1992 No. 367 MIGRATION (1993) REGULATIONS
*1* Notified in the Commonwealth of Australia Gazette on 30 November 1992. 1992 No. 367 MIGRATION (1993) REGULATIONS - TABLE OF PROVISONS
TABLE
TABLE OF PROVISIONS Regulation PART 1 - PREMININARY Division 1-Introductory 1.1 Citation 1.2 Commencement Division 2 - Interpretation 1.3 Interpretation 1.4 Adoption 1.5 Balance of family test 1.6 De facto spouse 1.7 Labour market requirements 1.8 Member of a family unit 1.9 Net employment benefit 1.10 Orphan relative 1.11 Remaining relative 1.12 Visa and entry permit of a particular group or class 1.13 Vocational proficiency in English 1.14 References to a class of visa or entry permit Division 3-Administration 1.15 Delegation 1.16 Specification of matters by Gazette Notice 1.17 Approved forms 1.18 Declared bodies 1.19 Entry Control Points Division - Sponsorship 1.20 Sponsorship PART 2-VISAS AND ENTRY PERMITS Division 1-Classes, criteria, conditions etc. 2.1 Classes and groups of visas and entry permits that may be granted 2.2 Criteria, conditions and other provisions applicable toindividual classes of visas and entry permits 2.3 Section 20 of the Act-restriction on grant of visas and entry permits Division 2-Prescribed qualifications: application of points system 2.4 Prescribed qualifications and prescribed number of points 2.5 Qualification-eligibility of spouse 2.6 Reconsideration of application that is put aside Division miscellaneous 2.7 Application for visa or entry permit in relation to person in custody 2.8 Notice of certain decisions refusing or terminating a visa or entry permit 2.9 "Prescribed vessel" and "prescribed crew member"-subsection 4(1) (definition of "exempt non-citizen") 2.10 Prescribed change in circumstances (paragraphs 36(1) (a) and 37(2) (a) of Act) 2.11 Unprocessed persons-prescribed period (paragraph 54D (b) of the Act) Division - Visas 2.12 Entitlement to be granted a visa 2.13 Application for visa outside Australia 2.14 Application for visa within Australia 2.15 Special provision for grant outside Australia of certain visas to former holders of corresponding temporary entry permits 2.16 Application for certain classes of visas to have effect as application for visas of certain other classes 2.17 Application for visas on arrival 2.18 Grant of visa 2.19 Prescribed notification-paragraph 24(3) (a) of Act 2.20 Exempt visas-prescribed classes (subsection 24(10)) 2.21 Recording and evidencing of visas 2.22 Effect and operation of visas 2.23 Termination of visas for breach of terminating condition 2.24 Certain visas to state period that holder may stay in Australia 2.25 Breach of a condition of a visa 2.26 Mandatory conditions for grant of visas Division 5-Entry permits 2.27 Entitlement to be granted an entry permit 2.28 Applications for entry permits 2.29 Application for certain classes of entry permits to have effect as application for entry permits of certain other classes 2.30 Grant of entry permits at the Entry Control Point to holders of travel-only visas 2.31 Special criterion applicable to holders of visas granted under law in forte before l9 December 1989 2.32 Lodgment in Australia of application for entry permit 2.33 Grant of entry permit 2.34 Recording and evidencing of entry permits 2.35 Effect and operation of entry permits 2.36 Termination of entry permits for breach of terminating condition 2.37 Mandatory conditions for grant of entry permits 2.38 Breach of a condition of an entry permit PART 3-COLLECTION OF INFORMATION: PERSONS ON VESSELS 3.1 Provision of information (general requirement) 3.2 Use of information 3.3 Provision by master of information regarding passengers 3.4 Provision by master of information regarding crew 3.5 Production of deportee 3.6 Offences by master of vessel PART 4-PROCEDURE OF COMMISSIONERS AND PRESCRIBED AUTHORITIES 4.1 Power of Commissioner to send for witnesses and documents 4.2 Duty of witness to continue in attendance 4.3 Arrest of witness failing to appear 4.4 Witnesses' fees 4.5 Power to examine on oath or affirmation 4.6 Offences by witnesses 4.7 Statements of witness not admissible in evidence against the witness 4.8 Representation by counsel etc. 4.9 Offences in relation to Commissioners 4.10 Protection of Commissioners, barristers and witnesses 4.11 Procedure of prescribed authorities PARTS-ASSURANCES OF SUPPORT Division 1-Assurances of support given in relation to applications lodged before 20 December 1991 5.1 Interpretation 5.2 Form of certain assurances of support 5.3 Duration of assurances of support 5.4 Effect of assurance of support 5.5 Earlier liabilities not affected Division 2-Assurances of support given in relation to applications lodged on or after 19 December 1991 5.6 Interpretation 5.7 Form and duration of assurance of support 5.8 Persons in respect of whom assurance of support may be given 5.9 Liability of person giving assurance of support 5.10 Bond (required assurances) PART EMIGRANT CENTRES 6.1 Control of migrant centres 6.2 Canteen services in migrant centres PART 7-MISCELLANEOUS Division 1-Lodgment and service of documents 7.1 Service of documents generally 7.2 Service outside Australia 7.3 Service on owner, agent, charterer or master of vessel 7.4 Service of notice on bank or other financial institution (subsection 68(2) of Act) 7.5 Summons to attend as witness 7.6 Time when service takes effect 7.7 Saving Division 2-Reconsideration of decisions 7.8 Reconsideration of decisions to refuse to grant a visa or entry permit Division general 7.9 Prescribed persons (subsection 15(3) of the Act) 7.10 Approved appointments (employer nomination) 7.11 Prescribed diseases (subparagraph 20(1) (d) (i) of Act) 7.12 Prescribed circumstances (subparagraph 20(1) (d) (vi) of Act) 7.13 Section 20 notice 7.14 Prescribed procedures (subsection 59(2) of Act) 7.15 Prescribed matters (subsections 60(1) and 82(1) of Act) 7.16 Section 76 of Act-prescribed penalty 7.17 Infringement notices-offences against section 76 of the Act 7.18 Prescribed matters (subsection 63(1) of Act) 71 7.19 Search warrants (subsections 68(14) and 90(4) of Act) 7.20 Document for purposes of subsection 114(2) of Act 7.21 Offences 7.22 Detention centres-medical treatment 7.23 Consent by Secretary to medical treatment of persons in custody Division - Fees 7.24 Fees in respect of applications for visas and entry permits 7.25 Payment of fees in foreign currencies 7.26 Employer nomination fee 7.27 Sponsorship fee 7.28 Refund of fees 7.29 Fee on application for reconsideration of a decision 7.30 Fee on application by person to whom subsection 14(2) of Act applies PART 8-REPEAL AND SAVING PROVISIONS 8.1 Repeal of Migration (1989) Regulations 8.2 Saving SCHEDULE 1 CLASSIFICATION OF VISAS AND ENTRY PERMITS SCHEDULE 2 PROVISIONS WITH RESPECT TO THE GRANT OF INDIVIDUAL CLASSES OF VISAS AND ENTRY PERMITS TO PRIMARY PERSONS SCHEDULE 3 PROVISIONS WITH RESPECT TO THE GRANT OF VISAS AND ENTRY PERMITS INCLUDED IN CERTAIN GROUPS TO SECONDARY PERSONS SCHEDULE 4 PUBLIC INTEREST CRITERIA SCHEDULE 5 SPECIAL RE-ENTRY CRITERIA SCHEDULE 6 ILLEGAL ENTRANT CRITERIA SCHEDULE 7 GENERAL POETS TEST-QUALIFICATIONS AND POINTS SCHEDULE 8 BUSINESS SKILLS POINTS TEST-ATTRIBUTES AND HINTS SCHEDULE 9 VISA AND ENTRY PERMIT CONDITIONS SCHEDULE 10 AMOUNTS OF FEES IN CERTAIN CURRENCIES SCHEDULE 11 PRESCRIBED FORMS SCHEDULE 12 REPEALED STATUTORY RULES 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.1
Citation
1.1. These Regulations may be cited as the Migration (1993) Regulations. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.2
Commencement
1.2. These Regulations commence on 1 February 1993. 1992 No. 367 MIGRATION (1993) REGULATIONS - DIVISION 2
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.)
1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.3
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: see 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 EMSS; 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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.4
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.5
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.6
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.7
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.8
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.9
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.10
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.11
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). 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.12
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.13
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.14
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - DIVISION 3
Division 3-Administration
1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.15
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.16
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.17
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.18
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.19
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.) 1992 No. 367 MIGRATION (1993) REGULATIONS - REG DIVISION 4
Division 4-Sponsorship
1992 No. 367 MIGRATION (1993) REGULATIONS - REG 1.20
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - PART 2
PART 2 - VISAS AND ENTRY PERMITS
1992 No. 367 MIGRATION (1993) REGULATIONS - DIVISION 1
Division 1 - Classes, criteria, conditions etc.
1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.1
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.2
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 Schedule 2 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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.3
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: (a) paragraph 20 (1) (a) 06; (b) sub-subparagraph 20 (1) (b) (i) (a) 05; (c) sub-subparagraph 20 (1) (b) (i) (b) 05; (d) subparagraph 20 (1) (b) (ii) 04; (e) subparagraph 20 (1) (c) (i) 05; (f) subparagraph 20 (1) (c) (ii) 04; (g) subparagraph 20 (1) (d) (i) 03; (h) subparagraph 20 (1) (d) (ii) 01; (i) subparagraph 20 (1) (d) (iii) 01; (j) sub-subparagraph 20 (1) (d) (iv) (a) 01; (k) sub-subparagraph 20 (1) (d) (iv) (b) 01; (l) subparagraph 20 (1) (d) (v) 02; (m) subparagraph 20 (1) (d) (vi) 02; (n) subparagraph 20 (2) (b) (i) 05; (o) subparagraph 20 (2) (b) (ii) 04. (5) A reference in subregulation (4) to a statement includes a reference to a statement recorded in a notified data base. 1992 No. 367 MIGRATION (1993) REGULATIONS - DIVISION 2
Division 2 - Prescribed qualifications:
application of points system
1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.4
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.5
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.6
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - DIVISION 3
Division 3 - Miscellaneous
1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.7
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.8
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.9
"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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.10
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.11
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-see s. 4 (1).) 1992 No. 367 MIGRATION (1993) REGULATIONS - DIVISION 4
Division 4 - Visas
1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.12
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.13
.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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.14
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.) 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.15
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)). 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.16
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)). 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.17
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)). 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.18
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.19
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.20
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). 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.21
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. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.22
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 (c) if the visa was granted subject to the condition that the visa would lapse if a requirement was not met on or before a specified day and the requirement is not so met - on the expiry of that specified day; or (d) if the visa is cancelled - on the day of the cancellation; or (e) if the visa is terminated by operation of regulation 2.23 or 2.36 - on the day on which the holder is notified of the determination. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.23
Termination of visas for breach of terminating condition
2.23. (1) In this regulation, "notice" means a notice under subregulation 2.8 (1) of a determination that the holder of a visa has failed to comply with a terminating condition subject to which the visa was granted. (2) If a notice about a visa is given to the holder, the visa is terminated on the date on which, under the relevant provision of regulation 7.6 (as applied by subregulation 2.8 (3) or (4)), the notice is taken to be served on the holder.
