Statutory Rules 1992 No. 367

Migration (1993) Regulations

SYNOPSIS

Page

SYNOPSIS—continued

––––––––––––––

READER’S GUIDE

WARNING: THIS GUIDE IS NOT A SUBSTITUTE FOR THE REGULATIONS. IT DOES NOT HAVE THE FORCE OF LAW.

The Guide has been prepared by the Department of Immigration, Local Government and Ethnic Affairs (DILGEA) as a general guide to using the Regulations. It is not part of the Regulations.

1: INTRODUCTION

1.1 Most people using these Regulations will want to find out whether they, or some other person, can be granted a visa to travel to Australia or permission to remain in Australia. The main purpose of this Guide, therefore, is to help you find your way around the Regulations with those particular questions in mind. The Guide does not cover areas of the Regulations that deal with other matters.

1.2 The Guide provides information under the following headings:

• This introduction (Section 1)

• A general description of the contents of the Regulations with particular emphasis on the requirements for visas and entry permits (Section 2)

• A brief explanation of the different meanings of the terms “arriving in Australia” and “entering Australia” (Section 3)

• A brief explanation of the meaning of the terms “leaving” and “departing” Australia (Section 4)

• An overview of Australia’s system of visas and entry permits (Section 5)

• How the Regulations affect certain situations (Section 6), namely:

– applying in Australia for permanent residence;

– extension of temporary stay in Australia;

–  non-citizens leaving and returning to Australia; and

–  granting of entry permits in Australia to illegal entrants.

READER’S GUIDE—continued

1.3 These Regulations replace the Migration Regulations made in December 1989 and are in an entirely new format. This format was developed to ensure that, unlike the 1989 Regulations, all the requirements (called “criteria”) for the grant of a particular Class of visa or entry permit are listed in one place, whether in specific terms or by clear reference to another place in the Regulations.

1.4 Although these Regulations are more simply structured than the 1989 Regulations, they still deal with a complicated area of law. This Guide tries to describe the Regulations in a straightforward way without reference to the more obscure or intricate provisions. As stated at the beginning of the Guide, the Guide is not a substitute for the Regulations and does not have the force of law.

1.5 If you wish to obtain more information concerning Australia’s visa and entry permit requirements, you can also refer to a range of specialised DILGEA publications available at all DILGEA offices.

1.6 In particular, you can consult the DILGEA Procedures Advice Manual (PAM). This manual provides policy guidance in interpreting criteria in the Regulations for the grant of visas and entry permits which call for a degree of subjective assessment.

1.7 The terms used generally in the Regulations are defined in Part 1 of the Regulations.

1.8 A list of defined terms has been provided in the Indexes following this Guide to tell you exactly where a term is defined. This list covers terms defined in the Migration Act 1958 as well as in the Regulations. Alphabetical and numerical indexes of visa and entry permit Classes have also been provided.

1.9 Notes are to be found in Schedules 2 and 3. These notes are included to help you understand the purpose of certain provisions and to provide cross references to the Migration Act and other parts of the Regulations.

READER’S GUIDE—continued

2: GENERAL DESCRIPTION OF CONTENTS OF REGULATIONS

NOTE: 1. If you do not understand the technical meanings of the terms “arriving in Australia”, “entering Australia” and “departing Australia”, you should read Sections 3 and 4 of this Guide.

2. If you do not understand the meaning of, and differences between, visas and entry permits, you should read Section 5.

2.1 These Regulations deal with a variety of matters proceeding from the Migration Act. These matters relate to the system laid down by the Act for controlling in the national interest the coming into, and presence in, Australia of people who are not Australian citizens (“non-citizens”). Accordingly, the great bulk of the Regulations is concerned with the requirements to be met by applicants for the grant of visas and entry permits.

2.2 The Regulations are divided into eight Parts and twelve Schedules. The reader who wants to know about someone’s eligibility for the grant of a visa or entry permit will find that Schedules 1, 2 and 3 provide the most useful place to start using the Regulations.

2.3 A brief description of each Part and Schedule follows.

Part 1—Preliminary:

This contains an extensive list of Interpretation provisions. These are phrases (or single words) which are given a specific meaning by the Regulations. Wherever these appear within the Regulations they have that meaning—unless in any particular regulation another meaning is specifically given to the word or phrase. To understand the Regulations you must keep these meanings in mind.

Part 2—Visas and Entry Permits:

This contains general provisions about visas and entry permits. In particular, this Part links the provisions for visas and entry permits in the Migration Act with the scheme for granting visas and entry permits in the Regulations.

READER’S GUIDE—continued

It also deals with general matters such as the lodging of applications for visas and entry permits and the effect and operation of visas and entry permits generally. This Part does not deal with specific Classes of visas and entry permits.

Part 3—Collection of information with respect to persons on vessels:

A Part not about visas and entry permits. It sets out the regulations governing the collection and use of information which must be provided about individuals entering and leaving Australia.

Part 4—Procedure of Commissioners and Prescribed Authorities:

A Part not about visas and entry permits. It sets out the regulations governing procedures about witnesses summoned by a Commissioner appointed under subsection 57 (4) of the Migration Act.

Part 5—Assurances of Support:

This Part is about the form and effect of Assurances of Support. Assurances of Support may be required for the grant of some Classes of visas and entry permits. This Part does not say whether an Assurance of Support will be required in a specific application for a visa or entry permit. That is found in the appropriate Part of Schedule 2 or 3.

Part 6—Migrant Centres:

A Part not about visas and entry permits. It sets out regulations relating to the control of migrant centres.

Part 7—Miscellaneous:

As the name suggests, this Part contains a variety of provisions, some of which—such as fees—are relevant in a general way to visas and entry permits.

READER’S GUIDE—continued

Part 8—Repeal and Saving Provisions:

This Part repeals the Migration Regulations made in December 1989 and includes a saving provision to deal with applications already made under the repealed Regulations.

Schedule 1—Classification of Visas and Entry Permits:

This Schedule lists every Class of visa and entry permit, dividing them, first, into those allowing for permanent entry or stay, followed by those allowing for temporary entry or stay.

There are no visa or entry permit Classes other than those in this list. Unless a person qualifies for one of these Classes, there is no other provision under which they can apply.

The two parts of the Schedule are each broken down further—into four Groups in the permanent part, and eight Groups in the temporary part. (See below for a further description of the twelve Groups.)

For each Class of visa and entry permit, the Schedule gives the Class title and the Class number for that visa or entry permit Class. It also shows whether secondary persons (mainly, family unit members) can be joined with the primary person’s application (see Schedule 3 for more about secondary persons).

Schedule 1 serves mainly as a linkage between Part 2 and Schedules 2 and 3.

The twelve Groups of visas and entry permits

1.1 Migrant Group

This Group comprises the visa and entry permit Classes which may be applied for by people outside Australia wishing to settle in Australia on a permanent basis. It includes the Classes for relatives of Australian citizens and permanent residents and those for people with business and other skills. It does not include the Classes for those people wishing to settle permanently in Australia who are either applying on refugee or humanitarian grounds (see Group 1.3), or who must first pass through a provisional period of stay (see Group 2.7).

READER’S GUIDE—continued

1.2 Permanent resident (after entry) Group

This Group comprises the visa and entry permit Glasses which may be applied for by people already in Australia on a temporary basis who wish to remain as permanent residents.

Before people can be granted any of these, they must hold a temporary entry permit or entry visa valid for the purposes of section 47 of the Migration Act (See also Group 2.5.)

1.3 Permanent resident (refugee and humanitarian) Group

This Group comprises the visa and entry permit Classes which may be applied for by people outside Australia wishing to settle in Australia on a permanent basis because of refugee or humanitarian grounds.

1.4 Resident return (permanent entry) Group

This Group comprises the visa and entry permit Classes which may be applied for, either in Australia before departure or outside Australia after departure, by former permanent residents of Australia who wish to return and live in Australia as permanent residents again.

2.1 Temporary resident Group

This Group comprises the visa and entry permit Classes which may be applied for by people wishing to enter, re-enter or remain in Australia on a temporary basis for a limited period. These Classes cover a variety of purposes of stay, mainly related to work, cultural or social activities, but not purposes covered by the student or visitor Groups (see Groups 2.2, 2.3 and 2.4).

2.2 Student Group

This Group comprises the visa and entry permit Classes which may be applied for by people wishing to enter, re-enter or remain in Australia on a temporary basis for a limited period for the purpose of study in Australia.

2.3 Visitor Group

This Group comprises the visa and entry permit Classes which may be applied for by people wishing to enter, re-enter or remain in Australia on a

READER’S GUIDE—continued

temporary basis for a limited period of more than 3 months for purposes of tourism, visiting friends or relatives, conducting business of a limited nature or for medical treatment

2.4 Visitor (short stay) Group

This Group comprises the visa and entry permit Classes that may be applied for by people wishing to enter, re-enter or remain in Australia on a temporary basis for a limited period of 3 months or less for purposes of tourism, visiting friends or relatives, conducting business of a limited nature or for medical treatment.

2.5 Extended eligibility Group

This Group comprises the visa and entry permit Classes that must be applied for by people wishing to be granted permanent residence in Australia on the grounds of either being the spouse of, or in an interdependent relationship with, an Australian citizen or permanent resident but who do not already hold an entry permit valid for the purposes of section 47 of the Migration Act.

2.6 Refugee and humanitarian (temporary entry) Group

This Group comprises the visa and entry permit Classes that may be applied for by people already in Australia who wish to continue their stay on refugee or humanitarian grounds. These Classes provide for temporary residence.

2.7 Provisional Group

This Group comprises the visa and entry permit Classes that may be applied for by people outside Australia seeking to settle in Australia on a permanent basis but who can only meet certain requirements after entering Australia. These Classes provide for temporary residence at first, with permanent residence being granted by means of a confirmatory entry permit in Group 1.2 after satisfying the requirements to be met in Australia.

Failure to satisfy these requirements means that the person must leave Australia.

