Migration Amendment Regulation 2012 (No. 2)1

Select Legislative Instrument 2012 No. 82

I, QUENTIN BRYCE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation under the Migration Act 1958.

Dated 24 May 2012

QUENTIN BRYCE

Governor-General

By Her Excellency’s Command

CHRIS BOWEN

Minister for Immigration and Citizenship

Contents

 1 Name of regulation 

 2 Commencement 

 3 Amendment of Migration Regulations 1994—Schedule 1 

 4 Amendment of Migration Regulations 1994—Schedule 2 

Schedule 1 Amendments commencing on 1 July 2012 

Schedule 2 Amendments commencing on 1 July 2013 

1 Name of regulation

  This regulation is the Migration Amendment Regulation 2012 (No. 2).

2 Commencement

  This regulation commences as follows:

 (a) on 1 July 2012—sections 1 to 3 and Schedule 1;

 (b) on 1 July 2013—section 4 and Schedule 2.

3 Amendment of Migration Regulations 1994—Schedule 1

  Schedule 1 amends the Migration Regulations 1994.

4 Amendment of Migration Regulations 1994—Schedule 2

  Schedule 2 amends the Migration Regulations 1994.

Schedule 1 Amendments commencing on 1 July 2012

(section 3)

[1] Regulation 1.03, after definition of bogus document

insert

business innovation and investment points test means the test set out in Schedule 7A.

Note   This test relates to Business Skills (Provisional) (Class EB) visas.

[2] Regulation 1.03, definition of designated area, including the note

substitute

designated area means an area specified as a designated area by the Minister in an instrument in writing for this definition.

[3] Regulation 1.03, definition of designated security

omit

[4] Regulation 1.03, definition of General Skilled Migration visa

substitute

General Skilled Migration visa means a Subclass 175, 176, 189, 190, 475, 476, 485, 487, 489, 885, 886 or 887 visa, granted at any time.

[5] Regulation 1.07

substitute

1.07 References to subclasses of visas

 (1) A reference to a visa of a particular subclass (for example, ‘a visa of Subclass 414’) is a reference to a visa granted on satisfaction of the criteria for the grant of the visa, or the grant of the visa in a stream, set out in the Part of Schedule 2 that bears the number of the subclass.

Note   The criteria for the grant of the visa may include criteria described as a ‘stream’: see subregulation 2.03 (1A).

 (2) A reference to an applicant for a visa of a particular subclass is a reference to an applicant who applies for a visa of a class that may, under Schedule 1, be granted on satisfaction of the criteria for the grant of the visa, or the grant of the visa in a stream, set out in the Part of Schedule 2 that bears the number of the subclass.

Note   The criteria for the grant of the visa may include criteria described as a ‘stream’: see subregulation 2.03 (1A).

[6] Subregulation 1.11A (1)

omit

Parts 132, 160, 161, 162, 163, 164, 165, 845, 846, 890, 891, 892 and 893 of Schedule 2,

insert

Parts 132, 188, 888, 890, 891, 892 and 893 of Schedule 2,

[7] After subregulation 1.12 (5)

insert

 (5A) In addition to subregulation (1), a person is a member of the family unit of an applicant for a Business Skills (Permanent) (Class EC) visa if, at the time of application, the person:

 (a) holds a visa of a subclass included in Business Skills (Provisional) (Class EB) that was granted on the basis that the person was a member of the family unit of a holder of a visa of a subclass included in Business Skills (Provisional) (Class EB); and

 (b) is included in the application for the Business Skills (Permanent) (Class EC) visa.

[8] Subparagraph 1.12 (9) (d) (ii)

substitute

 (ii) a Bridging A (Class WA) visa or Bridging B (Class WB) visa granted on the basis of a valid application for:

 (A) a Skilled — Independent Regional (Provisional) (Class UX) visa; or

 (B) a Skilled (Provisional) (Class VC) visa; or

 (C) a Skilled — Regional Sponsored (Provisional) (Class SP) visa; or

[9] Subparagraph 1.12 (9) (d) (v)

omit

visa; and

insert

visa; or

[10] After subparagraph 1.12 (9) (d) (v)

insert

 (vi) a Skilled — Regional Sponsored (Provisional) (Class SP) visa; and

[11] After subregulation 1.12 (10)

insert

 (11) In addition to subregulation (1), a person is a member of the family unit of an applicant for an Employer Nomination (Permanent) (Class EN) visa if, at the time of application, the person:

 (a) holds a Subclass 457 (Business (Long Stay)) visa granted on the basis that the person was a member of the family unit of the holder of a Subclass 457 (Business (Long Stay)) visa; and

 (b) is included in the application for the Employer Nomination (Permanent) (Class EN) visa.

 (12) In addition to subregulation (1), a person is a member of the family unit of an applicant for a Regional Employer Nomination (Permanent) (Class RN) visa if, at the time of application, the person:

 (a) holds a Subclass 457 (Business (Long Stay)) visa granted on the basis that the person was a member of the family unit of the holder of a Subclass 457 (Business (Long Stay)) visa; and

 (b) is included in the application for the Regional Employer Nomination (Permanent) (Class RN) visa.

[12] Regulations 1.15B to 1.15D

substitute

1.15B Vocational English

 (1) A person has vocational English if:

 (a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

 (b) the test was conducted in the 3 years immediately before the day on which the application was made; and

 (c) the person achieved a score specified in the instrument.

 (2) A person has vocational English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

1.15C Competent English

 (1) A person has competent English if:

 (a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

 (b) the test was conducted in the 3 years immediately before the day on which the application was made; and

 (c) the person achieved a score specified in the instrument.

 (2) A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

1.15D Proficient English

  A person has proficient English if:

 (a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

 (b) the test was conducted in the 3 years immediately before the day on which the application was made; and

 (c) the person achieved a score specified in the instrument.

[13] Regulation 1.15EA

substitute

1.15EA Superior English

  A person has superior English if:

 (a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

 (b) the test was conducted in the 3 years immediately before the day on which the application was made; and

 (c) the person achieved a score specified in the instrument.

[14] Subregulation 1.15F (2)

substitute

 (2) In this regulation:

completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

Note   The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.

degree has the meaning given in subregulation 2.26AC (6).

diploma has the meaning given in subregulation 2.26AC (6).

trade qualification has the meaning given in subregulation 2.26AC (6).

