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.
ACCESS test means the Australian Assessment of Communicative English Skills test.
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.
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 Attorney‑General, the Secretary of the Attorney‑General’s Department or an SES employee or acting SES employee of the Attorney‑General’s 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 has the same meaning as in section 50AAA of the Corporations Act 2001.
associated with has the meaning given 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.
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:
(a) at the time of his or her last entry to Australia, would have satisfied public interest criteria 4001 to 4004 and 4007 to 4009; and
(b) either:
(i) was in Australia on 26 February 2001 as the holder of a Subclass 444 (Special Category) visa that was in force on that date; or
(ii) was in Australia as the holder of a Subclass 444 visa for a period of, or periods that total, not less than 1 year in the period of 2 years immediately before 26 February 2001; or
(iii) has a certificate, issued under the Social Security Act 1991, that states that the citizen was, for the purposes of that Act, residing in Australia on a particular date.
Employment Minister means the Minister 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.
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.
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.
Note: Approved sponsor is defined in subsection 5(1) of the Act.
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.
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 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.
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.
Note 1: Approved sponsor is defined in subsection 5(1) of the Act. A person is no longer an approved sponsor in relation to a class of sponsor if the person’s approval to be a sponsor has been cancelled under section 140M of the Act, or has otherwise ceased to have effect under section 140G of the Act.
Note 2: Different classes of sponsor, in relation to which a person may be approved as a sponsor, are prescribed under subsection 140E(2) of the Act. See regulation 2.58.
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 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.
Note 1: Approved sponsor is defined in subsection 5(1) of the Act. A person is no longer an approved sponsor in relation to a class of sponsor if the person’s approval to be a sponsor has been cancelled under section 140M of the Act, or has otherwise ceased to have effect under section 140G of the Act.
Note 2: Different classes of sponsor, in relation to which a person may be approved as a sponsor, are prescribed under subsection 140E(2) of the Act. See regulation 2.58.
Note 3: A person who, immediately before 14 September 2009, was a standard business sponsor or an approved sponsor (other than an approved professional development sponsor), is taken to be approved as a sponsor in relation to the standard business sponsor class under section 140E of the Act. The terms specified in the person’s approval, immediately before 14 September 2009, continue to apply. See item 45 of Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008.
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 457 (Business (Long Stay)) visa includes a Subclass 457 (Temporary Work (Skilled)) visa.
Note: Amendments of these Regulations that commenced on 24 November 2012 renamed the Subclass 457 (Business (Long Stay)) visa.
Subclass 457 (Temporary Work (Skilled)) visa includes a Subclass 457 (Business (Long Stay)) visa.
Note: Amendments of these Regulations that commenced on 24 November 2012 renamed the Subclass 457 (Business (Long Stay)) 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.
Note: Approved sponsor is defined in subsection 5(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.
Note: Approved sponsor is defined in subsection 5(1) of the Act.
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 | Subclass 457 (Temporary Work (Skilled)) visa |
6 | Regional Employer Nomination (Permanent) (Class RN) visa | Subclass 457 (Temporary Work (Skilled)) 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 457 (Temporary Work (Skilled)) visa | Subclass 457 (Temporary Work (Skilled)) 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 is any adverse information relevant to a person’s suitability as:
(a) an approved sponsor; or
(b) a nominator (within the meaning of regulation 5.19); or
(c) a maker of a nomination in accordance with a labour agreement;
and includes information that the person, or a person associated with the person:
(d) has been found guilty by a court of an offence under a Commonwealth, State or Territory law that relates to one or more of the matters referred to in subregulation (2); or
(e) has, to the satisfaction of a competent authority, acted in contravention of such a law; or
(f) has been the subject of administrative action (including being issued with a warning), by a competent authority, for a possible contravention of such a law; or
(g) is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law; or
(h) has become insolvent within the meaning of subsections 5(2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001.
(2) The matters are the following:
(a) discrimination;
(b) immigration;
(c) industrial relations;
(d) occupational health and safety;
(e) people smuggling and related offences;
(f) slavery, sexual servitude and deceptive recruiting;
(g) taxation;
(h) terrorism;
(i) trafficking in persons and debt bondage.
(3) The conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the previous 3 years.
(4) In this regulation:
competent authority has the meaning given by subregulation 2.57(1).
1.13B Meaning of associated with
(1) A person (the associated person) is associated with another person that is a corporation if the associated person is an officer of the corporation, a related body corporate or an associated entity.
(2) A person (the associated person) is associated with another person that is a partnership if the associated person is a partner of the partnership.
(3) A person (the associated person) is associated with another person that is an unincorporated association if the associated person is a member of the association’s committee of management.
(4) A person (the associated person) is associated with another person that is an entity not mentioned in subregulations (1) to (3) if the associated person is an officer of the entity.
(5) In this regulation:
entity, in relation to an associated entity, includes:
(a) an entity within the meaning of section 9 of the Corporations Act 2001; and
(b) a body of the Commonwealth, a State or a Territory.
officer:
(a) for a corporation—has the same meaning as in section 9 of the Corporations Act 2001; and
(b) for an entity that is neither an individual nor a corporation—has the same meaning as in section 9 of the Corporations Act 2001.
related body corporate has the same meaning as in section 50 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)).
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, and subject to subregulation(4A), 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.
(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.
(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.
(6) For subsection 41(2A) of the Act, further circumstances in which the Minister may waive condition 8534 in relation to a visa are that the holder of the visa is a registered nurse, or satisfies the requirements for registration as a registered nurse, in Australia.
Note: Regulation 2.07AH deals with applications for visas by persons for whom condition 8534 has been waived under subregulation 2.05(6).
2.06 Non‑citizens who do not require visas to travel to Australia
For 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 |
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) |
8 | Subclass 402 (Training and Research) |
9 | Subclass 405 (Investor Retirement) |
11 | Subclass 445 (Dependent Child) |
12 | Subclass 457 (Temporary Work (Skilled)) |
13 | Subclass 476 (Skilled—Recognised Graduate) |
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 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 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
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; 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.
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 sent to an office of Immigration that is approved in writing by the Minister as an office to which an application for a Temporary Business Entry (Class UC) visa may be made:
(i) that application, or a copy of that application, by written communication (including facsimile message); or
(ii) the information contained in that application by electronic transmission using a computer; or
(iii) that application, or a copy of that application, in any other manner approved in writing by the Minister.
(3) If:
(a) an applicant for a Subclass 600 (Visitor) visa in the Business Visitor stream is described in paragraphs (2)(a) and (b); and
(b) the Government of the designated APEC economy or the Government of Hong Kong has sent the material required under paragraph (2)(c) to an office of Immigration that is approved in writing by the Minister as an office to which an application for a Subclass 600 (Visitor) visa in the Business Visitor stream may be made;
the application for the visa is taken to have been made at that office of Immigration.
2.07AB Applications for Electronic Travel Authority visas
(1) For the purposes of sections 45 and 46 of the Act, an application for an Electronic Travel Authority (Class UD) visa that is made in Australia (except in immigration clearance), or outside Australia, is taken to have been validly made if the applicant, when seeking the grant of the visa, whether:
(a) in person; or
(b) by telephone; or
(c) by written communication (including facsimile message or 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.
(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.
2.07AH Applications for certain substantive visas by persons for whom condition 8534 has been waived under subregulation 2.05(6)
For section 46 of the Act, if:
(a) condition 8534 has been waived under subregulation 2.05(6) in relation to a visa held by a person; and
(b) the first application for a substantive visa that the person makes after the waiver of the condition is made in Australia;
the application is taken to have been validly made only if it is an application for a Subclass 457 (Temporary Work (Skilled)) 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 Attorney‑General 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 Attorney‑General’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 Attorney‑General’s certificate is in force; and
(e) the referred stay applicant:
(i) is not a subject of the investigation mentioned in the Attorney‑General’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 Attorney‑General 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.
2.08B 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 applied for a visa of a different class, the visa would be likely to have been granted;
the Minister may invite the non‑citizen to make an application (a further application) for a visa of the different class.
(2) An invitation made under subregulation (1) is to be an invitation:
(a) if the first application was for a permanent visa—to make an application for a permanent visa; or
(b) if the first application was for a temporary visa—to make an application for a temporary visa.
(2A) However:
(a) if the first application was for a Prospective Marriage (Temporary) (Class TO) visa, the Minister may invite the applicant to make a further application for both:
(i) a Partner (Provisional) (Class UF) visa; and
(ii) a Partner (Migrant) (Class BC) visa; and
(b) if the first application was for both:
(i) a Partner (Provisional) (Class UF) visa; and
(ii) a Partner (Migrant) (Class BC) visa;
the Minister may invite the applicant to make a further application for a Prospective Marriage (Temporary) (Class TO) visa; and
(c) if the first application was for a Return (Residence) (Class BB) visa, the Minister may invite the applicant to make a further application for a Resident Return (Temporary) (Class TP) visa.
(3) The Tribunal is not to invite a further application under subregulation (1).
(4) The non‑citizen must make the further application within 28 days (or, if the Minister in the circumstances of the case so decides, 70 days) after the day on which the non‑citizen is notified of the invitation to make that application.
(5) The actual amount that is payable by the applicant by way of the visa application charge in relation to the further application is the amount (if any) by which liability for the visa application charge in relation to the further application exceeds the actual amount of the visa application charge paid on the first application.
(6) If the first instalment of the visa application charge payable in relation to the further application is less than the actual amount paid in relation to the first application, no refund is payable in respect of the difference.
2.11A Visa applications by unauthorised maritime arrivals
For subparagraph 46A(1)(b)(ii) of the Act, the following kinds of visas are prescribed:
(a) Temporary Safe Haven (Class UJ) visas;
(b) Temporary (Humanitarian Concern) (Class UO) visas;
(c) Subclass 785 visas granted before 2 December 2013;
(d) Safe Haven Enterprise (Class XE) visas.
Note: Section 46A of the Act prevents the making of a valid visa application by an unauthorised maritime arrival who is an unlawful non‑citizen or holds a bridging visa or a temporary protection visa, or a temporary visa of a prescribed kind.
2.11B Visa applications by transitory persons
For subparagraph 46B(1)(b)(ii) of the Act, the following kinds of visas are prescribed:
(a) Temporary Safe Haven (Class UJ) visas;
(b) Temporary (Humanitarian Concern) (Class UO) visas;
(c) Subclass 785 visas granted before 2 December 2013;
(d) Safe Haven Enterprise (Class XE) visas.