READER’S GUIDE—continued

2.8 Miscellaneous Group

This Group comprises the visa and entry permit Classes that may be applied for under special conditions by people:

• seeking entry at the Australian border who do not hold a visa (border visa and entry permit);

• needing to pass through Australia to another country (transit visa and entry permit);

• whose current entry permit or entry visa may expire while an application for another remains undecided (processing visa and entry permit).

Schedule 2—Provisions about the grant of individual Classes of visas and entry permits (primary persons):

This Schedule is the core of the Regulations as far as visas and entry permits are concerned. It sets down the criteria which must be satisfied in each visa and entry permit Class before a primary person (se below) can be granted that visa or entry permit. The Schedule contains all the Classes of visas and entry permits available. If an applicant cannot satisfy all the criteria for any Class applied for, then the application for that Class must be refused. (However, certain decisions to refuse an application may be appealed under the Migration (Review) Regulations.)

The Regulations distinguish between two types of applicant: primary persons, who must satisfy the criteria in this Schedule; and secondary persons, who must satisfy the criteria in Schedule 3.

Primary persons are those who are granted a visa or entry permit in their own right, and secondary persons are those who are granted the visa or entry permit on the “coat-tails” of the primary person. Secondary persons broadly correspond to dependants or other family unit members of the primary person and need to satisfy fewer requirements.

Schedule 2 is divided into Parts. Each Part sets out the criteria which must be met by a person applying as a primary person for the grant of the particular Class of visa or entry permit. The Parts are arranged in numerical order within each Group, according to each visa and entry permit Class

READER’S GUIDE—continued

number. Each provision in each Part shows the particular Class number for easy reference.

The following table shows the way each of the Parts in Schedule 2 is set out. The left column shows the divisions in general terms, with Y instead of the title of a visa or entry permit and xxx instead of the number. The right column shows a specific example, i.e., the Exchange visa and entry permit, which has the Class number 411.

Schedule 3—Provisions about the grant of individual Classes of visas and entry permits (secondary persons):

The criteria for secondary persons are generally the same across whole Groups of Classes. Therefore, unlike Schedule 2, each Part of Schedule 3 deals with a Group of Classes rather than just one Class.

Otherwise, each Part of Schedule 3 is set out in the same manner as those in Schedule 2.

Note that not all Classes of visas and entry permits have provision for secondary persons. In some Groups, such as visitors, all applicants,

READER’S GUIDE—continued

whether adult or child, are required to meet all the Class criteria set out in Schedule 2.

Schedule 4—Public Interest Criteria:

The public interest criteria include matters such as character, health and overstay potential. These criteria have been set so that any non-citizen wishing to enter Australia must meet certain general standards in accord with the national interest of the Australian community. These criteria apply whether the non-citizen wishes to enter Australia for a long or short stay.

Each criterion in the Schedule has a clause number. In the individual Parts of Schedules 2 and 3 any public interest criterion that applies to the visa or entry permit in question is identified by reference to its clause number in this Schedule.

Schedule 5—Special Re-entry Criteria:

This Schedule sets out the additional requirements to be met by certain persons (mainly those who were deported from Australia or who before they left Australia were illegal entrants or had contravened a condition of their temporary entry permit) before they can be granted an entry permit.

Each criterion in the Schedule has a clause number. In the individual Parts of Schedules 2 and 3 any special re-entry criterion that applies to the visa or entry permit in question is identified by reference to its clause number in this Schedule.

Schedule 6—Illegal Entrant Criteria:

This Schedule sets out the general criteria which must be met by an illegal entrant for the grant of an entry permit. Each criterion in the Schedule is given a clause number.

In the individual Parts of Schedules 2 and 3 any illegal entrant criterion that applies to the visa or entry permit in question is identified by reference to its clause number in this Schedule.

READER’S GUIDE—continued

Schedule 7—General Points Test—Qualifications and Points:

A Class 105 (Concessional Family) or a Class 126 (Independent) visa cannot be granted to a primary person unless they score a certain number of points when assessed against a points test. This Schedule sets out the details of that points test.

Schedule 8—Business Skills Points Test—Attributes and Points:

A Class 127 (Business Skills) or a Class 128 (Business Skills (Senior Executive)) visa cannot be granted to a primary person unless they score a certain number of points when assessed against a points test. This Schedule sets out the details of that points test.

Schedule 9—Visa and Entry Permit Conditions:

This Schedule sets out all the conditions which may be imposed on visas and entry permits. (See also 5.3 below for further information on conditions.) The Schedule sets out the conditions in two Parts, the first listing those which are terminating and the second those which are not terminating.

If a person fails to comply with a terminating condition on their visa or entry permit, the visa or entry permit will, under certain conditions, automatically cease to be in force and they become an illegal entrant. (See 5.3.3 below for an explanation of terminating conditions.)

If a person fails to comply with a non-terminating condition, this could be grounds for cancellation of the visa or entry permit.

Each condition in the Schedule is identified by a clause number. In the individual Parts of Schedules 2 and 3 any condition that applies to the visa or entry permit in question is identified by reference to its clause number in this Schedule.

Schedule 10—Amounts of Fees in Certain Currencies:

Wherever fees are mentioned elsewhere in the Regulations, the amounts are stated in Australian currency. Regulation 7.25 in Part 8 (Miscellaneous)

READER’S GUIDE—continued

provides for payment in currency of certain foreign countries to be made in amounts found from this Schedule.

Schedule 11—Prescribed Forms:

This Schedule contains forms of notices, warrants, etc., used under the Regulations (generally in Part 8 (Miscellaneous)). It is not concerned with the forms for application for visas or entry permits.

Schedule 12—Repealed Statutory Rules:

This Schedule specifies the Statutory Rules that have been repealed.

3: “ENTERING” AUSTRALIA AND “ARRIVING IN” AUSTRALIA

3.1 It is essential in using the Regulations to understand that there is a difference between “arriving in” and “entering” Australia. “Arriving” occurs first. A person “arrives in” Australia when they actually become physically present on Australian soil, e.g., when they step off an aircraft or disembark from a boat, but before they have been cleared by immigration authorities.

3.2 “Entering” happens once the person has been cleared by the immigration authorities at the Entry Control Point to leave the airport, or the point of disembarkation, for another place in Australia and they leave for this place.

3.3 Most people arrive and then enter. It can be seen, however, that it is possible for a person to arrive in Australia but not to enter Australia, if not given clearance to enter.

4: “DEPARTING FROM” OR “LEAVING” AUSTRALIA

4.1 In general, a person is deemed to have left (or departed from (either term may be used)) Australia only when they have gone outside Australia’s territorial waters. (See subsection 4 (8) of the Migration Act.)

READER’S GUIDE—continued

4.2 Once a person has left (or departed from) Australia then any entry permit stops being in force and no longer exists. (See 5.2 below for more details.)

5: A SIMPLIFIED OVERVIEW OF AUSTRALIA’S SYSTEM OF VISAS AND ENTRY PERMITS

5.1: VISAS

5.1.1 Every person who is not an Australian citizen (i.e., a “non-citizen”) must have a visa to travel to Australia. (There are a few exceptions to this rule relating in the main to New Zealand citizens, and to very specialised forms of entry to Australia, determined by governmental arrangements.)

5.1.2 A visa is an indication to the carrier (e.g., an airline) bringing the holder of that visa to Australia, that, most probably, the holder will be allowed to enter Australia on arrival. The visa is necessary irrespective of whether that person has been in Australia previously, even as a permanent resident. So for all journeys to Australia, including return journeys, a non-citizen needs a valid visa.

5.1.3 A guarantee of entry is not given because, when the non-citizen arrives in Australia, the visa they are holding could be cancelled and they could be refused entry to Australia. This could happen if, for example, it was discovered during routine questioning at the Entry Control Point that the holder of the visa had concealed a serious matter that, if known about earlier, would have resulted in refusal to grant the visa (say, a serious criminal record).

5.1.4 There are many Classes of visas, and people apply for the Class which best suits their purpose in coming, or returning, to Australia.

5.1.5 To be granted a visa, of whatever Class, the applicant must meet the criteria prescribed in the Migration Regulations for that visa. (These criteria are set out in Schedules 2 and 3 of these Regulations.)

5.1.6 If the applicant meets those criteria the visa is granted and the evidence, i.e., the physical visa document, is usually placed in the

READER’S GUIDE—continued

applicant’s passport or other travel document. Records are made of all visas issued.

5.1.7 That visa may be either:

• a travel-only visa; or

• an entry visa.

5.1.8 As noted earlier, it is important to understand that neither form of visa guarantees that the holder will be allowed to enter Australia. Both simply indicate that entry will most probably be allowed.

(i) TRAVEL-ONLY VISA

On arrival in Australia the holder of a travel-only visa shows it to the officer at the Entry Control Point. Then, if allowed to enter, the holder will be granted an entry permit which authorises the holder to stay in Australia either for an unlimited period (if it is a permanent entry permit), or for a limited period (if it is a temporary entry permit). (For more about entry permits, see 5.2 below.)

A travel-only visa is valid for a certain period of time within which the proposed travel to Australia must take place (its “travel validity”), and can allow for only one or a number of journeys to Australia. (The number will be shown on the visa label in the passport.) Though a travel-only visa does not authorise entry into Australia, it will generally indicate the period of stay which will be authorised, which will be either for a limited or an unlimited period.

Travel-only visas are granted to persons who are in Australia and who wish to leave and re-enter. They are now only rarely granted outside Australia. Visas granted outside Australia are now almost always granted as entry visas.

(ii) ENTRY VISA

An entry visa has two functions: first, like a travel-only visa, it tells the carrier that the holder will, most probably, be allowed to enter Australia; second, if the person is allowed to enter Australia on arrival, it operates as an entry permit authorising the holder to stay in Australia. That is, unlike the

READER’S GUIDE—continued

travel-only visa, no entry permit is granted to the holder of an entry visa at time of entry.