(3) The termination of a visa takes place by force of this regulation. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.24
Certain visas to state period that holder may stay in Australia
2.24. (1) This regulation applies to visas of the following classes that are granted under section 24 of the Act: (a) Class 661 (tourist (special arrangements)) visas; and (b) Class 680 (tourist) visas; and (c) Class 682 (business visitor) visas; and (d) Class 683 (close family visitor) visas; and (e) Class 684 (visitor (other)) visas; that are granted to an applicant in whose case the risk factor referred to in public interest criterion 4011 is present. (2) A visa to which this regulation applies must specify a period not longer than: (a) 6 months; or (b) if the Minister determines a shorter period, having regard to the reasons for, and the circumstances of, the grant of the visa, to be adequate to meet the needs of the holder-that shorter period; as the period during which the holder is authorised to stay in Australia. (3) This regulation does not affect any provision imposing, or authorising the imposition, of conditions in relation to the grant of a visa. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.25
Breach of a condition of a visa
2.25. If the holder of a visa refuses or fails to comply with a condition subject to which the visa was granted, the breach of the condition is a ground for the cancellation of the visa. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.26
Mandatory conditions for grant of visas
2.26. A visa is granted subject to the conditions (if any) specified in the relevant Part of Schedule 2 or 3 as mandatory conditions. 1992 No. 367 MIGRATION (1993) REGULATIONS - DIVISION 5
Division 5 - Entry permits
1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.27
Entitlement to be granted an entry permit
2.27. Subject to Division 3 of Part 2 of the Act and to this Division, an applicant is entitled to be granted an entry permit of a particular class if the person satisfies the prescribed criteria in relation to that entry permit. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.28
Applications for entry permits
2.28. (1) Subject to this regulation and regulation 2.7 and to specific provisions in the relevant Part of Schedule 2 or 3, an application for an entry permit is in accordance with these Regulations: (a) in the case of an applicant who applies after entering Australia: (i) if the application is in the form specified in the relevant provision of Schedule 2 or 3; and (ii) if the relevant fee (if any) has been paid; and (iii) if the applicant produces to an officer the passport or other document that was previously produced by the applicant for the purposes of the applicant's entry to Australia, or a valid travel document; or (b) in the case of an applicant who applies before entering Australia - if the applicant presents to the Minister for examination a visa. (NOTE: Regulation 2.7 imposes certain special requirements in the case of an applicant who is in custody under the Act.) (2) Subparagraph (1) (a) (iii) does not apply to an application for a Class 437 (PRC (temporary)) entry permit.
(3) An application that is made on arrival in Australia by a person who is not an exempt non-citizen is in accordance with these Regulations if: (a) the person is exempted from the operation of section 76 of the Act by an instrument under subsection 106 (1) of the Act; and (b) the person meets the requirements of subregulation (4) or (5). (4) A person meets the requirements of this subregulation if the person: (a) has travelled to Australia as a passenger on board a vessel that is not an aircraft; and (b) intends to leave Australia on board the vessel; and (c) produces: (i) a valid passport or other travel document; and (ii) a document, signed by the vessel's master, stating that the person is a passenger on the vessel. (5) A person meets the requirements of this subregulation if: (a) the person has travelled to Australia aboard a vessel that is not an aircraft; and (b) the person is a member of the crew of the vessel, other than a prescribed crew member ; and (c) the person produces: (i) a valid passport or other seafarer's identity document; and (ii) a document, signed by the vessel's master, stating: (a) that the person is or was a crew member of the vessel other than a prescribed crew member; and (b) that the person requires entry to Australia; and (c) the purpose for which the person requires entry to Australia; and (d) the purpose mentioned in sub-subparagraph (c) (ii) (c) is consistent with the interests of Australia. (6) In subregulation (5), a reference to a prescribed crew member, in relation to a vessel, is a reference to a member of the crew of the vessel who is prescribed as a crew member of that vessel under paragraph 2.9 (b). 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.29
Application for certain classes of entry permits to have effect
as application for entry permits of certain other classes
2.29. (1) An application for: (a) any of the following Group 1.2 (permanent resident (after entry)) entry permits: (i) Class 801 (spouse (after entry)); (ii) Class 802 (child (after entry)); (iii) Class 804 (aged parent (after entry)); (iv) Class 805 (skilled occupation); (v) Class 806 (compassionate grounds (family and other close ties)); (vi) Class 814 (interdependency (permanent)); or (b) any of the following Group 2.4 (extended eligibility) entry permits: (i) Class 820 (extended eligibility (spouse)); (ii) Class 826 (extended eligibility (interdependency)); also has effect, subject to the payment of the difference (if any) in applicable fees, as an application for an entry permit of any other class specified in the same paragraph. (2) An application for an entry permit 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 an entry permit of any other class in Group 1.3.
(3) An application for an entry permit 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 an entry permit of any other class in Group 2.1.
(4) An application for an entry permit 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 an entry permit of any other class in Group 2.2.
(5) An application for an entry permit 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 an entry permit of any other class in Group 2.3.
(6) An application for an entry permit 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 an entry permit of any other class in Group 2.4.
(7) An application for an entry permit 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 an entry permit of any other class in Group 2.6 other than Class 784 (domestic protection (temporary)). 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.30
Grant of entry permits at the Entry Control Point to holders of
travel-only visas
2.30. (1) This regulation has effect subject to specific provision to the contrary in regulation 2.31 or Schedule 2 or 3. (2) Presentation, in accordance with paragraph 2.28 (1) (b) of these Regulations, of a travel-only visa constitutes: (a) the making of an application for the grant to the applicant, as a primary person or as a secondary person (as the case requires), of an entry permit of the same class; or (b) if the visa is a Class 431 (restricted passport) visa-the making of an application for the grant to the applicant, as a primary person or as a secondary person, according to the nature of the applicant's application for the visa in substitution for which the Class 431 visa was granted, of an entry permit of the same class as the visa originally applied for. (3) No fee is payable in relation to an application under subregulation (2).
(4) The entry permit must not be granted unless: (a) the applicant continues to satisfy the prescribed criteria for the grant, before entry, to the applicant, as a primary person or as a secondary person (as the case requires), of a visa of the relevant class; and (b) the Minister is satisfied: (i) unless subparagraph (ii) applies, that it would be consistent with the interests of Australia to grant the entry permit; or (ii) if the application is for a Class 773 (border) entry permit-that it would be unreasonable to refuse to allow the applicant to enter Australia. (5) An entry permit granted under this regulation is subject to the same conditions as are specified in the visa referred to in subregulation (2). 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.31
Special criterion applicable to holders of visas granted under
law in force before 19 December 1989;
2.31. If an application for an entry permit is made by the holder of a visa: (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; or (c) granted in accordance with the Migration (1989) Regulations; the entry permit must not be granted unless: (d) the Minister is satisfied that the entry permit applied for is substantially the same in nature and effect as the entry permit that, at the time the visa was granted, was the equivalent entry permit; or (e) the application is for: (i) a Class 304 (special equivalent 1989 (temporary)) entry permit; or (ii) a Class 813 (special equivalent (permanent)) entry permit. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.32
Lodgment in Australia of application for entry permit
2.32. Subject to regulation 2.7, an application for an entry permit after entry may be lodged in Australia at any office of Immigration in the State or Territory where 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 entry permit applications; or (c) by leaving it with a person employed at that office and authorised to receive entry permit applications. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.33
Grant of entry permit
2.33. (1) An entry permit granted by the Minister under section 34 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 enter Australia and to remain in Australia, or to remain in Australia, as specified in the relevant Part of Schedule 2 or 3; and (c) may specify, either in full or by reference to the number of a clause in Schedule 9, any condition subject to which the entry permit is granted; and (d) may: (i) specify the period during which it is to have effect; and (ii) be expressed to authorise the holder to remain in Australia only for that period. (2) In the case of a temporary entry permit that is subject to a condition, the entry permit 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 temporary entry permit. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.34
Recording and evidencing of entry permits
2.34. (1) Where the Minister grants an entry permit to a person, the issue of the entry permit is to be recorded as follows: (a) if the entry permit is issued manually: (i) before entry to Australia - by: (A) providing the person with documentary evidence of the issue of the permit; and (B) making a notation on the person's inwards passenger card; in accordance with subregulation (2); or (ii) after entry to Australia - by: (A) providing the person, in accordance with subregulation (2), with documentary evidence of the issue of the permit; and (B) entering in the entry permit register kept at the office maintained by or on behalf of Immigration at which the entry permit is issued, the full name of the person to whom the entry permit is granted and the day on which it is issued; (b) if the entry permit 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 entry permit is granted and the date on which it is issued; and (ii) by: (A) in the case of an entry permit (including a temporary entry permit) - fixing the entry permit on the passport or other travel document of the person to whom the entry permit is granted; or (B) in the case of a temporary entry permit - giving notice to the applicant, in a form approved by the Minister, that the permit has been granted. (2) For the purposes of paragraph (1) (a): (a) documentary evidence of the issue of an entry permit to a person is provided to the person in accordance with this subregulation if: (i) the entry permit is stamped in the passport or other travel document presented by the person on application for the entry permit; or (ii) separate notice in writing of the grant of the permit, stating the conditions attached to the grant and the period of validity of the permit, is given to the person; and (b) a notation on a person's inwards passenger card is made in accordance with this subregulation if: (i) in the case of a notation made in relation to an entry permit stamped in the person's passport or other travel document - a facsimile of the permit is stamped on the card; or (ii) in the case of a notation made in relation to an entry permit evidenced by a separate notice - a copy of the notice is attached to, or endorsed on, the card. (3) Any clerical error in or omission from: (a) the entry permit register; or (b) the computerised record referred to in subparagraph (1) (b) (i); may be corrected by an authorised officer. (4) An entry in the entry permit register or in the computerised record made, or corrected, in accordance with this regulation in relation to the issue of an entry permit is evidence that the entry permit was issued to the person and on the date specified in the entry. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.35
Effect and operation of entry permits
2.35. (1) An entry permit granted by the Minister comes into force: (a) if a day of effect is specified in the entry permit - on that day; or (b) if no day of effect is specified - on the day on which the entry permit is granted. (2) A valid entry permit ceases to be in force: (a) on the expiration of the period in respect of which the entry permit was granted; or (b) if the entry permit specifies an event the occurrence of which is to result in the invalidation of the entry permit - on the occurrence of that event; or (c) if a further temporary entry permit or a permanent entry permit is granted to the holder - on the coming into force of that other entry permit; or (d) if the entry permit is cancelled - on the day of the cancellation; or (e) if the entry permit is terminated by operation of regulation 2.36 - on the day on which the holder is notified of the determination. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.36
Termination of entry permits for breach of terminating condition
2.36. (1) In this regulation, "notice" means a notice under subregulation 2.8 (1) of a determination that the holder of an entry permit has failed to comply with a terminating condition subject to which the entry permit was granted. (2) If a notice about an entry permit is given to the holder, the entry permit is terminated on the date on which, under the relevant provision of regulation 7.6 (as applied by subregulation 2.8 (3) or (4)), the notice is taken to be served on the holder.