[15] Regulation 1.19, including the note

omit

[16] Paragraph 1.20 (2) (a)

after

if the application is for

insert

a Skilled — Regional Sponsored (Provisional) (Class SP) visa, or

[17] Subregulation 1.20 (3)

omit

(not mentioned in subregulation (3A))

insert

(other than a person who is a sponsor of an applicant for a visa mentioned in subregulation (3A), or a Skilled — Regional Sponsored (Provisional) (Class SP) visa)

[18] Subparagraph 1.41 (3) (a) (v)

substitute

 (v) the number of holders of student visas who have applied for protection visas or for permanent visas other than:

 (A) a Business Skills — Business Talent (Permanent) (Class EA) visa; or

 (B) an Employer Nomination (Permanent) (Class EN) visa; or

 (C) a Regional Employer Nomination (Permanent) (Class RN) visa; or

 (D) a Skilled — Independent (Permanent) (Class SI) visa; or

 (E) a Skilled — Nominated (Permanent) (Class SN) visa; and

[19] After subregulation 2.03 (1)

insert

 (1A) However, if one or more criteria are set out in a Subdivision of a Part of Schedule 2 as a ‘stream’:

 (a) the primary criteria mentioned in paragraph (1) (a) are taken to be:

 (i) the primary criteria described as that stream; and

 (ii) all primary criteria that are not described as a stream; and

 (b) the secondary criteria mentioned in paragraph (1) (b) are taken to be:

 (i) the secondary criteria described as that stream; and

 (ii) all secondary criteria that are not described as a stream.

Example

Part 188 of Schedule 2 sets out the criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa. The Part includes a Subdivision setting out common primary criteria and several Subdivisions setting out primary criteria that are described as streams, including a Business Innovation stream. The primary criteria mentioned in paragraph (1) (a) are taken to be the Business Innovation stream and all primary criteria that are not described as a stream.

 (1B) If one or more criteria are set out in a Subdivision of a Part of Schedule 2 as a ‘stream’, the visa to which the Part relates may be described as ‘[the Subclass of the visa] in the [name of the stream]’.

Example

A visa whose criteria are set out in Part 188 of Schedule 2, and include criteria in the Business Innovation stream, may be described as a Subclass 188 visa in the Business Innovation stream.

[20] After subparagraph 2.03A (3) (a) (ii)

insert

 (iia) a Business Skills (Provisional) (Class EB) visa; or

[21] After subregulation 2.05 (4)

insert

 (4AA) For subsection 41 (2A) of the Act, and subject to subregulation (4A), a further circumstance in which the Minister may waive condition 8503 in relation to a visa is that the holder of the visa has a genuine intention to apply for:

 (a) a General Skilled Migration visa; or

 (b) a Subclass 132 (Business Talent) visa; or

 (c) a Subclass 186 (Employer Nomination Scheme) visa; or

 (d) a Subclass 187 (Regional Sponsored Migration Scheme) visa; or

 (e) a Subclass 188 (Business Innovation and Investment (Provisional)) visa.

[22] Paragraph 2.05 (5A) (b)

substitute

 (b) has a genuine intention to apply for:

 (i) a General Skilled Migration visa; or

 (ii) a Subclass 132 (Business Talent) visa; or

 (iii) a Subclass 186 (Employer Nomination Scheme) visa; or

 (iv) a Subclass 187 (Regional Sponsored Migration Scheme) visa; or

 (v) a Subclass 188 (Business Innovation and Investment (Provisional)) visa.

[23] Regulation 2.07AG

substitute

2.07AG Applications for certain substantive visas by persons for whom condition 8503 or 8534 has been waived under subregulation 2.05 (4AA), (5) or (5A)

 (1) For section 46 of the Act, an application for a substantive visa by a person for whom condition 8503 has been waived under subregulation 2.05 (4AA) is a valid application only if the application is for:

 (a) a General Skilled Migration visa; or

 (b) a Subclass 132 (Business Talent) visa; or

 (c) a Subclass 186 (Employer Nomination Scheme) visa; or

 (d) a Subclass 187 (Regional Sponsored Migration Scheme) visa; or

 (e) a Subclass 188 (Business Innovation and Investment (Provisional)) visa.

 (2) For section 46 of the Act, an application for a substantive visa by a person for whom condition 8534 has been waived under subregulation 2.05 (5) or (5A) is a valid application only if the application is for:

 (a) a General Skilled Migration visa; or

 (b) a Subclass 132 (Business Talent) visa; or

 (c) a Subclass 186 (Employer Nomination Scheme) visa; or

 (d) a Subclass 187 (Regional Sponsored Migration Scheme) visa; or

 (e) a Subclass 188 (Business Innovation and Investment (Provisional)) visa.

[24] Subregulation 2.08A (2A), except the note

substitute

 (2A) Subregulations (1) and (2) do not apply to an applicant for a Skilled (Residence) (Class VB) visa.

[25] After subparagraph 2.08B (1) (a) (viii)

insert

 (viiia) a Business Skills (Provisional) (Class EB) visa; or

[26] Subparagraph 2.08B (1) (a) (xii)

substitute

 (xii) a Skilled — Designated Area-sponsored (Provisional) (Class UZ) visa; or

 (xiii) a Skilled — Regional Sponsored (Provisional) (Class SP) visa; and

[27] Regulations 2.08C to 2.08DA

omit

[28] Paragraph 2.11 (1) (a)

substitute

 (a) an application for a visa by a non‑citizen made outside Australia (a first application) has been made: and

[29] Subregulation 2.12 (4), including the note

omit

[30] Paragraph 2.22 (2) (b)

omit

application;

insert

application.

[31] Paragraphs 2.22 (2) (c) to (e)

omit

[32] Regulations 2.26 and 2.26A

omit

[33] Subregulation 2.26AA (9)

substitute

 (9) In Schedule 6B:

degree has the meaning given by subregulation 2.26AC (6).

diploma has the meaning given by subregulation 2.26AC (6).

employed has the meaning given by subregulation 2.26AC (6).

professional year means a course specified by the Minister in an instrument in writing for this definition.

trade qualification has the meaning given by subregulation 2.26AC (6).

[34] Subregulation 2.26AB (7)

substitute

 (7) In Schedule 6C:

degree has the meaning given by subregulation 2.26AC (6).

diploma has the meaning given by subregulation 2.26AC (6).

employed has the meaning given by subregulation 2.26AC (6).

professional year means a course specified by the Minister in an instrument in writing for this definition.

trade qualification has the meaning given by subregulation 2.26AC (6).

[35] After regulation 2.26AB

insert

2.26AC Prescribed qualifications and number of points for Subclass 189, 190 and 489 visas

 (1) For subsection 93 (1) of the Act, this regulation applies to an application for:

 (a) a Skilled — Independent (Permanent) (Class SI) visa; or

 (b) a Skilled — Nominated (Permanent) (Class SN) visa; or

 (c) a Skilled — Regional Sponsored (Provisional) (Class SP) visa.

 (2) Each qualification specified in an item of Schedule 6D is prescribed as a qualification in relation to the grant, to the applicant, of:

 (a) a Subclass 189 (Skilled — Independent) visa; or

 (b) a Subclass 190 (Skilled — Nominated) visa; or

 (c) a Subclass 489 (Skilled — Regional (Provisional)) visa.

 (3) The number of points prescribed for a qualification specified an item in Schedule 6D is specified in the item.

 (4) For Schedule 6D:

 (a) The Minister must not give the applicant a prescribed number of points for more than one prescribed qualification in each Part of the Schedule; and

 (b) if the applicant’s circumstances satisfy more than one prescribed qualification in a Part of the Schedule, the Minister must give the applicant points for the qualification that has been satisfied that attracts the highest number of points.