An entry visa is valid for a certain period within which it must be used for travel to Australia (its “travel validity”—shown on the visa label). It may authorise one or more entries into Australia (number shown on the visa label), and authorises a period of stay in Australia (also shown on the visa label) after each entry. This period of stay may be indefinite or for a limited period.

Entry visas are granted outside Australia, but not in Australia. A person who is in Australia, and holds an entry visa and wishes to leave Australia and return, can do so without obtaining another visa if the return to Australia is within the period of travel validity of the entry visa.

If the return to Australia will take place after the travel validity period of the entry visa held has expired, then the holder must obtain a visa to return to Australia even if the entry visa held authorises indefinite stay in Australia. (See Section 6.2 below.)

5.1.9 Whether a successful applicant is granted the visa in the form of a travel-only visa or an entry visa is a reflection of Departmental systems and legal technicalities as at November 1992. Legislation is to be introduced to provide for the deletion of the travel-only form of visa, and of entry permits. That is, only entry visas will be issued to applicants wishing to travel to, to enter and to remain in Australia. This system is expected to come into operation towards the end of 1993.

5.1.10 There is no particular advantage or disadvantage to the holder in the form in which the visa is granted. The decisions concerning visa validity and number of journeys and period of stay taken by the officer granting the visa are not affected by the form in which the visa will be issued. Both forms are capable of expressing those decisions.

5.2 ENTRY PERMITS

5.2.1 Unlike a visa, an entry permit can only be granted to a person who is physically present in Australia (section 46 of the Migration Act); i.e., an entry permit cannot be granted to a person outside Australia. Nor can an entry permit be granted to a person who has been deported, and still owes the Commonwealth money as a result of the costs to the Commonwealth of deporting that person (section 45 of the Migration Act).

READER’S GUIDE—continued

Furthermore, an entry permit can usually only be granted to a person who holds a visa (section 43 of the Migration Act).

5.2.2 An entry permit gives permission to enter or remain in Australia either

• for an indefinite period in the case of a permanent entry permit; or

• for a limited period in the case of a temporary entry permit.

5.2.3 An entry permit is granted in two ways:

• at the Entry Control Point to a person who presents a travel-only visa; or

• after entry to a person seeking either a further period of stay on a temporary basis (see 6.3 below) or permanent residence in Australia (see 6.1 below).

5.2.4 An entry permit, regardless of the period of stay it authorises, automatically stops being in force when the holder leaves Australia (see section 49 of the Migration Act). It does not give any right to re-enter Australia once the holder has left.

5.2.5 Like visas, the evidence that an entry permit has been granted is usually shown in the applicant’s passport by a label. This label states the period of stay authorised.

5.3 CONDITIONS IMPOSED ON VISAS AND ENTRY PERMITS

5.3.1 Under subparagraph 23 (1) (a) (i), subsection 23 (4), subparagraph 33 (1) (a) (i) and subsection 33 (4) of the Migration Act, the Minister may impose conditions on a visa or an entry permit. These conditions are set out in Schedule 9.

5.3.2 There are two basic types of condition—mandatory and discretionary.

• A mandatory condition is imposed by law on the visa or entry permit at the time of grant.

READER’S GUIDE—continued

• A discretionary condition may be imposed at the discretion of the officer granting the visa or entry permit.

Any mandatory conditions to be imposed on a visa or entry permit are specified in the relevant Parts of Schedule 2 or Schedule 3 for that visa or entry permit.

5.3.3 A mandatory or a discretionary condition will also be terminating if it is listed as such in Part 1 of Schedule 9. A terminating condition, if breached, terminates the visa or entry permit. The termination occurs if an officer of the Department determines that the condition has been breached, and gives the holder a notice of that determination.

5.3.4 Termination is not cancellation of the visa or entry permit, nor does it mean that the visa or entry permit stops being in force. When termination occurs the visa or entry permit simply ceases, as a matter of law, to have effect. The holder then becomes an illegal entrant and should leave Australia immediately.

6: HOW THE REGULATORY SCHEME WORKS IN CERTAIN SITUATIONS

6.1 APPLYING IN AUSTRALIA FOR PERMANENT RESIDENCE

6.1.1 A person who is in Australia on a temporary basis (or who is an illegal entrant) may be able to be granted a permanent entry permit in Australia to allow them to remain in Australia as a permanent resident.

6.1.2 The ways for obtaining a permanent entry permit are set out in 6.1.3 below. Before the permanent entry permit can be granted, the applicant must be able to satisfy section 47 of the Migration Act which reads:

47. (1) A permanent entry permit must not be granted to a non-citizen after entry into Australia unless the non-citizen is the holder of a valid temporary entry permit.

(2) In this section:

“valid temporary entry permit” does not include;

(a) a temporary entry permit granted subject to a condition set out in paragraph 33 (4) (a) or (b); or

READER’S GUIDE—continued

(b) an entry visa granted subject to a condition set out in paragraph 23 (4) (a) or (b).

[NOTE: For the conditions referred to in paragraphs (2) (a) and (b) see paragraphs 23 (4) (a) and (b), and 33 (4) (a) and. (b) in the Migration Act.]

6.1.3 A person in Australia may obtain permanent residence as follows:

• if the person holds a provisional Group (2.7) visa or entry permit:

by satisfying any requirements which have to be met in Australia and then applying for a confirmatory entry permit (Class 808— Group 1.2); or in the case of a person who holds a prospective marriage visa or entry permit (Class 300—Group 2.7), by applying for a spouse (after entry) entry permit (Class 806— Group 1.2).

• if the person is in a spouse or de facto relationship with an Australian citizen or permanent resident:

by applying for a Class 820 entry permit (Group 2.5)—the extended eligibility (spouse) entry permit—and a Class 801 entry permit (Group 1.2). These are applied for on the same form (887).

An application for these entry permits is also an application for a processing (residence) entry permit—Class 828 in Group 2.7—which, if granted, will enable the applicant to remain lawfully in Australia until their application for the Class 820 entry permit is decided. The application for the Class 828 is also covered by the applications for the Class 801 and Class 820 on form 887.

• if the person is in a relationship of interdependency with an Australian citizen or permanent resident:

by applying for a Class 826 entry permit (Group 2.5)—the extended eligibility (interdependency) entry permit—and a Class 814 (Group 1.2)—the interdependency (permanent) entry permit. These are applied for on the same form 887.

READER’S GUIDE—continued

An application for these entry permits is also an application for a processing (residence) entry permit—Class 828 in Group 2.7—which, if granted, will enable the applicant to remain lawfully in Australia until his or her application for the Class 826 entry permit is decided. The application for the Class 828 is also covered by the applications for the Class 814 and Class 826 on form 887.

• if a person is not eligible on any of the above grounds:

by applying, if eligible, for the grant of some other permanent entry permit in Group 1.2.

The person should apply for that Class of entry permit in Group 1.2 using form 887. That application is also an application for a processing (residence) entry permit (Group 2.8) and is covered by form 887.

NOTES: (1) Because the grant of permanent residence in Australia takes the form of grant of an entry permit, the criteria for the grant of permanent residence are found in the section of the relevant parts in Schedules 2 and 3 under “entry permit after entry”, namely xxx.7 (where xxx represents the visa or entry permit Class number).

(2) A person who is in Australia as a permanent resident, is not an Australian citizen, and wishes to depart and return to Australia, must have a visa to re-enter. A permanent entry permit, or an entry visa the travel validity of which has expired, does not provide any authority to re-enter Australia. See 6.2 below for a general summary of the procedures and criteria governing the grant of such a visa.

6.2 NON-CITIZENS LEAVING AND RETURNING TO AUSTRALIA

6.2.1 Under section 49 of the Migration Act 1958, an entry permit stops being in force when the holder leaves Australia, and has no further force regardless of whether it was a permanent or temporary entry permit. Once the holder of an entry permit has left Australia, the entry permit provides no authority to re-enter Australia.

6.2.2 Under section 17 of the Migration Act the holder of an entry visa that is in force may enter Australia. (As noted earlier, a travel-only visa does not provide any authority to enter Australia.)

READER’S GUIDE—continued

6.2.3 Accordingly a person in Australia who wishes to leave Australia and then return and who holds either:

• an entry permit; or

• an entry visa the travel validity of which has already ceased to be in force or which will cease to be in force before the holder’s intended return to Australia,

should apply for a further visa before leaving Australia so that they may return to Australia. (Provision does exist, in certain specified circumstances, for the grant overseas of visas to re-enter Australia. It is, however, far preferable and easier to apply for re-entry before leaving.)

6.2.4 At the time they apply for this visa to return to Australia, the applicant’s entry permit or entry visa must also be one which authorises them to remain in Australia after the date on which they intend to return to Australia. If it does not do this they will first have to apply for and be granted an entry permit which would authorise that period of stay and then apply for the visa to return.

6.2.5 To summarise:

• If a person holds an entry visa for which both the period of stay authorised, and travel validity, extend to after the intended date of return to Australia—no other visa is required.

• If a person holds an entry visa whose travel validity will not cover their intended date of return to Australia, they should apply for a visa to return. They must also apply for an entry permit if the period of stay authorised by the entry visa they hold will end before the date of intended return to Australia.

• If a person holds an entry permit—they should apply for a visa to return to Australia. They should also apply first for a further entry permit if the current entry permit they hold will stop being in force before the date of intended return to Australia.

6.2.6 The visa to be applied for depends on whether the entry permit or entry visa held is a temporary or permanent one.

READER’S GUIDE—continued

6.2.7 If the entry visa or entry permit is a permanent one the holder must apply for a visa in the Resident Return Group (1.4 in Schedule 1). The specific visa granted will depend on the applicant’s circumstances.

6.2.8 If the entry visa or entry permit is a temporary one the holder must apply for a visa of the same Class as the entry visa or entry permit held. The criteria for the grant of a visa for the purpose of returning to Australia are set out in the Part of Schedule 2 for the Class of visa in question and will be found in section xxx.4 of each part—”visa after entry” (where xxx represents the Class number of the visa in question).