(3) Any visa held by the holder is terminated on the date on which the entry permit is terminated.
(4) The termination of a visa or entry permit takes place by operation of this regulation. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.37
Mandatory conditions for grant of entry permits
2.37. An entry permit is subject to the conditions, specified in the relevant Part of Schedule 2 or 3 as mandatory conditions, that are relevant to the applicant. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 2.38
Breach of a condition of an entry permit
2.38. If the holder of an entry permit refuses or fails to comply with a condition subject to which the entry permit was granted, the breach of the condition is a ground for the cancellation of the entry permit. 1992 No. 367 MIGRATION (1993) REGULATIONS - PART 3
PART 3 - COLLECTION OF INFORMATION: PERSONS ON VESSELS'
1992 No. 367 MIGRATION (1993) REGULATIONS - REG 3.1
Provision of information (general requirement)
3.1. (1) This regulation applies to: (a) a person who is an overseas passenger: (i) arriving on board a vessel at a port in Australia in the course of, or at the conclusion of, an overseas flight or an overseas voyage; or (ii) leaving Australia on board a vessel bound for or calling at a place outside Australia; and (b) a person on board an aircraft arriving at, or departing from, an airport in Australia, being an aircraft operated by an international air carrier within the meaning of subsection 181 (5) of the Act. (2) An officer may require a person to whom this regulation applies: (a) to complete a passenger card: (i) in relation to the person and to any other person that person is in charge of on the relevant flight or voyage; and (ii) in accordance with directions set out on the passenger card; and (b) to give the completed passenger card to an officer. (3) An officer may require a person to whom this regulation applies to provide to the officer information about that person in respect of any of the following matters: (a) name; (b) date of birth and country of birth; (c) citizenship; (d) sex and marital status; (e) usual occupation; (f) passport number; (g) if the person is not an Australian citizen or a person who is exempt under subsection 106 (1) of the Act from the operation of subsection 76 (1) of the Act - the number of the Australian visa held by the person; (h) flight number of aircraft or name of ship in relation to the relevant flight or voyage; (i) country in which the person boarded, or intends to disembark from, the aircraft or ship; (j) if the person is entering Australia - the intended address of the person in Australia; (k) if the person is not an Australian citizen and is entering Australia - the intended purpose of entry. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 3.2
Use of information
3.2. (1) With the written consent of the Minister, use may be made of information collected under this Part in respect of persons, being information that: (a) is collected from passenger cards or passports, or contained in notified data bases (or both), by an officer of any Department or authority of the Commonwealth, or of a State or Territory; and (b) is concerned with any of the following matters, namely, law enforcement, national security, national intelligence, education, health, community services, social welfare, employment, labour, taxation, statistics, quarantine, customs, excise. (2) The consent of the Minister for the use of information concerned with a matter specified in paragraph (1) (b) may be given in respect of a particular occasion or any number of occasions.
(3) If: (a) the Commonwealth has entered into an agreement with another country in relation to the provision of information concerning international movements of air traffic and passengers on international flights; and (b) the Minister is satisfied that the provision to that country of the information specified in subregulation (4) would facilitate the handling of aircraft or of passengers travelling to destinations outside Australia; the Minister may cause that information to be provided to the immigration authorities of that country. (4) The information mentioned in paragraph (3) (b) is the following information in respect of passengers travelling to, or to and beyond, the country referred to in that subregulation: (a) name; (b) date of birth; (c) citizenship; (d) passport number; (e) date of departure from Australia; (f) flight number; (g) place of intended disembarkation; (h) ultimate destination. (5) If the Commonwealth enters into an agreement of a kind referred to in paragraph (3) (a): (a) he Minister must, as soon as is practicable, cause notice of the fact to be published in the Gazette; and (b) information must not be made available under the agreement earlier than the day after the day on which the notice is published. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 3.3
Provision by master of information regarding passengers
3.3. (1) If: (a) a vessel arriving at a port in Australia in the course of, or at the conclusion of, an overseas voyage or an overseas flight carries overseas passengers; and (b) the master of the vessel has not been required under this subregulation to provide a list of passengers in respect of the voyage or flight; the master must, on the request of an officer, provide to the officer a list of all the overseas passengers on board setting out, to the best of the master's knowledge and belief, in respect of each passenger: (c) the name of the passenger; and (d) the intended address in Australia of the passenger; and (e) the place in Australia at which the passenger's journey in the vessel ends; and (f) the citizenship of the passenger. (2) If a list of passengers on a vessel is provided under subregulation (1), the medical officer of the vessel or, if there is no medical officer of the vessel, the master of the vessel must provide with the list a certificate signed by the master: (a) certifying that, in the master's opinion, none of the passengers on the list, with the exception of the passengers, if any, whose names are set out in the certificate, is suffering from a prescribed disease or a prescribed physical or mental condition; and (b) if passengers are named in the certificate as being excepted from the certificate, setting out opposite to the name of each of the excepted passengers the nature of the disease or physical or mental condition from which the passenger is, in the opinion of the medical officer or the master, suffering; together with a number of copies of the certificate equal to the number of copies of the list required to be provided under subregulation (6). (3) If a vessel arriving at a port in Australia in the course of, or at the conclusion of, an overseas voyage or an overseas flight carries overseas passengers whose journey in the vessel ends at that port, the master of the vessel must, on the request of an officer, provide to the officer a list of those passengers setting out, to the best of the master's knowledge and belief, in respect of each passenger, such of the following particulars as the officer specifies: (a) the name of the passenger; (b) the intended address in Australia of the passenger; (c) the citizenship of the passenger. (4) If: (a) a vessel arriving at a port in Australia in the course of an overseas voyage or an overseas flight carries passengers: (i) who were on board the vessel when it left a place outside Australia at the commencement of, or during the course of, the voyage or flight; and (ii) who intend to travel in the vessel beyond Australia; and (b) the master of the vessel has not been required under this subregulation to provide a list of passengers in respect of the voyage or flight; the master must, on the request of an officer, provide to the officer a list of all the passengers referred to in paragraph (a) setting out, to the best of the master's knowledge and belief, in respect of each passenger: (c) the name of the passenger; and (d) the citizenship of the passenger; and (e) the number, and place of issue, of the passport held by the passenger. (5) If overseas passengers on board a vessel leaving a port in Australia and bound for, or calling at, a place outside Australia have joined the vessel at that port, the master of the vessel must, on the request of an officer, provide to the officer a list of those passengers setting out, to the best of the master's knowledge and belief, in respect of each passenger: (a) the name of the passenger; and (b) the place where the passenger's journey in the vessel ends. (6) An officer who requests the master of a vessel to provide a list referred to in subregulation (1), (3), (4) or (5) may, when making the request, require that a specified number (not exceeding 6) of copies of the list be provided with the list, and, if the officer so requires, the master must provide the specified number of copies accordingly.
(7) This regulation does not apply in relation to a vessel of the regular armed forces of a Government recognised by the Commonwealth. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 3.4
Provision by master of information regarding crew
3.4. (1) The master of a vessel, other than a vessel of the regular armed forces of a Government recognised by the Commonwealth, which enters Australia from overseas must, if required by an officer at a port: (a) give to the officer a list signed by the master showing the number and names of the crew, and the citizenship of each member of the crew; and (b) in the case of the master of a ship, produce to the officer the ship's articles. (2) The master of a ship referred to in paragraph (1) (b), must, if required by an officer at the first port of entry of the ship, give to the officer a list signed by the master showing the name and citizenship of every person on board who is not a genuine passenger or a member of the crew whose name appears on the ship's articles as a member of the crew for discharge at a port outside Australia. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 3.5
Production of deportee
3.5. If a person has been placed on board a vessel for the purpose of deportation from Australia under an order made by the Minister under the Act, an officer may, at any time before the vessel's departure from its last port of call in Australia, require the master to produce the deportee to the officer, and the master must not, without reasonable excuse, fail to comply with the requirement. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 3.6
Offences by master of vessel
3.6. The master of a vessel must not: (a) refuse or neglect to afford all reasonable facilities to an officer for the performance of the officer's duties; or (b) deliver to an officer, under these Regulations, a list or statement that is incorrect in a material particular. 1992 No. 367 MIGRATION (1993) REGULATIONS - PART 4
PART 4 - PROCEDURE OF COMMISSIONERS AND PRESCRIBED AUTHORITIES
1992 No. 367 MIGRATION (1993) REGULATIONS - REG 4.1
Power of Commissioner to send for witnesses and documents
4.1. A Commissioner appointed under subsection 57 (4) of the Act may, by writing signed by the Commissioner, summon any person: (a) to attend before the Commissioner at a time and place specified in the summons; and (b) to give evidence; and (c) to produce any books or documents in the person's custody or control which the person is required by the summons to produce. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 4.2
Duty of witness to continue in attendance
4.2. A person who has been summoned to attend before a Commissioner as a witness must appear and report from day to day, unless excused by the Commissioner. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 4.3
Arrest of witness failing to appear
4.3. (1) If a person who has been summoned to attend before a Commissioner fails to attend before the Commissioner as required by the summons or to appear and report in accordance with regulation 4.2, the Commissioner may, on being satisfied that the summons has been duly served and that reasonable expenses have been paid or tendered to the person, issue a warrant for the person's arrest. (2) A warrant authorises: (a) the arrest and bringing before the Commissioner of the person; and (b) the detention of the person in custody for the purposes specified in the warrant until the person is released by order of the Commissioner. (3) A warrant may be executed by a member of the police force of the Commonwealth or of a State or Territory or by any person to whom it is addressed, and the person executing it has power to break and enter any place, building or vessel for the purpose of executing the warrant.
