regulations to a person having committed family violence in relation to a person is a reference to a person being taken, under regulation 1.23, to have committed family violence in relation to that person.
1.23 When is a person taken to have suffered or committed family violence?
(1) For these Regulations, this regulation explains when:
(a) a person (the alleged victim) is taken to have suffered family violence; and
(b) another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.
Note: Schedule 2 sets out which visas may be granted on the basis of a person having suffered family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have suffered family violence, and how those persons are related to the spouse or de facto partner of the alleged perpetrator mentioned in this regulation.
Circumstances in which family violence is suffered and committed—injunction under Family Law Act 1975
(2) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if, 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.
(3) For subregulation (2), the violence, or part of the violence, that led to the granting of the injunction must have occurred while the married relationship between the alleged perpetrator and the spouse of the alleged perpetrator existed.
Circumstances in which family violence is suffered and committed—court order
(4) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) 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
(b) the 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.
(5) For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
Circumstances in which family violence is suffered and committed—conviction
(6) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if a court has:
(a) convicted the alleged perpetrator of an offence of violence against the alleged victim; or
(b) recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim.
(7) For subregulation (6), the violence, or part of the violence, that led to the conviction or recording of a finding of guilt must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
Circumstances in which family violence is suffered and committed—non‑judicially determined claim of family violence
(8) For these Regulations, an application for a visa is taken to include a non‑judicially determined claim of family violence if:
(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b) 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.
(9) For these Regulations, an application for a visa is taken to include a non‑judicially determined claim of family violence if:
(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b) the alleged victim is:
(i) a spouse or de facto partner of the alleged perpetrator; or
(ii) a dependent child of:
(A) the alleged perpetrator; or
(B) the spouse or de facto partner of the alleged perpetrator; or
(C) both the alleged perpetrator and his or her spouse or de facto partner; or
(iii) a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and
(c) the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:
(i) the alleged victim has suffered relevant family violence; and
(ii) the alleged perpetrator committed that relevant family violence.
(10) If an application for a visa includes a non‑judicially determined claim of family violence:
(a) the Minister must consider whether the alleged victim has suffered relevant family violence; and
(b) if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and
(c) if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:
(i) the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and
(ii) the Minister must take an independent expert’s opinion on the matter 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 family violence.
(11) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) an application for a visa includes a non‑judicially determined claim of family violence; and
(b) the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.
(12) For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
(13) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) an application for a visa includes a non‑judicially determined claim of family violence; and
(b) the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.
(14) For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
1.24 Evidence
The evidence mentioned in paragraph 1.23(9)(c) is:
(a) a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and
(b) the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.
1.25 Statutory declaration by alleged victim etc
(1) A statutory declaration under this regulation must be made by the spouse or de facto partner of the alleged perpetrator.
(2) A statutory declaration under this regulation that is made by a person mentioned in subregulation 1.25(1) who alleges that he or she is the victim of relevant family violence (within the meaning of regulation 1.21) must:
(a) set out the allegation; and
(b) name the person alleged to have committed the relevant family violence; and
(c) if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i) name the person whom the conduct of the alleged perpetrator was towards; and
(ii) identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards.
(3) A statutory declaration under this regulation that is made by a person mentioned in subregulation 1.25(1) who alleges that another person is the victim of relevant family violence (within the meaning of regulation 1.21) 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 family violence; and
(e) if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i) name the person whom the conduct of the alleged perpetrator was towards; and
(ii) identify the relationship between the alleged victim and the person whom the conduct was towards; and
(iii) identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards; and
(f) set out the evidence on which the allegation is based.
1.27 Documents not admissible in evidence
A document mentioned in the table is not admissible in evidence before a court or tribunal otherwise than in:
(a) an application for judicial review of a decision to refuse to grant a visa the application for which included the non‑judicially determined claim of family violence to which the document relates; or
(b) an application for merits review of a decision to refuse to grant a visa the application for which included the non‑judicially determined claim of family violence to which the document relates; or
(c) a prosecution of a maker of the statutory declaration under section 11 of the Statutory Declarations Act 1959.
| Item | Document |
| 1 | A statutory declaration that is a type of evidence specified by the Minister under paragraph 1.24(b) |
| 2 | A statutory declaration under regulation 1.25 |
| 3 | An opinion of an independent expert mentioned in subparagraph 1.23(10)(c)(i) |
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.
Part 2—Visas
Division 2.1—Classes, criteria, conditions etc
2.01 Classes of visas
Classes of visas prescribed by section 31 of the Act
(1) For the purposes of section 31 of the Act, the prescribed classes of visas are:
(a) such classes (other than those identified by an item in the table in subregulation (2)) as are set out in the respective items in Schedule 1; and
(b) the following classes:
(i) transitional (permanent); and
(ii) transitional (temporary).