Note   Part 6D.5 of Schedule 6D (Aggregating points for employment experience qualifications) recalculates an applicant’s points if the applicant has qualifications specified in Part 6D.3 of Schedule 6D (Overseas employment experience qualifications) and Part 6D.4 of Schedule 6D (Australian employment experience qualifications).

 (5) For items 6D71 and 6D72 of Part 6D.7 of Schedule 6D, in determining whether an educational qualification is of a recognised standard, the Minister must have regard to:

 (a) whether, at the time of invitation to apply for the visa, the educational qualification had been recognised by the relevant assessing authority for the applicant’s nominated skilled occupation as being suitable for the occupation; and

 (b) whether the educational qualification is recognised by a body specified by the Minister in an instrument in writing for this paragraph; and

 (c) the duration of the applicant’s study towards the educational qualification; and

 (d) any other relevant matter.

 (6) In Schedule 6D:

degree means a formal educational qualification, under the Australian Qualifications Framework, awarded by an Australian educational institution as a degree or a postgraduate diploma for which:

 (a) the entry level to the course leading to the qualification is:

 (i) in the case of a bachelor’s degree—satisfactory completion of year 12 in the Australian school system or of equivalent schooling; and

 (ii) in the case of a master’s degree—satisfactory completion of a bachelor’s degree awarded at an Australian tertiary educational institution or of an equivalent award; and

 (iii) in the case of a doctoral degree—satisfactory completion of a bachelor’s degree awarded with honours, or a master’s degree, at an Australian tertiary educational institution or of an equivalent award; and

 (iv) in the case of a postgraduate diploma—satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award; and

 (b) in the case of a bachelor’s degree, not less than 3 years of full‑time study, or the equivalent period of part‑time study, is required.

diploma means:

 (a) an associate diploma, or a diploma, within the meaning of the Register of Australian Tertiary Education (as current on 1 July 1999), that is awarded by a body authorised to award diplomas of those kinds; or

 (b) a diploma, or an advanced diploma, under the Australian Qualifications Framework, that is awarded by a body authorised to award diplomas of those kinds.

employed means engaged in an occupation for remuneration for at least 20 hours a week.

professional year means a course specified by the Minister in an instrument in writing for this definition.

trade qualification means:

 (a) an Australian trade qualification obtained as a result of the completion of:

 (i) an indentured apprenticeship; or

 (ii) a training contract;

  that is required by State or Territory industrial training legislation or a relevant Federal, State or Territory industrial award and involves:

 (iii) part‑time formal training at a technical college or a college of technical and further education; and

 (iv) employment within the meaning of:

 (A) an industrial award under a law of the Commonwealth or of a State or Territory; or

 (B) a law of a State or Territory dealing with commercial or industrial training; or

 (b) a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group IV in the ASCO; or

 (c) a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group 3 in ANZSCO.

[36] Regulations 2.26C to 2.27A

omit

[37] Regulations 2.29A to 2.29K

omit

[38] Paragraphs 2.50 (2) (d) and (e)

substitute

 (d) Business Skills (Provisional) (Class EB);

 (e) Business Skills (Provisional) (Class UR);

 (f) Business Skills (Permanent) (Class EC);

 (g) Business Skills (Residence) (Class BH).

[39] Regulation 2.50AA

substitute

2.50AA Cancellation of regional sponsored employment visas

  For section 137Q of the Act, each item in the table sets out:

 (a) a kind of visa that is a regional sponsored employment visa; and

 (b) the period within which a holder of a visa of that kind must commence the employment referred to in the employer nomination.

[40] Paragraph 4.02 (4) (e)

substitute

 (e) a decision under regulation 5.19 to refuse an application for approval of the nomination of a position;

[41] Regulation 5.19

substitute

5.19 Approval of nominated positions (employer nomination)

 (1) A person (a nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

 (2) The application must:

 (a) be made in accordance with approved form 1395; and

 (b) be accompanied by the fee mentioned in regulation 5.37.

Temporary Residence Transition nomination

 (3) The Minister must, in writing, approve a nomination if:

 (a) the application for approval:

 (i) is made in accordance with subregulation (2); and

 (ii) identifies a person who holds a Subclass 457 (Business (Long Stay)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

 (iii) identifies an occupation, in relation to the position, that:

 (A) is listed in ANZSCO; and

 (B) has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Business (Long Stay)) visa; and

 (b) the nominator:

 (i) is, or was, the standard business sponsor who last identified the holder of the Subclass 457 (Business (Long Stay)) visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

 (ii) is actively and lawfully operating a business in Australia; and

 (c) either:

 (i) 

 (A) the holder of the Subclass 457 (Business (Long Stay)) visa identified in subparagraph (a) (ii) has been employed in the position in respect of which the person holds a Subclass 457 (Business (Long Stay)) visa for a total period of at least 2 years (not including any period of unpaid leave) in the period of 3 years immediately before the nominator made the application; and

 (B) the employment in the position has been full‑time, and undertaken in Australia; or

 (ii) all of the following apply:

 (A) the person holds the Subclass 457 (Business (Long Stay)) visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72 (10) (d) (iii) (B) or sub-subparagraph 2.72 (10) (e) (iii) (B);

 (B) the nominator nominated the occupation;

 (C) the person has been employed, in the occupation in respect of which the person holds the Subclass 457 (Business (Long Stay)) visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

 (d) for a person to whom subparagraph (c) (i) applies:

 (i) the person will be employed on a full-time basis in the position for at least 2 years; and

 (ii) the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

 (e) the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

 (i) are provided; or

 (ii) would be provided;

  to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

 (f) the nominator has met the training requirements that the nominator was required to meet under:

 (i) paragraph 2.59 (d) or (e); or

 (ii) paragraph 1.20D (2) (c);

  for the purpose of approval as a standard business sponsor; and

Note   Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that day.

 (g) either:

 (i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

 (ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

 (h) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

Direct Entry nomination

 (4) The Minister must, in writing, approve a nomination if:

 (a) the application for approval:

 (i) is made in accordance with subregulation (2); and

 (ii) identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

 (b) the nominator:

 (i) is actively and lawfully operating a business in Australia; and

 (ii) directly operates the business; and

 (c) for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

 (d) both of the following apply:

 (i) the employee will be employed on a full-time basis in the position for at least 2 years;

 (ii) the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

 (e) the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

 (i) are provided; or

 (ii) would be provided;

  to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

 (f) either:

 (i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

 (ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

 (g) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

 (h) either:

 (i) both of the following apply:

 (A) the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

 (B) either:

 (I) the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

 (II) the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

 (ii) all of the following apply:

 (A) the position is located in regional Australia;

 (B) there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

 (C) the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

 (D) the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3;

 (E) the business operated by the nominator is located at that place;

 (F) a body that is:

 (I) specified by the Minister in an instrument in writing for this sub-subparagraph; and

 (II) located in the same State or Territory as the location of the position;

  has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

 (5) The Minister must refuse a nomination if neither of subregulations (3) and (4) applies.

 (6) As soon as practicable after deciding a nomination, the Minister must give the nominator:

 (a) a copy of the written approval or refusal; and

 (b) if the Minister refuses the nomination:

 (i) a written statement of the reasons why the nomination was refused; and

 (ii) a written statement that the decision is an MRT‑reviewable decision.