(4) The arrest of a person under this regulation does not relieve that person from any liability incurred by the person because of the failure of that person to attend before the Commissioner. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 4.4
Witnesses - fees
4.4. (1) A person who attends to give evidence before a Commissioner is, in respect of that attendance, to be paid such fees and travelling expenses as the Commissioner thinks fit to allow in accordance with the scale in Schedule 2 to the Public Works Committee Regulations as in force from time to time under the Public Works Committee Act 1969. (2) The fees and travelling expenses are payable: (a) in the case of a witness summoned at the request of the person to whom the investigation relates - by that person; and (b) in any other case - by the Commonwealth. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 4.5
Power to examine on oath or affirmation
4.5. (1) A Commissioner may administer an oath to a person appearing as a witness before the Commissioner, whether the witness has been summoned or appears without being summoned, and may examine the witness on oath. (2) If a witness conscientiously objects to swear an oath, the witness may make an affirmation that the witness conscientiously objects to swear an oath and that the witness will state the truth, the whole truth, and nothing but the truth to all questions the witness is asked.
(3) An affirmation so made is of the same force and effect, and entails the same liabilities, as an oath. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 4.6
Offences by witnesses
4.6. A person summoned to attend before a Commissioner as a witness must not: (a) without reasonable cause, fail to attend, after payment or tender to the person of a reasonable sum for expenses of attendance; or (b) refuse to be sworn or to make an affirmation as a witness, or to answer any question when required to do so by the Commissioner; or (c) without reasonable cause, refuse or fail to produce a book or document which the person was required by the summons to produce. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 4.7
Statements of witness not admissible in evidence against the
witness
4.7. (1) A statement or disclosure made by a witness in answer to a question put to the witness during an investigation by a Commissioner is not (except in proceedings in respect of a false answer) admissible in evidence against the witness in any civil or criminal proceedings. (2) If the person to whom an investigation relates gives evidence before the Commissioner, subregulation (1) does not affect the admissibility of any statement or disclosure made by that person as evidence against that person in proceedings relating to the deportation of the person. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 4.8
Representation by counsel etc.
4.8. (1) In an investigation before a Commissioner, the person summoned to appear and the Minister are each entitled to be represented by a barrister or solicitor or by an agent approved by the Commissioner. (2) A barrister, solicitor or agent appearing before a Commissioner may examine or cross-examine witnesses and address the Commissioner. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 4.9
Offences in relation to Commissioners
4.9. A person must not: (a) wilfully insult or disturb a Commissioner when exercising powers and functions under the Act; or (b) interrupt the proceedings of a Commissioner; or (c) use insulting language towards a Commissioner; or (d) by writing or speech use words calculated to influence improperly a Commissioner or a witness before a Commissioner. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 4.10
Protection of Commissioners, barristers and witnesses
4.10. (1) A Commissioner has, in the performance of the duties of a Commissioner, the same protection and immunity as a Justice of the High Court. (2) A barrister, solicitor or approved agent appearing before a Commissioner has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.
(3) A witness summoned to attend, or appearing, before a Commissioner has the same protection as a witness in proceedings in the High Court. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 4.11
Procedure of prescribed authorities
4.11. The provisions of this Part apply to and in relation to prescribed authorities referred to in section 95 of the Act and proceedings before those prescribed authorities under section 92 or 93 of the Act in the same manner as they apply to and in relation to Commissioners and proceedings before Commissioners and as if references in those provisions to a Commissioner were references to a prescribed authority. 1992 No. 367 MIGRATION (1993) REGULATIONS - PART 5
PART 5 - ASSURANCES OF SUPPORT
1992 No. 367 MIGRATION (1993) REGULATIONS - DIVISION 1
Division 1 - Assurances of support given in relation to
applications lodged before 20 December 1991
1992 No. 367 MIGRATION (1993) REGULATIONS - REG 5.1
Interpretation
5.1. In this Division: "assurance of support" means: (a) an assurance of support given under these Regulations in relation to an application lodged before 20 December 1991; or (b) a maintenance guarantee that: (i) was given on or before 18 December 1989 under regulations that were in force under the Act or under any of the Acts repealed by the Act; and (ii) is expressed, or otherwise purports, to have effect after 19 December 1991. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 5.2
Form of certain assurances of support
5.2. An assurance of support given under this Division must be in the form approved by the Minister. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 5.3
Duration of assurances of support
5.3. (1) An assurance of support that, as at the end of 19 December 1991, had been in force for not less than 2 years is taken to have had no effect on or after 20 December 1991. (2) An assurance of support that: (a) was given before 20 December 1991 and, at the end of 19 December 1991, had been in force for less than 2 years; or (b) is given under this Division on or after 20 December 1991; ceases to have effect at the end of 2 years after the day when the applicant enters Australia or the grant of his or her application for the relevant entry permit, whichever happens later. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 5.4
Effect of assurance of support
5.4. If, while an assurance of support has effect after 19 December 1991 in respect of a person, that person has received support in the form of: (a) a job search allowance payable under Part 2.11 of the Social Security Act 1991; or (b) a newstart allowance payable under Part 2.12 of that Act; or (c) a special benefit payable under Part 2.15 of that Act; an amount equal to the value of the support provided (less any amount paid in respect of the support by or on behalf of that person to the Commonwealth) is a debt due and payable to the Commonwealth by the person who gave the assurance. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 5.5
Earlier liabilities not affected
5.5. Nothing in this Division affects any liability incurred under, or in respect of, an assurance of support before 20 December 1991. 1992 No. 367 MIGRATION (1993) REGULATIONS - DIVISION 2
Division 2 - Assurances of support given in relation to
applications lodged on or after 19 December 1991
1992 No. 367 MIGRATION (1993) REGULATIONS - REG 5.6
Interpretation
5.6. In this Division: "assurance of support" means an assurance of support that is given in relation to an application lodged on or after 19 December 1991; "required assurance" means an assurance of support that is an unconditional requirement prescribed in Schedule 2 or 3 for the grant of a visa or entry permit; "relevant entry permit", in relation to an assurance of support, means: (a) the entry permit or entry visa for the grant of which the giving of the assurance of support was required; or (b) the entry permit the grant of which on entry was a consequence of the grant of a travel-only visa for the grant of which the giving of the assurance of support was required. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 5.7
Form and duration of assurance of support
5.7. (1) An assurance of support: (a) must be on the form approved by the Minister; and (b) has effect in respect of a person for the period of 2 years beginning on the day when that person enters Australia or is granted the relevant entry permit, whichever happens later. (2) A required assurance is taken not to have been given unless the bond (if any) required by regulation 5.10 in relation to it has been lodged. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 5.8
Persons in respect of whom assurance of support may be given
5.8. (1) Subject to subregulation (2), a person must not give assurances of support having effect at the same time in respect of more than 2 persons. (2) A person does not count for the purposes of subregulation (1) if that person: (a) has not turned 18; and (b) is included in an assurance of support given in respect of another person. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 5.9
Liability of person giving assurance of support;
5.9. (1) If a person receives a payment in the form of: (a) a job search allowance payable under Part 2.11 of the Social Security Act 1991; or (b) a newstart allowance payable under Part 2.12 of that Act; or (c) a special benefit payable under Part 2.15 of that Act; and an assurance of support has effect in respect of the person when he or she receives the payment, the person who gave the assurance is liable, subject to this regulation, to pay to the Commonwealth the amount of the payment. (2) A person is not liable to pay an amount that would otherwise be payable under subregulation (1) in respect of a required assurance until the Commonwealth has taken all reasonable steps to enforce the bond lodged in respect of the assurance.
(3) An amount payable under subregulation (1) is reduced by: (a) any amount obtained by the Commonwealth under the bond that has not been applied to reduce a person's liability to the Commonwealth; and (b) any amount paid to the Commonwealth in respect of the payment. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 5.10
Bond (required assurances);
5.10. (1) A person who gives a required assurance in respect of an applicant for a visa or entry permit who has turned 18 must lodge with the Minister a bond in accordance with this regulation. (2) The bond must be lodged before a decision is made on the application to which the required assurance relates.
(3) The bond must be in a form approved by the Minister that secures the payment to the Commonwealth, on demand, of any amount (up to the amount of the bond) due to the Commonwealth under regulation 5.9 in respect of: (a) the applicant; and (b) if the assurance has effect also in relation to a person who has not turned 18, that person. (4) The amount of a bond is: (a) unless paragraph (b) applies-$3,500; or (b) if the application to which the assurance relates is dependent on the holding by, or grant to, another person of a visa or entry permit of the same kind as that sought in the application-$1,500. 1992 No. 367 MIGRATION (1993) REGULATIONS - PART 6
PART 6 - MIGRANT CENTRES
1992 No. 367 MIGRATION (1993) REGULATIONS - REG 6.1
Control of migrant centres
6.1. (1) There is to be a Director of each migrant centre maintained under section 112 of the Act. (2) Subject to the directions of the Secretary, the Director of a migrant centre has the management and control of the migrant centre on behalf of the Commonwealth and may, in particular: (a) admit persons to the migrant centre; and (b) direct a person not to enter the migrant centre; and (c) direct a person to leave the migrant centre; and (d) give such directions to a person with respect to the person's conduct in the migrant centre as are, in the opinion of the Director, necessary for the maintenance of order and health, the protection and preservation of property and the comfort of persons accommodated in the migrant centre. (3) A direction under this regulation may be given orally or in writing.
(4) A person must not refuse or fail to comply with a direction given to the person under this regulation.
(5) A member of the police force of the Commonwealth or of a State or Territory may, at the request of the Director of a migrant centre, remove a person from the migrant centre or prevent a person from entering the migrant centre. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 6.2
Canteen services in migrant centres
6.2. (1) The Minister may cause to be established and operated at a migrant centre maintained under section 112 of the Act a canteen service for the supply of goods and refreshments to, and the entertainment and recreation of, persons from time to time accommodated at or employed in the migrant centre. (2) The Minister may make arrangements for the establishment and operation of a canteen service by the Army and Air Force Canteen Service Board of Management constituted by the Army and Air Force Canteen Service Regulations.