Classes of visas provided for by the Act
(2) A class of visas provided for by the Act that is identified by an item in the following table is classified under these Regulations, by Class and Subclass, as indicated in the item.
| Classes of visas provided for by the Act |
| Item | Provision of the Act | Class of visa provided for by the Act | Classification by Class under these Regulations | Classification by Subclass under these Regulations |
| 1 | section 32 | special category visas | Special Category (Temporary) (Class TY) | Subclass 444 (Special Category) |
| 2 | subsection 35A(2) | permanent protection visas | Protection (Class XA) | Subclass 866 (Protection) |
| 3 | subsection 35A(3) | temporary protection visas | Temporary Protection (Class XD) | Subclass 785 (Temporary Protection) |
| 3A | subsection 35A(3A) | safe haven enterprise visas | Safe Haven Enterprise (Class XE) | Subclass 790 (Safe Haven Enterprise) |
| 4 | section 37 | bridging visas | Bridging A (Class WA) | Subclass 010 (Bridging A) |
| 5 | section 37 | bridging visas | Bridging B (Class WB) | Subclass 020 (Bridging B) |
| 6 | section 37 | bridging visas | Bridging C (Class WC) | Subclass 030 (Bridging C) |
| 7 | section 37 | bridging visas | Bridging D (Class WD) | Subclass 040 (Bridging (Prospective Applicant)) |
| 8 | section 37 | bridging visas | Bridging D (Class WD) | Subclass 041 (Bridging (Non‑applicant)) |
| 9 | section 37 | bridging visas | Bridging E (Class WE) | Subclass 050 (Bridging (General)) |
| 10 | section 37 | bridging visas | Bridging E (Class WE) | Subclass 051 (Bridging (Protection Visa Applicant)) |
| 11 | section 37 | bridging visas | Bridging F (Class WF) | Subclass 060 (Bridging F) |
| 12 | section 37 | bridging visas | Bridging R (Class WR) | Subclass 070 (Bridging (Removal Pending)) |
| 13 | section 37A | temporary safe haven visas | Temporary Safe Haven (Class UJ) | Subclass 449 (Humanitarian Stay (Temporary)) |
| 14 | section 38B | maritime crew visas | Maritime Crew (Temporary) (Class ZM) | Subclass 988 (Maritime Crew) |
Note 1: Subsection 35A(4) of the Act provides that additional classes of permanent and temporary visas may be prescribed as protection visas for the purposes of section 31.
Note 2: For table items 4‑12, section 37 provides that there are classes of temporary visas, to be known as bridging visas.
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) and subject to regulations 2.03A and 2.03AA, 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.
(1A) However, if one or more criteria are set out in a Subdivision of a Part of Schedule 2 as a ‘stream’:
(a) the primary criteria mentioned in paragraph (1)(a) are taken to be:
(i) the primary criteria described as that stream; and
(ii) all primary criteria that are not described as a stream; and
(b) the secondary criteria mentioned in paragraph (1)(b) are taken to be:
(i) the secondary criteria described as that stream; and
(ii) all secondary criteria that are not described as a stream.
Example: Part 188 of Schedule 2 sets out the criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa. The Part includes a Subdivision setting out common primary criteria and several Subdivisions setting out primary criteria that are described as streams, including a Business Innovation stream. The primary criteria mentioned in paragraph (1)(a) are taken to be the Business Innovation stream and all primary criteria that are not described as a stream.
(1B) If one or more criteria are set out in a Subdivision of a Part of Schedule 2 as a ‘stream’, the visa to which the Part relates may be described as ‘[the Subclass of the visa] in the [name of the stream]’.
Example: A visa whose criteria are set out in Part 188 of Schedule 2, and include criteria in the Business Innovation stream, may be described as a Subclass 188 visa in the Business Innovation stream.
(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).
2.03A Criteria applicable to de facto partners
(1) In addition to the criteria prescribed by regulations 2.03 and 2.03AA, if a person claims to be in a de facto relationship for the purposes of a visa application, the criteria in subregulations (2) and (3) are prescribed.
(2) If a person mentioned in subregulation (1) applies for a visa:
(a) the applicant is at least 18; and
(b) the person with whom the applicant claims to be in a de facto relationship is at least 18.
(3) Subject to subregulations (4) and (5), if:
(a) a person mentioned in subregulation (1) applies for:
(i) a permanent visa; or
(ii) a Business Skills (Provisional) (Class UR) visa; or
(iia) a Business Skills (Provisional) (Class EB) visa; or
(iii) a Student (Temporary) (Class TU) visa; or
(iv) a Partner (Provisional) (Class UF) visa; or
(v) a Partner (Temporary) (Class UK) visa; or
(vi) a General Skilled Migration visa; and
(b) the applicant cannot establish compelling and compassionate circumstances for the grant of the visa;
the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.
(4) Subregulation (3) does not apply if the applicant applies on the basis of being:
(a) in a de facto relationship with a person who:
(i) is, or was, the holder of a permanent humanitarian visa; and
(ii) before the permanent humanitarian visa was granted, was in a de facto relationship with the applicant and informed Immigration of the existence of the relationship; or
(b) in a de facto relationship with a person who is an applicant for a permanent humanitarian visa.