6.3 EXTENSION OF TEMPORARY STAY IN AUSTRALIA

6.3.1 The Regulations provide that in certain circumstances a person who is in Australia on a temporary basis, e.g., as a temporary resident, a visitor, or a student, may extend their stay on a temporary basis either as the holder of the same Class of entry permit or by changing status and becoming the holder of a different Class of entry permit.

6.3.2 The criteria governing the grant of a temporary entry permit in Australia are to be found in section xxx.7—”permit after entry” (where xxx represents the Class number of the entry permit being sought).

6.3.3 When a person is granted an extension of temporary stay in Australia they are granted an entry permit, not an entry visa. (As noted earlier, entry visas are not granted in Australia.)

6.3.4 Accordingly, a person who is granted a further period of stay in Australia and wishes to leave Australia and return during the currency of that entry permit, should apply for a visa before leaving Australia. See 6.2 above.

6.4 GRANTING OF ENTRY PERMITS IN AUSTRALIA TO ILLEGAL ENTRANTS

6.4.1 A person who is in Australia on a temporary basis and stays longer than the period of stay permitted by the entry permit or entry visa held by them, has illegal entrant status.

6.4.2 The relevant Parts of Schedule 2 and Schedule 3 impose criteria which must be met by a person who has the status of an illegal entrant at the

READER’S GUIDE—continued

time of applying for that Class of entry permit or at the time of decision on the application.

6.4.3 As well, under sections 36 and 37 of the Migration Act, illegal entrants who have had an application for an entry permit rejected are, in broad terms, not able to lodge a further application for an entry permit unless they meet the prescribed criteria set out in regulation 2.10.

––––––––––––––

NUMERICAL INDEX OF CLASSES OF VISAS AND ENTRY PERMITS

NUMERICAL INDEX OF CLASSES OF VISAS AND ENTRY PERMITS—continued

NUMERICAL INDEX OF CLASSES OF VISAS AND ENTRY PERMITS—continued

NUMERICAL INDEX OF CLASSES OF VISAS AND ENTRY PERMITS—continued

––––––––––––

ALPHABETICAL INDEX OF CLASSES OF VISAS AND ENTRY PERMITS

ALPHABETICAL INDEX OF CLASSES OF VISAS AND ENTRY PERMITS—continued

ALPHABETICAL INDEX OF CLASSES OF VISAS AND ENTRY PERMITS—continued

ALPHABETICAL INDEX OF CLASSES OF VISAS AND ENTRY PERMITS—continued

––––––––––––

DEFINED TERMS

This list includes all the terms defined in either section 4 of the Migration Act 1958 or regulation 1.3. Definitions of terms in the Migration Act apply to the Regulations unless the term is specifically redefined in the Regulations. Some terms may be defined in particular provisions for the purposes of that provision or a small group of provisions (e.g., a single Part of the Regulations) only; those items are not included in this list. Note also that there are definitions in the Acts Interpretation Act 1901 which apply both to the Migration Act and the Regulations.

The list refers to the primary definition only; in some cases the primary definition is only a reference to a longer definition elsewhere in the Migration Act or Regulations (e.g., “balance of family test” is defined in regulation 1.3, but the definition in regulation 1.3 is only a reference to a long definition which makses up regulation 1.5).

DEFINED TERMS—continued

DEFINED TERMS—continued

DEFINED TERMS—continued

DEFINED TERMS—continued

DEFINED TERMS—continued

–––––––––––––

TABLE OF PROVISIONS

TABLE OF PROVISIONS—continued

TABLE OF PROVISIONS—continued

TABLE OF PROVISIONS—continued

TABLE OF PROVISIONS—continued

TABLE OF PROVISIONS—continued

TABLE OF PROVISIONS—continued

––––––––––––––

Statutory Rules 1992 No. 3671

–––––––––––––––

Migration (1993) Regulations

I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Migration Act 1958.

Dated 23 November 1992.

BILL HAYDEN

Governor-General

By His Excellency’s Command,

GERRY HAND

Minister of State for Immigration,

Local Government and Ethnic Affairs

––––––––––

PART 1—PRELIMINARY

Division 1—Introductory

Citation

1.1. These Regulations may be cited as the Migration (1993) Regulations.

Commencement

1.2. These Regulations commence on 1 February 1993.

Division 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 4 of the Act has the same meaning the Regulations, in the absence of a contrary intention. An index of all the terms defined either in section 4 or in regulation 1.3 is set out in the list of Defined Terms at the front of the Regulations.]

Interpretation

1.3. In these Regulations, unless the contrary intention appears: “adoption” has the meaning set out in regulation 1.4;

[NOTE: “Adopt” and “adopted” have corresponding meanings: sec Acts Interpretation Act 1901, section 18A.]

“aged dependent relative”, in relation to an Australian citizen or an Australian permanent resident, means a relative who:

(a) has never married, or is widowed, divorced or formally separated; 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; and

(d) is usually resident in Australia;

“aged parent” means a parent who is old enough to be granted an age pension under the Social Security Act 1991;

“AIDAB” means the Australian International Development Assistance Bureau within Foreign Affairs;

“approved appointment” means an appointment that, under subregulation 7.10 (1), is an approved appointment for the purpose of these Regulations;

“approved form” means a form approved by the Minister under section 175 of the Act, and a reference to an approved form by number is a reference to the form so approved and numbered;

“assisted student” means:

(a) a student who has been granted entry to Australia for study or training for the purposes of the Subsidised Overseas Students Program administered by Education; or

(b) a student granted entry to Australia for study or training in Australia under EMS S; or

(c) a student granted entry to Australia for study or training under a scholarship scheme, or a training program, that is approved by AIDAB;

“assurance of support”, in relation to an application for the grant of a visa or an entry permit, means an assurance of support under Part 5; “Australian permanent resident’’ means a non-citizen other than an illegal entrant who, being usually resident in Australia, is:

(a) the holder of:

(i) a permanent entry permit; or

(ii) a visa of any of the following Groups:

(A) Group 1.1 (migrant);

(B) Group 1.3 (permanent resident (refugee and humanitarian));

(C) Group 1.4 (resident return (permanent entry)); or

(iii) a visa granted under the Migration (1989) Regulations that is:

(A) endorsed with a return endorsement; or

(B) equivalent to a visa of a kind stated in subparagraph (ii); or

(b) a person who:

(i) is likely to remain permanently in Australia; and

(ii) is a person, or is included in a class of persons, referred to in paragraph (e) of the definition of “exempt non-citizen” in subsection 4 (1) of the Act; or

(c) a person, other than a person to whom subparagraph (b) (ii) applies, whose continued presence in Australia is not subject to a limitation as to time imposed by law;

“balance of family test” has the meaning set out in regulation 1.5; “business skills points test” means the test set out in Schedule 8; “category A course” means a course of study listed as a category A course in the Commonwealth Register of Institutions and Courses for Overseas Students kept under section 5 of the Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act 1991;

“category A student” means a student who holds a Class 560 (student (category A)) visa or entry permit;

“category B course” means a course of study listed as a category B course in the Commonwealth Register of Institutions and Courses for Overseas Students kept under section 5 of the Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act 1991;

“category B student” means a student who holds a Class 561 (student (category B)) visa or entry permit;

“close relative”, in relation to a person, means:

(a) the spouse of the person; or

(b) a child, adopted child, parent, brother or sister of the person; or

(c) a step-child, adopted step-child, step-parent, step-brother or step-sister of the person;

“Commissioner” means a Commissioner appointed under section 57 of the Act;

“condition” means a condition set out in a clause of Schedule 9, and a reference to a condition by number is a reference to the condition set out in the clause so numbered in that Schedule;

“CTC” means a Central Committee within the meaning of Part II, III, IV, V or VIA of the Tradesmen’s Rights Regulation Act 1946;

“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;

“declared body” means a declared body for the purposes of regulation 1.18;

“de facto spouse” has the meaning set out in regulation 1.6;

“dependent”, in relation to a person, means wholly or substantially dependent on another person for financial, psychological or physical support;

“dependent child” means the natural or adopted child of a person (other than a child who is a spouse or engaged to be married), being a child:

(a) who:

(i) has not turned 18; and

(ii) is wholly or substantially in the daily care and control of that person; or

(b) who:

(i) has turned 18; and

(ii) is dependent on that person; or

(c) who is wholly or substantially incapacitated for work because of a physical or mental impairment;

“designated English language course” means an English language course specified by the Minister in a notice published in the Gazette;

“designated industry sector” means a sphere of business activity specified by the Minister in a notice published in the Gazette;

“Education” means the Department of Employment, Education and Training;

“Education Minister” means the Minister of State for Employment, Education and Training;

“EMSS” means Equity and Merit Scholarship Scheme;

“Entry Control Point” means a place that is:

(a) a place approved under regulation 1.19 as an entry control point; or

(b) a port;

[NOTE: Under the Act, “port” includes an airport.]