(3) It is not necessary, under or by reason of any law of a State or Territory, to obtain or have any licence or permission for: (a) keeping intoxicating liquor; or (b) supplying intoxicating liquor, by way of sale or otherwise, to persons accommodated at or employed in a migrant centre; or (c) supplying intoxicating liquor, at the expense of persons accommodated at or employed in a migrant centre, to their guests; or (d) permitting the consumption of intoxicating liquor; at a canteen operated under these Regulations, or at premises at a migrant centre used by a club conducted with the approval of the Director of the migrant centre and consisting of persons accommodated at, or employed in, the migrant centre, if the keeping, supplying or permitting takes place in the course of the operations of the canteen, or of the club, as the case may be. 1992 No. 367 MIGRATION (1993) REGULATIONS - PART 7
PART 7 - MISCELLANEOUS
1992 No. 367 MIGRATION (1993) REGULATIONS - DIVISION 1
Division 1 - Lodgment and service of documents
1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.1
Service of documents generally;
7.1. (1) If the Minister, the Secretary or an officer of Immigration is required or authorised to give a document to, or serve a document on, a person for the purposes of the Act or these Regulations, the document may be given or served: (a) by giving the document to the person personally or to another person authorised by the first-mentioned person to receive documents of that kind on behalf of the first-mentioned person; or (b) by posting it to the person at the address of that person's last-known place of residence. (2) In the case of a person whom the Minister, the Secretary or an officer of the Department reasonably believes to be an illegal entrant, the document may be given to or served on the person: (a) in accordance with subregulation (1); or (b) by publishing it: (i) in a metropolitan newspaper circulating in the State or Territory in which the person's last-known place of residence place of residence is located; or (ii) in any newspaper circulating in the State or Territory in which the person's place of disembarkation on arrival in Australia is located; or (iii) in any newspaper having a national circulation. (3) In the case of a document published in accordance with paragraph (2) (b) in respect of 1 illegal entrant, particulars may be abridged in a manner that is consistent with the need for identification of the illegal entrant.
(4) In the case of a document published in accordance with paragraph (2) (b) in respect of each of 2 or more illegal entrants, it is sufficient compliance with the paragraph: (a) if 1 document is published in respect of both or all those illegal entrants; and (b) if particulars specified in relation to individual persons are abridged in a manner that is consistent with the need for identification. (5) A document may be given or served in accordance with this regulation by giving or serving a facsimile or certified copy of the document. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.2
Service outside Australia
7.2. Where a document to be served on a person is to be served outside Australia, it is duly served if it is posted to the person at the address of the last-known place of residence or business of the person outside Australia. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.3
Service on owner, agent, charterer or master of vessel
7.3. (1) A document required or permitted by the Act or these Regulations to be served on the owner, agent or charterer of a vessel may be served at any place of business of the owner, agent or charterer or (in the case of the owner or charterer) at any place of business of the agent of the vessel: (a) by sending it by certified post to the person at that place; or (b) by leaving it at that place with a person apparently employed at that place and apparently not less than 16 years of age. (2) A document required or permitted by the Act or these Regulations to be served on the master of a vessel may be served: (a) by giving it to the master personally; or (b) by leaving it on board the vessel with an officer of the vessel. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.4
Service of notice on bank or other financial institution
(subsection 68 (2) of Act)
7.4. A copy of a notice under subsection 68 (2) of the Act to be served on a bank or other financial institution is duly served if it is sent by facsimile transmission service to the head office in Australia of the bank or other financial institution. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.5
Summons to attend as witness
7.5. A summons to a person to attend as a witness may be served: (a) on that person personally; or (b) by sending it by certified post to the person at the address of the person's last-known place of residence; or (c) by leaving it at the person's last-known place of residence with another person apparently an occupant of that place and apparently not less than 16 years of age. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.6
Time when service takes effect
7.6. (1) Subject to this regulation, service of a document on a person is to be taken to have been effected: (a) on the day on which it is given to, or left with, the person; or (b) on the day on which it is given to, or left with, another person authorised by the first-mentioned person to receive documents of that kind on behalf of the first-mentioned person; or (c) where these Regulations provide for such service - on the day on which it is left at the place of business or residence of the person to be served with another person apparently employed at, or an occupant of, that place and apparently not less than 16 years of age. (2) Subject to subregulation (3), if a document is served on a person in accordance with this Division by post, service is to be taken to have been effected: (a) if the service is within Australia - on the expiry of 5 working days after the day of posting; or (b) if the service is outside Australia - on the expiry of 21 days after the day of posting. (3) If service of a document on a person in accordance with this Division is by publication in a newspaper, service is to be taken to have been effected on the expiry of 7 days after the day of publication. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.7
Saving
7.7. Nothing in this Division affects: (a) any requirement in these Regulations that a document be given to, or served on, a person in a particular manner; or (b) any mode of giving a document to a person, or serving a document on a person, that is authorised by these Regulations or the Acts Interpretation Act 1901. 1992 No. 367 MIGRATION (1993) REGULATIONS - DIVISION 2
Division 2 - Reconsideration of decisions
1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.8
Reconsideration of decisions to refuse to grant a visa or entry
permit
7.8. (1) If a person whose application under the Act as in force before 19 December 1989 for the grant of a visa or entry permit has been refused after 18 September 1989, and that person: (a) did not lodge under regulation 29B, 29BA, 29BB or 29BC of the Migration Regulations as in force before 19 December 1989 a second application for the visa or entry permit; and (b) was not entitled to apply under the Migration (Review) Regulations in force at any time before the commencement of these Regulations for review of the decision; and (c) did not apply to the Minister under the Migration (1989) Regulations to reconsider the decision; the person may make 1 application to the Minister, in a form approved by the Minister, to reconsider the decision. (2) Subregulation (1) does not apply if the application was made: (a) on humanitarian grounds; or (b) on the ground that the applicant was entitled to the status of a refugee within the meaning of: (i) the Convention relating to the status of refugees that was done at Geneva on 28 July 1951; or (ii) the Protocol relating to the status of Refugees that was done at New York on 31 January 1967; or (c) on the ground that the applicant was a student. (3) Subregulation (1) does not apply if: (a) the applicant: (i) was outside Australia when the application was lodged; and (ii) applied for a visitor visa; or (b) the applicant: (i) was in Australia as a visitor; and (ii) applied for a further temporary entry permit; unless, when the application was lodged, the applicant was the: (c) spouse; or (d) child or step-child; or (e) adopted child or step-adopted child; or (f) parent or step-parent; or (g) sister or step-sister; or (h) brother or step-brother; or (i) intended spouse; of an Australian citizen, or an Australian permanent resident, normally resident in Australia. (4) An application under subregulation (1) to reconsider a decision to refuse to grant a visa or entry permit must be lodged: (a) if the applicant is physically present in Australia when the decision is made: (i) before the expiration of 28 days after the applicant was notified of the decision in accordance with these Regulations or the Migration (1989) Regulations; or (ii) on or before 31 August 1990; whichever is the later; or (b) if the applicant is not so present: (i) before the expiration of 70 days after the applicant was notified of the decision in accordance with these Regulations or the Migration (1989) Regulations; or (ii) on or before 31 August 1990; whichever is the later. (NOTE: For fee payable on an application, see regulation 7.29.) 1992 No. 367 MIGRATION (1993) REGULATIONS - DIVISION 3
Division 3 - General
1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.9
Prescribed persons (subsection 15 (3) of the Act)
7.9. (1) For the purposes of subsection 15 (3) of the Act, a guest of government is a prescribed person. (2) In subregulation (1): "guest of government" means a person who is visiting Australia, at the invitation of the Prime Minister, as an official guest of the Commonwealth. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.10
Approved appointments (employer nomination)
7.10. (1) A proposed appointment is an approved appointment for the purpose of these Regulations if it is the subject of an employer nomination that meets the requirements of subregulation (2). (2) An employer nomination meets the requirements of this subregulation if: (a) the employer nomination is made by an employer in respect of a need for a paid employee in a business: (i) located in Australia; and (ii) operated by that employer; and (b) the work to be performed requires the appointment of a highly skilled person; and (c) the appointment will provide the employee with full-time employment and: (i) will be permanent; or (ii) in the case of an appointment to an academic or scientific-research position in an academic, or scientific research, institution: (a) will be for a fixed term of at least 3 years; and (b) will not be subject to an express exclusion of the possibility of renewal of the appointment for a further such term; and (d) the Minister is satisfied: (i) that the employer has made, and continues to make, adequate provision for training existing employees in work relevant to the business; or (ii) if the business is newly established, that the employer is making adequate provision for future training of employees in work relevant to the business; and (e) the Minister is satisfied that: (i) an Australian citizen or Australian permanent resident cannot be found who is suitable for the appointment; or (ii) in the circumstances of the case, the employer should not be required to seek a suitable employee in Australia; and (f) the applicant is to be employed or engaged in Australia in accordance with the standards for wages and working conditions provided for under relevant Australian legislation and awards. (3) In this regulation: "highly skilled person", in relation to a proposed employment appointment, means a person who has, in respect of work of the kind to be performed under that appointment: (a) completed, over a period of at least 3 years, formal training or equivalent experience; and (b) unless the approved appointment is exceptional - been employed for at least 3 years: (i) after completing the training or experience referred to in paragraph (a); and (ii) before making the application; and (c) acquired competence assessed by the Minister to be at least average for a person to whom paragraphs (a) and (b) apply. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.11
Prescribed diseases (subparagraph 20 (1) (d) (i) of Act)
7.11. For the purposes of subparagraph 20 (1) (d) (i) of the Act, each of the following diseases and physical or mental conditions is a prescribed disease or a prescribed physical or mental condition, as the case may be: (a) tuberculosis or any other communicable disease of a fatal or serious nature which is a threat to public health in Australia; (b) any other disease or condition which would be likely to endanger the Australian community during the person's intended period of stay in Australia; (c) any disease or condition which, during the person's intended period of stay in Australia: (i) would require significant care or treatment; or (ii) would require care or treatment (or both) involving the use of community resources in short supply; or (iii) would prevent that person from pursuing an intended occupation in Australia; or (iv) would result in such a person becoming a significant charge on public funds. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.12
Prescribed circumstances (subparagraph 20 (1) (d) (vi) of Act)
7.12. For the purposes of subparagraph 20 (1) (d) (vi) of the Act, each of the following circumstances is a prescribed circumstance in relation to the exclusion of a person from a country other than Australia: (a) that the person refused or failed to present a passport or other travel document on request by the competent authorities in that country in circumstances in which it would be unreasonable to refuse or fail to do so; (b) that the person presented to those authorities a passport or other travel document that was a bogus document within the meaning of subsection 20 (15) of the Act; (c) that the person was reasonably refused entry to that country on the ground that the person was not a genuine visitor; (d) that the authorities of that country considered the person to be a threat to the national security of the country. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.13
Section 20 notice
7.13. A notice under subsection 20 (3) of the Act is to be in accordance with prescribed form 1. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.14
Prescribed procedures (subsection 59 (2) of Act)
7.14. For the purposes of subsection 59 (2) of the Act, the following procedures are the procedures to be followed by the Minister in relation to a person referred to in that subsection: (a) to find out whether the person has been granted, or is an applicant to be granted, refugee status or territorial asylum; (b) to find out from the person whether the person has applied to be granted refugee status or territorial asylum; (c) to ascertain whether the person: (i) is an applicant for an entry permit; or (ii) has applied to a review authority following a decision by the Minister refusing to grant an entry permit; (d) to verify that the person has not notified the Minister that the person is subject to a court order that is in force affecting the Minister's exercise of the power to order the deportation of the person; (e) to verify that: (i) if the person applied to the Minister under clause 6002 of Schedule 6 or under subparagraph 42 (1a) (a) (iv) of the Migration (1989) Regulations-7 working days; or (ii) in any other case-2 working days; have elapsed after the day on which the person was arrested under section 92 or 93 of the Act, as the case requires. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.15
Prescribed matters (subsections 60 (1) and 82 (1) of Act)
7.15. For the purposes of subsections 60 (1) and 82 (1) of the Act, the following matters are the matters to be considered by the Minister in relation to a person referred to in either of those subsections: (a) whether the person is an illegal entrant; (b) whether the person has been given, in accordance with these Regulations or the Migration (1989) Regulations, a notice of the intention to refer to the Minister the question of the exercise of the power: (i) to order the deportation of the person; or (ii) to require the person to leave Australia; as the case requires; (c) whether the person has been granted, or is an applicant to be granted, refugee status or territorial asylum; (d) whether the person: (i) is an applicant for an entry permit; or (ii) has applied to a review authority following a decision by the Minister refusing to grant an entry permit; (e) whether the person is subject to a court order that is in force affecting the Minister's exercise of the relevant power referred to in paragraph (b); (f) whether: (i) if the person applied to the Minister under clause 6002 of Schedule 6 or under subparagraph 42 (1a) (a) (iv) of the Migration (1989) Regulations-7 working days; or (ii) in any other case-2 working days; have elapsed after the day on which the person was arrested under section 92 or 93 of the Act, as the case requires. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.16
Section 76 of Act-prescribed penalty ;
7.16. For the purposes of paragraph 181 (1) (j) of the Act, $1,000 is prescribed as the penalty for an offence against section 76 of the Act. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.17
Infringement notices-offences against section 76 of the Act;
7.17. (1) In this regulation: "authorised officer" means: (a) the Secretary; or (b) an officer authorised in writing by the Secretary for the purposes of this regulation; "carrier offence" means an offence against section 76 of the Act. (2) An authorised officer may cause an infringement notice to be served on a person if the authorised officer believes on reasonable grounds that the person has committed a carrier offence.