(5) Subregulation (3) does not apply if the de facto relationship is a relationship that is registered under a law of a State or Territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those Regulations.
2.03AA Criteria applicable to character tests and security assessments
(1) In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.
(2) If the Minister has requested the following documents or information, the person has provided the documents or information:
(a) a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;
(b) a completed approved form 80.
Note: For paragraph (a), an example of an appropriate authority is a police force.
(3) The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.
2.03B Protection visas—international instruments
For paragraph 5H(2)(a) and subparagraph 36(2C)(a)(i) of the Act, each international instrument that defines a crime against peace, a war crime or a crime against humanity is prescribed.
Examples of Instruments that may define crimes against peace, war crimes or crimes against humanity
1 Rome Statute of the International Criminal Court, done at Rome on 17 July 1998.
2 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed at London on 8 August 1945.
3 Charter of the International Military Tribunal, signed at London on 8 August 1945.
4 Convention on the Prevention and Punishment of the Crime of Genocide, approved in New York on 9 December 1948.
5 The First Convention within the meaning of the Geneva Conventions Act 1957.
6 The Second Convention within the meaning of the Geneva Conventions Act 1957.
7 The Third Convention within the meaning of the Geneva Conventions Act 1957.
8 The Fourth Convention within the meaning of the Geneva Conventions Act 1957.
9 Protocol I within the meaning of the Geneva Conventions Act 1957.
10 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non‑International Armed Conflicts (Protocol II), done at Geneva on 8 June 1977.
11 Statute of the International Criminal Tribunal for the former Yugoslavia, adopted by the United Nations Security Council on 25 May 1993.
12 Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994; adopted by the United Nations Security Council on 8 November 1994.
2.04 Circumstances in which a visa may be granted
For subsection 40(1) of the Act, a visa may be granted to a person who has satisfied the criteria in the relevant Part of Schedule 2 only if:
(a) the circumstances set out in that Part exist; and
(b) if the person has been required under section 257A of the Act to provide one or more personal identifiers—the person has complied with the requirement, or the requirement has been withdrawn.
2.05 Conditions applicable to visas
(1) For subsection 41(1) of the Act, a visa is subject to any conditions specified for that Subclass of visa in Schedule 2, subject to subregulation (2).
Note: Regulation 2.40A prescribes conditions in relation to special purpose visas taken to have been granted to airline positioning crew members and airline crew members.
(2) For subsection 41(3) of the Act, the conditions that the Minister is permitted to impose on a visa are the conditions (if any) specified as permitted for that Subclass of visa in Schedule 2.
Note: Conditions referred to by number in Schedule 2 are set out in Schedule 8: see the definition of condition in regulation 1.03.
(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.
(4AA) For subsection 41(2A) of the Act, a further circumstance in which the Minister may waive condition 8503 in relation to a visa is that the holder of the visa has a genuine intention to apply for:
(a) a General Skilled Migration visa; or
(b) a Subclass 132 (Business Talent) visa; or
(c) a Subclass 186 (Employer Nomination Scheme) visa; or
(d) a Subclass 187 (Regional Sponsored Migration Scheme) visa; or
(e) a Subclass 188 (Business Innovation and Investment (Provisional)) visa; or
(f) a Subclass 482 (Temporary Skill Shortage) visa.
(4AB) For subsection 41(2A) of the Act, further circumstances in which the Minister may waive condition 8503 in relation to a visa are that the holder of the visa:
(a) either:
(i) holds a safe haven enterprise visa; or
(ii) is a lawful non‑citizen who has ever held a safe haven enterprise visa; and
(b) satisfies the requirements of subregulation 2.06AAB(2).
(4AC) For paragraph 41(2B)(b) of the Act, the following visas are prescribed:
(a) a Subclass 400 (Temporary Work (Short Stay Specialist)) visa;
(b) a Subclass 457 (Temporary Work (Skilled)) visa;
(c) a Subclass 482 (Temporary Skill Shortage) visa;
(d) a Subclass 988 (Maritime Crew) visa held by a petroleum export tanker crew member.
(5A) 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 completed the course for which the visa was granted; and
(b) has a genuine intention to apply for:
(i) a General Skilled Migration visa; or
(ii) a Subclass 132 (Business Talent) visa; or
(iii) a Subclass 186 (Employer Nomination Scheme) visa; or
(iv) a Subclass 187 (Regional Sponsored Migration Scheme) visa; or
(v) a Subclass 188 (Business Innovation and Investment (Provisional)) visa; or
(vi) a Subclass 482 (Temporary Skill Shortage) visa.
2.06 Non‑citizens who do not require visas to travel to Australia
For 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 class of New Zealand citizens who hold and produce New Zealand passports that are in force is prescribed.
2.06AAA Entry to Australia—Maritime Crew (Temporary) (Class ZM) visas
(1) For subsection 43(1A) of the Act, a maritime crew visa that is in effect is permission for the holder to enter Australia on a non‑military ship at a proclaimed port, other than at an excised offshore place.