“entry permit”, in a reference to a holder of an entry permit of a specified class or group, includes an entry visa of that class or group currently having effect as an entry permit;

“entry visa” has the same meaning as in subsection 17 (5) of the Act;

“Equity and Merit Scholarship Scheme” means the scholarship scheme of that name administered by AIDAB;

“exchange student” means an overseas secondary school student participating in a secondary school student exchange program approved by:

(a) the State or Territory education authority that administers the program; and

(b) the Education Minister;

“Foreign Affairs” means the Department of Foreign Affairs and Trade;

“Foreign Minister” means the Minister of State for Foreign Affairs and Trade;

“formal course”, in relation to the holder of a visa or entry permit granted before 1 February 1991, means:

(a) a course of study at a primary or secondary school approved, or within a class of schools approved, by the Education Minister in writing for the purposes of the definition of “formal course” in subregulation 2 (1) of the Migration (1989) Regulations; or

(b) any course of study approved in writing by the Education Minister as a formal course for the purposes of that definition; or

(c) a course of study at a technical and further education institution, or at a higher education institution, leading to a formal award such as a degree or diploma;

“Gazette Notice” means a notice under regulation 1.16;

“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;

“holder”, in relation to a person holding a visa or entry permit of a particular group or class, has the meaning set out in regulation 1.12;

“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;

“illegal entrant criterion” means a criterion set out in a clause of Schedule 6, and a reference to an illegal entrant criterion by number is a reference to the criterion set out in the clause so numbered in that Schedule;

“Immigration” means the Department of Immigration, Local Government and Ethnic Affairs;

“labour agreement” means:

(a) a formal agreement entered into between the Minister, or the Education Minister, and a person or organisation in Australia under which an employer is authorised to recruit persons (other than the holders of permanent entry permits) to be employed by that employer in Australia; or

(b) a formal agreement entered into between the Minister and a sporting organisation under which the sporting organisation is authorised to recruit persons (other than the holders of permanent entry permits) to take part in the sporting activities of the sporting organisation, whether as employees or otherwise;

“labour market requirements” has the meaning set out in regulation 1.7;

“marital relationship” includes a de facto relationship;

“member of the family unit” has the meaning set out in regulation 1.8;

“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;

[NOTE: The Migration (1989) Regulations are listed in full in Schedule 12. They are repealed by the present Regulations but continue to apply to certain matters. See regulations 8.1 and 8.2.]

“net employment benefit” has the meaning set out in regulation 1.9;

“nomination” means a nomination in accordance with the relevant approved form;

“non-formal course”, in relation to the holder of a visa or entry permit granted before 1 February 1991, means a course of study or training other than a formal course;

“non-formal course student”, in relation to a visa or entry permit granted before 1 February 1991, means a person granted entry to Australia to attend a full-time non-formal course of study;

“NOOSR” means the National Office of Overseas Skills Recognition within Education;

“occupational trainee” means a person who is in Australia as the holder of a Class 442 (occupational trainee) entry permit;

“Occupations Requiring English list” means the list mentioned in subregulation 1.13 (2);

“orphan relative” has the meaning set out in regulation 1.10;

“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 on board the vessel:

(i) who was on board the vessel when it left a place outside Australia at the commencement of, or during the course of, the voyage; and

(ii) whose journey in the vessel ends in Australia; or

(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;

“parent” includes an adoptive parent and a step-parent;

“passenger card” means a card approved by the Minister for the purpose of facilitating the provision by a person of information relating to the person or to another person, being information required for purposes relating to entry to or departure from Australia;

“permanent entry permit” means:

(a) an entry permit that is of a class specified in Part 1 of Schedule 1; or

(b) an entry permit that otherwise has effect without limitation as to time; or

(c) an entry visa that is operating as an entry permit of a class specified in Part 1 of Schedule 1;

“permanent entry visa” means an entry visa that operates as, or is capable of operating as, a permanent entry permit;

“points system” means:

(a) in relation to an application for a visa—the system of assessment under Subdivision B of Division 2 of Part 2 of the Act; and

(b) in relation to an application for an entry permit—the system of assessment under section 41 of the Act;

“PRC” means the People’s Republic of China;

“prescribed disease” means a disease specified in regulation 7.11;

“prescribed form” means a form set out in Schedule 11, and a reference to a prescribed form by number is a reference to the form so numbered in that Schedule;

“prescribed non-citizen” means:

(a) a person to whom a visa or entry permit was granted before 1 February 1991 who:

(i) was a prescribed non-citizen within the meaning of subsection 47 (7) of the Act as in force during the period from 19 December 1989 to the end of 25 December 1991 at any time during that period; or

(ii) was a prescribed immigrant within the meaning of paragraph 6a (4) (c) of the Act as in force on 1 April 1984; or

(iii) was a prescribed non-citizen within the meaning of paragraph 6A (4) (c) of the Act as in force on 18 December 1989; or

(iv) is an assisted student or a trainee (other than a person who holds a student (formal course) (code number 553) visa or entry permit); or

(v) is the holder of a student (restricted) (code number 556) visa or entry permit; or

(vi) is the holder of a temporary entry permit granted only because the person is a member of the family unit of a person referred to in subparagraph (i), (ii), (iii), (iv) or (v); or

(b) an assisted student, an exchange student, a category B student or an occupational trainee; or

(c) a person who holds a temporary entry permit granted only because of membership of the family unit of a person referred to in paragraph (b); or

(d) the holder of a temporary entry permit who, immediately before the grant of that permit, was:

(i) a person referred to in paragraph (b) of the definition of “exempt non-citizen” in subsection 4 (1) of the Act; or

(ii) a member of the family unit of a person of that kind;

“prescribed physical or mental condition” means a physical or mental condition specified in regulation 7.11;

“prescribed temporary entry permit” means a temporary entry permit:

(a) granted before 19 December 1989; or

(b) applied for before 19 December 1989 and granted under the provisions of the Act continued in force by subsection 6 (4) of the Migration Legislation Amendment Act 1989;

[NOTE: The term “temporary entry permit” is defined in subsection 4 (1) of the Act.]

“primary person”, in relation to a visa or entry permit, means a person whose entitlement to be granted that visa or entry permit is not dependent on:

(a) another applicant meeting the prescribed criteria for the grant of a visa or entry permit of the same class; or

(b) another person holding a visa or entry permit of the same class;

“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;

“public interest criterion” means a criterion set out in a clause 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 Schedule;

“relative”, in relation to a person, means:

(a) in the case of an applicant for a visa or an entry permit as a refugee, a Class 305 (interdependency (temporary)) visa or entry permit, a Class 826 (extended eligibility (interdependency)) visa or entry permit or a Class 814 (interdependency (permanent)) entry permit:

(i) a close relative; or

(ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-relative within the same degree of relationship; or

(iii) a first or second cousin; or

(b) in any other case—a person within a degree of relationship referred to in paragraph (a), other than a first or second cousin;

[NOTE: “Close relative” is defined in this regulation: see above.]

“remaining relative” has the meaning set out in regulation 1.11;

“return endorsement” means a return endorsement under the Act as in force immediately before 18 December 1987;

“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 19;

“secondary person”, in relation to a visa or entry permit, means a person whose entitlement to be granted that visa or entry permit is dependent on:

(a) another applicant meeting the prescribed criteria for the grant of a visa or entry permit of the same class; or

(b) another person holding a visa or entry permit of the same class;

“section 47 temporary entry permit” means an entry permit that is a valid temporary entry permit for the purposes of section 47 of the Act;

[NOTE: Entry permits to which this definition applies are:

(a) temporary entry permits granted before 19 December 1989; and

(b) Group 2.5 (extended eligibility) entry permits; and

(c) Group 2.7 (provisional) entry permits; and

(d) Class 773 (border), and Class 825 (processing), entry permits that are not subject to condition 9203.]

“settled”, in relation to an Australian citizen or an Australian permanent resident, means lawfully resident in Australia for a reasonable period;

“special need relative”, in relation to an Australian citizen usually resident in Australia or an Australian permanent resident usually resident in Australia, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

(a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and

(b) the assistance cannot reasonably be obtained from:

(i) any other relative of the citizen or resident, being a relative who is an Australian citizen or an Australian permanent resident; or

(ii) welfare, hospital, nursing or community services in Australia;

“special re-entry criterion” means a criterion set out in a clause of Schedule 5, and a reference to a special re-entry criterion by number is a reference to the criterion set out in the clause so numbered in that Schedule;

“sponsor”, when used as a noun, in relation to an applicant for a visa or entry permit, means a person who enters into a sponsorship in relation to the application;

[NOTE: “Sponsor” when used as a verb has a corresponding meaning: see Acts Interpretation Act 1901, section 18A.]

“sponsorship”, in relation to an applicant for a visa or an entry permit, means an undertaking of the kind mentioned in subregulation 1.20 (1);

“spouse” means:

(a) a person who has entered into a marriage recognised as valid for the purposes of the Act, if:

(i) the marriage has not been ended by divorce or the death of one of the parties; and

(ii) the parties are not living separately and apart on a permanent basis; or

(b) a de facto spouse;

“subsidised student” means a student enrolled in a course of study in respect of which the student is subsidised under the Subsidised Overseas Student Program administered by Education;

“temporary entry permit” means:

(a) an entry permit of a class specified in Part 2 of Schedule 1; or

(b) an entry visa operating as an entry permit of a class specified in that Part;

“terminating condition” means a condition specified in Part 1 of Schedule 9;

“the Act” means the Migration Act 1958;

“trainee”, in the case of a visa or entry permit granted before 1 February 1991, means a person:

(a) in respect of whom the Education Minister has approved participation in occupational training in Australia; and

(b) who has been granted a visa or an entry permit to enable such participation;

“vocational proficiency in English” has the meaning set out in subregulation 1.13 (1);

“work”, in relation to a visitor visa or a visitor entry permit, means an activity that, in Australia, normally attracts remuneration;

“working age” means:

(a) in the case of a female, under 60 years of age; and

(b) in the case of a male, under 65 years of age; “working age parent” means a parent other than an aged parent.

Adoption

1.4. (1) A person (in this regulation called “the adoptee”) is taken to have been adopted by a person or persons (in this regulation called “the adopter or adopters”) if, before the adoptee attained the age of 18 years, the adopter or adopters assumed a parental role in relation to the adoptee under:

(a) formal adoption arrangements:

(i) made in accordance with; or

(ii) 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 or adopters 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 or adopters; and

(b) the child-parent relationship between the adoptee and the adopter or adopters 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.

Balance of family test

1.5. (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 adopted child of:

(i) the parent; or

(ii) any spouse or former spouse 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 usual country of residence of the parent.

(2) A parent satisfies the balance of family test if:

(a) all the children of the parent are lawfully and permanently resident in Australia; or

(b) the number of children of the parent who are lawfully and permanently resident in Australia is:

(i) greater than, or equal to, the total number of children of the parent who are resident overseas; or

(ii) greater than the greatest number of children of the parent who are resident in any single overseas country.