Note   Division 4.1 deals with review of decisions. Paragraph 4.02 (4) (e) provides that a decision under regulation 5.19 to reject an application is an MRT‑reviewable decision. MRT‑reviewable decision is defined in Division 2 of Part 5 of the Act.

 (7) In this regulation:

adverse information has the meaning given by subregulation 2.57 (3).

associated entity has the meaning given by section 50AAA of the Corporations Act 2001.

associated with has the meaning given by subregulation 2.57 (2).

regional Australia means a part of Australia specified by the Minister in an instrument in writing for this definition.

[42] Regulation 5.37

substitute

5.37 Employer nomination fee

 (1) This regulation sets out the fee for an application under subregulation 5.19 (1) for the Minister’s approval of the nomination of a position.

Note   Paragraph 5.19 (2) (b) requires the fee to accompany the application.

 (2) If the application seeks approval in accordance with subregulation 5.19 (3):

 (a) if the position is located in regional Australia, no fee is payable; and

 (b) if the position is not located in regional Australia, the fee is $540.

 (3) If the application seeks approval in accordance with subparagraph 5.19 (4) (h) (i), the fee is $540.

 (4) If the application seeks approval in accordance with subparagraph 5.19 (4) (h) (ii), no fee is payable.

[43] After Division 5.8

insert

Division 5.9 Transitional arrangements

5.45 Operation of Schedule 13

  Schedule 13 makes transitional arrangements in relation to amendments of these Regulations.

[44] Schedule 1, item 1104AA

substitute

1104AA. Business Skills — Business Talent (Permanent) (Class EA)

 (1) Form:   1396

 (2) Visa application charge:

 (a) First instalment (payable at the time the application is made):   $5 940

 (b) Second instalment (payable before grant of visa):

 (3) Other:

 (a) An application must be made as an Internet application.

Note   An Internet application is taken to have been made at the time, identified using Australian Eastern Standard Time or Australian Eastern Standard Time incorporating Daylight Saving Time in the Australian Capital Territory, that corresponds to the time at which the Internet application is made: see regulation 2.10C.

 (b) An applicant may be in or outside of Australia, but not in immigration clearance.

 (c) An applicant in Australia must hold:

 (i) a substantive visa; or

 (ii) a Subclass 010 Bridging A visa; or

 (iii) a Subclass 020 Bridging B visa; or

 (iv) a Subclass 030 Bridging C visa.

 (d) An application by a person claiming to be a member of the family unit of a person who is an applicant for a Business Skills — Business Talent (Permanent) (Class EA) visa may be made at the same time as, and combined with, the application by that person.

 (4) An applicant seeking to satisfy the primary criteria for a Subclass 132 (Business Talent) visa in the Significant Business History stream must meet the requirements in the table.

Note   The invitation to apply for the visa will identify the stream to which the invitation relates.

 (5) An applicant seeking to satisfy the primary criteria for a Subclass 132 (Business Talent) visa in the Venture Capital Entrepreneur stream must meet the requirements in the table.

Note   The invitation to apply for the visa will identify the stream to which the invitation relates.

 (6) Subclasses:

  Subclass 132 (Business Talent)

[45] Schedule 1, before item 1104B

insert

1104BA. Business Skills (Permanent) (Class EC)

 (1) Form:   1398

 (2) Visa application charge:

 (a) First instalment (payable at the time the application is made):   $1 960

 (b) Second instalment (payable before grant of visa):

 (3) Other:

 (a) An application must be made as an Internet application.

Note   An Internet application is taken to have been made at the time, identified using Australian Eastern Standard Time or Australian Eastern Standard Time incorporating Daylight Saving Time in the Australian Capital Territory, that corresponds to the time at which the Internet application is made: see regulation 2.10C.

 (b) An applicant may be in or outside of Australia, but not in immigration clearance.

 (c) The applicant must be nominated by a State or Territory government agency.

 (d) An application by a person claiming to be a member of the family unit of a person who is an applicant for a Business Skills (Permanent) (Class EC) visa may be made at the same time as, and combined with, the application by that person.

 (4) An applicant seeking to satisfy the primary criteria for the grant of a Subclass 888 (Business Innovation and Investment (Permanent)) visa in the Business Innovation stream must meet the requirements in at least one item in the table.

 (5) An applicant seeking to satisfy the primary criteria for the grant of a Subclass 888 (Business Innovation and Investment (Permanent)) visa in the Investor stream must meet the requirements in at least one item in the table.

 (6) Subclasses:

  Subclass 888 (Business Innovation and Investment (Permanent))

[46] Schedule 1, before paragraph 1104A (3) (a)

insert

 (aa) Application by a person seeking to satisfy the primary criteria must be made before 1 July 2012.

[47] Schedule 1, paragraph 1104B (3) (d)

substitute

 (d) Applicant seeking to satisfy the primary criteria for the grant of a Subclass 890 (Business Owner) visa must hold a visa of a subclass included in Business Skills (Provisional) (Class UR), granted on the basis that the applicant, or the spouse or de facto partner of the applicant (if any), or the former spouse or former de facto partner of the applicant, satisfied the primary criteria for the grant of the visa.

[48] Schedule 1, paragraph 1104B (3) (f)

substitute

 (f) For an applicant seeking to satisfy the primary criteria for the grant of a Subclass 892 (State/Territory Sponsored Business Owner) visa, applicant must hold a visa of a subclass included in Business Skills (Provisional) (Class UR), granted on the basis that the applicant, or the spouse or de facto partner of the applicant (if any), or the former spouse or former de facto partner of the applicant, satisfied the primary criteria for the grant of the visa.

[49] Schedule 1, paragraph 1104B (3) (j)

omit

[50] Schedule 1, before paragraph 1114 (3) (a)

insert

 (aa) Application by a person seeking to satisfy the primary criteria must be made before 1 July 2012.

[51] Schedule 1, before paragraph 1114A (3) (a)

insert

 (aa) Application by a person seeking to satisfy the primary criteria must be made before 1 July 2012.

[52] Schedule 1, after item 1114A

insert

1114B. Employer Nomination (Permanent) (Class EN)

 (1) Form:   1408

 (2) Visa application charge:

 (a) First instalment (payable at the time the application is made):   $3 060

 (b) Second instalment (payable before grant of visa):

 (3) Other:

 (a) An application must be made as an Internet application.

Note   An Internet application is taken to have been made at the time, identified using Australian Eastern Standard Time or Australian Eastern Standard Time incorporating Daylight Saving Time in the Australian Capital Territory, that corresponds to the time at which the Internet application is made: see regulation 2.10C.

 (b) An applicant may be in or outside of Australia, but not in immigration clearance.

 (c) An applicant in Australia must hold:

 (i) a substantive visa; or

 (ii) a Subclass 010 (Bridging A) visa; or

 (iii) a Subclass 020 (Bridging B) visa; or

 (iv) a Subclass 030 (Bridging C) visa.