(2) For subsection 43(1A) of the Act, a maritime crew visa that is in effect is permission for the holder to enter Australia if:
(a) the holder is on a non‑military ship; and
(b) the ship enters Australia at an excised offshore place that is:
(i) a proclaimed port; or
(ii) a place for which permission has been given, in advance under section 58 of the Customs Act 1901, for the ship to be brought to that place; and
(c) before the holder enters Australia, the operator of the ship has complied with the reporting requirements in sections 64, 64ACA and 64ACB of the Customs Act 1901 in accordance with those sections and the Customs Regulation 2015.
Note: The reporting requirements in sections 64, 64ACA and 64ACB of the Customs Act 1901 provide, in general, that an operator of a ship that is due to arrive at a port must:
(a) report the impending arrival of the ship; and
(b) report to the Department on the passengers who will be on board the ship at the time of its arrival in port; and
(c) report to the Department on the crew who will be on board the ship at the time of its arrival in port.
The Customs Act and the Customs Regulation 2015 specify time limits within which the reporting is to be done.
(3) For subsection 43(1A) of the Act, a maritime crew visa that is in effect is permission for the holder to enter Australia in a way other than those described in subregulations (1) and (2) if:
(a) health or safety reasons require entry in that way; and
(b) the holder of the visa does not enter Australia at an excised offshore place.
(4) For subsection 43(1A) of the Act, a maritime crew visa that is in effect is permission for the holder to enter Australia in a way other than those described in subregulations (1), (2) and (3) if an authorised officer authorises the holder to enter Australia in that way.
2.06AAB Visa applications by holders and certain former holders of safe haven enterprise visas
(1) For paragraph 46A(1A)(b) of the Act, visas of the subclasses listed in the following table are prescribed:
| Visas for which holders and certain former holders of safe haven enterprise visas may apply |
| Item | Visa subclass |
| 1A | Subclass 010 (Bridging A) |
| 1B | Subclass 030 (Bridging C) |
| 1 | Subclass 132 (Business Talent) |
| 2 | Subclass 143 (Contributory Parent) |
| 3 | Subclass 186 (Employer Nomination Scheme) |
| 4 | Subclass 187 (Regional Sponsored Migration Scheme) |
| 5 | Subclass 188 (Business Innovation and Investment (Provisional)) |
| 6 | Subclass 189 (Skilled—Independent) |
| 7 | Subclass 190 (Skilled—Nominated) |
| 9 | Subclass 405 (Investor Retirement) |
| 10 | Subclass 407 (Training) |
| 11 | Subclass 445 (Dependent Child) |
| 13 | Subclass 476 (Skilled—Recognised Graduate) |
| 13A | Subclass 482 (Temporary Skill Shortage) |
| 14 | Subclass 489 (Skilled—Regional (Provisional)) |
| 15 | Subclass 500 (Student) |
| 16 | Subclass 590 (Student Guardian) |
| 22 | Subclass 801 (Partner) |
| 23 | Subclass 802 (Child) |
| 24 | Subclass 804 (Aged Parent) |
| 25 | Subclass 820 (Partner) |
| 26 | Subclass 835 (Remaining Relative) |
| 27 | Subclass 836 (Carer) |
| 28 | Subclass 837 (Orphan Relative) |
| 29 | Subclass 838 (Aged Dependent Relative) |
| 30 | Subclass 858 (Distinguished Talent) |
| 31 | Subclass 864 (Contributory Aged Parent) |
| 32 | Subclass 884 (Contributory Aged Parent (Temporary)) |
(2) For the purposes of paragraph 46A(1A)(c) of the Act, an applicant for a visa of a class mentioned in subregulation (1), who currently holds, or has ever held, a safe haven enterprise visa must:
(a) for a period or periods totalling 42 months (which need not be continuous), as the holder of one or more safe haven enterprise visas, satisfy one of the following requirements:
(i) the applicant does not receive any social security benefits determined under subregulation (3), and is engaged in employment, as determined under that subregulation, in a regional area specified, at that time or at any later time occurring before the application is made, under subitem 1404(4) of Schedule 1;
(ii) the applicant is enrolled in full‑time study at an educational institution, as determined under subregulation (3), in a regional area specified, at that time or at any later time occurring before the application is made, under subitem 1404(4) of Schedule 1;
(iii) the applicant satisfies a combination of the requirements in subparagraph (i) and subparagraph (ii), at different times; or
(b) be the member of the same family unit of, and have made a combined application with, a non‑citizen who:
(i) is an applicant for the same class of visa; and
(ii) meets the requirements of paragraphs 46A(1A)(a) and (b) of the Act; and
(iii) meets the requirements of paragraph (a) of this subregulation.
(3) The Minister may, by legislative instrument, make a determination for the purposes of subparagraphs (2)(a)(i) and (ii).