(3) in infringement notice must: (a) state the name of the person who caused the notice to be served; and (b) specify the day on which and the place at which the carrier offence is alleged to have been committed; and (c) give brief particulars of the alleged carrier offence; and (d) contain a notification to the person on whom it is served that, if that person does not wish the matter to be dealt with by a court, the person may pay the amount of the prescribed penalty in relation to that prescribed offence, being the amount specified in the notice, within the period of 28 days after the day of the notice unless the notice is withdrawn before the end of that period; and (e) specify the place at which, and the manner in which, the prescribed penalty may be paid; and (f) contain a statement setting out the procedures under this regulation relating to the withdrawal of notices and the consequences of the withdrawal of a notice. (4) An infringement notice may contain such other particulars, if any, as the authorised officer considers necessary.
(5) If an infringement notice has been served on a person, an authorised officer may, by notice in writing served on the person in accordance with these Regulations, at any time before: (a) the end of the period of 28 days after the day of the notice; or (b) subject to subregulation (6), the end of such further period as the authorised officer allows, whether before or after the end of the first-mentioned period; withdraw the infringement notice. (6) An infringement notice must not be withdrawn under subregulation (5) after the expiry of 3 calendar months commencing on the day on which the notice was served. (7) If, before: (a) the end of the period of 28 days after the day of service of an infringement notice or such greater period as an authorised officer, whether before or after the end of the first-mentioned period, allows; or (b) the notice is withdrawn; whichever first occurs, the amount of the prescribed penalty in relation to the alleged carrier offence is paid in accordance with the notice, then: (c) any liability of the person in respect of the alleged carrier offence is discharged; and (d) no further proceedings may be taken in respect of the alleged prescribed offence; and (e) the person is not to be regarded as having been convicted of the alleged prescribed offence. (8) If: (a) an infringement notice has been served on a person; and (b) the person has paid the prescribed penalty in accordance with the notice; and (c) the notice is subsequently withdrawn; an authorised officer is to arrange for the refund to the person of an amount equal to the amount of the prescribed penalty so paid. (9) At the hearing of a prosecution for a carrier offence in respect of which an infringement notice has been served, a certificate signed by an authorised officer and stating: (a) that an authorised officer: (i) did not allow a further period; or (ii) allowed the further period specified in the certificate; for the purpose of paragraph (5) (b), for the payment of the prescribed penalty; or (b) that the prescribed penalty was not paid in accordance with the notice within the period of 28 days after the day of the notice or within any further period allowed for the purpose of paragraph (5) (b); or (c) that the infringement notice was withdrawn on a day specified in the certificate; is evidence of the matters so stated. (10) A document that purports to have been signed for the purposes of this regulation by an authorised officer is to be taken to have been so signed unless the contrary is proved. (11) If the amount of the prescribed penalty is paid by cheque, payment is not taken to have been made unless and until the cheque is honoured upon presentation.
(12) Nothing in this regulation is to be taken: (a) to require the service of an infringement notice under this regulation; or (b) to affect the institution or prosecution of proceedings; or (c) to limit the amount of the fine that may be imposed by a court; in respect of an alleged prescribed offence in relation to which: (d) an infringement notice has not been served; or (e) an infringement notice has been served and withdrawn in accordance with this regulation. (13) For the purposes of this regulation, the prescribed penalty is $1,000. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.18
Prescribed matters (subsection 63 (1) of Act)
7.18. For the purposes of subsection 63 (1) of the Act, the following matters are the matters to be considered by the Minister in relation to a person referred to in that subsection: (a) whether there has been a prescribed change in the person's circumstances referred to in paragraph 36 (1) (a) or 37 (2) (a) of the Act; (b) whether the person has been granted refugee status or territorial asylum; (c) whether: (i) the person has proposed to the Minister in writing to be permitted to leave Australia under supervision and that proposal has been accepted by the Minister; or (ii) revocation of the order for the deportation of the person has been recommended by the Administrative Appeals Tribunal and that recommendation has been accepted by the Minister; (d) whether: (i) the person has applied: (A) under subregulation 7.8 (1) for a reconsideration of a decision referred to in that subregulation; or (B) under regulation 21 of the Migration (Review) Regulations for review of a decision referred to in that regulation in circumstances where paragraph 21 (3) (b) of those Regulations applies to the person; and (ii) the reconsideration or review has been decided in favour of the applicant; (e) whether, under section 115 or 137 of the Act, a decision of a review officer or the Immigration Review Tribunal in relation to the person has been replaced by a decision of the Minister that is in favour of the person; (f) whether the person satisfies the criteria (other than the criterion that the person must be the holder of a section 47 entry permit) for the grant of: (i) a Class 812 (December 1989 (permanent); or (ii) in the case of a person who satisfies the requirement of subclause 806.721 (6) in Schedule 2-a Class 806 (family and other close ties (after entry)) entry permit; (g) whether the person satisfies the criteria for the grant to the person, as a primary person, of a Class 437 (PRC (temporary)) entry permit. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.19
Search warrants (subsections 68 (14) and 90 (4) of Act)
7.19. (1) A search warrant for the purposes of subsection 68 (14) of the Act is to be in accordance with prescribed form 3. (2) A search warrant for the purposes of subsection 90 (4) of the Act is to be is to be in accordance with prescribed form 2. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.20
Document for purposes of subsection 114 (2) of Act
7.20. A document for the purposes of subsection 114 (2) of the Act is to be in accordance with prescribed form 4. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.21
Offences
7.21. A person must not contravene or fail to comply with a provision of these Regulations that is applicable to that person. Penalty: $100 or imprisonment for 3 months. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.22
Detention centres-medical treatment
7.22. (1) For the purposes of subsection 113 (2) of the Act, the Secretary may cause medical treatment to be given to a detainee without the detainee's consent. (2) The power conferred by subregulation (1) may be exercised only if: (a) the detainee: (i) has refused or failed to consent to the medical treatment; or (ii) is not reasonably capable of giving consent to the medical treatment; and (b) a legally qualified medical practitioner has stated in writing that there is a serious risk to the life or health of the detainee and that the medical treatment is reasonably necessary to safeguard the life or health of the detainee. (3) The Secretary and persons acting at the direction of the Secretary may use reasonable force for the purpose of giving medical treatment, or enabling medical treatment to be given, in accordance with this regulation.
(4) In this regulation: "detainee" means a person held at a detention centre in custody under the Act; "medical treatment" includes the administration of nourishment and fluids; "reasonable force" includes the reasonable use of restraint and sedatives. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.23
Consent by Secretary to medical treatment of persons in custody
7.23. (1) The Secretary may consent to the giving of medical treatment to a person in custody under the Act if: (a) the person is not reasonably capable of giving consent to the medical treatment; and (b) a legally qualified medical practitioner has stated in writing that there is a serious risk to the life or health of the person and that the medical treatment is reasonably necessary to safeguard the life or health of the person. (2) In this regulation: "medical treatment" includes: (a) the administration of nourishment and fluids; and (b) treatment at a hospital. 1992 No. 367 MIGRATION (1993) REGULATIONS - DIVISION 4
Division 4 - Fees
1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.24
Fees in respect of applications for visas and entry permits
7.24. (1) Subject to this Division, there is payable in respect of an application for a visa or entry permit the fee (if any) specified in the relevant Part of Schedule 2 or 3. (2) Subject to subregulation (3), a fee payable in respect of an application for a visa or an entry permit is payable upon the lodgment of the application.