Note: Section 46B of the Act prevents the making of a valid visa application by a transitory person who is an unlawful non‑citizen or holds a bridging visa or a temporary protection visa, or a temporary visa of a prescribed kind.
2.12 Certain non‑citizens whose applications refused in Australia (Act, s 48)
(1) For section 48 of the Act the following classes of visas are prescribed:
(a) Partner (Temporary) (Class UK);
(b) Partner (Residence) (Class BS);
(c) protection visas;
(ca) Medical Treatment (Visitor) (Class UB);
(e) Territorial Asylum (Residence) (Class BE);
(f) Border (Temporary) (Class TA);
(g) Special Category (Temporary) (Class TY);
(h) Bridging A (Class WA);
(j) Bridging B (Class WB);
(k) Bridging C (Class WC);
(l) Bridging D (Class WD);
(m) Bridging E (Class WE);
(ma) Bridging F (Class WF);
(mb) Bridging R (Class WR);
(o) Resolution of Status (Class CD);
(p) Child (Residence) (Class BT).
Note: Section 48 of the Act limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused.
2.12AA Refusal or cancellation of visa—prohibition on applying for other visa (Act, s 501E)
For paragraph 501E(2)(b) of the Act, a Bridging R (Class WR) visa is specified.
Division 2.2A—Visa application charge
2.12C Amount of visa application charge
(1) For subsection 45B(1) of the Act, the visa application charge (if any) in relation to an application for a visa of a class to which an item of Schedule 1 relates is the sum of:
(a) the first instalment (which is payable when the application is made), consisting of the following components:
(i) the base application charge or the additional applicant charge;
(ii) any subsequent temporary application charge;
(iii) any non‑Internet application charge; and
(b) the second instalment (which is payable before the grant of the visa).
Note 1: The first instalment may include one or more of the components explained in this regulation.
Note 2: See regulation 5.36 in relation to the countries and currencies in which payment of an instalment of the visa application charge may be made.
(2) For the first instalment of visa application charge, the components mentioned in paragraph (1)(a) that are applicable to a particular application for a visa are worked out as follows:
(a) unless paragraph (b), (c) or (d) applies, the components are:
(i) the base application charge; and
(ii) the subsequent temporary application charge (if any); and
(iii) the non‑Internet application charge (if any);
(b) if:
(i) the base application charge for the application is nil; or
(ii) the base application charge for another application, with which the application is combined in a way permitted by Schedule 1, or is sought to be combined in a way permitted by regulation 2.08A or 2.08B, is nil;
no other components are applicable;
(c) if:
(i) the application is combined with another application in a way permitted by Schedule 1, or is sought to be combined with another application in a way permitted by regulation 2.08A or 2.08B; and
(ii) the first instalment (if any) of visa application charge (including the base application charge) has been paid for the other application;
the components are the additional applicant charge (if any) and the subsequent temporary application charge (if any);
(d) if the application is combined with another application in a way permitted by regulation 2.08 or 2.08AA, no components are applicable.
Base application charge
(3) For the first instalment of visa application charge, base application charge is payable by an applicant for a visa if the additional applicant charge is not payable in relation to the application.
Note 1: Base application charge and additional applicant charge are alternatives. An applicant does not pay both components for the one application.
Note 2: The amount of base application charge varies according to the visa involved, and is set out in the item of Schedule 1 that applies to the visa.
Additional applicant charge
(4) For the first instalment of visa application charge:
(a) if the application is combined with another application in a way permitted by Schedule 1, additional applicant charge is payable by an applicant for a visa; and
(b) if an application is sought to be combined with another application in a way permitted by regulation 2.08A or 2.08B, additional applicant charge is payable by the applicant whose application is being sought to be combined with the other application.
Note 1: Base application charge and additional applicant charge are alternatives. An applicant does not pay both components for the one application.
Note 2: The amount of additional applicant charge varies according to the visa involved. The amount is set out in:
(a) the item of Schedule 1 that applies to the visa, including Schedule 1 as it applies in relation to a particular class of visa; or
(b) subregulation (4A).
Note 3: For paragraph (b), additional applicant charge must be paid before a person is taken, under regulation 2.08A or 2.08B, to have applied for a visa.
(4A) If the applications referred to in paragraph (4)(b) relate to a visa of a class specified by the Minister in an instrument in writing for this subregulation, the amount of additional applicant charge is the amount specified in the instrument.
Subsequent temporary application charge
(5) Subsequent temporary application charge is payable by an applicant for a visa if:
(a) the visa is specified by the Minister in an instrument in writing for this paragraph; and
(b) the applicant is in Australia at the time of application; and
(c) the applicant holds, or the last substantive visa held by the applicant was, a visa specified by the Minister in an instrument in writing for this paragraph (the previous visa); and
(d) the applicant was in Australia at the time of application for the previous visa; and
(e) the previous visa was not granted:
(i) as the result of an application that was taken, under regulation 2.08, to have been made; or
(ii) as the result of an application that was taken to have been made by operation of law; or
(iii) by the Minister exercising his or her power under section 195A, 345, 351, 417 or 501J of the Act; or
(iv) without the applicant making an application (unless the application is taken to be made in a way permitted by regulation 2.08B).
(6) The amount of subsequent temporary application charge is $700.
Non‑Internet application charge
(7) Non‑Internet application charge is payable by an applicant for a visa if:
(a) the visa is specified by the Minister in an instrument in writing for this paragraph; and
(b) these Regulations provide that the application may be made as an Internet application; and
(c) the application is not made as an Internet application; and
(d) the base application charge is payable in relation to the application.
Note: The base application charge and the additional applicant charge are alternatives. The non‑Internet application charge is payable if the base application charge is payable.
(8) However, non‑Internet application charge is not payable by an applicant for a visa in a circumstance specified by the Minister in an instrument in writing for this subregulation.
(9) The amount of non‑Internet application charge is $80.
2.12D Prescribed period for payment of unpaid amount of visa application charge (Act, subsection 64(2))
For the purposes of paragraphs 64(2)(a) and (c) of the Act, the following periods are prescribed as the periods within which an applicant must pay the second instalment of the visa application charge:
(a) if the notice given by the Minister under subsection 64(2) is sent from a place in Australia to an address in Australia—the period beginning on the day on which the applicant is taken to have received notice and ending at the end of the 28th day after that day;
(b) if the notice given by the Minister under subsection 64(2) is sent from:
(i) a place outside Australia to an address in Australia; or
(ii) a place in Australia to an address outside Australia; or
(iii) a place outside Australia to an address outside Australia;
the period beginning on the day on which the applicant is taken to have received notice and ending at the end of the 70th day after that day.
Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
2.12F Refund of first instalment of visa application charge
(1) The Minister must refund the amount paid by way of the first instalment of the visa application charge in relation to an application for a visa if:
(a) either of the following circumstances exists:
(i) a circumstance mentioned in subregulation (2);
(ii) a circumstance specified by the Minister in an instrument in writing for this subparagraph; and
(b) the Minister:
(i) receives a written request for a refund from a person mentioned in subregulation (2A); or
(ii) considers it is reasonable in the circumstances to refund the amount to a person mentioned in subregulation (2A) without receiving a written request for a refund.
(2) For subparagraph (1)(a)(i), each of the following is a circumstance:
(a) the application is unnecessary at the time that it is made;
(b) the application is made because of a mistake made by Immigration;
(c) the applicant dies before a decision is made on the application;
(d) the application is an application made in Australia for a Tourist (Class TR) visa by an applicant who:
(i) satisfies the Minister that the applicant meets the requirements of subclause 676.221(3) of Schedule 2; and
(ii) is granted the further visa referred to in that subclause;
(db) the application is an application made in Australia, on or after 23 March 2013, for a Subclass 600 (Visitor) visa or a Medical Treatment (Visitor) (Class UB) visa by an applicant:
(i) in relation to whom the requirements of subclause 600.611(4), subclause 602.212(7) or clause 602.314 of Schedule 2 have been satisfied; and
(ii) who is granted the visa to which the requirements relate;
(ii) is granted the further visa referred to in that subclause;
(f) the applicant’s application for a class of visa mentioned in subregulation (2B) was withdrawn because there was not an approved nomination that identified the applicant;
(g) in relation to an application for a class of visa mentioned in subregulation (2B), the applicant’s application was withdrawn because the applicant:
(i) was not required to be identified in an approved nomination; and
(ii) did not have an approved sponsor;
(h) in relation to an application for a Subclass 408 (Temporary Activity) visa that met the requirement in item 3 of the table in subitem 1237(3) of Schedule 1, the applicant’s application was withdrawn because the applicant did not have an approved sponsor.
(2A) For subparagraph (1)(b)(i), the written request must be from:
(a) the person who paid the amount (the payer); or
(b) if the payer has died, or the payer has a serious physical or mental incapacity, the payer’s legal personal representative; or
(c) if the payer is a bankrupt within the meaning of the Bankruptcy Act 1966, the trustee of the estate of the payer.
Note: See regulation 2.12K in relation to who is the person who pays an amount by way of an instalment of visa application charge.
(2B) For paragraphs (2)(f) and (g), the classes or subclasses of visa are as follows:
(a) Subclass 407 (Training);
(d) Subclass 457 (Temporary Work (Skilled));
(e) Subclass 488 (Superyacht Crew);
(g) Subclass 416 (Special Program);
(h) Subclass 401 (Temporary Work (Long Stay Activity));
(i) Subclass 402 (Training and Research);
(j) Subclass 420 (Temporary Work (Entertainment)).
(3) The Minister may refund the amount paid by way of the first instalment of the visa application charge in relation to an application for a visa if:
(a) the application was made because of a mistake by the applicant; and
(b) the applicant withdraws the application in writing; and
(c) after the withdrawal, the Minister receives a written request for a refund from:
(i) the person who paid the amount (the payer); or
(ii) if the payer has died, or the payer has a serious physical or mental incapacity, the payer’s legal personal representative; or
(iii) if the payer is a bankrupt within the meaning of the Bankruptcy Act 1966, the trustee of the estate of the payer.