2.06AAC Entry to Australia—persons entering to participate in, or support, offshore resources activities
(1) For paragraph 43(1)(c) of the Act, the following reason is prescribed:
(a) the visa held by the visa holder is:
(i) a permanent visa; or
(ii) a Subclass 400 (Temporary Work (Short Stay Specialist)) visa; or
(iii) a Subclass 457 (Temporary Work (Skilled)) visa; or
(iv) a Subclass 482 (Temporary Skill Shortage) visa; and
(b) the holder is a person who will be in an area to participate in, or to support, an offshore resources activity in relation to that area.
Note 1: Paragraph 43(1)(c) of the Act provides that if the holder of a visa that is in effect travels to Australia on a vessel, and a prescribed reason makes it necessary to enter Australia in a way other than at a port, or on a pre‑cleared flight, the visa is permission for the holder to enter Australia in that other way.
Note 2: Paragraph (b)—for the definition of offshore resources activity, see subsection 9A(5) of the Act.
(2) For the purposes of paragraph 43(1A)(b) of the Act, a prescribed reason is that the holder of the maritime crew visa is a petroleum export tanker crew member.
Note: Paragraph 43(1A)(b) of the Act provides that if the holder of a maritime crew visa that is in effect travels to Australia, and a prescribed reason makes it necessary to enter Australia in a way other than at a proclaimed port, the visa is permission for the holder to enter Australia in that other way.
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 sections 45 and 46 of the Act (which deal with applications for visas), if an application is required for a particular class of visa:
(a) the relevant item of Schedule 1 sets out the approved form (if any) to be completed by an applicant; and
(b) regulation 2.12C and the relevant item of Schedule 1 set out:
(i) the visa application charge (if any) payable in relation to an application; and
(ii) the components that may be applicable to a particular application for the visa; and
(c) the relevant item of Schedule 1 sets out other matters relating to the application.
Note: An item of Schedule 1 may provide for matters to be specified by the Minister in a legislative instrument made under subregulation (5).
(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.
(5) If an item of Schedule 1 prescribes criteria or requirements by reference to a legislative instrument made under this subregulation, the Minister may, by legislative instrument, specify any of the following matters for the purposes of such a criterion or requirement:
(a) an approved form for making an application for a visa of a specified class;
(b) the way in which an application for a visa of a specified class must be made;
(c) the place at which an application for a visa of a specified class must be made;
(d) any other matter.
Note 1: For paragraph (b), examples of the way in which an application must be made include by the internet, orally, or by posting, faxing or emailing the application to a specified number or address.
Note 2: Regulation 2.10 sets out where an application for a visa must be made if no location for making the application is prescribed in relation to the visa in Schedule 1.
(6) The legislative instrument may specify different matters for:
(a) different kinds of visa (however described); and
(b) different classes of applicant.
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) of Schedule 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 Subclass 600 (Visitor) visa in the Business Visitor stream 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 provided that application or the information contained in that application to 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 email); 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; 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.
(4) For sections 45 and 46 of the Act, and despite paragraph (1)(d), an application for an Electronic Travel Authority (Class UD) visa made by an eVisitor eligible passport holder is taken not to have been made validly if it is made by electronic transmission using a computer.
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.
2.07AF Applications for Student (Temporary) (Class TU) visas
(1) This regulation applies in respect of an application for a Student (Temporary) (Class TU) visa.
(2) Despite anything in regulation 2.07, an application may be made on behalf of an applicant.
(3) An application 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(6).
2.07AG Applications for certain substantive visas by persons for whom condition 8503 or 8534 has been waived under subregulation 2.05(4AA) or (5A)
(1) For section 46 of the Act, an application for a substantive visa by a person for whom condition 8503 has been waived under subregulation 2.05(4AA) is a valid application only if the application is for:
(a) a General Skilled Migration visa; or
(b) a Subclass 132 (Business Talent) visa; or
(c) a Subclass 186 (Employer Nomination Scheme) visa; or
(d) a Subclass 187 (Regional Sponsored Migration Scheme) visa; or
(e) a Subclass 188 (Business Innovation and Investment (Provisional)) visa; or
(f) a Subclass 482 (Temporary Skill Shortage) visa.
(2) For section 46 of the Act, an application for a substantive visa by a person for whom condition 8534 has been waived under subregulation 2.05(5A) is a valid application only if the application is for:
(a) a General Skilled Migration visa; or
(b) a Subclass 132 (Business Talent) visa; or
(c) a Subclass 186 (Employer Nomination Scheme) visa; or
(d) a Subclass 187 (Regional Sponsored Migration Scheme) visa; or
(e) a Subclass 188 (Business Innovation and Investment (Provisional)) visa; or
(f) a Subclass 482 (Temporary Skill Shortage) visa.
2.07AH Applications for certain substantive visas by persons for whom condition 8534 has been waived under subregulation 2.05(6) before 18 March 2018
For section 46 of the Act, if:
(a) condition 8534 has been waived under subregulation 2.05(6) (as in force before 18 March 2018) 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 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) 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 in Australia 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 in Australia 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.