 (d) An applicant seeking to satisfy the primary criteria must declare in the application that the position to which the application relates is a position nominated:

 (i) under regulation 5.19; or

 (ii) in accordance with a labour agreement that is in effect, by an employer that is a party to the labour agreement.

 (e) An application by a person claiming to be a member of the family unit of a person who is an applicant for an Employer Nomination (Permanent) (Class EN) visa may be made at the same time as, and combined with, the application by that person.

 (4) Subclasses:

  Subclass 186 (Employer Nomination Scheme)

1114C. Regional Employer Nomination (Permanent) (Class RN)

 (1) Form:   1408

 (2) Visa application charge:

 (a) First instalment (payable at the time the application is made):   $3 060

 (b) Second instalment (payable before grant of visa):

 (3) Other:

 (a) An application must be made as an Internet application.

Note   An Internet application is taken to have been made at the time, identified using Australian Eastern Standard Time or Australian Eastern Standard Time incorporating Daylight Saving Time in the Australian Capital Territory, that corresponds to the time at which the Internet application is made: see regulation 2.10C.

 (b) An applicant may be in or outside of Australia, but not in immigration clearance.

 (c) An applicant in Australia must hold:

 (i) a substantive visa; or

 (ii) a Subclass 010 (Bridging A) visa; or

 (iii) a Subclass 020 (Bridging B) visa; or

 (iv) a Subclass 030 (Bridging C) visa.

 (d) An applicant seeking to satisfy the primary criteria must declare in the application that the position to which the application relates is a position nominated:

 (i) under regulation 5.19; or

 (ii) in accordance with a labour agreement that is in effect, by an employer that is a party to the labour agreement.

 (e) An application by a person claiming to be a member of the family unit of a person who is an applicant for a Regional Employer Nomination (Permanent) (Class RN) visa may be made at the same time as, and combined with, the application by that person.

 (4) Subclasses:

  Subclass 187 (Regional Sponsored Migration Scheme)

[53] Schedule 1, item 1120

omit

[54] Schedule 1, before paragraph 1121 (3) (a)

insert

 (aa) Application by a person seeking to satisfy the primary criteria must be made before 1 July 2012.

[55] Schedule 1, before paragraph 1121A (3) (a)

insert

 (aa) Application by a person seeking to satisfy the primary criteria must be made before 1 July 2012.

[56] Schedule 1, items 1128AA, 1128A, 1128B, 1128BA, 1128C, 1128CA, 1128D and 1134

omit

[57] Schedule 1, before paragraph 1135 (3) (a)

insert

 (aa) Application by a person seeking to satisfy the primary criteria for the grant of the visa must be made before 1 July 2012.

[58] Schedule 1, sub-subparagraph 1136 (2) (a) (i) (E)

substitute

 (E) a Skilled — Regional Sponsored (Provisional) (Class SP) visa; or

 (F) a Bridging A (Class WA) or Bridging B (Class WB) visa granted on the basis of a valid application for:

 (I) a Skilled — Independent Regional (Class UX) visa; or

 (II) a Skilled (Provisional) (Class VC) visa (other than a Subclass 485 (Skilled — Graduate) visa); or

 (III) a Skilled — Regional Sponsored (Provisional) (Class SP) visa:   $325.

[59] Schedule 1, before paragraph 1136 (3) (a)

insert

 (aa) An application by a person seeking to satisfy the primary criteria for the grant of a Subclass 885 (Skilled — Independent) visa or a Subclass 886 (Skilled — Sponsored) visa must be made before 1 January 2013.

[60] Schedule 1, paragraph 1136 (3) (a)

omit

Application must be made:

insert

An application made before 1 January 2013 must be made:

[61] Schedule 1, after paragraph 1136 (3) (a)

insert

 (ab) An application made on or after 1 January 2013 must be made as an Internet application.

[62] Schedule 1, subparagraph 1136 (7) (a) (v)

substitute

 (v) a Skilled — Regional Sponsored (Provisional) (Class SP) visa; or

 (vi) a Bridging A (Class WA) or Bridging B (Class WB) visa granted on the basis of a valid application for:

 (A) a Skilled — Independent Regional (Provisional) (Class UX) visa; or

 (B) a Skilled (Provisional) (Class VC) visa (other than a Subclass 485 (Skilled — Graduate) visa); or

 (C) a Skilled — Regional Sponsored (Provisional) (Class SP) visa;

[63] Schedule 1, after subparagraph 1136 (7) (b) (iv)

insert

 (v) a Skilled — Regional Sponsored (Provisional) (Class SP) visa;

[64] Schedule 1, after item 1136

insert

1137. Skilled — Independent (Permanent) (Class SI)

 (1) Form:   1393

 (2) Visa application charge:

 (a) First instalment (payable at the time application is made):   $3 060

 (b) Second instalment (payable before grant of visa):

 (3) Other:

 (a) An application must be made as an Internet application.

Note   An Internet application is taken to have been made at the time, identified using Australian Eastern Standard Time or Australian Eastern Standard Time incorporating Daylight Saving Time in the Australian Capital Territory, that corresponds to the time at which the Internet application is made: see regulation 2.10C.

 (b) An applicant may be in or outside of Australia, but not in immigration clearance.

 (c) An applicant in Australia must hold:

 (i) a substantive visa; or

 (ii) a Subclass 010 Bridging A visa; or

 (iii) a Subclass 020 Bridging B visa; or

 (iv) a Subclass 030 Bridging C visa.

 (d) An application by a person claiming to be a member of the family unit of a person who is an applicant for a Skilled — Independent (Permanent) (Class SI) visa may be made at the same time as, and combined with, the application by that person.

 (4) An applicant seeking to satisfy the primary criteria must meet the requirements in the table.

 (5) Subclasses:

  Subclass 189 (Skilled — Independent)

1138. Skilled — Nominated (Permanent) (Class SN)

 (1) Form:    1393

 (2) Visa application charge:

 (a) First instalment (payable at the time application is made): $3 060

 (b) Second instalment (payable before grant of visa):

 (3) Other:

 (a) An application must be made as an Internet application.

Note   An Internet application is taken to have been made at the time, identified using Australian Eastern Standard Time or Australian Eastern Standard Time incorporating Daylight Saving Time in the Australian Capital Territory, that corresponds to the time at which the Internet application is made: see regulation 2.10C.

 (b) An applicant may be in or outside of Australia, but not in immigration clearance.

 (c) An applicant in Australia must hold:

 (i) a substantive visa; or

 (ii) a Subclass 010 Bridging A visa; or

 (iii) a Subclass 020 Bridging B visa; or

 (iv) a Subclass 030 Bridging C visa.

 (d) An application by a person claiming to be a member of the family unit of a person who is an applicant for a Skilled — Nominated (Permanent) (Class SN) visa may be made at the same time as, and combined with, the application by that person.

 (4) An applicant seeking to satisfy the primary criteria must meet the requirements in the table.

 (5) Subclasses:

  Subclass 190 (Skilled — Nominated)

[65] Schedule 1, after item 1202A

insert

1202B. Business Skills (Provisional) (Class EB)

 (1) Form:   1397

 (2) Visa application charge:

 (a) First instalment (payable at the time the application is made):

 (b) Second instalment (payable before grant of visa):

 (3) Other:

 (a) An application must be made as an Internet application.