(3) If: (a) a person is an applicant for a student entry permit; and (b) the government of a country other than Australia has undertaken to be responsible for the payment of all or part of the fee in relation to the entry permit; and (c) the Minister is satisfied that the fee, or any part of the fee, that is unpaid by that government will be paid; the Minister may, in spite of subregulation (2), grant the entry permit to the applicant. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.25
Payment of fees in foreign currencies
7.25. (1) Payment in a foreign country of a fee payable under these Regulations may be made: (a) by payment of the amount of that fee in Australian currency; or (b) by payment of the corresponding amount, ascertained from Schedule 10, in the currency of a country in which the fee is paid, being a country specified in that Schedule; or (c) if the fee is payable by or on behalf of a citizen of that foreign country (not being a country specified in that Schedule), by payment of the corresponding amount, ascertained in accordance with subregulation (2), in the currency of the foreign country. (2) Subject to subregulation (3), for the purposes of paragraph (1) (c), the corresponding amount in the currency of the foreign country is the amount calculated using the formula: AUD X CER X 1.05 where: "AUD" means the amount of the fee in Australian dollars; "CER" means the highest exchange rate that is lawfully obtainable on a commercial basis for the purchase in the foreign country of Australian currency with the currency of the foreign country in a period that: (a) begins: (i) on the day when this regulation commences; or (ii) on any subsequent day when that rate increases or decreases by at least 5%; and (b) ends at the end of each day before another period begins. (3) An amount calculated using the formula in subregulation (2) is to be rounded up to the nearest amount that is a multiple of banknotes in the currency of the foreign country. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.26
Employer nomination fee
7.26. The fee payable in respect of an employer nomination is $250. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.27
Sponsorship fee
7.27. (1) This regulation applies to sponsorship of an applicant if: (a) the applicant is applying for a visa or a further temporary entry permit for which sponsorship is a requirement (other than a Class 426 (domestic worker (diplomatic or consular)) visa or entry permit); and (b) the sponsor is a person or organisation in Australia who, or which, lodges the application on behalf of the applicant. (2) Subject to subregulation (3), there is payable in respect of a sponsorship of an applicant to which this regulation applies: (a) if not more than 10 applications are lodged together by the sponsoring person or organisation - $145 in respect of each sponsorship; or (b) if more than 10 such applications are lodged together by the sponsoring person or organisation - $1450. (3) A fee under subregulation (2) is not payable if: (a) the application is in respect of a visa and the intended period of continuous employment does not exceed 4 months; or (b) the application is in respect of a temporary entry permit granted in Australia, and: (i) the applicant's sponsor in relation to the application was the applicant's sponsor in relation to the temporary entry permit or the temporary entry visa currently held by the applicant; and (ii) the applicant is continuing in the same employment, and: (a) a sponsorship fee has been paid in respect of that employment; or (b) the intended period of continuous employment (including any previous period of employment continuous with the period to which the application relates) does not exceed 4 months. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.28
Refund of fees
7.28. (1) If: (a) a fee is paid by a person, before or after the commencement of this regulation, in respect of an application for a visa or an entry permit; and (b) the application is for any reason unnecessary or is made as a result of a mistake made by the person or by Immigration; the person is entitled to a refund of an amount equal to the amount of the fee paid. (2) If: (a) a fee is paid by a person, before or after the commencement of this subregulation, in respect of an application for a visa or an entry permit; and (b) the applicant dies before a decision is made on the application; the legal personal representative of the applicant is entitled to a refund of an amount equal to the amount of the fee paid. (3) The receipt of a person purporting to be a legal personal representative of a deceased applicant is for all purposes a good discharge of any liability of the Commonwealth under subregulation (2).
(4) If: (a) an application for an entry permit is made by: (i) a person to whom section 36 of the Act applies; or (ii) an illegal entrant to whom section 37 of the Act applies; and (b) the relevant fee is paid on the application; and (c) at the time of the application, there has not been a prescribed change in the applicant's circumstances: (i) if the applicant is a person to whom section 36 applies - since the end of the period referred to in paragraph 36 (1) (a) of the Act; or (ii) if the applicant is an illegal entrant to whom section 37 applies - since the applicant last applied for an entry permit; the applicant is entitled to a refund of an amount equal to the amount of the fee so paid. (5) If: (a) an applicant for a visa or entry permit other than a Class 437 (PRC (temporary) entry permit) is a citizen of PRC; and (b) movement records kept by Immigration show that the applicant entered Australia on or before 20 June 1989 and was in Australia on that day; and (c) a decision has not been made on the application; the applicant may withdraw the application and, upon that withdrawal, is entitled to a refund of any fee paid on the application. (6) The amount of a refund to which a person is entitled in respect of a fee paid in the currency of a particular country may be paid to the person in that currency. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.29
Fee on application for reconsideration of a decision
7.29. (1) There is payable on application under regulation 7.8 for reconsideration of a decision to refuse to grant a visa or entry permit a fee of $240. (2) The fee paid under subregulation (1) is to be refunded if on reconsideration under regulation 7.8 the applicant is granted a visa or entry permit. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 7.30
Fee on application by person to whom subsection 14 (2) of Act
applies
7.30. (1) Despite any other provision in these Regulations, no fee is payable on application for an entry permit if the application is made not later than the expiry of 7 working days after the day on which the applicant received the notice. (2) Despite any other provision of these Regulations, no fee is payable on application for an entry permit if the application is made by a person who: (a) is an illegal entrant by reason of the operation of subsection 14 (2) of the Act; and (b) has not been given a notice to that effect by the Minister. 1992 No. 367 MIGRATION (1993) REGULATIONS - PART 8
PART 8-REPEAL AND SAVING PROVISIONS
1992 No. 367 MIGRATION (1993) REGULATIONS - REG 8.1
Repeal of Migration (1989) Regulations
8.1. The Statutory Rules set out in Schedule 12 are repealed. 1992 No. 367 MIGRATION (1993) REGULATIONS - REG 8.2
Saving
8.2. (1) Despite the repeal effected by regulation 8.1, the Migration (1989) Regulations continue to apply to: (a) an application for a visa or entry permit made before the commencement of these Regulations; and (b) review, or proceedings for review, of a decision in relation to an application referred to in paragraph (a); and (c) proceedings under subsection 57 (3) of the Act begun before the commencement of these Regulations; and (d) proceedings by a prescribed authority under subsection 92 (4) or 93 (6) of the Act begun before the commencement of these Regulations. (2) Despite the repeal effected by regulation 8.1, notices made by the Minister under regulation 3B of the Migration (1989) Regulations continue in force, and may be amended or repealed, as if made under these Regulations.
(3) Subregulations (1) and (2) are taken not to affect the application of the relevant provisions of Part III, or of section 50, of the Acts Interpretation Act 1901. 1992 No. 367 MIGRATION (1993) REGULATIONS - SCHEDULE 1
SCH
SCHEDULE 1 Regulation 2.1 CLASSIFICATION OF VISAS AND ENTRY PERMITS PART 1 - PERMANENT VISAS AND ENTRY PERMITS Division 1.1 - Group 1.1 (Migrant) Column Column 2 Column 3 Item No. Class number and title Secondary person provision (Schedule 3) 1101 102 (Adoption) 011 1102 127 (Business skills) 011 1103 128 (Business skills (senior executive)) 011 1104 101 (Child) 011 1105 105 (Concessional family) 011 1106 124 (Distinguished talent (Australian support)) 011 1107 125 (Distinguished talent and special service (independent)) 011 1108 121 (Employer nomination) 011 1109 152 (Family reunion (N.Z. citizen)) 011 1110 150 (Former citizen) 011 1111 151 (Former resident) 011 1112 126 (Independent entrant) 011 1113 120 (Labour agreement) 011 1114 103 (Parent) 011 1115 104 (Preferential family) 011 1116 431 (Restricted passport) (Visa only) 011 1117 813 (Special equivalent 1989 (permanent)) (Entry permit only) 011 1118 100 (Spouse) 011 Division 1.2 - Group 1.2 (Permanent resident (after entry)) 1201 804 (Aged parent (after entry)) (Entry permit only) 012 1202 802 (Child (after entry)) (Entry permit only) 012 1203 806 (Family and other close ties (after entry)) (Entry permit only) 012 1204 808 (Confirmatory) (Entry permit only) 012 1205 812 (December 1989 (permanent)) (Entry permit only) 012 1206 814 (Interdependency (permanent)) (Entry permit only) - 1207 810 (Refugee (permanent)) (Entry permit only) - 120\8 805 (Skilled occupation) (Entry permit only) 012 1209 801 (Spouse (after entry)) (Entry permit only) - 1210 800 (Territorial asylum) (Entry permit only) 012 Division 1.3 - Group 1.3 (Permanent resident (refugee and humanitarian)) 1301 211 (Burmese (special assistance)) 013 1302 205 (Camp clearance) 013 1303 209 (Citizens of the former Socialist Federal Republic of Yugoslavia - displaced persons (special assistance)) 013 1304 208 (East Timorese in Portugal (concession)) 1305 203 (Emergency rescue) 013 1306 202 (Global special humanitarian program) 013 1307 201 (In-country special humanitarian program) 013 1308 210 (Minorities of former USSR (concession)) 013 1309 200 (Refugee) 013 1310 212 (Sudanese (special assistance)) 013 1311 204 (Woman at risk) 013 Division 1.4 - Group 1.4 (Resident return (permanent entry)) 1401 154 (Resident return (A)) - 1402 155 (Resident return (B)) - 1403 156 (Resident return (C)) - 1404 157 (Resident return (D)) - 1405 158 (Resident return (E)) - PART 2 - TEMPORARY VISAS AND ENTRY PERMITS Division 2.1 - Group 2.1 (Temporary resident) 2101 995 (Diplomatic) (Visa only) 021 2102 426 (Domestic worker (diplomatic or consular)) 021 2103 427 (Domestic worker (overseas executive)) 021 2104 418 (Educational) 021 2105 303 (Emergency (temporary entry)) 021 2106 420 (Entertainment) 021 2107 411 (Exchange) 021 2108 413 (Executive (overseas)) 021 2109 432 (Expatriate) 021 2110 425 (Family relationship) 021 2111 415 (Foreign government agency) 021 2112 412 (Independent executive) 021 2113 305 (Interdependency (temporary)) 021 2114 423 (Media and film staff) 021 2115 422 (Medical practitioner) 021 2116 442 (Occupational trainee) 021 2117 424 (Public lecturer) 021 2118 428 (Religious worker) 021 2119 410 (Retirement) 021 2120 304 (Special equivalent 1989 (temporary)) 021 2121 416 (Special program) 021 2122 414 (Specialist (overseas)) 021 2123 421 (Sport) 021 2124 430 (Supported dependant) 021 2125 419 (Visiting academic) 021 2126 417 (Working holiday) 021 Division 2.2 - Group 2.2 (Student) 2201 560 (Student (category A)) 022 2202 561 (Student (category B)) 022 Division 2.3 - Group 2.3 (Visitor) 2301 682 (Business visitor) - 2302 683 (Close family visitor) - 2303 685 (Medical treatment) - 2304 680 (Tourist) - 2305 661 (Tourist (special arrangements)) - 2306 684 (Visitor (other)) - Division 2.4 - Group 2.4 (Visitor (short stay)) 2401 672 (Business visitor (short stay)) - 2402 673 (Close family visitor (short stay)) - 2403 675 (Medical treatment (short stay)) - 2404 670 (Tourist (short stay)) - 2405 674 (Visitor (other) (short stay)) - Division 2.5 - Group 2.5 (Extended eligibility) 2504 826 (Extended eligibility (interdependency)) - 2505 820 (Extended eligibility (spouse)) - Division 2.6 - Group 2.6 (Refugee and humanitarian (temporary entry)) 2601 443 (Citizens of the former Socialist Federal Republic of Yugoslavia (temporary)) (Entry permit only)- 2602 784 (Domestic protection (temporary)) (Entry permit only) - 2603 490 (Evacuation) (Entry permit only) - 2604 437 (PRC (temporary)) - 2605 435 (Sri Lankan (temporary)) (Entry permit only) - Division 2.7 - Group 2.7 (Provisional) Secondary person provision (Schedule 3) 2701 301 (Australian requirement) 027 2702 302 (Emergency (permanent entry)) 027 2703 300 (Prospective marriage) 027 2704 159 (Resident return (F)) - Division 2.8 - Group 2.8 (Miscellaneous) 2801 773 (Border) - 2802 829 (Processing (residence)) - 2803 828 (Processing (temporary)) - 2804 992 (Statutory visitor) (Visa only) - 2805 771 (Transit) - 1992 No. 367 MIGRATION (1993) REGULATIONS - SCHEDULE 2