2.07AK Applications for Referred Stay (Permanent) (Class DH) visas
(1) For subsection 46(2) of the Act, a Referred Stay (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 (a referred stay applicant) only if the requirements of subregulation (3) or (5) are met.
(3) The requirements of this subregulation are met for a referred stay applicant if:
(a) the referred stay applicant is in Australia; and
(b) the Minister has, after taking into account information provided by a member of the Australian Federal Police of the substantive rank of Commander, or above, issued a certificate in relation to the referred stay applicant; and
(c) the Minister’s certificate is to the effect that the referred stay applicant made a contribution to, and cooperated closely with, an investigation in relation to another person who was alleged to have engaged in human trafficking, slavery or slavery‑like practices; and
(d) the Minister’s certificate is in force; and
(e) the referred stay applicant:
(i) is not a subject of the investigation mentioned in the Minister’s certificate; and
(ii) is not a subject of a prosecution that commenced directly as a result of that investigation; and
(f) the Minister is satisfied that the referred stay applicant 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 referred stay applicant by an authorised officer; and
(h) the referred stay applicant indicates in writing that he or she accepts the offer, not later than:
(i) 28 days after the referred stay applicant is taken to have received the offer; or
(ii) a later date determined by an authorised officer.
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.
(4) A certificate mentioned in paragraph (3)(b) may be issued by a person authorised by the Minister for the purpose.
(5) The requirements of this subregulation are met for a referred stay applicant (the first applicant) if:
(a) another referred stay applicant (the second applicant) 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 applicant identifies the first applicant as being a member of the immediate family of the second applicant in the second applicant’s written acceptance under paragraph (3)(h).
(6) For subregulation (5), the first applicant may be in or outside 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
(1) For subsection 46(2) of the Act, a Refugee and Humanitarian (Class XB) visa is a prescribed class of visa.
(2) An application for a Refugee and Humanitarian (Class XB) visa is taken to have been validly made by a person only if the requirements in subregulation (3) or item 1402 of Schedule 1 have been met.
(3) The requirements are that:
(a) the person is a person mentioned in subregulation (5); and
(b) the Minister has invited the person to make an application for a Refugee and Humanitarian (Class XB) visa; and
(c) the person indicates to an authorised officer that he or she accepts the invitation; and
(d) the authorised officer endorses, in writing, the person’s acceptance of the invitation.
(4) An application made under paragraph 1402(3)(a) of Schedule 1 is taken to have been made outside Australia.
(5) For paragraph (3)(a), the person is:
(a) a person who:
(i) between 13 August 2012 and before the commencement of this subparagraph, entered Australia at an excised offshore place after the excision time for that place; and
(ii) became an unlawful non‑citizen because of that entry; or
(b) a person who, on or after 13 August 2012, was taken to a place outside Australia under paragraph 245F(9)(b) of the Act; or
(c) a person who, on or after the commencement of this paragraph, is an unauthorised maritime arrival.
Note: For paragraph (c), see section 5AA of the Act.
2.07AP Applications for Maritime Crew (Temporary) (Class ZM) visas
Despite anything in regulation 2.07, an application for a Maritime Crew (Temporary) (Class ZM) visa may be made on behalf of an applicant.
Example: For convenience, an application for a Maritime Crew (Temporary) (Class ZM) visa could be completed and lodged by a third party such as a shipping agent or a manning agent, on behalf of a member of crew of a non‑military ship or a member of the family unit of a member of the crew.
2.07AQ Applications for Resolution of Status (Class CD) visas
(1) For subsection 46(2) of the Act, a Resolution of Status (Class CD) visa is a prescribed class of visa.
(2) An application for a Resolution of Status (Class CD) visa is taken to have been validly made by a person only if the requirements of subregulation (3) or item 1127AA of Schedule 1 have been met.
(3) The requirements of this subregulation are met for a person if the criteria set out in at least 1 of the items of the table are satisfied.
| Item | Criterion 1 | Criterion 2 | Criterion 3 | Criterion 4 |
| 1 | The person makes a valid application for a Protection (Class XA) visa | The person holds: (a) a Subclass 447 (Secondary Movement Offshore Entry (Temporary)) visa; or | Nil | Nil |
| | | (b) a Subclass 451 (Secondary Movement Relocation (Temporary)) visa; or | | |
| | | (c) a Subclass 695 (Return Pending) visa | | |
| 2 | The person makes a valid application for a protection visa | The person held, but no longer holds, a visa of a kind mentioned in criterion 2 of item 1, or a Subclass 785 (Temporary Protection) visa granted before 9 August 2008, and the visa was not cancelled | The person: (a) has not left Australia; or (b) while holding a visa that permits re‑entry to Australia, has left and re‑entered Australia | The person does not hold a permanent visa |
| 3 | The person holds: (a) a Temporary Safe Haven (Class UJ) visa; or (b) a Temporary (Humanitarian Concern) (Class UO) visa | An offer of a permanent stay in Australia is made to the person by the Australian Government | The person indicates to an authorised officer that he or she accepts the offer of a permanent stay in Australia | The authorised officer endorses, in writing, the person’s acceptance of the offer |
| 4 | The person is a member of the family unit of a person who is taken to have made a valid application as a result of satisfying the criteria in item 3 | An offer of a permanent stay in Australia is made to the person by the Australian Government | The person indicates to an authorised officer that he or she accepts the offer of a permanent stay in Australia | The authorised officer endorses, in writing, the person’s acceptance of the offer |
(4) If:
(a) the application for the Resolution of Status (Class CD) visa is taken to have been validly made because the criteria in item 1 or 2 of the table in subregulation (3) have been satisfied; and
(b) the application for the Protection (Class XA) visa mentioned in the item was made before 9 August 2008;
the application is taken to have been made on 9 August 2008.