Note   An Internet application is taken to have been made at the time, identified using Australian Eastern Standard Time or Australian Eastern Standard Time incorporating Daylight Saving Time in the Australian Capital Territory, that corresponds to the time at which the Internet application is made: see regulation 2.10C.

 (b) An applicant may be in or outside of Australia, but not in immigration clearance.

 (c) An applicant in Australia must hold:

 (i) a substantive visa; or

 (ii) a Subclass 010 Bridging A visa; or

 (iii) a Subclass 020 Bridging B visa; or

 (iv) a Subclass 030 Bridging C visa.

 (d) An application by a person claiming to be a member of the family unit of a person who is an applicant for a Business Skills (Provisional) (Class EB) visa may be made at the same time as, and combined with, the application by that person.

 (4) An applicant seeking to satisfy the primary criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Business Innovation stream must meet the requirements in the table.

Note   The invitation to apply for the visa will identify the stream to which the invitation relates.

 (5) An applicant seeking to satisfy the primary criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Extension stream must meet the requirements in the table.

 (6) An applicant seeking to satisfy the primary criteria for a Subclass 188 visa in the Investor stream must meet the requirements in the table.

Note   The invitation to apply for the visa will identify the stream to which the invitation relates.

 (7) Subclasses:

  Subclass 188 (Business Innovation and Investment (Provisional))

[66] Schedule 1, before paragraph 1202A (3) (a)

insert

 (aa) Application by a person seeking to satisfy the primary criteria must be made before 1 July 2012.

[67] Schedule 1, item 1212A

omit

[68] Schedule 1, after sub-subparagraph 1214C (3) (g) (i) (C)

insert

 (D) a Skilled — Regional Sponsored (Provisional) (Class SP) visa; or

[69] Schedule 1, sub-subparagraph 1214C (3) (g) (ii) (C)

omit

visa;

insert

visa; or

[70] Schedule 1, after sub-subparagraph 1214C (3) (g) (ii) (C)

insert

 (D) a Skilled — Regional Sponsored (Provisional) (Class SP) visa;

[71] Schedule 1, items 1218A and 1226

omit

[72] Schedule 1, before paragraph 1228 (3) (a)

insert

 (aa) Application by a person seeking to satisfy the primary criteria for the grant of a Subclass 475 (Skilled — Regional Sponsored) visa must be made before 1 July 2012

[73] Schedule 1, before paragraph 1229 (3) (a)

insert

 (aaa) Application by a person seeking to satisfy the primary criteria for the grant of a Subclass 487 (Skilled — Regional Sponsored) visa must be made before 1 January 2013.

[74] Schedule 1, paragraph 1229 (3) (e)

omit

subitem (4), (5), (6), (7), (8) or (9)

insert

subitem (4), (5), (6) or (7)

[75] Schedule 1, subitems 1229 (8) and (9)

omit

[76] Schedule 1, after item 1229

insert

1230. Skilled — Regional Sponsored (Provisional) (Class SP)

 (1) Form:    1393

 (2) Visa application charge:

 (a) First instalment (payable at the time application is made):

 (b) Second instalment (payable before grant of visa):

 (3) Other:

 (a) An application must be made as an Internet application.

Note   An Internet application is taken to have been made at the time, identified using Australian Eastern Standard Time or Australian Eastern Standard Time incorporating Daylight Saving Time in the Australian Capital Territory, that corresponds to the time at which the Internet application is made: see regulation 2.10C.

 (b) An applicant may be in or outside of Australia, but not in immigration clearance.

 (c) An applicant in Australia must hold:

 (i) a substantive visa; or

 (ii) a Subclass 010 (Bridging A) visa; or

 (iii) a Subclass 020 (Bridging B) visa; or

 (iv) a Subclass 030 (Bridging C) visa.

 (d) An application by a person claiming to be a member of the family unit of a person who is an applicant for a Skilled — Regional Sponsored (Provisional) (Class SP) visa may be made at the same time as, and combined with, an application by that person.

 (4) An applicant seeking to satisfy the primary criteria for the grant of a Subclass 489 (Skilled — Regional (Provisional)) visa in the First Provisional Visa stream must meet the requirements in the table.

 (5) An applicant seeking to satisfy the primary criteria for the grant of a Subclass 489 (Skilled — Regional (Provisional)) visa in the Second Provisional Visa stream must meet the requirements in the table.

 (6) Subclasses:

  Subclass 489   (Skilled — Regional (Provisional))

[77] Schedule 1, subclause 1301 (1)

omit

1365 (Internet) or 1383.

insert

1365 (Internet), 1383, 1393, 1396, 1397, 1398 or 1408.

[78] Schedule 1, subclause 1303 (1)

omit

1276 (Internet) or 1383.

insert

1276 (Internet), 1383, 1393, 1396, 1397, 1398 or 1408.

[79] Schedule 2, subclause 010.611 (3B)

substitute

 (3B)   In the case of a visa granted to a person who meets the requirements of subclause 010.211 (2) or (3) on the basis of a valid application for:

 (a) a Business Skills — Business Talent (Permanent) (Class EA) visa; or

 (b) a Business Skills (Provisional) (Class EB) visa; or

 (c) a Business Skills (Permanent) (Class EC) visa; or

 (d) an Employer Nomination (Permanent) (Class EN) visa; or

 (e) a Regional Employer Nomination (Permanent) (Class RN) visa; or

 (f) a Skilled — Independent (Permanent) (Class SI) visa; or

 (g) a Skilled — Nominated (Permanent) (Class SN) visa; or

 (h) a Skilled — Regional Sponsored (Provisional) (Class SP) visa; or

 (i) a Skilled (Residence) (Class VB) visa in relation to which the applicant met the requirements for subitem 1136 (4), (5) or (6) of Schedule 1;

 nil.

[80] Schedule 2, subclause 020.611 (4)

substitute

 (4)   In the case of a visa granted to a non‑citizen who meets the requirements of subclause 020.212 (2) or (3) on the basis of a valid application for:

 (a) a Business Skills — Business Talent (Permanent) (Class EA) visa; or

 (b) a Business Skills (Provisional) (Class EB) visa; or

 (c) a Business Skills (Permanent) (Class EC) visa; or

 (d) an Employer Nomination (Permanent) (Class EN) visa; or

 (e) a Regional Employer Nomination (Permanent) (Class RN) visa; or

 (f) a Skilled — Independent (Permanent) (Class SI) visa; or

 (g) a Skilled — Nominated (Permanent) (Class SN) visa; or

 (h) a Skilled — Regional Sponsored (Provisional) (Class SP) visa; or

 (i) a Skilled (Residence) (Class VB) visa in relation to which the applicant met the requirements for subitem 1136 (4), (5) or (6) of Schedule 1;

 nil.