(3) In applying the balance of family test, no account is to be taken of children of the parent if they are:

(a) children 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) children resident in a country where the children suffer persecution or abuse of human rights and it is not possible to reunite the children and the parent in another country; or

(c) children who are:

(i) resident in a refugee camp operated by the United Nations High Commissioner for Refugees or by the government of Hong Kong; and

(ii) registered by the Commissioner as refugees.

De facto spouse

1.6. (1) For a person to qualify as the de facto spouse of another person, those persons must, at the time the relevant application is made:

(a) be living together as spouses (without being legally married to each other) in a genuine domestic relationship that has continued without substantial interruption for:

(i) a period of at least 6 months; or

(ii) a lesser period specified under subregulation (2); and

(b) not be legally married to each other; and

(c) be of opposite sexes; and

(d) have both reached:

(i) the age of 16 years, if neither of them has an Australian domicile; or

(ii) the age of 18 years, in any other case.

(2) On written application, the Minister may specify that a lesser period than 6 months is to apply under paragraph (1) (a) for the purposes of a particular application, if the Minister is satisfied that:

(a) there are exceptional circumstances affecting the persons to whom the particular application relates; and

(b) there are compelling reasons for specifying that lesser period.

Labour market requirements

1.7. An application for a visa or an entry permit meets labour market requirements if the Minister is satisfied that:

(a) the application is in accordance with a labour agreement; or

(b) in respect of the employment to which the application relates:

(i) no Australian permanent resident is readily available who has suitable qualifications and experience; and

(ii) if appropriate—relevant employer and employee organisations have been consulted.

Member of a family unit

1.8. (1) Subject to subregulation (2), a person is a member of the family unit of another person (in this subregulation called “the family head”) if the person is:

(a) a spouse of the family head, where the relationship is a genuine and continuing relationship and the parties are not legally separated; or

(b) a dependent child of the family head or of a spouse of the family head; or

(c) a dependent child of a dependent child of the family head or of a spouse of the family head; or

(d) a relative of the family head or of a spouse of the family head who:

(i) does not have a surviving spouse or any other relative (other than the family head) able to care for that relative in the relevant country; and

(ii) is usually resident in the family head’s household; and

(iii) is dependent on the family head; or

(e) a relative of the family head or of a spouse of the family head who:

(i) has never married or is widowed, divorced or separated; and

(ii) is usually resident in the family head’s household; and

(iii) is dependent on the family head.

(2) A person is a member of the family unit of an applicant for a student visa, an occupational trainee visa or an entry permit that is equivalent to such a visa, if the person is:

(a) a spouse of the applicant; or

(b) a dependent child of the applicant or of that spouse who is unmarried and has not turned 18; or

(c) a person who has entered into an agreement to marry the applicant if the applicant and that person intend that the marriage shall take place not later than 3 months after the entry of the person to Australia.

Net employment benefit

1.9. If:

(a) an applicant for a visa or an entry permit seeks to enter Australia to undertake an activity individually or in association with a group; and

(b) the Minister is satisfied that the undertaking of the activity would lead to greater employment of Australian citizens or Australian permanent residents (or both) than if a person normally resident in Australia undertook the activity;

the entry of the applicant to Australia is taken to confer a net employment benefit on Australia.

Orphan relative

1.10. (1) A person is an orphan relative of a person who is an Australian citizen or an Australian permanent resident if:

(a) the first-mentioned person:

(i) has not turned 18; and

(ii) is unmarried; and

(iii) is a relative of the second-mentioned person; and

(b) each of the parents of the first-mentioned person is unable to care for him or her by reason of one of the circumstances set out in subregulation (2); and

(c) it is in the best interests of the first-mentioned person if he or she settles with relatives in Australia.

(2) The circumstances referred to in paragraph (1) (b) are the following:

(a) being dead; and

(b) being of unknown whereabouts; and

(c) being for any reason (including being permanently incapacitated) incapable of caring for a child.

Remaining relative

1.11. (1) An applicant for a visa or entry permit is a remaining relative if the applicant has a relative who:

(a) is:

(i) a brother, sister or parent; or

(ii) a step-brother, step-sister or step-parent;

of the applicant; and

(b) is:

(i) an Australian citizen; or

(ii) an Australian permanent resident; and

(c) is usually resident in Australia;

unless the applicant is disqualified under subregulation (2).

(2) An applicant is disqualified if:

(a) the applicant or the spouse (if any) of the applicant:

(i) usually resides in the same country, not being Australia, as an overseas near relative; or

(ii) has had contact with an overseas near relative during a reasonable period preceding the application; or

(b) the applicant and the spouse (if any) of the applicant together have more than 3 overseas near relatives; or

(c) the applicant is a child who:

(i) has not turned 18; and

(ii) has been adopted by an Australian citizen or an Australian permanent resident (in this paragraph called “the adoptive parent”) while overseas;

but, at the time of the application, the adoptive parent has not been residing overseas for a period of at least 12 months.

(3) In this regulation, “overseas near relative” means a person

who is:

(a) a parent, brother, sister or non-dependent child; or

(b) a step-parent, step-brother, step-sister or non-dependent step-child;

of the applicant or of the spouse (if any) of the applicant but is not a relative of a kind referred to in subregulation (1).

Visa and entry permit of a particular group or class

1.12. (1) A reference to the holder of a visa or entry permit of a particular group or class includes (unless the contrary intention appears) a reference to the holder of a visa or entry permit, as the case requires, that:

(a) was:

(i) granted before 19 December 1989; or

(ii) applied for before 19 December 1989 and granted under the provisions of the Act continued in force by subsection 6 (4) of the Migration Legislation Amendment Act 1989; or

(iii) granted in accordance with the Migration (1989) Regulations; and

(b) is substantially the same in nature and effect as a visa or entry permit, as the case requires, of that group or class.

(2) A reference in these Regulations to a visa or entry permit, being a reference that forms part of a reference to:

(a) a visa or entry permit held by a person; or

(b) the holder of a visa or entry permit;

is a reference to a visa or entry permit that is or was, at the material time, valid within the meaning of the Act.

Vocational proficiency in English

1.13. (1) A person is taken to have vocational proficiency in English if the person has the ability to speak English in any situation, and to write English in any context.

(2) The Minister may publish by Gazette Notice a list of occupations requiring vocational proficiency in English.

References to a class of visa or entry permit

1.14. (1) A class of visa or entry permit may be referred to either:

(a) by the word “Class” together with the number of the class and the title of the class, according to the number and title of the class set out in Column 2 of Schedule 1; or

(b) by the word “Class” together with the number of the class as set out in that column.

(2) A reference to a visa or entry permit of a Group of a particular number is a reference to a visa or entry permit, as the case requires, of any Class referred to in the Division of that number in Schedule 1.

(3) A group of visas or entry permits may be referred to either:

(a) by the word “Group” together with the number of the group and the title of the group, according to the number and title of the group set out in Schedule 1; or

(b) by the word “Group” together with the number of the group as set out in that Schedule.

(4) A reference to a group of visas or entry permits includes a reference to every class of visa or entry permit in that group.

Division 3—Administration

Delegation

1.15. (1) The Minister may, by writing signed by the Minister, delegate to a person any of the Minister’s powers under these Regulations.

(2) The Secretary may, by writing signed by the Secretary, delegate to a person any of the Secretary’s powers under these Regulations.

Specification of matters by Gazette Notice

1.16. The Minister may, by notice published in the Gazette, specify matters required by individual provisions of these Regulations to be specified for the purposes of those provisions.

Approved forms

1.17. The Minister may approve forms for:

(a) use in making an application for an entry permit; or

(b) any other purpose authorised or required by these Regulations.

Declared bodies

1.18. (1) The Minister may, by notice in writing signed by the Minister, declare an organisation or group of persons to be a declared body for the purposes of this regulation.

(2) A notice under this regulation is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(3) On 1 March 1993:

(a) this regulation; and

(b) any notice made under it; and

(c) any notice made under regulation 3B of the Migration (1989) Regulations and continued in force by regulation 8.2; and

(d) subclause 4002 (2) of Schedule 4;

cease to have effect.

Entry Control Points

1.19. The Minister may approve in writing a place, other than a port, as an Entry Control Point.

[NOTE: Under the Act, “port” includes an airport.]

Division 4—Sponsorship

Sponsorship

1.20. (1) The obligations of a sponsor in relation to an application are the following:

(a) if the application is for a visa intended to have effect as, or to lead to the grant of, a permanent entry permit, or for a permanent entry permit—the sponsor undertakes to assist the applicant, to the extent necessary, financially and in respect of accommodation, during the period of 12 months immediately following the applicant’s entry into Australia under that permit;

(b) if the application is for a temporary entry visa or a temporary entry permit—the sponsor accepts responsibility for:

(i) all financial obligations 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.

(2) A sponsor must enter into a sponsorship in accordance with the appropriate approved form not later than a reasonable period after the approval of the sponsor by the Minister.

PART 2—VISAS AND ENTRY PERMITS

Division 1—Classes, criteria, conditions etc.

Classes and groups of visas and entry permits that may be granted

2.1. For the purposes of subsections 23 (2) and 33 (2) of the Act, the classes of visas and entry permits that may be granted are as set out in Schedule 1.

Criteria, conditions and other provisions applicable to individual classes of visas and entry permits

2.2. (1) For the purposes of subsection 23 (2) of the Act, the prescribed criteria for the grant to a person of a visa of a particular class are:

(a) the criteria applicable to visas set out in this Part; and

(b) in the case of a visa granted to a primary person—the criteria set out in the relevant Part of Schedule 2; and

(c) in the case of a visa granted to a secondary person—the criteria set out in the relevant Part of Schedule 3.