SCH
SCHEDULE 2 Regulation 2.2 PROVISIONS WITH RESPECT TO THE GRANT OF INDIVIDUAL CLASSES OF VISAS AND ENTRY PERMITS TO PRIMARY PERSONS (NOTE: This Schedule is divided into Parts, each of which deals with visas and entry permits of one class. The subdivisions of the Parts have numbers derived from the number of the Part they appear in. The major subdivisions are called clauses (numbered, for example, "100.111"). The subdivisions of the clauses are called subclauses (numbered, for example :100.111 (2)"; paragraphs ("100.111 (a)" or 100.111 (2) (a)"; subparagraphs ("100.111 (a) (i)" or 100.111 (2) (a) (i)"); and sub-subparagraphs ("100.111 (a) (i) (a)" or "100.111 (2) (a) (i) (a)").) PART 100-CLASS 100 (SPOUSE) VISA AND ENTRY PERMIT (PRIMARY PERSON) 100.1 INTRODUCTION 100.11 Group: 1.1 (migrant). 100.12 Persons eligible to apply as primary persons: Certain spouses of Australian citizens or Australian permanent residents. (NOTE: For provisions relating to secondary persons, see Part 011 of Schedule 3.) 100.13 Interpretation 100.131 In this Part: "intended spouse" means the Australian citizen or Australian permanent resident referred to in subclause 100.321 (3). 100.2 SPOUSE VISA - PRELIMINARY 100.21 When and where may application and grant be made? 100.211 A Class 100 visa may be: (a) applied for and granted only outside Australia; and (b) granted either as a travel-only visa or as an entry visa. 100.22 Period of validity (visa) 100.221 Travel-only visa: Arrival in Australia must be on or before such date, or within such period after grant, as determined by the Minister upon grant of the visa. 100.222 Entry visa: (a) Initial arrival in Australia must be on or before such date, or within such period after grant, as is determined by the Minister upon grant of the visa. (b) Subsequent arrivals in Australia must be within the period of 3 years immediately following the date, or the end of the period, referred to in paragraph (a). (c) Subject to paragraph (b), operation as an entry permit is without limitation as to time. 100.3 SPOUSE VISA (BEFORE ENTRY) (NOTE: The purpose of the grant of a Class 100 visa before entry is, first, to authorise travel to Australia and, second, to authorise entry to Australia (entry visa) or to serve on arrival as an application for a Class 100 entry permit (travel-only visa).) 100.31 Application (visa - before entry) 100.311 The application must be made in accordance with approved form 47. (NOTE: Before an application will be considered, it must be lodged in accordance with regulation 2.13 and the fee specified in clause 100.811 must be paid (Act, subsection 24 (1)).) 100.32 Criteria to be satisfied at time of application (visa - before entry) 100.321 (1) The applicant meets the requirements of subclause (2) or (3). (2) The applicant meets the requirements of this subclause if the applicant is the spouse of an Australian citizen or an Australian permanent resident. (NOTE: "Spouse" includes a de facto spouse-see the definition of "spouse" in regulation 1.3.) (3) The applicant meets the requirements of this subclause if: (a) the applicant intends to marry an Australian citizen or an Australian permanent resident; and (b) the intended marriage will if it takes place be a valid marriage for the purposes of Part Va of the Marriage Act 1961 as applied by section 12 of the Act. (NOTE: If the applicant is an applicant referred to in paragraph 100.321 (3), the marriage must have taken place before a decision is made on the application: see clause 100.332.) 100.322 (1) If the applicant is an applicant referred to in subclause 100.321 (2), the applicant is sponsored: (a) if the applicant's spouse has turned 18-by that spouse; or: (b) if the applicant's spouse has not turned 18-by a parent or guardian of that spouse. (2) If the applicant is an applicant referred to in subclause 100.321 (3), the applicant is sponsored: (a) if the applicant's intended spouse has turned 18-by that intended spouse; or: (b) if the applicant's intended spouse has not turned 18-by a parent or guardian of that intended spouse. 100.33 Criteria to be satisfied at time of decision (visa - before entry) 100.331 The sponsorship referred to in clause 100.321 has been approved by the Minister and is still in force. 100.332 If the applicant is an applicant referred to in subclause 100.321 (3), the marriage referred to in that subclause has taken place. 100.333 The Minister is satisfied that the marital relationship between the applicant and the applicant's spouse is genuine and continuing. 100.334 The applicant satisfies public interest criteria 4001 to 4004 and 4007 to 4009. 100.335 If the applicant has previously been in Australia, the applicant satisfies special re-entry criteria 5001, 5002, 5004, 5006, 5009 and 5010. 100.336 If so requested by the Minister, an assurance of support in relation to the applicant has been given, and has been accepted by the Minister. 100.337 (1) Each member of the family unit of the applicant who is an applicant for a Class 100 visa is a person who: (a) satisfies public interest criteria 4001 to 4004 and 4009; and (b) satisfies public interest criteria 4007 and 4008, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to those criteria; and (c) if he or she has previously been in Australia, satisfies special re-entry criteria 5001, 5002, 5004, 5006, 5009 and 5010. (2) Each member of the family unit of the applicant who is not an applicant for a Class 100 visa is a person who: (a) satisfies public interest criteria 4001 to 4004; and (b) satisfies public interest criteria 4007 and 4008, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to those criteria. 100.338 If: (a) either: (i) the family unit of the applicant includes a dependent child who is an applicant, as a secondary person, for a Class 100 visa; or (ii) a child who: (a) is usually resident with the applicant; and (b) has not turned 18; is an applicant, as a secondary person, for a Class 100 visa; and (b) the applicant is the relevant primary person in relation to that application; the Minister is satisfied that the grant of the visa to the child would not prejudice the rights and interests of any other person who has custody or guardianship of, or access to, the child. 100.34 Conditions (visa - before entry) 100.341 Mandatory conditions: Nil. 100.342 Discretionary conditions: Any applicable conditions set out in Schedule 9. 100.4 (Spouse visa not granted after entry) (NOTE: Authority, before departure, for the return travel to Australia of the holder of a Class 100 entry permit (which expires on departure from Australia: Act, section 49) is provided by the grant of a Group 1.4 (resident return) visa.) 100.5 SPOUSE ENTRY PERMIT - PRELIMINARY 100.51 When and where may application and grant be made? 100.511 A Class 100 entry permit may be applied for by, and granted to, a primary person only: (a) at the Entry Control Point; and (b) if the person is the holder, as a primary person, of a Class 100 visa that was granted as a travel-only visa. 100.52 Period of validity (entry permit) 100.521 The entry permit has effect without limitation as to time. 100.6 SPOUSE ENTRY PERMIT (BEFORE ENTRY): As provided by regulation 2.30. 100.7 (Spouse entry permit not granted after entry) 100.8 FEES 100.81 Visa applications 100.811 Before entry (only): $360. 100.82 Entry permit applications 100.821 Before entry (only): Nil. PART 101-CLASS 101 (CHILD) VISA AND ENTRY PERMIT (PRIMARY PERSON) 101.1 INTRODUCTION 101.11 Group: 1.1 (migrant). 101.12 Persons eligible to apply as primary persons: Certain children of Australian citizens and Australian permanent residents. (NOTE: For provisions relating to secondary persons, see Part 011 of Schedule 3.) 101.2 CHILD VISA - PRELIMINARY 101.21 When and where may application and grant be made? 101.211 A Class 101 visa may be: (a) applied for and granted only outside Australia; and (b) granted either as a travel-only visa or as an entry visa. 101.22 Period of validity (visa) 101.221 Travel-only visa: Arrival in Australia must be on or before such date, or within such period after grant, as is determined by the Minister upon grant of the visa. 101.222 Entry visa: (a) Initial arrival in Australia must be on or before such date, or within such period after grant, as is determined by the Minister upon grant of the visa. (b) Subsequent arrivals in Australia must be within the period of 3 years immediately following the date, or the end of the period, referred to in paragraph (a). (c) Subject to paragraph (b), operation as an entry permit is without limitation as to time. 101.3 CHILD VISA (BEFORE ENTRY) (NOTE: The purpose of the grant of a Class 101 visa before entry is, first, to authorise travel to Australia and, second, to authorise entry to Australia (entry visa) or to serve on arrival as an application for a Class 101 entry permit (travel-only visa).) 101.31 Application (visa - before entry) 101.311 The application must be made in accordance with approved form 47. (NOTE: Before an application will be considered, it must be lodged in accordance with regulation 2.13 and the fee specified in clause 101.811 must be paid (Act, subsection 24 (1)).) 101.32 Criteria to be satisfied at time of application (visa - before entry) 101.321 The applicant is: (a) the natural child of an Australia citizen or an Australian permanent resident; or (b) a child who was adopted overseas by a person who, when the applicant was adopted, was not an Australian citizen or an Australian permanent resident, but who subsequently became an Australian citizen or an Australian permanent resident; or (c) a dependent child of a person referred to in paragraph (a) or (b). 101.322 The applicant is sponsored by a person who: (a) has turned 18; and (b) is an Australian citizen or an Australian permanent resident; and (c) is either: (i) the Australian citizen or Australian permanent resident referred to in paragraph 101.321 (a) or (b), as the case requires; or (ii) a cohabiting spouse of that Australian citizen or Australian permanent resident. 101.33 Criteria to be satisfied at time of decision (visa - before entry) 101.331 The sponsorship referred to in clause 101.322 has been approved by the Minister and is still in force. 101.332 The applicant satisfies public interest criteria 4001 to 4004 and 4007 to 4009. 101.333 If the applicant has previously been in Australia, the