(5) If:
(a) the application for the Resolution of Status (Class CD) visa is taken to have been validly made because the criteria in item 1 or 2 of the table in subregulation (3) have been satisfied; and
(b) the application for the protection visa mentioned in the item is made on or after 9 August 2008;
the application is taken to have been made when the application for the protection visa is made.
(6) If the application for the Resolution of Status (Class CD) visa is taken to have been validly made because the criteria in item 3 or 4 of the table in subregulation (3) have been satisfied, the application is taken to have been made when the authorised officer endorses the person’s acceptance of the offer as described in the item.
(7) Subregulation (2) applies whether or not the applicant holds, or held, a Subclass 447 (Secondary Movement Offshore Entry (Temporary)) visa, a Subclass 451 (Secondary Movement Relocation (Temporary)) visa, a Subclass 695 (Return Pending) visa or a Subclass 785 (Temporary Protection) visa granted before 9 August 2008 that 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.
2.07AR Applications for Superyacht Crew (Temporary) (Class UW) visas
Despite anything in regulation 2.07, an application for a Superyacht Crew (Temporary) (Class UW) visa may be made on behalf of an applicant.
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.
2.08A Addition of certain applicants 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, including Schedule 1 as it applies in relation to a particular class of visa, permits combined applications; and
(b) after the application is made, but before it is decided, the Minister receives, in writing and in accordance with Division 2.3, a request from the original applicant to have:
(i) the spouse or de facto partner; or
(ii) a dependent child;
of the original applicant (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:
(i) the spouse or de facto partner; or
(ii) a dependent child;
as the case requires, of the original applicant; and
(d) the additional applicant charge (if any) has been paid in relation to the additional applicant; and
(da) at the time when:
(i) the Minister has received the request; and
(ii) the additional applicant charge (if any) has been paid;
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 on the later of:
(A) the Minister receiving the request; and
(B) the additional applicant charge (if any) being paid; 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 Skilled (Residence) (Class VB) visa.
Note 1: Regulations 2.07AL and 2.08AA apply in relation to an application by a contributory parent newborn child.
Note 2: Past amendments of these Regulations may have amended or repealed provisions of Schedule 1 but included transitional provisions by which a former version of Schedule 1 continues to apply in specified cases.
2.08AAA Addition of certain applicants to certain applications for temporary protection visas and safe haven enterprise visas
(1) If:
(a) a person (the original applicant) applies for a visa of either of the following classes:
(i) a Temporary Protection (Class XD) visa;
(ii) a Safe Haven Enterprise (Class XE) visa; and
(b) the original applicant is a fast track applicant; and
(c) after the application is made, but before it is decided, the Minister receives, in writing and in accordance with Division 2.3, a request from the original applicant to have a member of the same family unit as the original applicant (the additional applicant) added to the application; and
(d) the request includes a statement that the original applicant claims that the additional applicant is a member of the same family unit as the original applicant; and
(e) the additional applicant is, or if added to the application would be, a fast track applicant; and
(f) the additional applicant charge (if any) has been paid in relation to the additional applicant; and
(g) at the time when:
(i) the Minister has received the request; and
(ii) the additional applicant charge (if any) has been paid;
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:
(h) the additional applicant is taken to have applied for a visa of the same class; and
(i) the application of the additional applicant:
(i) is taken to have been made on the later of the day the Minister receives the request and the day the additional applicant charge (if any) is paid; 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 the application is taken to be made under subparagraph (1)(i)(i), a person who satisfies the applicable primary criteria to be satisfied at the time of application; and
(b) must satisfy the applicable primary criteria to be satisfied at the time of decision.
2.08B Addition of certain 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
(iii) a Prospective Marriage (Temporary) (Class TO) 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
(viiia) a Business Skills (Provisional) (Class EB) visa; or
(x) a Skilled (Provisional) (Class VC) visa; or
(xi) a Skilled (Provisional) (Class VF) visa; or
(xiii) a Skilled—Regional Sponsored (Provisional) (Class SP) visa; and
(b) the Minister receives, in writing and in accordance with Division 2.3, a request from the original applicant to have a dependent child of the original applicant added to the original applicant’s application; and
(ba) the request is received after the application is made but before it is decided; 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) the additional applicant charge (if any) and the subsequent temporary application charge (if any) have been paid in relation to the dependent child; and
(daa) at the time when:
(i) the Minister has received the request; and
(ii) the additional applicant charge (if any) and the subsequent temporary application charge (if any) have been paid in relation to the additional applicant;
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;
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 on the latest of:
(A) the Minister receiving the request; and
(B) the additional applicant charge (if any) being paid; and
(C) the subsequent temporary application charge (if any) being paid; 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.
2.08E 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 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 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 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 applications for Protection (Class XA) visas taken to be applications for Temporary Protection (Class XD) visas
Conversion regulation
(1) For section 45AA of the Act, despite anything else in the Act, a valid application (a pre‑conversion application) for a Protection (Class XA) visa made before the commencement of this regulation by an applicant prescribed by subregulation (2) is, immediately after this regulation starts to apply in relation to the application under subregulation (3):
(a) taken not to be, and never to have been, a valid application for a Protection (Class XA) visa; and
(b) taken to be, and always to have been, a valid application for a Temporary Protection (Class XD) visa, made by the prescribed applicant.
Note 1: As a result, the Minister is required to make a decision on the pre‑conversion application as if it were a valid application for a Temporary Protection (Class XD) visa.
Note 2: If the first instalment of visa application charge for the pre‑conversion application had been paid before this regulation starts to apply, the first instalment of visa application charge for an application for a Temporary Protection (Class XD) visa (if any) is taken to have been paid. See section 45AA of the Act.
Prescribed applicants
(2) The following are prescribed applicants:
(a) an applicant who holds, or has ever held, any of the following visas:
(i) a Subclass 785 (Temporary Protection) visa granted before 2 December 2013;
(ii) a Temporary Safe Haven (Class UJ) visa;
(iii) a Temporary (Humanitarian Concern) (Class UO) visa;
(b) an applicant who did not hold a visa that was in effect on the applicant’s last entry into Australia;
(c) an applicant who is an unauthorised maritime arrival;
(d) an applicant who was not immigration cleared on the applicant’s last entry into Australia.
When this regulation starts to apply
(3) This regulation starts to apply in relation to a pre‑conversion application immediately after the occurrence of whichever of the following events is applicable to the application:
(a) if, before the commencement of this regulation, the Minister had not made a decision in relation to the pre‑conversion application under section 65 of the Act—the commencement of this regulation;
(b) in a case in which the Minister had made such a decision before the commencement of this regulation—one of the following events, if the event occurs on or after the commencement of this regulation:
(i) the Administrative Appeals Tribunal remits a matter in relation to the pre‑conversion application in accordance with paragraph 415(2)(c) of the Act;
(ii) the Administrative Appeals Tribunal remits a matter in relation to the pre‑conversion application in accordance with paragraph 43(1)(c) of the Administrative Appeals Tribunal Act 1975;
(iii) a court orders the Minister to reconsider the pre‑conversion application in accordance with the law;
(iv) a court declares or concludes (with or without formal declaration) that a decision of the Minister in relation to the pre‑conversion application is invalid, void or of no effect;
(v) a court quashes a decision of the Minister in relation to the pre‑conversion application.
(4) To avoid doubt, for the purposes of subregulation (3), the Minister is taken not to have made a decision in relation to a pre‑conversion visa application under section 65 of the Act if, before 16 December 2014:
(a) the Minister had made a decision in relation to the pre‑conversion application under section 65 of the Act; and
(b) one of the following events occurred after the Minister made that decision:
(i) the Refugee Review Tribunal remitted a matter in relation to the pre‑conversion application in accordance with paragraph 415(2)(c) of the Act;
(ii) the Administrative Appeals Tribunal remitted a matter in relation to the pre‑conversion application in accordance with paragraph 43(1)(c) of the Administrative Appeals Tribunal Act 1975;
(iii) a court ordered the Minister to reconsider the pre‑conversion application in accordance with the law;
(iv) a court declared or concluded (with or without formal declaration) that a decision of the Minister in relation to the pre‑conversion application was invalid, void or of no effect;
(v) a court quashed a decision of the Minister in relation to the pre‑conversion application; and
(c) after the occurrence of the event mentioned in paragraph (b), the Minister had not made another decision in relation to the pre‑conversion application.
Note: This regulation commenced on 16 December 2014.
2.09 Oral applications for visas
(1) 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 the Minister in an instrument in writing as an office at which an oral application may be made, but only at a time, or during a period, specified by the Minister in an instrument in writing as a time at which, or period during which, an oral application may be made at that office.
(4) In this regulation:
office of Immigration does not include an office occupied by an officer of Immigration at an airport or a detention centre.
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.
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 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 in a legislative instrument made by the Minister 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 in a legislative instrument made by the Minister 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 in a legislative instrument made by the Minister for the purposes of this paragraph; or
(b) having the application delivered by a courier service to an address specified for the visa in a legislative instrument made by the Minister 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) For section 46 of the Act, 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) For section 46 of the Act, 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) an application for a visa by a non‑citizen made outside Australia (a first application) has been made; 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 app