(2) For the purposes of subsection 33 (2) of the Act, the prescribed criteria for the grant to a person of an entry permit of a particular class are:

(a) the criteria applicable to entry permits set out in this Part; and

(b) in the case of an entry permit granted to a primary person— the criteria set out in the relevant Part of Schedule 2; and

(c) in the case of an entry permit granted to a secondary person— the criteria set out in the relevant Part of Schedule 3.

(3) For the purposes of subparagraph 23 (1) (a) (i) of the Act, the conditions that may be imposed on a visa of a particular class, in addition to:

(a) those mentioned in subsection 23 (4) of the Act; and

(b) the conditions set out in Schedule 9.

(4) For the purposes of subparagraph 23 (1) (a) (ii) of the Act, the limitation as to time that the holder of a visa is authorised to remain in Australia (if any) is the limit specified in the relevant Part of:

(a) Schedule 2; and

(b) if a visa of that class may be granted to a secondary person— Schedule 3.

(5) For the purposes of paragraph 33 (1) (a) of the Act, the conditions that may be imposed on an entry permit of a particular class, in addition to:

(a) those mentioned in subsection 33 (4) of the Act;

(b) the conditions set out in Schedule 9.

(6) For the purposes of subparagraph 23 (1) (a) (ii) of the Act, the limitation as to time that the holder of a visa is authorised to remain in Australia (if any) is the limit specified in the relevant Part of:

(a) Schedule 2; and

(b) if a visa of that class may be granted to a secondary person— Schedule 3.

(7) For a visa or entry permit of a particular class, the following are also set out in the relevant Part of Scheduled or Schedule 3, as the case requires:

(a) if application is required—the manner in which applications are to be made;

(b) the fees (if any) payable on application.

Section 20 of the Act—restriction on grant of visas and entry permits

2.3. (1) This regulation applies to an applicant for a visa or entry permit who is a person to whom subsection 20 (1) or (2) of the Act applies or would apply if the person had entered Australia.

(2) It is a criterion for the grant of a visa or entry permit to an applicant to whom this regulation applies that, in the Minister’s opinion, it is reasonable to excuse the fact that subsection 20 (1) or (2) of the Act applies to the applicant.

(3) In forming an opinion for the purposes of subregulation (2), the Minister must have regard to the following matters:

(a) the circumstances of the occurrence of the event or conduct by reason of which the applicant became a person to whom that subsection applies or would apply if the person had entered Australia; and

(b) the subsequent behaviour of the applicant in relation to the matter; and

(c) the time that has elapsed since the occurrence of the event or conduct by reason of which the applicant became a person to whom that subsection applies or would apply if the person had entered Australia; and

(d) the circumstances of the applicant at the time of the application; and

(e) whether the application is for a temporary visa or entry permit or for a permanent visa or entry permit; and

(f) any likelihood that the granting of the visa or entry permit would involve a risk of activities disruptive to, or violence threatening harm to, the Australian community.

(4) In the statement endorsed on a visa or entry permit in accordance with subsection 20 (4) or (5) of the Act, the reason that the person granting the visa or entry permit has for recognising the applicant as a person to whom subsection 20 (1) or (2) of the Act applies may incorporate either a reference to the relevant provision of section 20 or the corresponding code, as follows:

(5) A reference in subregulation (4) to a statement includes a reference to a statement recorded in a notified data base.

Division 2—Prescribed qualifications: application of points system

Prescribed qualifications and prescribed number of points

2.4. (1) For the purposes of subsections 30 (1) and 41 (2) of the Act:

(a) each qualification specified in column 2 of an item in Part 1, 2, 4, 5, 6, or 7 of Schedule 7 is prescribed as a qualification in relation to an applicant for a Class 105 (concessional family) visa; and

(b) each qualification specified in column 2 of an item in Part 1, 2, or 3 of Schedule 7 is prescribed as a qualification in relation to an applicant for a Class 126 (independent entrant) visa.

(2) In relation to a prescribed qualification specified in Column 2 of an item in Schedule 7, the following number of points is prescribed, namely, the number of points specified in Column 3 of that item.

(3) For the purposes of subsection 30 (1) or 41 (2) of the Act, the Minister:

(a) is not to give an applicant a prescribed number of points for more than one prescribed qualification in each Part in Schedule 7; and

(b) is to give the applicant only the number of points applicable to the prescribed qualification that meets the applicant’s circumstances and for which the prescribed number of points is the highest for any such prescribed qualification; and

(c) is to deduct 10 points from the total number of points otherwise obtained by an applicant if the usual occupation of the applicant is that of medical practitioner (including specialist medical practitioner).

(4) In Part 1 of Schedule 7:

“professional-equivalent occupation” means an occupation specified by Gazette Notice as a professional-equivalent occupation;

“priority occupation” means an occupation specified by Gazette Notice as a priority occupation;

“relevant Australian authority” means:

(a) NOOSR, or any body authorised in writing by NOOSR to assess educational qualifications or work experience on behalf of NOOSR; or

(b) a CTC; or

(c) the Department of Industrial Relations; or

(d) if the circumstances of a case preclude an authority referred to in paragraph (a), (b) or (c) from making an assessment, the Minister,

“technical-equivalent occupation” means an occupation specified by Gazette Notice as a technical-equivalent occupation;

“usual occupation” means an occupation that the applicant has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the relevant application for a visa or entry permit.

(5) In Part 4 of Schedule 7:

(a) a reference to adoption is a reference to an adoption occurring before the person adopted turned 18; and

(b) a reference to a step-relationship is a reference to such a relationship where the applicant and the relevant step-relative of the applicant have been members of the same family unit for a reasonable period and are members of the same family unit at the time of the relevant application.

Qualification—eligibility of spouse

2.5. If an applicant to whom regulation 2.4 applies does not receive the necessary score under that regulation, the spouse of the applicant is taken to have received the necessary score if:

(a) the spouse is an applicant, as a secondary person, for a visa of the same class; and

(b) the sum of:

(i) the points which the spouse could receive under Parts 1 and 2 of Schedule 7; and

(ii) the points which the first-mentioned applicant receives under Parts 4, 5, 6 and 7 of Schedule 7;

is equal to, or exceeds, the necessary score.

Reconsideration of application that is put aside

2.6. (1) If:

(a) the Minister puts aside an application for a visa in accordance with subsection 31 (3) or (5) of the Act; and

(b) the Minister subsequently gives a notice under subsection 32 (2) of the Act specifying the pass mark in relation to that class of visas;

the Minister must, on giving the notice, reconsider the application.

(2) The reconsideration is to involve comparing the applicant’s score with the pass mark specified in the notice but is not to involve reassessing that score.

(3) In spite of subregulation (1), the Minister is not to reconsider an application more than 3 times.

Division 3—Miscellaneous

Application for visa or entry permit in relation to person in custody

2.7. (1) If an application for a visa or an entry permit is to be made in Australia in respect of a person in custody under the Act, the application must be lodged at an office of Immigration by leaving the application at that office with a person employed at that office and authorised to receive it.

(2) The person lodging an application in accordance with subregulation (1) must, on the day on which the application is lodged, inform in writing an officer of Immigration appointed by the Secretary to be a custody review officer in the relevant State or Territory:

(a) of the nature of the application and the name of the person in respect of whom it was lodged; and

(b) of the office at which, and the day on which, it was lodged; and

(c) of the name of the officer with whom it was lodged.

(3) For the purposes of subregulation (1), an office occupied by an officer of Immigration at an airport or a detention centre, or in an area nominated by the Minister under section 54A of the Act, is an office of Immigration.

Notice of certain decisions refusing or terminating a visa or entry permit

2.8. (1) Subject to subregulation (5), if the Minister:

(a) decides to refuse an application for a visa or entry permit; or

(b) determines that the holder of a visa or entry permit has failed to comply with a terminating condition subject to which the visa or entry permit was granted;

the Minister must give, in accordance with subregulation (2):

(c) in the case of a decision of a kind mentioned in paragraph (a)—notice of the decision to the applicant for the visa or entry permit; or

(d) in the case of a determination of a kind mentioned in paragraph (b)—notice of the determination to the holder of the visa or entry permit.

(2) A notice to a person (“the person”) must be given in 1 of the following ways:

(a) by posting the notice to the person at the person’s latest address for service provided in the application for the relevant visa or entry permit; or

(b) by posting the notice to the person at the person’s residential address provided in that application; or

(c) by giving the notice:

(i) to the person personally; or

(ii) to another person duly authorised to receive documents on behalf of the person; or

(d) by leaving the notice at the last known place of residence of the person with another person who is apparently:

(i) an occupant of that place; and

(ii) not less than 16 years of age.

(3) Where a notice is given in accordance with paragraph (2) (a) or (b), the provisions of paragraph 7.6 (2) (a) or (b), as the case requires, apply to service of the notice.

(4) Where a notice is given in accordance with paragraph (2) (c) or (d), the provisions of paragraph 7.6 (1) (a), (b) or (c), as the case requires, apply to service of the notice.

(5) Paragraph (1) (a) does not apply if the applicant for the visa or entry permit is refused the visa or entry permit on arrival in Australia and before entry to Australia.

“Prescribed vessel” and “prescribed crew-member”—subsection 4 (1) (definition of “exempt non-citizen”)

2.9. For the purposes of paragraph (d) of the definition of “exempt non-citizen” in subsection 4 (1) of the Act:

(a) a vessel is a prescribed vessel unless the vessel:

(i) calls at proclaimed ports; and:

(ii) is:

(A) employed as a cargo vessel; or

(B) engaged in the carriage of passengers for reward; or

(iii) is a vessel owned or operated by a foreign government and employed solely or principally for purposes of scientific research; and

(b) every member of the crew of a vessel is a prescribed crew member other than a crew member who has genuine employment:

(i) in the operation of the vessel; or

(ii) in the case of a vessel of a kind referred to in subparagraph (a) (iii), in scientific research conducted on or from the vessel.