(3A) The Minister may refund the amount paid by way of the first instalment of the visa application charge in relation to an application for a visa if:
(a) the application is for a Temporary Business Entry (Class UC) visa; and
(b) the applicant withdraws the application because the criterion in paragraph 457.223(4)(aa) of Schedule 2 cannot be satisfied; and
(c) the applicant withdraws the application in writing; and
(d) after the withdrawal, the Minister receives a written request for a refund from:
(i) the person who paid the amount (the payer); or
(ii) if the payer has died, or the payer has a serious physical or mental incapacity, the payer’s legal personal representative; or
(iii) if the payer is a bankrupt within the meaning of the Bankruptcy Act 1966, the trustee of the estate of the payer.
(4) The Minister must not make a refund on the basis that the applicant has died unless the request for the refund is accompanied by satisfactory evidence of the applicant’s death.
(5) The Minister must not make a refund to the legal personal representative of a payer who has died unless the request for the refund is accompanied by satisfactory evidence of the payer’s death.
(6) A refund under this regulation must be:
(a) paid to the person who made the request for the refund; or:
(b) if the refund is to be paid under subparagraph (1)(b)(ii)—paid to a person mentioned in subregulation (2A); or
(c) provided to a person mentioned in paragraph (a) or (b) for payment to the applicant’s deceased estate.
(7) If:
(a) in the opinion of the Minister, there is no doubt about the identity of the payer; and
(b) the Minister pays the amount of the refund to:
(i) the payer; or
(ii) a person mentioned in paragraph (2A)(b) or (c); or
(iii) a person mentioned in subparagraph (3)(c)(ii) or (iii); or
(iv) a person mentioned in subparagraph (3A)(d)(ii) or (iii);
a receipt that is given by the person to whom the refund is paid is, for all purposes, a valid discharge of any liability of the Commonwealth in relation to the payment of the amount of the refund.
(8) A refund under this regulation may be paid:
(a) in Australian currency; or
(b) if the amount of the instalment in respect of which the refund is being paid was paid in another currency, in that other currency.
2.12G When payment of second instalment of visa application charge not required
(1) In spite of any other provision of these Regulations, an applicant is not liable to pay the second instalment of the visa application charge in relation to an application for a visa if:
(a) the applicant withdraws the application before the second instalment is paid; or
(b) the application, having been finally determined within the meaning of subsection 5(9) of the Act, is refused.
(2) For the purpose of this regulation, an application is taken not to have been finally determined if, for any reason, a court remits the application to the Minister to be decided.
2.12H Refund of second instalment of visa application charge
(1) The Minister must refund the amount paid by way of the second instalment of the visa application charge in relation to an application for a visa if:
(a) any of the circumstances mentioned in subregulation (2) exists; and
(b) the Minister receives a written request for a refund from:
(i) the person who paid the amount (the payer); or
(ii) if the payer has died, or the payer has a serious physical or mental incapacity, the payer’s legal personal representative; or
(iii) if the payer is a bankrupt within the meaning of the Bankruptcy Act 1966, the trustee of the estate of the payer.
Note: See regulation 2.12K in relation to who is the person who pays an amount by way of an instalment of visa application charge.
(2) For paragraph (1)(a), the circumstances are as follows:
(a) the applicant withdraws the application in writing before the application is decided;
(b) the applicant dies before first entering Australia as the holder of the visa;
(c) the application has been finally determined within the meaning of subsection 5(9) of the Act and the visa is not granted;
(d) the visa is granted, and later cancelled, before the applicant first enters Australia as the holder of the visa;
(e) the visa is granted, and otherwise ceases, before the applicant first enters Australia as the holder of the visa;
(f) the amount was paid under a provision of Schedule 1 specified in an instrument in writing made by the Minister for this paragraph and:
(i) the applicant died before commencing a course of English language tuition to which the applicant was entitled under section 4C of the Immigration (Education) Act 1971; or
(ii) the visa was granted, and later cancelled, before the applicant commenced a course of English language tuition to which the applicant was entitled under section 4C of the Immigration (Education) Act 1971; or
(iii) the visa was granted, and ceased to have effect, before the applicant commenced a course of English language tuition to which the applicant was entitled under section 4C of the Immigration (Education) Act 1971; or
(iv) the obligation of the Commonwealth to the applicant under section 4C of the Immigration (Education) Act 1971 has ceased, by operation of paragraph 4D(1)(a) of that Act, without the applicant receiving any English language tuition in an approved English course provided under that Act.
(2A) Subparagraph (2)(f)(iii) does not apply if, before the visa ceases to have effect, the Commonwealth’s obligation under section 4C of the Immigration (Education) Act 1971, in relation to the applicant, has ceased by operation of paragraph 4D(1)(b) or (c) or subsection 4D(2) of that Act.
(3) For this regulation, an application is taken not to have been finally determined if, for any reason, a court remits the application to the Minister to be decided.
(4) If the request for a refund is made on the basis that:
(a) the applicant died before first entering Australia as the holder of the visa; or
(b) the applicant died before commencing a course of English language tuition to which the applicant was entitled under section 4C of the Immigration (Education) Act 1971;
the request must be accompanied by satisfactory evidence of the applicant’s death.
(5) If the request for the refund is made by the legal personal representative of a payer who has died, the request must be accompanied by satisfactory evidence of the payer’s death.
(7) If:
(a) in the opinion of the Minister, there is no doubt about the identity of the payer; and
(b) the Minister pays the amount of the refund to the payer or to a person mentioned in subparagraph (1)(b)(ii) or (iii);
a receipt that is given by the person to whom the refund is paid is, for all purposes, a valid discharge of any liability of the Commonwealth in relation to the payment of the amount of the refund.
(8) A refund under this regulation may be paid:
(a) in Australian currency; or
(b) if the amount of the instalment in respect of which the refund is being paid was paid in another currency, in that other currency.
2.12JA Payment of visa application charge for Internet application
(1) The visa application charge in relation to an Internet application must be paid by:
(a) credit card, in accordance with the instructions given to the applicant as part of making the Internet application; or
(b) funds transfer, in accordance with the instructions given to the applicant as part of making the Internet application; or
(c) the PayPal system, in accordance with the instructions given to the applicant as part of making the Internet application.
Note 1: A credit card surcharge is payable if an instalment, or part of an instalment, of visa application charge is paid by credit card: see regulation 5.41A.
Note 2: A PayPal surcharge is payable if an instalment, or part of an instalment, of visa application charge is paid by the PayPal system: see regulation 5.41B.
(2) If the visa application charge is paid in accordance with paragraph (1)(a), the charge is taken not to have been received until the payment has been confirmed by the issuer of the credit card.
(3) If the visa application charge is paid in accordance with paragraph (1)(b), the charge is taken not to have been received until the payment is electronically matched to the applicant’s Internet application form.
(4) If the visa application charge is paid in accordance with paragraph (1)(c), the charge is taken not to have been received until the payment has been confirmed by the operator of the PayPal system.
2.12K Who is the person who pays an instalment of visa application charge
For regulations 2.12F and 2.12H, the person who pays an amount by way of an instalment of visa application charge in relation to an application for a visa is:
(a) if the payment is made by an agent (whether or not a registered agent within the meaning of Part 3 of the Act) on behalf of the applicant—the applicant; and
(b) in any other case:
(i) if the payment is made by cheque—the drawer of the cheque; and
(ii) if the payment is made by a credit or debit card—the person named on the card; and
(iii) if the payment is made in cash—the person presenting the cash; and
(iv) if the payment is made by bank cheque, bank draft, money order, or other similar instrument:
(A) the person presenting the instrument; or
(B) if that person is not the person named on the instrument as the purchaser of the instrument (the purchaser), the purchaser; and
(v) if the payment is made by the PayPal system—the person whose PayPal account was used for the payment.
2.12L Legal personal representative
For regulations 2.12F and 2.12H, a person is taken to be the legal personal representative of a payer if:
(a) the person provides satisfactory evidence to the Minister that the person is the legal personal representative of the payer; and
(b) the Minister is satisfied, on the basis of the evidence provided by the person, that the person is the legal personal representative of the payer.
Division 2.2B—Priority consideration of certain visa applications on request
2.12M Priority consideration of certain visa applications on request
(1) On a request made in accordance with this regulation in relation to a valid application for a visa, the Minister may prioritise the consideration of the application.
(2) An applicant for a visa may make a request under this regulation only if:
(a) the visa is of a kind specified by the Minister under subregulation (7); and
(b) the applicant:
(i) holds a valid passport of a kind specified by the Minister under subregulation (7) in relation to that kind of visa; and
(ii) meets any other requirements specified by the Minister under subregulation (7) in relation to that kind of visa and that kind of valid passport; and
(c) the application is made:
(i) using an approved form specified by the Minister under subregulation (7) in relation to that kind of visa and that kind of valid passport; and
(ii) in a way specified by the Minister under subregulation (7) in relation to that kind of visa, that kind of valid passport and that approved form.
(3) The request must be made:
(a) as permitted by subregulation (4); or
(b) in a form approved by the Minister under regulation 1.18 for the purposes of this paragraph.
(4) If the approved form for the application enables the making of the request, the request may be made as enabled by the approved form.
(5) A request made as mentioned in paragraph (3)(b) must be made:
(a) using an approved form specified by the Minister under subregulation (7) in relation to the kind of visa applied for and the kind of valid passport held by the applicant; and
(b) in a way specified by the Minister under subregulation (7) in relation to that kind of visa, that kind of valid passport and that approved form.
(6) The fee for the request prescribed under regulation 2.12N must be paid in accordance with that regulation.
(7) The Minister may, by legislative instrument, specify matters for subregulations (2) and (5).
(8) The legislative instrument may specify different matters for different classes of applicant.
2.12N Fee for request for priority consideration of visa applications
(1) The fee for a request for priority consideration of a visa application under regulation 2.12M is $1 000.
(2) The fee must be paid to the Commonwealth at, or before, the time the request is made.
(3) If the request is made on the internet (whether the request is made in the approved form for the application or made separately), the fee must be paid by:
(a) credit card, in accordance with the instructions given to the applicant as part of making the request; or
(b) funds transfer, in accordance with the instructions given to the applicant as part of making the request; or
(c) the Paypal system, in accordance with the instructions given to the applicant as part of making the request.
Note 1: A credit card surcharge is payable if a fee, or part of a fee, is paid by credit card: see regulation 5.41A.