[81] Schedule 2, clause 030.613

substitute

030.613 In the case of a visa granted to a person on the basis of a valid application for:

 (a) a Business Skills — Business Talent (Permanent) (Class EA) visa; or

 (b) a Business Skills (Provisional) (Class EB) visa; or

 (c) a Business Skills (Permanent) (Class EC) visa; or

 (d) an Employer Nomination (Permanent) (Class EN) visa; or

 (e) a Regional Employer Nomination (Permanent) (Class RN) visa; or

 (f) a Skilled — Independent (Permanent) (Class SI) visa; or

 (g) a Skilled — Nominated (Permanent) (Class SN) visa; or

 (h) a Skilled — Regional Sponsored (Provisional) (Class SP) visa;

 nil.

030.614 In any other case, condition 8101.

[82] Schedule 2, Parts 105, 106 and 126

omit

[83] Schedule 2, Part 132

substitute

Subclass 132 Business Talent

132.1 Interpretation

Note 1   For AUD, eligible business, fiscal year, ownership interest and qualifying business: see regulation 1.03.

Note 2   main business is defined in regulation 1.11.

Note 3   For beneficial ownership of an asset or ownership interest: see regulation 1.11A.

Note 4   There are no interpretation provisions specific to this Part.

132.2 Primary criteria

Note   The primary criteria for the grant of a Subclass 132 visa include criteria set out in streams.

If an applicant applies for a Subclass 132 visa in the Significant Business History stream, the criteria in Subdivisions 132.21 and 132.22 are the primary criteria for the grant of the visa.

If an applicant applies for a Subclass 132 visa in the Venture Capital Entrepreneur stream, the criteria in Subdivisions 132.21 and 132.23 are the primary criteria.

The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

All criteria must be satisfied at the time a decision is made on the application.

132.21 Common criteria

Note   These criteria are for all applicants seeking to satisfy the primary criteria for a Subclass 132 visa.

132.211 The applicant, and the applicant’s spouse or de facto partner, do not have a history of involvement in business activities that are of a nature that is not generally acceptable in Australia.

132.212 The nominating State or Territory government agency has not withdrawn the nomination.

132.213 (1)   The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020.

 (2)   If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

 (3)   Each member of the family unit of the applicant who is an applicant for a Subclass 132 visa satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020.

 (4)   Each member of the family unit of the applicant who:

 (a) is an applicant for a Subclass 132 visa; and

 (b) had turned 18 at the time of application;

 satisfies public interest criterion 4019.

 (5)   Each member of the family unit of the primary applicant who:

 (a) is an applicant for a Subclass 132 visa; and

 (b) has not turned 18;

 satisfies public interest criteria 4015 and 4016.

 (6)   Each member of the family unit of the applicant who is not an applicant for a Subclass 132 visa:

 (a) satisfies public interest criteria 4001, 4002, 4003 and 4004; and

 (b) satisfies public interest criterion 4005 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.

132.214 (1)   The applicant satisfies special return criteria 5001, 5002 and 5010.

 (2)   Each member of the family unit of the applicant who is an applicant for a Subclass 132 visa satisfies special return criteria 5001, 5002 and 5010.

132.215 Either:

 (a) the applicant holds a valid passport that:

 (i) was issued to the applicant by an official source; and

 (ii) is in the form issued by the official source; or

 (b) it would be unreasonable to require the applicant to hold a passport.

132.22 Criteria for Significant Business History stream

Note   These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 132 visa in the Significant Business History stream.

132.221 The applicant was invited, in writing, by the Minister to apply for the visa.

132.222 The applicant:

 (a) had not turned 55 at the time of invitation to apply for the visa; or

 (b) is proposing to establish or participate in a business that the nominating State or Territory government agency has determined is of exceptional economic benefit to the State or Territory in which the agency is located.

132.223 The applicant has overall had a successful business career.

132.224 For at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa:

 (a) the net value of the assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, in a qualifying business or qualifying businesses in which the applicant had an ownership interest was at least AUD400 000; and

 (b) if a qualifying business mentioned in paragraph (a) was operated by a publicly listed company, the shareholding of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, was at least 10% of the total issued capital of the company.

132.225 For at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, the applicant’s main business, or the applicant’s main businesses together, had an annual turnover of at least AUD3 000 000.

132.226 The business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together:

 (a) have a net value of at least AUD1 500 000; and

 (b) are lawfully acquired; and

 (c) are available for transfer to Australia within 2 years after the grant of a Subclass 132 visa.

132.227 (1)   The applicant genuinely has a realistic commitment to:

 (a) establish a qualifying business in Australia; or

 (b) participate in an existing qualifying business in Australia.

 (2)   The applicant genuinely has a realistic commitment to:

 (a) maintain a substantial ownership interest in the qualifying business mentioned in subclause (1); and

 (b) maintain a direct and continuous involvement in the management of the qualifying business from day to day, and in the making of decisions that affect the overall direction and performance of the qualifying business, in a manner that benefits the Australian economy.

132.23 Criteria for Venture Capital Entrepreneur stream

Note   These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 132 visa in the Venture Capital Entrepreneur stream.

132.231 The applicant was invited, in writing, by the Minister to apply for the visa.

132.232 (1)   The applicant has entered into a legally enforceable agreement with an Australian company to receive venture capital funding for:

 (a) the early-phase start-up of a business; or

 (b) the commercialisation of a product; or

 (c) the development of a business; or

 (d) the expansion of a business.

 (2)   The amount to be provided under the agreement is at least AUD1 000 000.

 (3)   The Australian company:

 (a) is a member of an industry association or similar body specified by the Minister in an instrument in writing for this paragraph; and

 (b) holds a category of membership of the industry association or similar body specified by the Minister in an instrument in writing for this paragraph.

132.233 The nominating State or Territory government agency is satisfied that the net value of the business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, is sufficient to allow them to settle in Australia.

132.234 (1)   The applicant genuinely has a realistic commitment to:

 (a) establish an eligible business in Australia; or

 (b) participate in an existing eligible business in Australia.

 (2)   The applicant genuinely has a realistic commitment to:

 (a) maintain a substantial ownership interest in the eligible business mentioned in subclause (1); and

 (b) maintain a direct and continuous involvement in the management of the eligible business from day to day, and in the making of decisions that affect the overall direction and performance of the eligible business, in a manner that benefits the Australian economy.

132.3 Secondary criteria

Note   These criteria are for applicants who are members of the family unit of a person who satisfies the primary criteria. All criteria must be satisfied at the time a decision is made on the application.

132.31 Criteria

132.311 The applicant:

 (a) is a member of the family unit of a person who holds a Subclass 132 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

 (b) made a combined application with that person.

132.312 (1)   The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020.

 (2)   If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

 (3)   If the applicant has not turned 18, the applicant satisfies public interest criteria 4017 and 4018.

132.313 The applicant satisfies special return criteria 5001, 5002 and 5010.

132.314 Either:

 (a) the applicant holds a valid passport that:

 (i) was issued to the applicant by an official source; and

 (ii) is in the form issued by the official source; or

 (b) it would be unreasonable to require the applicant to hold a passport.

132.4 Circumstances applicable to grant

132.411 The applicant:

 (a) may be in or outside Australia when the visa is granted; and

 (b) must not be in immigration clearance.