Prescribed change in circumstances (paragraphs 36 (1) (a) and 37 (2) (a) of Act)

2.10. For the purposes of paragraphs 36 (1) (a) and 37 (2) (a) of the Act, each of the following changes in circumstances is prescribed in relation to a person to whom section 36 or 37 of the Act applies:

(a) the applicant has become a dependent child of an Australian citizen or an Australian permanent resident;

(b) in the case of a person who is the parent of an Australian citizen or an Australian permanent resident—the person has become an aged parent who satisfies the balance of family test;

(c) the person has become:

(i) an aged dependent relative; or

(ii) an orphan relative; or

(iii) a remaining relative; or

(iv) a special need relative;

(d) the person has been granted refugee status by the Minister;

(e) the person satisfies the criteria for the grant of a Class 437 (PRC (temporary)) entry permit;

(f) the person:

(i) was a prohibited non-citizen on or before 18 December 1989; and

(ii) was in Australia on, and has not left Australia since, 18 December 1989; and

(iii) has not previously applied for a Class 440 (December 1989 (temporary)) entry permit or a Class 812 (December 1989 (permanent)) entry permit; and

(iv) lodges an application for a Class 440 entry permit or a Class 812 entry permit and pays the fee in respect of the entry permit;

(g) the person satisfies the criteria specified in subclause 806.721 (6) in Part 806 of Schedule 2;

(h) the applicant satisfies the criteria for the grant of a Class 435 (Sri Lankan (temporary)) entry permit;

(j) the person:

(i) is a citizen of PRC; and

(ii) entered Australia on or before 20 June 1989; and

(iii) was in Australia on that day; and

(iv) satisfies the criteria for the grant of:

(A) a Class 823 (extended eligibility (economic)) entry permit; or

(B) a Class 805 (skilled occupation) entry permit;

(k) the person has become, and remains, an illegal entrant because of subsection 14 (2) of the Act;

(l) the applicant satisfies the criteria for the grant of a Class 443 (citizens of the former Socialist Federal Republic of Yugoslavia (temporary)) entry permit.

Unprocessed persons—prescribed period (paragraph 54D (b) of the Act)

2.11. (1) For the purposes of paragraph 54D (b) of the Act, the prescribed period, in relation to an unprocessed person, is the period that begins on the day on which a notice is given to the person and ends at the end of the seventh working day after that day.

(2) In this regulation:

“notice” means a notice telling the person to whom it is given what the prescribed period is for that person under paragraph 54d (b) of the Act.

[NOTE: 1. In working out the prescribed period, the day on which the notice is given is to be disregarded—see Acts Interpretation Act 1901, s. 36 (1).

2. “Working day” is defined in the Act—sees. 4(1).]

Division 4—Visas

Entitlement to be granted a visa

2.12. Subject to Division 2 of Part 2 of the Act and to this Division, an applicant is entitled to be granted a visa of a particular class if the person satisfies the prescribed criteria in relation to that class of visa.

Application for visa outside Australia

2.13. An application for a visa may be lodged outside Australia at any diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia:

(a) by posting the application to that office; or

(b) by leaving it at that office in a box designated for the lodgment of visa applications; or

(c) by leaving it at that office with a person employed at that office and authorised to receive visa applications.

Application for visa within Australia

2.14. If application for a visa of a particular class may, according to the relevant Part of Schedule 2 or 3, be made in Australia, an application for a visa of that class may, subject to regulation 2.7, be lodged at any office of Immigration in the State or Territory in which the applicant resides:

(a) by posting the application to that office; or

(b) by leaving it at that office in a box designated for the lodgment of visa applications; or

(c) by leaving it at that office with a person employed at that office and authorised to receive visa applications.

[NOTE: Regulation 2.7 imposes certain special requirements in the case of an applicant who is in custody under the Act.]

Special provision for grant outside Australia of certain visas to former holders of corresponding temporary entry permits

2.15. (1) If:

(a) a person makes an application outside Australia for the grant of a temporary visa of a class to which this regulation applies; and

(b) pays the prescribed fee (if any) in respect of the application; and

(c) the person held an entry permit of that class immediately before last departing from Australia; and

(d) the day by which, according to the application, the person intends to return to Australia is before the end of the period for which that entry permit was granted; and

(e) the Minister has no reason to believe that the person does not continue to satisfy the criteria prescribed for the grant of the visa before entry; and

(f) the Minister is satisfied that it would be reasonable to grant the visa;

the person is taken to satisfy the prescribed criteria for the grant of the visa.

(2) This regulation applies to all temporary visas except:

(a) Group 2.5 (extended eligibility) visas; and

(b) visas of the following classes:

(i) Class 417 (working holiday);

(ii) Class 437 (PRC (temporary));

(iii) Class 828 (processing (temporary));

(iv) Class 829 (processing (residence)).

Application for certain classes of visas to have effect as application for visas of certain other classes

2.16. (1) An application for:

(a) a permanent entry visa; or

(b) a visa bearing an endorsement that the holder is entitled to be granted a permanent entry permit on arrival in Australia;

also has effect as an application for a Group 2.7 (provisional) visa.

(2) An application for a visa of any class in Group 1.1 (migrant) also has effect, subject to the payment of the difference (if any) in applicable fees, as an application for:

(a) visa of any other class in Group 1.1; and

(b) a visa of the following classes:

(i) Class 154 (resident return (A));

(ii) Class 159 (resident return (F));

(iii) Class 300 (prospective marriage);

(iv) Class 301 (Australian requirement);

(v) Class 302 (emergency (permanent entry)).

(3) An application for a visa of either of the following classes:

(a) Class 820 (extended eligibility (spouse));

(b) Class 826 (extended eligibility (interdependency));

also has effect, subject to the payment of the difference (if any) in applicable fees, as an application for a visa of the other class.

(4) An application for a visa of any class in Group 1.3 (refugee and humanitarian) also has effect, subject to the payment of the difference (if any) in applicable fees, as an application for a visa of any other class in Group 1.3.

(5) An application for a visa of any class in Group 2.1 (temporary resident) also has effect, subject to the payment of the difference (if any) in applicable fees, as an application for a visa of any other class in Group 2.1.

(6) An application for a visa of any class in Group 2.2 (student) also has effect, subject to the payment of the difference (if any) in applicable fees, as an application for a visa of any other class in Group 2.2.

(7) An application for a visa of any class in Group 2.3 (visitor) also has effect, subject to the payment of the difference (if any) in applicable fees, as an application for a visa of any other class in Group 2.3.

(8) An application for a visa of any class in Group 2.4 (visitor (short stay)) also has effect, subject to the payment of the difference (if any) in applicable fees, as an application for a visa of any other class in Group 2.4.

(9) An application for a visa of any class in Group 2.6 (refugee and humanitarian (temporary entry)) other than Class 784 (domestic protection (temporary)) also has effect, subject to the payment of the difference (if any) in applicable fees, as an application for a visa of any other class in Group 2.6 other than Class 784 (domestic protection (temporary)).

Application for visas on arrival

2.17. In spite of any other provision of these Regulations, a person who has arrived in, but has not entered, Australia may not apply for a visa of a class other than the following classes:

(a) Class 158 (resident return (E));

(b) Class 773 (border);

(c) Class 784 (domestic protection (temporary)).

Grant of visa

2.18. (1) A visa granted by the Minister under section 24 of the Act:

(a) is to be in a form approved by the Minister; and

(b) is to be expressed to permit the holder to travel to Australia:

(i) on a single occasion; or

(ii) on not more than a specified number of occasions; or

(iii) on any number of occasions;

as specified in the relevant Part of Schedule 2 or 3; and

(c) is to be expressed to continue in force:

(i) without limit as to time; or

(ii) until the expiry of the day on which, or period at the end of which, the visa is expressed to expire.

(2) If the visa is subject to a condition, the visa may set out the condition:

(a) in a manner; or

(b) in accordance with a form of notation;

authorised by the Minister in writing for the relevant class of visa.

Prescribed notification—paragraph 24 (3) (a) of Act

2.19. If:

(a) the Minister has given to an applicant for a visa written notice under paragraph 24 (3) (a) of the Act that the Minister proposes to grant the visa; and

(b) there has been a material change in the circumstances of the applicant since the application was made; and

(c) the applicant has not already notified the Minister in writing of the material change;

the applicant must notify the Minister in writing of that material change not later than 30 days after receiving the notice.

Exempt visas—prescribed classes (subsection 24 (10))

2.20. For the purposes of the definition of exempt visas in subsection 24 (10) of the Act, the prescribed classes of visas are all classes of visas except the following:

(a) Class 105 (concessional family); and

(b) Class 126 (independent entrant).

Recording and evidencing of visas

2.21. (1) If the Minister grants a visa to a person, the issue of the visa is to be recorded as follows:

(a) if the visa is issued manually:

(i) by entering in the visa register kept at the office maintained by or on behalf of Immigration at which the visa is issued, the full name of the person to whom the visa is granted and the day on which it is issued; and

(ii) by fixing the visa in the passport or other travel document of the person to whom the visa is granted; or

(b) if the visa is issued by a computerised system:

(i) by entering in the computerised record at that office the full name of the person to whom the visa is granted and the day on which it is issued; and

(ii) by fixing the visa in the passport or other travel document of the person to whom the visa is granted.

(2) Any clerical error in or omission from:

(a) the visa register, or

(b) the computerised record referred to in subparagraph (1) (b) (i);

may be corrected by an authorised officer.

(3) An entry made, or corrected, in accordance with this regulation in relation to the issue of a visa is evidence that the visa was issued to the person and on the date specified in the entry.

Effect and operation of visas

2.22. (1) A visa granted by the Minister comes into force:

(a) if a day of effect is specified in the visa—on that day; or

(b) if no day of effect is specified—on the day on which the visa is granted.

(2) A visa ceases to be in force:

(a) on the expiration of the period in respect of which the visa was granted; or

(b) if the visa specifies an event the occurrence of which is to result in the invalidation of the visa—on the occurrence of that event; or