Note 2: A PayPal surcharge is payable if a fee, or part of a fee, is paid by the PayPal system: see regulation 5.41B.
2.12P Refund of fee for request for priority consideration of visa applications
(1) The Minister must refund the fee for a request for priority consideration of a visa application if the Minister decides, under regulation 2.12F, to refund the visa application charge paid in relation to that application.
(2) The refund under this regulation must be paid to the person who paid the fee.
(3) A refund under this regulation may be paid:
(a) in Australian currency; or
(b) if the amount of the fee in respect of which the refund is being paid was paid in another currency, in that other currency.
Division 2.3—Communication between applicant and Minister
2.13 Communication with Minister
(1) For the purposes of section 52 of the Act (which deals with the way in which an applicant or interested person must communicate with the Minister), an applicant or interested person must communicate with the Minister about a visa application in the way provided by this regulation.
(2) Except as provided by subregulation (3), the communication must be in writing.
(3) The communication may be oral if it is:
(a) a communication about an application for a bridging visa; or
(b) an enquiry about the stage reached in the consideration of a visa application; or
(c) an oral application; or
(d) a communication about an application for an Electronic Travel Authority (Class UD) visa.
(4) A written communication must include:
(a) the applicant’s full name, as set out in the application; and
(b) the applicant’s date of birth; and
(c) one of the following:
(i) the applicant’s client number;
(ii) the Immigration file number;
(iii) the number of the receipt issued by Immigration when the visa application was made; and
(d) if the application was made outside Australia, the name of the office at which the application was given to the Minister.
(5) Subject to subregulation (6), a document accompanying a written communication must be:
(a) the original; or
(b) a copy of the original certified in writing to be a true copy by:
(i) a Justice of the Peace; or
(ii) a Commissioner for Declarations; or
(iii) a person before whom a statutory declaration may be made under the Statutory Declarations Act 1959; or
(iv) a registered migration agent whose registration is not:
(A) suspended; or
(B) subject to a caution; or
(v) if the copy is certified in a place outside Australia:
(A) a registered migration agent mentioned in subparagraph (iv); or
(B) a person who is the equivalent of a Justice of the Peace or Commissioner for Declarations in that place.
Note: Section 303 of the Act provides that the Migration Agents Registration Authority may suspend the registration of a registered migration agent or caution him or her. If a registered migration agent is subject to a suspension of his or her registration, or a caution, particulars of the suspension or caution are shown on the Register of Migration Agents: subsection 287(2) of the Act. These particulars must be removed once the suspension or caution is no longer in effect: subsection 287(5) of the Act.
(6) If an applicant (other than an applicant for a Visitor (Class TV) visa) or interested person is required or permitted to produce a document in connection with the visa application, the document and the written communication that accompanies it may be in the form of an electronic communication only if:
(a) the document is in a class of documents specified in a legislative instrument made by the Minister as documents that may be sent by electronic communication; or
(b) the Minister has permitted the applicant or interested person to send the document by electronic communication.
(7) For subregulation (6), if the Minister requires an applicant or interested person to give the Minister the original of a document that has already been given by electronic communication:
(a) the giving of the original, otherwise than by electronic communication, is a prescribed way of communication; and
(b) subregulation (5) applies to the original of the document.
(8) An applicant for a Visitor (Class TV) visa must communicate with the Minister about the application:
(a) by electronic communication; or
(b) in another form permitted by the Minister.
Note: This regulation is subject to sections 56 and 58 of the Act, which provide that the Minister may specify the way in which additional information or comments about an application may be given by an applicant. If the Minister specifies a way in which further information or comments must be given for the purposes of either of those sections, the information or comments must be given in that way. Regulation 2.13 then does not apply.
2.14 Where written communication must be sent
For the purposes of section 52 of the Act (which deals with the way in which an applicant or interested person must communicate with the Minister), a written communication to the Minister about an application must be sent to or left at:
(a) the office at which the application was given to the Minister; or
(b) if the Minister has notified the applicant in writing of another office in substitution for that office—that other office.
2.15 Response to invitation to give additional information or comments—prescribed periods
(1) For the purposes of subsection 58(2) of the Act (which deals with invitations to give additional information or comments), and subject to subregulation (2), the prescribed period for giving additional information or comments in response to an invitation is:
(a) in the case of an application for a substantive visa that was made by an applicant who is in immigration detention—3 working days after the applicant is notified of the invitation; or
(b) in the case of an application made by a person who is in Australia, other than a person referred to in paragraph (a):
(i) if the invitation is given at an interview—7 days after the interview; or
(ia) if the invitation is given in a telephone conversation—7 days after the invitation is given; or
(ii) if the invitation is given otherwise than in a way mentioned in paragraph (i) or (ia):
(A) in the case of an application for a Tourist (Class TR) visa, a Subclass 600 (Visitor) visa or a Medical Treatment (Visitor) (Class UB) visa—7 days after the applicant is notified of the invitation; or
(B) in the case of a fast track applicant—14 days after the applicant is notified of the invitation; or
(C) in any other case—28 days after the applicant is notified of the invitation; or
(d) in the case of an application made by an applicant for a Visitor (Class TV) visa:
(i) 7 days after the applicant is notified of the invitation; or
(ii) if the Minister so decides in the circumstances of the case—70 days after the applicant is notified of the invitation.
(2) Subregulation (1) does not apply to a request for information or comments to be obtained from a third party regarding the following matters:
(a) the applicant’s health;
(b) the satisfaction by the applicant of public interest criteria;
(c) the satisfaction of criteria relating to the applicant’s capacity to communicate in English;
(d) assessment of the applicant’s skills or qualifications.
(3) For the purposes of paragraph 58(3)(b) of the Act (which deals with the time in which an interview is to take place), the prescribed period is:
(a) in the case of an application for a substantive visa that was made by an applicant who is in immigration detention—3 working days after the applicant is notified of the invitation; or
(b) in the case of an application made by an applicant who is in Australia, other than a person referred to in paragraph (a):
(i) in the case of an application for a Tourist (Class TR) visa, a Subclass 600 (Visitor) visa or a Medical Treatment (Visitor) (Class UB) visa—7 days after the applicant is notified of the invitation; or
(ii) in the case of a fast track applicant—14 days after the applicant is notified of the invitation; or
(iii) in any other case—28 days after the applicant is notified of the invitation; or
(c) in the case of an application made by an applicant who is not in Australia:
(i) 28 days; or
(ii) if the Minister so decides in the circumstances of the case—70 days;
after the applicant is notified of the invitation.
(4) For the purposes of subsection 58(4) or (5) of the Act (dealing with extending the period to respond to an invitation or attend for interview), the prescribed further period is:
(a) if the applicant is in immigration detention—2 working days; or
(b) if the applicant is in Australia but is not in immigration detention—7 days; or
(c) if the applicant is not in Australia:
(i) 7 days; or
(ii) if the Minister so decides in the circumstances of the case—28 days;
after the applicant is notified of the invitation.
Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
2.16 Notification of decision on visa application
(1) For subsections 66(1) and 501G(3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa.
Grant of visa
(2) If the visa is a bridging visa granted at the same time as a substantive visa, the Minister must notify the applicant of the grant of the bridging visa by notifying the applicant of the grant of the substantive visa.
(2A) If the visa:
(a) is a special category visa; and
(b) has been granted using an authorised system in accordance with an arrangement made under subsection 495A(1) of the Act;
the Minister must notify the applicant of the grant of the visa by a general notice in immigration clearance.
(2B) If the visa:
(a) is a special category visa; and
(b) has not been granted using an authorised system in accordance with an arrangement made under subsection 495A(1) of the Act;
the Minister must notify the applicant of the grant of the visa by an imprint stamped in the applicant’s passport by an officer.
(2D) If none of subregulations (2) to (2B) applies, the Minister must notify the applicant of the grant of the visa by:
(a) telling the applicant orally that the visa has been granted; or
(b) notifying the applicant by one of the methods specified in section 494B of the Act.
Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
Refusal to grant visa
(3) The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
Division 2.5—Bridging visas
2.20 Eligible non‑citizen (Act, s 72)
(1) For the purposes of the definition of eligible non‑citizen in section 72 of the Act (which deals with persons eligible to be granted a bridging visa), the classes of persons described in subregulations (6) to (12) and (14) to (17) are prescribed.
(6) This subregulation applies to a non‑citizen who:
(a) either:
(i) bypassed immigration clearance on or after 1 September 1994 and has not subsequently been granted a substantive visa; or
(ii) entered Australia without authority before 1 September 1994 and has not subsequently been granted a substantive visa or entry permit; and
(d) has not come to the notice of Immigration as an illegal entrant or an unlawful non‑citizen within 45 days of entering Australia.
(6A) This subregulation applies to a non‑citizen who:
(a) last held a student visa that was cancelled under section 137J of the Act; and
(b) has been refused immigration clearance.
(7) This subregulation applies to a non‑citizen:
(a) who:
(i) was refused immigration clearance; or
(ii) bypassed immigration clearance and came to the notice of Immigration as an unlawful non‑citizen within 45 days of entering Australia; and
(b) if:
(i) the non‑citizen made a protection visa application that is not finally determined; or
(ii) the non‑citizen applied for judicial review of a decision to refuse a protection visa; or
(iii) the Minister has applied for judicial review of a decision in relation to the non‑citizen’s protection visa application; and
(c) who has not turned 18; and
(d) in respect of whom a child welfare authority of a State or Territory has certified that release from detention is in the best interests of the non‑citizen; and
(e) in respect of whom the Minister is satisfied that:
(i) arrangements have been made between the non‑citizen and an Australian citizen, Australian permanent resident or eligible New Zealand citizen for the care and welfare of the non‑citizen; and
(ii) those arrangements are in the best interests of the non‑citizen; and
(iii) the grant of a visa to the non‑citizen would not prejudice the rights and interests of any person who has, or may reasonably be expected to have, custody or guardianship of, or access to, the non‑citizen.
(8) This subregulation applies to a non‑citizen:
(a) who:
(i) was refused immigration clearance; or
(ii) bypassed immigration clearance and came to the notice of Immigration as an unlawful non‑citizen within 45 days of entering Australia; and
(b) if:
(i) the non‑citizen made a protection visa application that is not finally determined; or
(ii) the non‑citizen applied for judicial review of a decision to refuse a protection visa; or
(iii) the Minister has applied for judicial review of a decision in relation to the non‑citizen’s protection visa application; and
(c) who has turned 75; and
(d) in respect of whom the Minister is satisfied that adequate arrangements have been made for his or her support in the community.
(9) This subregulation applies to a non‑citizen:
(a) who:
(i) was refused immigration clearance; or
(ii) bypassed immigration clearance and came to the notice of Immigration as an unlawful non‑citizen within 45 days of entering Australia; and
(b) if:
(i) the non‑citizen made a protection visa application that is not finally determined; or
(ii) the non‑citizen applied for judicial review of a decision to refuse a protection visa; or
(iii) the Minister has applied for judicial review of a decision in relation to the non‑citizen’s protection visa application; and
(c) who has a special need (based on health or previous experience of torture or trauma) in respect of which a medical specialist appointed by Immigration has certified that the non‑citizen cannot properly be cared for in a detention environment; and
(d) in respect of whom the Minister is satisfied that adequate arrangements have been made for his or her support in the community.
(10) This subregulation applies to a non‑citizen:
(a) who:
(i) was refused immigration clearance; or
(ii) bypassed immigration clearance and came to the notice of Immigration as an unlawful non‑citizen within 45 days of entering Australia; and
(b) if:
(i) the non‑citizen made a protection visa application that is not finally determined; or
(ii) the non‑citizen applied for judicial review of a decision to refuse a protection visa; or
(iii) the Minister has applied for judicial review of a decision in relation to the non‑citizen’s substantive visa application; and
(c) who is the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen; and
(d) in relation to whom the Minister is satisfied that the non‑citizen’s relationship with that Australian citizen, Australian permanent resident or eligible New Zealand citizen is genuine and continuing; and
(e) who is nominated by that Australian citizen, Australian permanent resident or eligible New Zealand citizen.
(11) This subregulation applies to a non‑citizen who is a member of the family unit of a non‑citizen to whom subregulation (10) applies.
(11A) This subregulation applies to a non‑citizen if:
(a) the non‑citizen is an unauthorised maritime arrival because of subsection 5AA(1A) of the Act (which is about a non‑citizen born in the migration zone with a parent who is at the time of the birth an unauthorised maritime arrival because of subsection 5AA(1) of the Act); and
(b) a parent of the non‑citizen is or was an eligible non‑citizen.
Note 1: A non‑citizen born on or after the day this subregulation commences becomes an eligible non‑citizen because of this subregulation:
(a) at birth, if at least one of his or her parents is an eligible non‑citizen then or had been an eligible non‑citizen before then; or
(b) at the time after birth when at least one of the non‑citizen’s parents first becomes an eligible non‑citizen, if none of the non‑citizen’s parents was an eligible non‑citizen before that time.
Note 2: A non‑citizen who was born before the day this subregulation commences becomes an eligible non‑citizen because of this subregulation:
(a) on that day, if at least one of his or her parents is an eligible non‑citizen then or had been an eligible non‑citizen before then; or
(b) at the time after that day when at least one of the non‑citizen’s parents first becomes an eligible non‑citizen, if none of the non‑citizen’s parents was an eligible non‑citizen before that time.
(12) This subregulation applies to a non‑citizen if:
(a) the non‑citizen is in immigration detention; and
(b) the Minister is satisfied that the non‑citizen’s removal from Australia is not reasonably practicable at that time; and
(c) the Minister is satisfied that the non‑citizen will do everything possible to facilitate the non‑citizen’s removal from Australia; and
(e) any visa applications made by the non‑citizen, other than an application made following the exercise of the Minister’s power under section 48B of the Act, have been finally determined.
(13) For paragraph (12)(b), a non‑citizen’s removal from Australia is not to be taken to be not reasonably practicable only because the non‑citizen is a party to proceedings in a court or tribunal related to an issue in connection with a visa.
(14) This subregulation applies to:
(a) a non‑citizen:
(i) who is outside Australia; and
(ii) in relation to whom an officer of:
(A) the Australian Federal Police; or
(B) a police force of a State or Territory; or
(C) the office of the Director of Public Prosecutions of the Commonwealth, a State or a Territory; or
(D) a body of the Commonwealth, a State or a Territory that has functions similar to those of an office of a Director of Public Prosecutions;
has told Immigration in writing that:
(E) the non‑citizen has been identified as a suspected victim of human trafficking, slavery or slavery‑like practices; and
(F) suitable arrangements have been made for the care, safety and welfare of the non‑citizen in Australia for the proposed period of the bridging visa; and
(b) a non‑citizen (a family member):
(i) who is outside Australia; and
(ii) who is a member of the immediate family of a non‑citizen mentioned in paragraph (a); and
(iii) in relation to whom the Minister has been told in writing, by an officer of the authority that told Immigration for the purposes of paragraph (a), that suitable arrangements have been made for the care, safety and welfare of the family member in Australia for the proposed period of the bridging visa.
(15) This subregulation applies to:
(a) a non‑citizen:
(i) who is in Australia; and
(ii) is the subject of a valid criminal justice stay certificate under Division 4 of Part 2 of the Act or an assistance notice that has not been revoked; and
(iii) whom the Minister is satisfied needs to travel outside Australia for compelling and compassionate reasons; and
(iv) in relation to whom an officer of:
(A) the Australian Federal Police; or
(B) a police force of a State or Territory; or
(C) the office of the Director of Public Prosecutions of the Commonwealth, a State or a Territory; or
(D) a body of the Commonwealth, a State or a Territory that has functions similar to those of an office of a Director of Public Prosecutions;
has told Immigration in writing that suitable arrangements have been made for the care, safety and welfare of the non‑citizen in Australia for the proposed period of the bridging visa; and
(b) a non‑citizen (a family member):
(i) who is a member of the immediate family of a non‑citizen mentioned in paragraph (a); and
(ii) in relation to whom the Minister has been told in writing, by an officer of the authority that told Immigration for the purposes of subparagraph (a)(iv), that suitable arrangements have been made for the care, safety and welfare of the family member in Australia for the proposed period of the bridging visa.
(16) This subregulation applies to a non‑citizen:
(a) who held an enforcement visa that has ceased to be in effect; and
(b) who is an unlawful non‑citizen; and
(d) who is in criminal detention.
(17) This subregulation applies to a non‑citizen if:
(a) the non‑citizen is an unlawful non‑citizen; and
(b) section 195A of the Act is not available to the Minister in relation to the grant of a visa to the non‑citizen; and
(c) the Minister is satisfied that the non‑citizen’s removal from Australia is not reasonably practicable at that time.
2.20A Applications for Bridging R (Class WR) visas
(1) For subsection 46(2) of the Act, a Bridging R (Class WR) visa is a prescribed class of visa.
(2) An application for a Bridging R (Class WR) visa is taken to have been validly made by a person if:
(a) the person has been given an invitation in writing by the Minister, by one of the methods specified in section 494B of the Act, to apply for the visa; and
(b) the person indicates in writing to Immigration, not later than 7 days after the person is taken to have received that invitation, that he or she accepts the invitation.
Note: See section 494C of the Act for when a person is taken to have received a document given by one of the methods specified in section 494B of the Act.
2.20B Applications for Bridging F (Class WF) visas
(1) For subsection 46(2) of the Act, a Bridging F (Class WF) visa is a prescribed class of visa.
(2) Despite regulation 2.07 and Schedule 1, and as an alternative to item 1306 of Schedule 1, an application for a Bridging F (Class WF) visa is taken to have been validly made by a non‑citizen to whom subregulation 2.20(14) applies, or a non‑citizen to whom subregulation 2.20(15) applies regardless of whether the non‑citizen has been immigration cleared, if:
(a) the non‑citizen has been given an invitation in writing by the Minister, by one of the methods specified in section 494B of the Act, to apply for the visa; and
(b) the non‑citizen indicates in writing to Immigration, not later than 7 days after the non‑citizen is taken to have received that invitation, that he or she accepts the invitation.
Note: See section 494C of the Act for when a person is taken to have received a document given by one of the methods specified in section 494B of the Act.
2.21 Most beneficial bridging visas (Act, s 68(4)(b)(ii))
(1) For the purposes of subparagraph 68(4)(b)(ii) of the Act (which deals with the order in which bridging visas are reactivated), if a non‑citizen holds more than 1 bridging visa, the bridging visa that is the most beneficial is to be determined as set out in this regulation.
(2) The order of classes from most beneficial to least beneficial is:
(a) Bridging B (Class WB) visa;
(b) Bridging A (Class WA) visa;
(c) Bridging C (Class WC) visa;
(d) Bridging D (Class WD) visa;
(da) Bridging R (Class WR) visa;
(e) Bridging E (Class WE) visa;
(f) Bridging F (Class WF) visa.
(3) A bridging visa of Class WA, WB or WC that confers an unlimited right to work is taken to be more beneficial than another bridging visa of the same class that confers a limited right to work, and a bridging visa of one of those classes that confers a limited right to work is taken to be more beneficial than one of the same class that confers no right to work.
(4) A bridging visa of Class WA, WB or WC is taken to be more beneficial than another bridging visa of the same class that is subject to the same work conditions if the first‑mentioned visa was granted before the second‑mentioned visa.
(5) If a non‑citizen holds 2 or more Bridging E visas, the one that is granted later or latest is taken to be the more or most beneficial.
2.21A Grant of Bridging A (Class WA) visas without application
(1) This regulation applies to a person:
(a) who is in Australia, but not in immigration clearance; and
(b) whose application for a Spouse (Migrant) (Class BC) visa, a Partner (Migrant) (Class BC) visa or an Interdependency (Migrant) (Class BI) visa was withdrawn, or refused (except under section 501, 501A or 501B of the Act), when the person was in Australia; and
(c) who was, immediately before that withdrawal or refusal, the holder of a Subclass 309 (Spouse (Provisional)) visa, a Subclass 309 (Partner (Provisional)) visa or a Subclass 310 (Interdependency (Provisional)) visa; and
(d) who has not already been granted a visa under this regulation in relation to the withdrawal or refusal.
(2) This regulation also applies to a person:
(a) who is in Australia, but not in immigration clearance; and
(b) whose application for an Aged Parent (Residence) (Class BP) visa was withdrawn:
(i) while the person was in Australia; and
(ii) at the same time as the person applied for a Contributory Aged Parent (Residence) (Class DG) visa or a Contributory Aged Parent (Temporary) (Class UU) visa; and
(c) who was, immediately before that withdrawal, the holder of a Subclass 010 (Bridging A) visa or a Subclass 020 (Bridging B) visa that was granted in association with the application for an Aged Parent (Residence) (Class BP) visa mentioned in paragraph (b); and
(d) who does not hold a substantive visa; and
(e) who has not already been granted a Subclass 010 (Bridging A) visa under this regulation in relation to:
(i) the withdrawal of the application for an Aged Parent (Residence) (Class BP) visa mentioned in paragraph (b); and
(ii) the application for a Contributory Aged Parent (Residence) (Class DG) visa or a Contributory Aged Parent (Temporary) (Class UU) visa mentioned in paragraph (b).
(3) This regulation also applies to a person:
(a) who is in Australia, but not in immigration clearance; and
(b) whose application for a Contributory Aged Parent (Residence) (Class DG) visa or a Contributory Aged Parent (Temporary) (Class UU) visa was withdrawn:
(i) while the person was in Australia; and
(ii) at the same time as the person applied for an Aged Parent (Residence) (Class BP) visa; and
(c) who was, immediately before that withdrawal, the holder of a Subclass 010 (Bridging A) visa or a Subclass 020 (Bridging B) visa that was granted in association with the application for a Contributory Aged Parent (Residence) (Class DG) visa or a Contributory Aged Parent (Temporary) (Class UU) visa mentioned in paragraph (b); and
(d) who does not hold a substantive visa; and
(e) who has not already been granted a Subclass 010 (Bridging A) visa under this regulation in relation to:
(i) the withdrawal of the application for a Contributory Aged Parent (Residence) (Class DG) visa or a Contributory Aged Parent (Temporary) (Class UU) visa mentioned in paragraph (b); and
(ii) the application for an Aged Parent (Residence) (Class BP) visa mentioned in paragraph (b).
(4) Despite Schedule 1, the Minister must grant a Bridging A (Class WA) visa in relation to the person mentioned in subregulation (1), (2) or (3).
2.21B Grant of Bridging A (Class WA), Bridging C (Class WC) and Bridging E (Class WE) visas without application
(1) This regulation applies if a non‑citizen who is in Australia, but not in immigration clearance, has made:
(a) a valid application for a visa on form 601E, form 48ME, form 1419 or form 1419 (Internet); or
(b) a valid oral application for a Tourist (Class TR) visa or a Subclass 600 (Visitor) visa; or
(c) a valid application under regulation 2.07AK;
and the application has not been finally determined.
(2) Despite anything in Schedule 1, the Minister may grant the non‑citizen a Bridging A (Class WA) visa, a Bridging C (Class WC) visa or a Bridging E (Class WE) visa if the Minister is satisfied that:
(a) at the time of decision, the non‑citizen meets:
(i) the criteria to be satisfied by an applicant for the visa at the time of application; and
(ii) the criteria to be satisfied by an applicant for the visa at the time of decision; and
(b) the circumstances applicable to the grant exist in relation to the non‑citizen.
2.22 Invalid application for substantive visa
(1) Subject to subregulation (2), a non‑citizen is taken to have applied for a Bridging D (Class WD) visa if:
(a) the non‑citizen is in Australia but is not in immigration or criminal detention; and
(b) he or she applies for a substantive visa of a class that may be granted in Australia; and
(c) the application:
(i) is given to the Minister in a way other than by personal attendance at an office of Immigration; and
(ii) is invalid as an application for a substantive visa of that class; and
(d) the invalidity of the application is not by reason of its purporting to have been made contrary to section 48 or 48A of the Act (whether or not the Minister has made a determination under subsection 48B(1) of the Act in relation to the application or action has been taken by any person to seek the making of such a determination).
(2) A reference in subregulation (1) to an application does not include the following:
(a) an oral application, or an oral communication that purports to be an oral application;
(b) an Internet application, or an electronic communication that purports to be an Internet application.
2.23 Further application for bridging visa (Act, s 74)
For the purposes of subsection 74(2) of the Act (which deals with a further application for a bridging visa), the prescribed circumstances are that the Minister is satisfied that, although the non‑citizen has not made a further application for a Bridging E (Class WE) visa after being refused a visa of that class, the non‑citizen now satisfies the criteria for the grant of a visa of that class.
2.24 Eligible non‑citizen in immigration detention
(1) For paragraph 75(1)(a) of the Act (which deals with the class of bridging visa that may be granted to a non‑citizen in immigration detention), the prescribed classes of bridging visa are:
(a) Bridging E (Class WE) visa; and
(b) Bridging F (Class WF) visa.
(2) For a Bridging E (Class WE) visa:
(a) if the applicant is an eligible non‑citizen of the kind mentioned in subregulation 2.20(7), (8), (9), (10) or (11), the subclass to be granted is a Subclass 051 Bridging (Protection Visa Applicant) visa; and
(b) if paragraph (a) does not apply, the subclass to be granted is a Subclass 050 Bridging (General) visa.
(3) For paragraph 75(1)(b) of the Act (which deals with the time in which the Minister must make a decision on a bridging visa application), if the application is for a Bridging E (Class WE) visa, each item in the table sets out a period for the circumstances mentioned in the item.
Item | Circumstances | Period |
1 | The application is made by a non‑citizen who has been immigration cleared An officer appointed under subregulation 2.10A(2) as a detention review officer for the State or Territory in which the applicant is detained (a detention review officer) has signed a declaration, within 2 working days after the application is made, that the detention review officer believes that the applicant may not pass the character test under subsection 501 (6) of the Act | 90 days |
2 | The application is made by a non‑citizen who has been immigration cleared A detention review officer has not signed a declaration mentioned in item 1 within 2 working days after the application is made | 2 working days |
3 | The application is made by a non‑citizen who is an eligible non‑citizen mentioned in subregulation 2.20(6) A detention review officer has signed a declaration, within 2 working days after the application is made, that the detention review officer believes that the applicant may not pass the character test under subsection 501(6) of the Act | 90 days |
4 | The application is made by a non‑citizen who is an eligible non‑citizen mentioned in subregulation 2.20(6) A detention review officer has not signed a declaration mentioned in item 3 within 2 working days after the application is made | 2 working days |
5 | The applicant is not described in items 1 to 4 A detention review officer has signed a declaration, within 28 days after the application is made, that the detention review officer believes that the applicant may not pass the character test under subsection 501(6) of the Act | 90 days |
6 | The applicant is not described in items 1 to 4 A detention review officer has not signed a declaration mentioned in item 5 within 28 days after the application is made | 28 days |
(4) For paragraph 75(1)(b) of the Act (which deals with the time in which the Minister must make a decision on a bridging visa application), if the application is for a Bridging F (Class WF) visa, each item in the table sets out a period for the circumstances mentioned in the item.
Item | Circumstances | Period |
1 | The application is made by a non‑citizen who has been immigration cleared | 2 working days |
2 | The application is made by a non‑citizen who is an eligible non‑citizen referred to in subregulation 2.20(6) | 2 working days |
3 | The applicant is not described in item 1 or 2 | 28 days |
Note: The prescribed conditions for the purposes of section 75 of the Act are set out in:
(a) clause 050.612 of Schedule 2 (for a Subclass 050—Bridging (General) visa); and
(b) clause 051.611 of Schedule 2 (for a Subclass 051—Bridging (Protection Visa Applicant) visa); and
(c) clause 060.611 of Schedule 2 (for a Subclass 060—Bridging F visa).
2.25 Grant of Bridging E (Class WE) visas without application
(1) This regulation applies to:
(a) a non‑citizen who is in criminal detention; or
(b) a non‑citizen who:
(i) is unwilling or unable to make a valid application for a Bridging E (Class WE) visa; and
(ii) is not barred from making a valid application for a Bridging E (Class WE) visa by a provision in the Act or these Regulations, other than in item 1305 of Schedule 1.
(2) Despite anything in Schedule 1, the Minister may grant the non‑citizen a Bridging E (Class WE) visa if the Minister is satisfied that, at the time of decision:
(a) the non‑citizen satisfies:
(i) the criteria set out in clauses 050.211, 050.212, 050.223, 050.224 and 050.411 of Schedule 2; and
(ii) the interview criterion; or
(b) the non‑citizen satisfies the criteria set out in clauses 051.211, 051.212, 051.213, 051.221 and 051.411 of Schedule 2.
(3) The non‑citizen satisfies the interview criterion if an officer who is authorised by the Secretary for the purposes of subclause 050.222(1) of Schedule 2 has either:
(a) interviewed the non‑citizen; or
(b) decided that it is not necessary to interview the non‑citizen.
2.25AA Grant of Bridging R (Class WR) visa without application
(1) This regulation applies to an eligible non‑citizen if:
(a) the eligible non‑citizen is an unlawful non‑citizen; and
(b) section 195A of the Act is not available to the Minister in relation to the grant of a visa to the eligible non‑citizen; and
(c) the Minister is satisfied that the eligible non‑citizen’s removal from Australia is not reasonably practicable at that time.
(2) Despite anything in Schedule 1, the Minister may grant the eligible non‑citizen a Bridging R (Class WR) visa if the Minister is satisfied that, at the time of decision, the eligible non‑citizen satisfies the criteria set out in clause 070.222 of Schedule 2.
Division 2.5A—Special provisions relating to certain health criteria
2.25A Referral to Medical Officers of the Commonwealth
(1) In determining whether an applicant satisfies the criteria for the grant of a visa, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether a person (whether the applicant or another person) meets the requirements of paragraph 4005(1)(a), 4005(1)(b), 4005(1)(c), 4006A(1)(a), 4006A(1)(b), 4006A(1)(c), 4007(1)(a), 4007(1)(b) or 4007(1)(c) of Schedule 4 unless:
(a) the application is for a temporary visa and there is no information known to Immigration (either through the application or otherwise) to the effect that the person may not meet any of those requirements; or
(b) the application is for a permanent visa that is made from a country (whether Australia or a foreign country) specified in a legislative instrument made by the Minister for the purposes of this paragraph and there is no information known to Immigration (either through the application or otherwise) to the effect that the person may not meet any of those requirements.
Note: For foreign country, see section 2B of the Acts Interpretation Act 1901.
(2) In determining whether an applicant satisfies the criteria for the grant of a Medical Treatment (Visitor) (Class UB) visa, if there is information known to Immigration (either through the application or otherwise) to the effect that the requirement in subclause 602.212(2)(d) has not been met, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether the requirement has been met.
(3) The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subregulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.
Division 2.6—Prescribed qualifications—application of points system
2.26AC Prescribed qualifications and number of points for Subclass 189, 190 and 489 visas
(1) For subsection 93(1) of the Act, this regulation applies to an application for:
(a) a Skilled—Independent (Permanent) (Class SI) visa; or
(b) a Skilled—Nominated (Permanent) (Class SN) visa; or
(c) a Skilled—Regional Sponsored (Provisional) (Class SP) visa.
(2) Each qualification specified in an item of Schedule 6D is prescribed as a qualification in relation to the grant, to the applicant, of:
(a) a Subclass 189 (Skilled—Independent) visa; or
(b) a Subclass 190 (Skilled—Nominated) visa; or
(c) a Subclass 489 (Skilled—Regional (Provisional)) visa.
(3) The number of points prescribed for a qualification specified in an item in Schedule 6D is specified in the item.
(4) For Schedule 6D:
(a) The Minister must not give the applicant a prescribed number of points for more than one prescribed qualification in each Part of the Schedule; and
(b) if the applicant’s circumstances satisfy more than one prescribed qualification in a Part of the Schedule, the Minister must give the applicant points for the qualification that has been satisfied that attracts the highest number of points.
Note: Part 6D.5 of Schedule 6D (Aggregating points for employment experience qualifications) recalculates an applicant’s points if the applicant has qualifications specified in Part 6D.3 of Schedule 6D (Overseas employment experience qualifications) and Part 6D.4 of Schedule 6D (Australian employment experience qualifications).
(5) For items 6D71 and 6D72 of Part 6D.7 of Schedule 6D, in determining whether an educational qualification is of a recognised standard, the Minister must have regard to:
(a) whether, at the time of invitation to apply for the visa, the educational qualification had been recognised by the relevant assessing authority for the applicant’s nominated skilled occupation as being suitable for the occupation; and
(b) whether the educational qualification is recognised by a body specified by the Minister in an instrument in writing for this paragraph; and
(c) the duration of the applicant’s study towards the educational qualification; and
(d) any other relevant matter.
(5A) For Schedule 6D, a person meets the requirements for the award of a specialist educational qualification if the person satisfies the Minister that:
(a) the person has met the requirements for the award, by an Australian educational institution, of:
(i) a masters degree by research; or
(ii) a doctoral degree; and
(b) the degree included study for at least 2 academic years at the institution in a field of education specified in an instrument under subregulation (5B).
Note: Academic year is defined in regulation 1.03.
(5B) The Minister may, by legislative instrument, specify a field or fields of education for the purposes of paragraph (5A)(b).
(6) In Schedule 6D and this regulation:
degree means a formal educational qualification, under the Australian Qualifications Framework, awarded by an Australian educational institution as a degree or a postgraduate diploma for which:
(a) the entry level to the course leading to the qualification is:
(i) in the case of a bachelor’s degree—satisfactory completion of year 12 in the Australian school system or of equivalent schooling; and
(ii) in the case of a master’s degree—satisfactory completion of a bachelor’s degree awarded at an Australian tertiary educational institution or of an equivalent award; and
(iii) in the case of a doctoral degree—satisfactory completion of a bachelor’s degree awarded with honours, or a master’s degree, at an Australian tertiary educational institution or of an equivalent award; and
(iv) in the case of a postgraduate diploma—satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award; and
(b) in the case of a bachelor’s degree, not less than 3 years of full‑time study, or the equivalent period of part‑time study, is required.
diploma means:
(a) an associate diploma, or a diploma, within the meaning of the Register of Australian Tertiary Education (as current on 1 July 1999), that is awarded by a body authorised to award diplomas of those kinds; or
(b) a diploma, or an advanced diploma, under the Australian Qualifications Framework, that is awarded by a body authorised to award diplomas of those kinds.
employed means engaged in an occupation for remuneration for at least 20 hours a week.
professional year means a course specified by the Minister in an instrument in writing for this definition.
trade qualification means:
(a) an Australian trade qualification obtained as a result of the completion of:
(i) an indentured apprenticeship; or
(ii) a training contract;
that is required by State or Territory industrial training legislation or a relevant Federal, State or Territory industrial award and involves:
(iii) part‑time formal training at a technical college or a college of technical and further education; and
(iv) employment within the meaning of:
(A) an industrial award under a law of the Commonwealth or of a State or Territory; or
(B) a law of a State or Territory dealing with commercial or industrial training; or
(b) a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group IV in the ASCO; or
(c) a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group 3 in ANZSCO.
2.26B Relevant assessing authorities
(1) Subject to subregulation (1A), the Minister may, by an instrument in writing for this subregulation, specify a person or body as the relevant assessing authority for:
(a) a skilled occupation; and
(b) one or more countries;
for the purposes of an application for a skills assessment made by a resident of one of those countries.
(1A) The Minister must not make an instrument under subregulation (1) unless the person or body has been approved in writing as the relevant assessing authority for the occupation by:
(a) the Education Minister; or
(b) the Employment Minister.
(2) The standards against which the skills of a person are assessed by a relevant assessing authority for a skilled occupation must be the standards set by the relevant assessing authority for the skilled occupation.
(3) A relevant assessing authority may set different standards for assessing a skilled occupation for different visa classes or subclasses.
2.27C Skilled occupation in Australia
In determining whether an applicant satisfies a criterion that the applicant has been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant:
(a) held:
(i) a substantive visa; or
(ii) a Subclass 010 Bridging A visa; or
(iii) a Subclass 020 Bridging B visa;
authorising him or her to work during that period; and
(b) complied with the conditions of that visa.
2.27D Study in Australia
In determining whether an applicant satisfies a criterion for the grant of a General Skilled Migration visa that the applicant has studied in Australia for a certain period, a period of study cannot be counted unless the applicant:
(a) held:
(i) a substantive visa; or
(ii) a Subclass 010 (Bridging A) visa; or
(iii) a Subclass 020 (Bridging B) visa;
authorising him or her to study during that period; and
(b) complied with the conditions of that visa.
2.28 Notice of putting application aside
(1) If the Minister puts an application aside under paragraph 94(3)(a) of the Act, he or she must notify the applicant in writing that he or she has done so.
(2) A notification under subregulation (1) must set out:
(a) the decision of the Minister; and
(b) the reason for the decision; and
(c) that the decision can be reviewed; and
(d) the time in which an application for review may be made; and
(e) who can apply for the review; and
(f) where the application for review can be made.
Division 2.8—Special purpose visas
2.40 Persons having a prescribed status—special purpose visas (Act, s 33(2)(a))
Persons who hold prescribed status
(1) For the purposes of paragraph 33(2)(a) of the Act (which deals with persons who are taken to have been granted special purpose visas), and subject to this regulation, each non‑citizen who is included in one of the following classes of person has a prescribed status:
(a) members of the Royal Family;
(b) members of the Royal party;
(c) guests of Government;
(d) SOFA forces members;
(e) SOFA forces civilian component members;
(f) Asia‑Pacific forces members;
(g) Commonwealth forces members;
(h) foreign armed forces dependants;
(j) foreign naval forces members;
(l) airline positioning crew members;
(m) airline crew members;
(n) transit passengers who belong to a class of persons specified in a legislative instrument made by the Minister for the purposes of this paragraph;
(p) persons visiting Macquarie Island;
(q) children born in Australia:
(i) of a mother who at the time of the birth holds a special purpose visa, if only the mother is in Australia at that time; or
(ii) to parents both of whom, at the time of the birth, hold special purpose visas, if at that time both parents are in Australia;
(t) Indonesian traditional fishermen visiting the Territory of Ashmore and Cartier Islands.
Note: the terms used in paragraphs (1)(a) to (n) are defined in regulation 1.03.
Armed forces members
(2) A person included in a class of persons specified in paragraph (1)(d), (e), (f), (g) or (j) has a prescribed status only while he or she is not absent without leave.
Armed forces dependants
(3) A person included in a class of persons specified in paragraph (1)(h) has a prescribed status only while the person of whom he or she is a spouse or de facto partner, or on whom he or she is dependent, is not absent without leave.
Persons must not work in Australia
(4) A person included in a class of persons specified in paragraph (1)(d), (e), (f), (g), (j), (l) or (m) has a prescribed status only while he or she does not perform work in Australia (other than work of a kind that he or she normally performs during the course of his or her duties as a person of a kind referred to in the relevant paragraph).
Note: Regulation 2.40A sets out further restrictions on the work airline positioning crew members and airline crew members may perform in Australia.
Foreign naval forces members
(5) A person included in a class of persons specified in paragraph (1)(j) has a prescribed status if and only if the vessel on which he or she enters the migration zone has the prior approval of the Australian government to do so.
Airline positioning crew members
(9) A person included in a class of persons specified in paragraph (1)(l) has a prescribed status for the period of 5 working days beginning when he or she disembarks from the aircraft on which he or she travelled to Australia if and only if he or she:
(a) holds a passport that is in force; and
(b) carries a letter from his or her employer certifying aircrew status and setting out the purpose of the person’s travel to Australia and the arrangements for the person to leave Australia.
Airline crew members
(10) A person included in a class of persons mentioned in paragraph (1)(m) has a prescribed status for 30 days, beginning when he or she disembarks from the aircraft on which he or she travelled to Australia, if and only if he or she:
(a) holds a passport that is in force; and
(b) holds:
(i) a valid airline identity card issued by his or her employer; or
(ii) for a person who is an aircraft safety inspector:
(A) a valid government identity document showing that he or she is employed by a foreign government; or
(B) an ICAO Safety Inspector Certificate; and
(c) is included in a list of members of the crew of the aircraft provided to Immigration by or for the international air carrier that operates the aircraft.
Transit passengers
(11) A person included in a class of persons specified in paragraph (1)(n) has a prescribed status only while he or she remains in the airport transit lounge.
Macquarie Island visitors
(12) A person included in a class of persons specified in paragraph (1)(p) has a prescribed status:
(a) only while he or she remains on Macquarie Island; and
(b) only if the Secretary of the Department of Primary Industries, Parks, Water and Environment of the State of Tasmania has granted written permission in advance for the person to visit that Island.
Children born in Australia
(13) A person included in a class of persons specified in paragraph (1)(q) has a prescribed status:
(a) in the case of a child referred to in subparagraph (1)(q)(i)—until the child’s mother ceases to have a prescribed status; or
(b) in the case of a child referred to in subparagraph (1)(q)(ii)—until whichever of the child’s parents last ceases to have a prescribed status ceases to have that status.
Indonesian traditional fishermen
(16) A person included in the class of persons specified in paragraph (1)(t) has a prescribed status only if the person:
(a) is a traditional fisherman within the meaning of the Memorandum of Understanding made at Jakarta on 7 November 1974 between Australia and the Republic of Indonesia regarding the operations of Indonesian fishermen in areas of the Australian Exclusive Fishing Zone and Continental Shelf; and
(b) when visiting the Territory of Ashmore and Cartier Islands, is engaged in an activity described in the Memorandum of Understanding, as varied by the 1989 Practical Guidelines for Implementation contained in the Annex to the Agreed Minutes of Meeting between officials of Australia and Indonesia on fisheries of 29 April 1989.
Note: The Memorandum, as varied by the Guidelines, has the general effect of accommodating a traditional fisherman engaged in taking fish or marine sedentary organisms by a method that has been a traditional method over decades of time, who is:
(a) actually taking fish or marine sedentary organisms; or
(b) sheltering within the territorial sea of the Territory; or
(c) on shore at the island known as West Islet, for the purpose only of getting fresh water.
Expressly excluded is fishing using a motorised, or motor‑assisted, vessel or method.
2.40A Conditions applicable to special purpose visas
For subsection 41(1) of the Act:
(a) a special purpose visa taken to be granted to an airline positioning crew member is subject to condition 8117; and
(b) a special purpose visa taken to be granted to an airline crew member is subject to condition 8118.
Division 2.9—Cancellation or refusal to grant visas
Subdivision 2.9.1—Cancellation under Subdivision C of Division 3 of Part 2 of the Act
Note: The obligations of a visa holder under Subdivision C of Division 3 of Part 2 of the Act are: to supply correct information on his or her application form (s 101), including answers on passenger cards (s 102); not to give bogus documents (s 103); to notify changes in circumstances (s 104); and, if incorrect information is given, to correct it (s 105). The obligation is not affected by other sources of information being available (s 106). If the Minister gives a visa holder a notice under s 107(1) stating that there may have been non‑compliance and asking the visa holder for a response, the answers must be correct (s 107(2)).
2.41 Whether to cancel visa—incorrect information or bogus document (Act, s 109(1)(c))
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d) the circumstances in which the non‑compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non‑compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non‑compliance;
(j) any breaches of the law since the non‑compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
Note: Under s. 109 of the Act, the Minister may cancel a visa if there was non‑compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.
2.42 Notice of decision to cancel visa under s 109
(1) If the Minister cancels a visa under section 109 of the Act, the Minister must notify the former holder of the visa in writing that the visa has been cancelled.
(2) A notification under subregulation (1) must set out the ground for the cancellation.
Note 1: Regulation 2.55 applies to the giving of a document relating to:
- the proposed cancellation of a visa under the Act; or
- the cancellation of a visa under the Act; or
- the revocation of the cancellation of a visa under the Act.
Note 2: A document given to a person in immigration detention is given in the manner specified in regulation 5.02.
Subdivision 2.9.2—Cancellation generally
2.43 Grounds for cancellation of visa (Act, s 116)
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:
(a) that the Foreign Minister has personally determined that:
(i) in the case of a visa other than a relevant visa—the holder of the visa is a person whose presence in Australia:
(A) is, or would be, contrary to Australia’s foreign policy interests; or
(B) may be directly or indirectly associated with the proliferation of weapons of mass destruction; or
(ii) in the case of a relevant visa—the holder of the visa is a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction;
Note: A relevant visa is explained in subregulation (3).
(aa) in the case of a person who is the holder of a visa other than a relevant visa, the person:
(i) is declared under paragraph 6(1)(b) or (2)(b) of the Autonomous Sanctions Regulations 2011 for the purpose of preventing the person from travelling to, entering or remaining in Australia; and
(ii) is not a person for whom the Foreign Minister has waived the operation of the declaration in accordance with regulation 19 of the Autonomous Sanctions Regulations 2011;
(b) that the holder of the visa has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979;
(e) in the case of:
(i) the holder of an Electronic Travel Authority (Class UD) visa who is under 18; or
(iii) the holder of a Tourist (Class TR) visa, that was applied for using form 601E, who is under 18; or
(iv) the holder of a Visitor (Class TV) visa who is under 18; or
(iva) the holder of a Subclass 600 (Visitor) visa in the Tourist stream, that was applied for using form 1419 (Internet), who is under 18;
that either:
(v) both of the following apply:
(A) the law of the visa holder’s home country did not permit the removal of the visa holder;
(B) at least 1 of the persons who could lawfully determine where the additional applicant is to live did not consent to the grant of the visa; or
(vi) the grant of the visa was inconsistent with any Australian child order in force in relation to the visa holder;
(ea) in the case of a Subclass 601 (Electronic Travel Authority) visa—that, despite the grant of the visa, the Minister is satisfied that the visa holder:
(i) did not have, at the time of the grant of the visa, an intention only to stay in, or visit, Australia temporarily for the tourism or business purposes for which the visa was granted; or
(ii) has ceased to have that intention;
(f) in the case of:
(i) the holder of an Electronic Travel Authority (Class UD) visa who is under 18 and is not accompanied by his or her parent or guardian; or
(iii) the holder of a Tourist (Class TR) visa, that was applied for using a form 601E, who:
(A) is under 18; and
(B) is not accompanied by his or her parent or guardian; or
(iv) the holder of a Visitor (Class TV) visa who is under 18 and is not accompanied by his or her parent or guardian; or
(v) the holder of a Subclass 600 (Visitor) visa in the Tourist stream, that was applied for using form 1419 (Internet), who is under 18 and is not accompanied by his or her parent or guardian;
that the holder of that visa does not have adequate funds, or adequate arrangements have not been made, for the holder’s maintenance, support and general welfare during the holder’s proposed visit in Australia;
(g) in the case of a temporary visa held by a person other than a visa holder mentioned in paragraph (h)—that the visa holder asks the Minister, in writing, to cancel the visa;
(h) in the case of a temporary visa held by a person who is under the age of 18 years and is not a spouse, a former spouse or engaged to be married—that:
(i) a person who is at least 18 years of age, and who can lawfully determine where the visa holder is to live, asks the Minister, in writing, to cancel the visa; and
(ii) the Minister is satisfied that there is no compelling reason to believe that the cancellation of the visa would not be in the best interests of the visa holder;
(i) in the case of the holder of:
(i) a Subclass 456 (Business (Short Stay)) visa; or
(ia) a Subclass 459 (Sponsored Business Visitor (Short Stay)) visa; or
(ib) a Subclass 600 (Visitor) visa in the Business Visitor stream; or
(ii) a Subclass 956 (Electronic Travel Authority (Business Entrant—Long Validity)) visa; or
(iii) a Subclass 977 (Electronic Travel Authority (Business Entrant—Short Validity)) visa—
that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to stay in, or visit, Australia temporarily for business purposes;
(ia) in the case of a holder of:
(i) a Subclass 400 (Temporary Work (Short Stay Specialist)) visa; or
(ia) a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
(ib) a Subclass 402 (Training and Research) visa; or
(ic) a Subclass 403 (Temporary Work (International Relations)) visa; or
(id) a Subclass 407 (Training) visa; or
(ie) a Subclass 408 (Temporary Activity) visa; or
(iii) a Subclass 416 (Special Program) visa; or
(v) a Subclass 420 (Entertainment) visa; or
(xi) a Subclass 488 (Superyacht Crew) visa;
that the grounds in subregulation (1A) are met; or
(j) in the case of the holder of:
(i) a Subclass 600 (Visitor) visa that is not in the Business Visitor stream; or
(ii) a Subclass 676 (Tourist) visa; or
(iii) a Subclass 679 (Sponsored Family Visitor) visa;
that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit, or remain in, Australia as a visitor temporarily for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the visa holder or for another purpose, other than a purpose related to business or medical treatment;
(k) in the case of the holder of a Subclass 976 (Electronic Travel Authority (Visitor)) visa—that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit Australia temporarily for tourism purposes;
(ka) in the case of a holder of a Subclass 651 (eVisitor) visa—that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to stay in, or visit, Australia temporarily for the tourism or business purposes for which the visa was granted;
(kb) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the applicant met the requirements of subregulation 457.223(4)—that, despite the grant of the visa, the Minister is satisfied that:
(i) the holder did not have a genuine intention to perform the occupation mentioned in paragraph 457.223(4)(d) at the time of grant of the visa; or
(ii) the holder has ceased to have a genuine intention to perform that occupation; or
(iii) the position associated with the nominated occupation is not genuine;
(l) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor)—that:
(i) the sponsor has not complied, or is not complying, with the undertaking given by the business sponsor in accordance with approved form 1067, 1196 or 1196 (Internet); or
(ii) the sponsor has given false or misleading information to Immigration or the Tribunal; or
(iii) the sponsor has failed to satisfy a sponsorship obligation; or
(iv) the sponsor has been cancelled or barred under section 140M of the Act; or
(v) the labour agreement has been terminated, has been suspended or has ceased;
(la) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa who was granted the visa on the basis of a nomination of an activity under regulation 1.20GA as in force immediately before 14 September 2009—that the holder is living or working within an area specified by the Minister in an instrument in writing for this paragraph;
(lc) in the case of a holder of:
(i) a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
(ia) a Subclass 402 (Training and Research) visa; or
(ib) a Subclass 407 (Training) visa; or
(ic) a Subclass 408 (Temporary Activity) visa; or
(iii) a Subclass 416 (Special Program) visa; or
(xi) a Subclass 488 (Superyacht Crew) visa;
who is a primary sponsored person in relation to a person who is or was an approved sponsor—that 1 of the grounds specified in subregulation (1B) is met;
(ld) in the case of a holder of:
(i) a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
(ia) a Subclass 402 (Training and Research) visa; or
(ib) a Subclass 407 (Training) visa; or
(iii)