Note   The second instalment of visa application charge must be paid before the visa can be granted.

132.5 When visa is in effect

132.511 Permanent visa permitting the holder to travel to, enter and remain in Australia for 5 years from the date of grant.

132.6 Conditions

132.611 If the applicant is outside Australia when the visa is granted:

 (a) first entry must be made before the date specified by the Minister; and

 (b) if the applicant satisfies the secondary criteria for the grant of the visa, condition 8515 may be imposed.

[84] Schedule 2, Parts 134, 135, 136, 137, 138 and 139

omit

[85] Schedule 2, after Part 176

insert

Subclass 186 Employer Nomination Scheme

186.1 Interpretation

186.111 In this Part:

application for approval means an application under regulation 5.19 for approval of the nomination of a position.

occupation means the occupation that would be carried out by a person who is employed in a position.

Note 1   For labour agreement: see regulation 1.03.

Note 2   Regulation 1.03 provides that competent English has the meaning set out in regulation 1.15C.

Note 3   Regulation 1.03 provides that vocational English has the meaning set out in regulation 1.15B.

186.2 Primary criteria

Note   The primary criteria for the grant of a Subclass 186 visa include criteria set out in streams.

If an applicant applies for a Subclass 186 visa in the Temporary Residence Transition stream, the criteria in Subdivisions 186.21 and 186.22 are the primary criteria for the grant of the visa.

If an applicant applies for a Subclass 186 visa in the Direct Entry stream, the criteria in Subdivisions 186.21 and 186.23 are the primary criteria.

If an applicant applies for a Subclass 186 visa in the Agreement stream, the criteria in Subdivisions 186.21 and 186.24 are the primary criteria.

The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

All criteria must be satisfied at the time a decision is made on the application.

186.21 Common criteria

Note   These criteria are for all applicants seeking to satisfy the primary criteria for a Subclass 186 visa.

186.211 If it is mandatory, in the State or Territory in which the position to which the application relates is located, that a person:

 (a) hold a licence of a particular kind; or

 (b) hold registration of a particular kind; or

 (c) be a member (or a member of a particular kind) of a particular professional body;

 to perform tasks of the kind to be performed in the occupation to which a position relates, the applicant is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.

186.212 The position to which the application relates will provide to the applicant the employment referred to in the application for approval.

186.213 (1)   The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010 and 4020.

 (2)   If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

 (3)   Each member of the family unit of the applicant who is an applicant for a Subclass 186 visa satisfies public interest criteria 4001, 4002, 4003, 4004, 4010 and 4020.

 (4)   Each member of the family unit of the applicant who:

 (a) is an applicant for a Subclass 186 visa; and

 (b) had turned 18 at the time of application;

 satisfies public interest criterion 4019.

 (5)   Each member of the family unit of the applicant who:

 (a) is an applicant for a Subclass 186 visa; and

 (b) has not turned 18;

 satisfies public interest criteria 4015 and 4016.

 (6)   Each member of the family unit of the applicant who is not an applicant for a Subclass 186 visa satisfies public interest criteria 4001, 4002, 4003 and 4004.

186.214 (1)   The applicant satisfies special return criteria 5001, 5002 and 5010.

 (2)   Each member of the family unit of the applicant who is an applicant for a Subclass 186 visa satisfies special return criteria 5001, 5002 and 5010.

186.215 Either:

 (a) the applicant holds a valid passport that:

 (i) was issued to the applicant by an official source; and

 (ii) is in the form issued by the official source; or

 (b) it would be unreasonable to require the applicant to hold a passport.

186.22 Criteria for Temporary Residence Transition stream

Note   These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 186 visa in the Temporary Residence Transition stream.

186.221 At the time of application, the applicant:

 (a) had not turned 50; or

 (b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

186.222 At the time of application, the applicant:

 (a) had vocational English; or

 (b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

186.223 (1)   The position to which the application relates is the position:

 (a) nominated in an application for approval that seeks to meet the requirements of subregulation 5.19 (3); and

 (b) in relation to which the applicant is identified as the holder of a Subclass 457 (Business (Long Stay)) visa; and

 (c) in relation to which the declaration mentioned in paragraph 1114B (3) (d) of Schedule 1 was made in the application for the grant of the visa.

 (2)   The Minister has approved the nomination.

 (3)   The nomination has not subsequently been withdrawn.

 (4)   The position is still available to the applicant.

 (5)   The application for the visa is made no more than 6 months after the Minister approved the nomination.

186.224 (1)   The applicant satisfies public interest criterion 4007.

 (2)   Each member of the family unit of the applicant who is an applicant for a Subclass 186 visa satisfies public interest criterion 4007.

 (3)   Each member of the family unit of the applicant who is not an applicant for a Subclass 186 visa satisfies public interest criterion 4007 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.

186.23 Criteria for Direct Entry stream

Note   These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 186 visa in the Direct Entry stream.

186.231 At the time of application, the applicant:

 (a) had not turned 50; or

 (b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

186.232 At the time of application, the applicant:

 (a) had competent English; or

 (b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

186.233 (1)   The position to which the application relates is the position:

 (a) nominated in an application for approval that seeks to meet the requirements of:

 (i) subparagraph 5.19 (4) (h) (i); or

 (ii) subregulation 5.19 (2) as in force before 1 July 2012; and

 (b) in relation to which the declaration mentioned in paragraph 1114B (3) (d) of Schedule 1 was made in the application for the grant of the visa.

 (2)   The person who will employ the applicant is the person who was the nominator in the application for approval.

 (3)   The Minister has approved the nomination.

 (4)   The nomination has not subsequently been withdrawn.

 (5)   The position is still available to the applicant.

 (6)   The application for the visa is made not more than 6 months after the Minister approved the nomination.

186.234 (1)   At the time of application, subclause (2) or (3) applies.

 (2)   Both of the following apply:

 (a) an assessing authority specified by the Minister in an instrument in writing for this subclause, as the assessing authority for the occupation, has assessed the applicant’s skills as suitable for the occupation;

 (b) the applicant has been employed in the occupation for at least 3 years.

 (3)   The applicant is a person in a class of persons specified by the Minister in an instrument in writing for this subclause.

186.235 (1)   The applicant satisfies public interest criterion 4005.

 (2)   Each member of the family unit of the applicant who is an applicant for a Subclass 186 visa satisfies public interest criterion 4005.

 (3)   Each member of the family unit of the applicant who is not an applicant for a Subclass 186 visa satisfies public interest criterion 4005 unless the Minister is satisfied that it would be unreasonable to require the member to undergo assessment in relation to the criterion.

186.24 Criteria for Agreement stream

Note   These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 186 visa in the Agreement stream.

186.241 Either:

 (a) the applicant had not turned 50 at the time of application; or

 (b) the Minister has agreed, in a labour agreement:

 (i) that is in effect; and

 (ii) to which the employer is a party; and

 (iii) under which the position to which the application relates is nominated; and

  that persons who have turned 50 may be employed.

186.242 (1)   The position to which the application relates is the position: