Migration Regulations (Amendment) (Cth)
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Regulation Page
1. Commencement 1
2. Amendment 2
3. Regulation 1.03 (Interpretation) 2
4. Regulation 1.05 (Balance of family test) 2
5. Regulation 1.11 (Main business) 3
6. Regulation 1.12 (Member of the family unit) 3
7. New regulation 1.15A
Spouse 4
8. New regulation 2.07A
Refund of application fee in certain circumstances 6
9. Regulation 2.10 (Where application must be made) 6
10. Regulation 2.18 (Re-evidencing of resident return visas) 7
11. Regulation 2.26 (Prescribed qualifications and prescribed number of points) 7
12. Regulation 2.27 (Qualification—eligibility of spouse) 7
13. Regulation 4.03 (Combined applications for internal review) 8
14. Regulation 4.09 (IRT-reviewable decisions) 8
15. Regulation 4.12 (Combined applications for review by the Tribunal) 8
16. Regulation 5.17 (Prescribed evidence of English language proficiency (Act, s. 5 (2) (b))) 8
17. Schedule 1 (Classes of visas) 9
18. Schedule 2, Part 010 (Bridging visa A) 13
19. Schedule 2, Part 020 (Bridging visa B) 13
20. Schedule 2, Part 030 (Bridging visa C) 13
21. Schedule 2, Part 050 (Bridging visa (General)) 13
22. Schedule 2, Part 051 (Bridging visa (protection visa applicant)) 14
23. Schedule 2, Part 100 (Spouse) 14
24. Schedule 2, Part 105 (Concessional family) 14
25. Schedule 2, Part 127 (Business owner) 14
26. Schedule 2, Part 129 (State/Territory sponsored business owner) 15
27. Schedule 2, Part 208 (East Timorese in Portugal) 16
28. Schedule 2, Part 209 (Citizens of the former Yugoslavia (Displaced persons)) 16
29. Schedule 2, Part 210 (Minorities of former USSR) 16
30. Schedule 2, Part 211 (Burmese in Burma) 17
31. Schedule 2, Part 212 (Sudanese) 18
32. Schedule 2, Part 213 (Burmese in Thailand) 18
33. Schedule 2, Part 214 (Cambodian) 18
34. Schedule 2, Part 300 (Prospective marriage) 19
35. Schedule 2, Part 413 (Executive) 20
36. Schedule 2, Part 414 (Specialist) 20
37. Schedule 2, Part 418 (Educational) 20
38. Schedule 2, Part 432 (Expatriate (Temporary)) 20
39. Schedule 2, Part 435 (Sri Lankan (Temporary)) 21
40. Schedule 2, Part 443 (Citizens of former Yugoslavia) 21
41. Schedule 2, Part 560 (Student) 21
42. Schedule 2, Part 670 (Tourist (short stay)) 22
43. Schedule 2, Part 672 (Business visitor (short stay)) 23
44. Schedule 2, Part 673 (Close family visitor (short stay)) 23
45. Schedule 2, Part 674 (Visitor other (short stay)) 24
46. Schedule 2, Part 675 (Medical treatment (short stay)) 25
47. Schedule 2, Part 680 (Tourist (long stay)) 26
48. Schedule 2, Part 682 (Business visitor (long stay)) 27
49. Schedule 2, Part 683 (Close family visitor (long stay)) 28
50. Schedule 2, Part 684 (Visitor other (long stay)) 28
51. Schedule 2, Part 685 (Medical treatment (long stay)) 29
52. Schedule 2, Part 801 (Spouse) 30
53. Schedule 2, Part 805 (Skilled) 31
54. Schedule 2, Part 820 (Spouse) 31
55. Schedule 2, Part 826 (Interdependency) 32
56. Schedule 2, Part 831 (Prospective marriage spouse) 33
57. Schedule 4 (Public interest criteria) 33
58. Schedule 5 (Special return criteria) 35
59. Schedule 6 (General points test—qualifications and points) 37
__________________
I, The Governor-General of the Commonwealth of Australia, acting with the advice of the
Federal Executive Council, make the following Regulations under the
Dated 9 November 1994.
BILL HAYDEN
Governor-General
By His Excellency’s Command,
NICK BOLKUS
Minister for Immigration and Ethnic Affairs
____________
1.1 Regulations 39 and 40 commence on 1 December 1994.
1.2 The remainder of these Regulations commence on 12 December 1994.
2.1 The Migration Regulations are amended as set out in these Regulations.
3.1 Insert:
“
(a) is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and
(b) is not operated primarily or substantially for the purpose of speculative or passive investment;”.
3.2 Definition of “special return criterion”:
Omit “clause of Schedule 5”, substitute “clause of Part 1 of Schedule 5”.
3.3 Definition of “spouse”:
Omit the definition, substitute:
“
4.1 Subparagraph 1.05 (1) (a) (ii):
Omit the subparagraph, substitute:
“(ii) a spouse of the parent; or
(iii) a former spouse of the parent, if the child was born or adopted:
(A) before the parent became the spouse of the former spouse; or
(B) while the parent was the spouse of the former spouse; and”.
4.2 Subregulation 1.05 (3):
Omit the subregulation, substitute:
In applying the balance of family test, no account is to be taken of a child of the parent:
(a) if the child has been removed by court order, by adoption or by operation of law (other than in consequence of marriage) from the exclusive custody of the parent; or
(b) if the child is resident in a country where the child suffers persecution or abuse of human rights and it is not possible to reunite the child and the parent in another country; or
(c) if the child is resident in a refugee camp operated by:
(i) the United Nations High Commissioner for Refugees; or
(ii) the government of Hong Kong;
and is registered by the Commissioner as a refugee; or
(d) if:
(i) the child is a step-child of the parent; and
(ii) the child had turned 18 at the time at which the parent became the spouse of the child’s other parent;
and one or more of the following subparagraphs applies:
(iii) the other parent is deceased; or
(iv) the parent is permanently separated from the other parent; or
(v) the parent is divorced from the other parent.”.
5.1 Subregulation 1.11 (1):
Add at the end:
“; and (d) the business is a qualifying business.”.
5.2 Subregulation 1.11 (2):
Omit the subregulation, substitute:
If an applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this subregulation, be a main business in relation to the applicant, the applicant must not nominate more than 2 of those qualifying businesses as main businesses.”.
6.1 Paragraph 1.12 (1) (a):
Omit the paragraph, substitute:
a spouse of the family head; or”.
6.2 Subregulation 1.12 (2):
After “visa”, insert “if the person is”.
7.1 After regulation 1.15, insert in Division 1.2:
(1) For the purposes of these Regulations, a person is the spouse of another person if:
(a) the 2 persons are:
(i) married to each other under a marriage that is recognised as valid for the purposes of the Act; or
(ii) de facto spouses of each other, as set out in subregulation (2); and
(b) the Minister is satisfied that:
(i) the 2 persons have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between the 2 persons is genuine and continuing; and
(c) the Minister is satisfied that the 2 persons are:
(i) living together; or
(ii) not living separately and apart on a permanent basis.
A person is the de facto spouse of another person:
(a) if the persons:
(i) are of opposite sexes; and
(ii) are not married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(iii) are not within a relationship that is a prohibited relationship for the purposes of subsection 23B (2) of the
Marriage Act 1961 ; and(b) if:
(i) either of the persons is domiciled in Australia—both of them have turned 18; or
(ii) neither of the persons is domiciled in Australia—both of them have turned 16.
In forming an opinion for the purposes of paragraph (1) (b) and (c) in relation to an application for a visa of subclass 100, 801, 820 or 831, the Minister must have regard to all the circumstances of the relationship, including, in particular:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one party to the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for care and support of children, if any; and
(ii) the parties’ living arrangements; and
(iii) any sharing of responsibility for housework;
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities;
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
In forming an opinion for the purposes of paragraph (1) (b) and (c) in relation to an application for a visa of a subclass other than 100, 801, 820 or 831, the Minister may have regard to any of the factors set out in subregulation (3).
If a person has been living with another person for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.”.
8.1 After regulation 2.07, insert:
If:
(a) a person applies in Australia for a Long Stay (Visitor) (Class TN) or Short Stay (Visitor) (Class TR) visa; and
(b) the Minister is satisfied that the applicant meets the requirements of subclause 670.221 (4), 672.221 (4), 673.221 (4), 674.221 (4), 675.221 (4), 680.221 (4), 682.221 (4), 683.221 (4), 684.221 (4) or 685.221 (6) of Schedule 2; and
(c) the further visa is granted;
the Minister must refund the application fee (if any) paid by the person.”.
9.1 Paragraph 2.10 (1) (b):
Omit the paragraph, substitute:
“(b) in the case of an application to be made in Australia—subject to subregulation (3), at any office of Immigration in Australia.”.
9.2 Subregulation 2.10 (2):
Omit the subregulation.
10.1 Paragraph 2.18 (4) (e):
Omit “regulation 8”, substitute “regulation 9”.
11.1 Subregulation 2.26 (5) (definition of “trade certificate”, paragraph (a)):
Omit the paragraph, substitute:
“(a) an Australian trade qualification obtained as a result of the completion of:
(i) an indentured apprenticeship; or
(ii) a training contract;
that is required by State or Territory industrial training legislation or a relevant Federal, State or Territory industrial award and involves:
(iii) part-time formal training at a technical college or a college of technical and further education; and
(iv) employment within the meaning of:
(A) an industrial award under a law of the Commonwealth or of a State or Territory; or
(B) a law of a State or Territory dealing with commercial or industrial training; or”.
12.1 Omit the regulation, substitute:
If:
(a) an applicant to whom regulation 2.26 applies (in this regulation called ‘the applicant’) does not receive the pass mark or pool mark (as the case requires) under that regulation; and
(b) the spouse of the applicant is an applicant for a visa of the same class;
the applicant is taken to have received the pass mark or pool mark (as the case requires) if the sum of:
(c) the points which the spouse could receive under Parts 1 and 2 of Schedule 6; and
(d) the points which the applicant receives under Parts 4, 5, 6 and 7 of Schedule 6;
is equal to, or exceeds the pass mark or pool mark (as the case requires).”.
13.1 Paragraph 4.03 (1) (a):
Omit “regulation 2.07”, substitute “regulation 2.08”.
4.03 (3) (a):
After “Schedule 1”, insert “or regulation 2.08”.
14.1 Paragraph 4.09 (a):
Add at the end:
“; or (iv) the applicant is a person to whom regulation 8 of the Migration Reform (Transitional Provisions) Regulations applies;”.
15.1 Paragraph 4.12 (6) (a):
Omit “regulation 2.07”, substitute “regulation 2.08”.
16.1 After paragraph 5.17 (c), insert:
“(ca) evidence that the person has successfully completed, in Australia, at least 1 year of full-time study or equivalent part-time study towards a degree, higher degree, diploma or associate diploma at an institution or institutions where all the instruction was conducted in English;”.
17.1 Subitem 1101 (2):
Omit “$400.”, substitute:
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(b) In any other case: $400.”. |
17.2 After paragraph 1107 (2) (a), insert:
“(aa) Applicant:
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(ab) Applicant:
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17.3 Subitem 1108 (2):
Omit “$400.”, substitute:
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(b) In any other case: $400.”. |
17.4 After paragraph 1115 (2) (b), insert:
“(ba) Applicant:
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(bb) Applicant:
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17.5 Subitem 1125 (2):
Omit “$400”, substitute:
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(b) In any other case: $400.”. |
17.6 After paragraph 1211 (2) (a), insert:
“(aa) Applicant:
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18.1 Insert in Division 010.1:
“010.111 For the purposes of this Part:
[NOTE: “No interpretation provisions specific to this Part” should be omitted from the Note in Division 010.1]
19.1 Insert in Division 020.1:
“020.111 For the purposes of this Part:
[NOTE: “No interpretation provisions specific to this Part” should be omitted from the Note in Division 020.1]
20.1 Insert in Division 030.1:
“030.111 For the purposes of this Part:
[NOTE: “No interpretation provisions specific to this Part” should be omitted from the Note in Division 030.1]
21.1 Insert in Division 050.1:
“050.111 For the purposes of this Part:
[NOTE: “No interpretation provisions specific to this Part” should be omitted from the Note in Division 050.1]
22.1 Insert in Division 051.1:
“051.111 For the purposes of this Part:
[NOTE: “No interpretation provisions specific to this Part” should be omitted from the Note in Division 051.1]
23.1 Clause 100.224:
Omit the clause, substitute:
“100.224 (1) In the case of an applicant who meets the requirements of subclause 100.211 (2), the applicant continues to be the spouse of the Australian citizen, Australian permanent resident or eligible New Zealand citizen who was the applicant’s spouse at the time of the application.
In the case of an applicant who meets the requirements of subclause 100.211 (3), the applicant is the spouse of the intended spouse.”.
24.1 Subclause 105.223 (1):
Omit the subclause.
25.1 Clause 127.211:
Omit “businesses”, substitute “qualifying businesses”.
25.2 Subclause 127.212 (2):
Omit the subclause, substitute:
In any 2 fiscal years in the 4 fiscal years immediately preceding the making of the application:
(a) the net assets of:
(i) the applicant; or
(ii) the applicant and his or her spouse together;
in a qualifying business or qualifying businesses were not less than the equivalent of AUD300,000 in each of those years; and
(b) if a qualifying business referred to in paragraph (a) was operated by a publicly listed company, the shareholding of:
(i) the applicant; or
(ii) the applicant and his or her spouse together;
was at least 10% of the total issued capital of the company.”.
[NOTE: The Note following the heading to Division 127.1 should now read:
“NOTE: ‘appropriate regional authority’, ‘AUD’, ‘fiscal year’, ‘ownership interest’ and ‘qualifying business’ are defined in regulation 1.03; ‘main business’ is defined in regulation 1.11; and ‘eligible business’ is defined in s. 134 (10) of the Act. There are no interpretation provisions specific to this Part.”.]
26.1 Clause 129.211:
Omit “one or more businesses”, substitute “1 or more qualifying businesses”.
26.2 Subclause 129.212 (2):
Omit the subclause, substitute:
In any 2 fiscal years in the 4 fiscal years immediately preceding the making of the application:
(a) the net assets of:
(i) the applicant; or
(ii) the applicant and his or her spouse together;
in a qualifying business or qualifying businesses were not less than the equivalent of AUD200,000 in each of those years; and
(b) if a qualifying business referred to in paragraph (a) was operated by a publicly listed company, the shareholding of:
(i) the applicant; or
(ii) the applicant and his or her spouse together;
was at least 10% of the total issued capital of the company.”.
[NOTE: The Note following the heading to Division 129.1 should now read:
“NOTE: ‘appropriate regional authority’, ‘AUD’, ‘fiscal year’, ‘ownership interest’ and ‘qualifying business’ are defined in regulation 1.03; ‘main business’ is defined in regulation 1.11; and ‘eligible business’ is defined in s. 134 (10) of the Act. There are no interpretation provisions specific to this Part.”.]
27.1 Paragraph 208.215 (2) (j):
Omit the paragraph.
28.1 Paragraph 209.213 (a):
Omit “1 January 1992”, substitute “30 June 1993”.
28.2 Paragraph 209.213 (d):
Add at the end:
“; (ix) reimbursing the Commonwealth for its costs (if any) in providing accommodation services to the applicant.”.
29.1 Paragraph 210.215 (b):
Omit the paragraph, substitute:
“(b) gives a written undertaking to the Minister that specifies assistance:
(i) that the body will provide to the applicant, and the applicant’s dependants, after their entry to Australia; and
(ii) that is acceptable to the Minister, having regard to the needs of the applicant in the period of 6 months following the applicant’s entry into Australia;
with regard to the following matters:
(iii) food, clothing, accommodation and household goods;
(iv) personal support;
(v) access to community and public services;
(vi) obtaining employment;
(vii) language interpretation and securing English language instruction;
(viii) community involvement and self-reliance;
(ix) reimbursing the Commonwealth for its costs (if any) in providing accommodation services to the applicant.”.
30.1 Paragraph 211.213 (2) (j):
Omit the paragraph.
30.2 Subclause 211.222 (1):
Omit the subclause, substitute:
“211.222 (1) If the applicant has a near relative in Australia, grant of the visa would not result in the number of subclass 211 visas granted to applicants with a near relative in Australia exceeding the maximum number of subclass 211 visas specified, by Gazette Notice, for the purposes of this subclause in respect of that financial year.”.
30.3 Subclause 211.222 (2):
Omit “relevant family links” (twice occurring), substitute “a near relative”.
30.4 Subclause 211.222 (3):
Omit the subclause, substitute:
For the purposes of this clause, an applicant has a near relative in Australia if the applicant has a parent, daughter, son, brother, sister, aunt, uncle, nephew or niece who:
(a) was an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen on 1 July 1992; and
(b) continues to be an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(c) is usually resident in Australia.”.
31.1 Paragraph 212.213 (d):
Add at the end:
“(ix) reimbursing the Commonwealth for its costs (if any) in providing accommodation services to the applicant”.
32.1 Paragraph 213.213 (2) (j):
Omit the paragraph.
33.1 Paragraph 214.111 (1) (d):
Omit “satisfied”, substitute “met”.
33.2 Subclause 214.111 (2):
Omit “satisfies”, substitute “meets”.
33.3 Subclause 214.111 (3):
Omit “satisfies”, substitute “meets”.
33.4 After clause 214.111, insert in Division 214.1:
“214.112 For the purposes of this Part, an applicant has a near relative in Australia if the applicant has a parent, daughter, son, brother, sister, aunt, uncle, nephew or niece who:
(a) was an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen on 1 October 1993; and
(b) continues to be an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(c) is usually resident in Australia.”.
33.5 Clause 214.211:
Omit the clause, substitute:
“214.211 (1) The applicant:
(a) is usually a resident of Cambodia and is experiencing hardship in Cambodia as a result of upheavals in that country over recent years; and
(b) meets the requirements of subclause (2) or (3).
An applicant meets the requirements of this subclause if he or she has a near relative in Australia.
The applicant:
(a) arrived in Australia by boat, without a visa or other authority, between 28 November 1989 and 26 April 1991; and
(b) before that arrival was usually a resident of Cambodia; and
(c) was in detention under the Act for most of his or her stay in Australia; and
(d) subsequently returned to Cambodia.”.
33.6 Subclause 214.212 (2):
Omit “or to the Minister”, substitute “given to the Minister”.
33.7 Paragraph 214.212 (2) (j):
Omit the paragraph.
34.1 Clause 300.212:
Omit the clause.
34.2 Clause 300.216:
Omit the clause, substitute:
“300.216. The Minister is satisfied that the parties genuinely intend to live together as spouses.”.
34.3 Clause 300.221:
Omit the clause, substitute:
“300.221 The applicant continues to satisfy the criteria in clause 300.211 and clauses 300.214 to 300.216.
“300.221A Subject to clause 300.221B, there is no impediment to the marriage in Australian law.
“300.221B (1) If the applicant or the prospective spouse is under 18:
(a) the Minister is satisfied that the applicant or the prospective spouse, as the case requires, is due to turn 18 before the end of the period within which the intended marriage is to take place; or
(b) a Judge or magistrate has made an order under section 12 of the
Marriage Act 1961 authorising the applicant to marry the prospective spouse, or the prospective spouse to marry the applicant, as the case requires, and that order is in force.
If paragraph (1) (b) applies, the Minister is satisfied that the marriage will take place.”.
[NOTE: The following Note should be inserted after the new clause 300.221B:
“[NOTE: Under s. 12 (5) of
the
35.1 Clause 413.224:
Omit “4005”, substitute “4004, 4005A”.
35.2 Paragraph 413.324 (a):
Omit “4005”, substitute “4004 and 4005A”.
36.1 Clause 414.225:
Omit “4005”, substitute “4004, 4005A”.
36.2 Paragraph 414.324 (a):
Omit “4005”, substitute “4004 and 4005A”.
37.1 Clause 418.226:
Omit “4005”, substitute “4004, 4005A”.
37.2 Paragraph 418.324 (a):
Omit “4005”, substitute “4004 and 4005A”.
38.1 Clause 432.612:
Omit “8222”, substitute “8522”.
39.1 Heading:
Omit “(Temporary)”.
39.2 Clause 435.214:
Omit “30 November 1994”, substitute “31 March 1995”.
39.3 Clause 435.511:
Omit “30 November 1994”, substitute “31 March 1995”.
40.1 Clause 443.214:
Omit “30 November 1994”, substitute “31 March 1995”.
40.2 Clause 443.511:
Omit “30 November 1994”, substitute “31 March 1995”.
41.1 Subclause 560.224 (1):
After “subclause (4)”, insert “and clause 560.224A”.
41.2 After clause 560.224, insert:
“560.224A (1) Subclause 560.224 (1) does not apply to an applicant if:
(a) the applicant is a Burmese national; and
(b) the applicant’s enrolment in the course referred to in clause 560.222 is enrolment as a student under a scholarship scheme or training program approved by AIDAB; and
(c) the Minister and the Foreign Minister have jointly determined that it is in the public interest that the applicant should enter Australia as a student.
No more than 10 Class 560 visas are to be granted to applicants of the kind referred to in subclause (1).
Subclause (1) ceases to have effect on 30 June 1995.”.
41.3 Subclause 560.324 (2):
Omit the subclause, substitute:
Subclause (1) does not apply to an applicant who is a member of the family unit of a person referred to in subclause 560.224 (4) or clause 560.224A.”.
41.4 Subparagraph 560.613 (1) (d) (i):
Omit “: condition 9104”.
42.1 Subclause 670.221 (1):
Omit “(2) or (3)”, substitute “(2), (3) or (4)”.
42.2 Clause 670.221:
Add at the end:
An applicant meets the requirements of this subclause if:
(a) he or she is in Australia; and
(b) he or she is suffering financial hardship as a result of changes in his or her circumstances after entering Australia; and
(c) he or she, or a member of his or her immediate family, is likely to become a charge on public funds in Australia; and
(d) for reasons beyond his or her control, he or she, or a member of his or her immediate family, cannot leave Australia; and
(e) the Minister is satisfied that the applicant has compelling personal reasons to work in Australia; and
(f) he or she meets public interest criterion 4005; and
(g) the applicant satisfies the Minister that the applicant’s expressed intention only to visit Australia is genuine; and
(h) the Minister is satisfied that the applicant intends to comply with any conditions subject to which the visa is granted.”.
42.3 Clause 670.611:
Omit the clause, substitute:
“670.611 In the case of a visa granted to an applicant who meets the requirements of subclause 670.221 (4): conditions 8201 and 8205.
“670.611A In any other case: conditions 8101, 8201 and 8205.”.
43.1 Subclause 672.221 (1):
Omit “(2) or (3)”, substitute “(2), (3) or (4)”.
43.2 Clause 672.221:
Add at the end:
An applicant meets the requirements of this subclause if:
(a) he or she is in Australia; and
(b) he or she is suffering financial hardship as a result of changes in his or her circumstances after entering Australia; and
(c) he or she, or a member of his or her immediate family, is likely to become a charge on public funds in Australia; and
(d) for reasons beyond his or her control, he or she, or a member of his or her immediate family, cannot leave Australia; and
(e) the Minister is satisfied that the applicant has compelling personal reasons to work in Australia; and
(f) he or she meets public interest criterion 4005; and
(g) the applicant satisfies the Minister that the applicant’s expressed intention only to visit Australia is genuine; and
(h) the Minister is satisfied that the applicant intends to comply with any conditions subject to which the visa is granted.”.
43.3 Clause 672.611:
Omit the clause, substitute:
“672.611 In the case of a visa granted to an applicant who meets the requirements of subclause 672.221 (4): conditions 8201 and 8205.
“672.611A In any other case: conditions 8106, 8201 and 8205.”.
44.1 Subclause 673.221 (1):
Omit “(2) or (3)”, substitute “(2), (3) or (4)”.
44.2 Clause 673.221:
Add at the end:
An applicant meets the requirements of this subclause if:
(a) he or she is in Australia; and
(b) he or she is suffering financial hardship as a result of changes in his or her circumstances after entering Australia; and
(c) he or she, or a member of his or her immediate family, is likely to become a charge on public funds in Australia; and
(d) for reasons beyond his or her control, he or she, or a member of his or her immediate family, cannot leave Australia; and
(e) the Minister is satisfied that the applicant has compelling personal reasons to work in Australia; and
(f) he or she meets public interest criterion 4005; and
(g) the applicant satisfies the Minister that the applicant’s expressed intention only to visit Australia is genuine; and
(h) the Minister is satisfied that the applicant intends to comply with any conditions subject to which the visa is granted.”.
44.3 Clause 673.611:
Omit the clause, substitute:
“673.611 In the case of a visa granted to an applicant who meets the requirements of subclause 673.221 (4): conditions 8201 and 8205.
“673.611A In any other case: conditions 8101, 8201 and 8205.”.
45.1 Subclause 674.221 (1):
Omit “(2) or (3)”, substitute “(2), (3) or (4)”.
45.2 Clause 674.221:
Add at the end:
An applicant meets the requirements of this subclause if:
(a) he or she is in Australia; and
(b) he or she is suffering financial hardship as a result of changes in his or her circumstances after entering Australia; and
(c) he or she, or a member of his or her immediate family, is likely to become a charge on public funds in Australia; and
(d) for reasons beyond his or her control, he or she, or a member of his or her immediate family, cannot leave Australia; and
(e) the Minister is satisfied that the applicant has compelling personal reasons to work in Australia; and
(f) he or she meets public interest criterion 4005; and
(g) the applicant satisfies the Minister that the applicant’s expressed intention only to visit Australia is genuine; and
(h) the Minister is satisfied that the applicant intends to comply with any conditions subject to which the visa is granted.”.
45.3 Clause 674.611:
Omit the clause, substitute:
“674.611 In the case of a visa granted to an applicant who meets the requirements of subclause 674.221 (4): conditions 8201 and 8205.
“674.611A In any other case: conditions 8101, 8201 and 8205.”.
46.1 Subclause 675.221 (1):
Omit “(2) or (3)”, substitute “(2), (3) or (4)”.
46.2 Clause 675.221:
Add at the end:
An applicant meets the requirements of this subclause if:
(a) he or she is in Australia; and
(b) he or she is suffering financial hardship as a result of changes in his or her circumstances after entering Australia; and
(c) he or she, or a member of his or her immediate family, is likely to become a charge on public funds in Australia; and
(d) for reasons beyond his or her control, he or she, or a member of his or her immediate family, cannot leave Australia; and
(e) the Minister is satisfied that the applicant has compelling personal reasons to work in Australia; and
(f) he or she meets public interest criterion 4005; and
(g) the applicant satisfies the Minister that the applicant’s expressed intention only to visit Australia is genuine; and
(h) the Minister is satisfied that the applicant intends to comply with any conditions subject to which the visa is granted.”.
46.3 Clause 675.611:
Omit the clause, substitute:
“675.611 In the case of a visa granted to an applicant who meets the requirements of subclause 675.221 (4): conditions 8201 and 8205.
“675.611A In any other case: conditions 8101, 8201 and 8205.”.
47.1 Subclause 680.221 (1):
Omit “(2) or (3)”, substitute “(2), (3) or (4)”.
47.2 Clause 680.221:
Add at the end:
An applicant meets the requirements of this subclause if:
(a) he or she is in Australia; and
(b) he or she is suffering financial hardship as a result of changes in his or her circumstances after entering Australia; and
(c) he or she, or a member of his or her immediate family, is likely to become a charge on public funds in Australia; and
(d) for reasons beyond his or her control, he or she, or a member of his or her immediate family, cannot leave Australia; and
(e) the Minister is satisfied that the applicant has compelling personal reasons to work in Australia; and
(f) he or she meets public interest criterion 4005; and
(g) the applicant satisfies the Minister that the applicant’s expressed intention only to visit Australia is genuine; and
(h) the Minister is satisfied that the applicant intends to comply with any conditions subject to which the visa is granted.”.
47.3 Clause 680.611:
Omit the clause, substitute:
“680.611 In the case of a visa granted to an applicant who meets the requirements of in subclause 680.221 (4): conditions 8201 and 8205.
“680.611A In any other case: conditions 8101, 8201 and 8205.”.
48.1 Subclause 682.221 (1):
Omit “(2) or (3)”, substitute “(2), (3) or (4)”.
48.2 Clause 682.221:
Add at the end:
An applicant meets the requirements of this subclause if:
(a) he or she is in Australia; and
(b) he or she is suffering financial hardship as a result of changes in his or her circumstances after entering Australia; and
(c) he or she, or a member of his or her immediate family, is likely to become a charge on public funds in Australia; and
(d) for reasons beyond his or her control, he or she, or a member of his or her immediate family, cannot leave Australia; and
(e) the Minister is satisfied that the applicant has compelling personal reasons to work in Australia; and
(f) he or she meets public interest criterion 4005; and
(g) the applicant satisfies the Minister that the applicant’s expressed intention only to visit Australia is genuine; and
(h) the Minister is satisfied that the applicant intends to comply with any conditions subject to which the visa is granted.”.
48.3 Clause 682.611:
Omit the clause, substitute:
“682.611 In the case of a visa granted to an applicant who meets the requirements of subclause 682.221 (4): conditions 8201 and 8205.
“682.611A In any other case: conditions 8106, 8201 and 8205.”.
49.1 Subclause 683.221 (1):
Omit “(2) or (3)”, substitute “(2), (3) or (4)”.
49.2 Clause 683.221:
Add at the end:
An applicant meets the requirements of this subclause if:
(a) he or she is in Australia; and
(b) he or she is suffering financial hardship as a result of changes in his or her circumstances after entering Australia; and
(c) he or she, or a member of his or her immediate family, is likely to become a charge on public funds in Australia; and
(d) for reasons beyond his or her control, he or she, or a member of his or her immediate family, cannot leave Australia; and
(e) the Minister is satisfied that the applicant has compelling personal reasons to work in Australia; and
(f) he or she meets public interest criterion 4005; and
(g) the applicant satisfies the Minister that the applicant’s expressed intention only to visit Australia is genuine; and
(h) the Minister is satisfied that the applicant intends to comply with any conditions subject to which the visa is granted.”.
49.3 Clause 683.611:
Omit the clause, substitute:
“683.611 In the case of a visa granted to an applicant who meets the requirements of subclause 683.221 (4): conditions 8201 and 8205.
“683.611A In any other case: conditions 8101, 8201 and 8205.”.
50.1 Subclause 684.221 (1):
Omit “(2) or (3)”, substitute “(2), (3) or (4)”.
50.2 Clause 684.221:
Add at the end:
An applicant meets the requirements of this subclause if:
(a) he or she is in Australia; and
(b) he or she is suffering financial hardship as a result of changes in his or her circumstances after entering Australia; and
(c) he or she, or a member of his or her immediate family, is likely to become a charge on public funds in Australia; and
(d) for reasons beyond his or her control, he or she, or a member of his or her immediate family, cannot leave Australia; and
(e) the Minister is satisfied that the applicant has compelling personal reasons to work in Australia; and
(f) he or she meets public interest criterion 4005; and
(g) the applicant satisfies the Minister that the applicant’s expressed intention only to visit Australia is genuine; and
(h) the Minister is satisfied that the applicant intends to comply with any conditions subject to which the visa is granted.”.
50.3 Clauses 684.61 and 684.62:
Omit the clauses, substitute:
“684.611 In the case of a visa granted to an applicant who meets the requirements of subclause 684.221 (4): conditions 8201 and 8205.
“684.611A In any other case: conditions 8101, 8201 and 8205.
“684.612 Condition 8503 may be imposed.”.
51.1 Subclause 685.221 (1):
Omit “(4) or (5)”, substitute “(4), (5) or (6)”.
51.2 Clause 685.221:
Add at the end:
An applicant meets the requirements of this subclause if:
(a) he or she is in Australia; and
(b) he or she is suffering financial hardship as a result of changes in his or her circumstances after entering Australia; and
(c) he or she, or a member of his or her immediate family, is likely to become a charge on public funds in Australia; and
(d) for reasons beyond his or her control, he or she, or a member of his or her immediate family, cannot leave Australia; and
(e) the Minister is satisfied that the applicant has compelling personal reasons to work in Australia; and
(f) he or she meets public interest criterion 4005; and
(g) the applicant satisfies the Minister that the applicant’s expressed intention only to visit Australia is genuine; and
(h) the Minister is satisfied that the applicant intends to comply with any conditions subject to which the visa is granted.”.
51.3 Clause 685.611:
Omit the clause, substitute:
“685.611 In the case of a visa granted to an applicant who meets the requirements of subclause 685.221 (6): conditions 8201 and 8205.
“685.611A In any other case: conditions 8101, 8201 and 8205.”.
52.1 Paragraph 801.221 (2) (c):
Omit the paragraph, substitute:
“(c) the applicant is the spouse of the nominating spouse; and”.
52.2 Paragraph 801.221 (5) (c):
Omit the paragraph, substitute:
“(c) satisfies the Minister that the applicant would have continued to be the spouse of the nominating spouse if the nominating spouse had not died; and”.
52.3 Paragraph 801.221 (6) (b):
Omit the paragraph, substitute:
“(b) the applicant would meet the requirements of subclause (2) except that the relationship between the applicant and the nominating spouse has ceased; and”.
53.1 Paragraph 805.211 (2) (a):
Omit “criteria 6003 and 6005”, substitute “Schedule 3 criteria 3001, 3003 and 3004”.
53.2 Subparagraphs 805.212 (2) (a) (viii) and (ix):
Omit the subparagraphs, substitute:
“(viii) Citizens of Former Yugoslavia (Temporary); or”.
53.3 Subclause 805.212 (9):
Omit “subparagraph (4) (b)”, substitute “subparagraphs (4) (a) (ii) and (4) (b) (ii)”.
53.4 Subclause 805.213 (3):
Omit “7.10” (twice occurring), substitute “5.19”.
53.5 Paragraph 805.222 (a):
Omit “7.10”, substitute “5.19”.
54.1 Paragraph 820.211 (2) (b):
Omit the paragraph.
54.2 Subparagraph 820.211 (2) (d) (ii):
Omit the subparagraph, substitute:
“(ii) he or she satisfies Schedule 3 criteria 3001, 3003 and 3004.”.
54.3 Paragraph 820.211 (3) (e):
Omit the paragraph, substitute:
“(e) the applicant is the spouse of the nominating spouse; and”.
54.4 Paragraph 820.211 (4) (e):
Omit the paragraph, substitute:
“(e) the applicant is the spouse of the nominating spouse; and”.
54.5 Paragraph 820.211 (5) (e):
Omit the paragraph, substitute
“(e) the applicant is the spouse of the nominating spouse; and”.
[NOTE: In the Note at the end of subclause 820.211 (6), “regulation 1.03” should be substituted for “regulation 1.X”.]
54.6 Paragraph 820.221 (2) (a):
Omit “applicant’s”, substitute “nominating”.
54.7 Paragraph 820.221 (2) (b):
Omit the paragraph, substitute:
“(b) satisfies the Minister that the applicant would have continued to be the spouse of the nominating spouse if the nominating spouse had not died; and”.
54.8 Paragraph 820.221 (3) (a):
Omit the paragraph, substitute:
“(a) would continue to meet the requirements of subclause 820.211 (2), (3), (4) or (5) except that the relationship between the applicant and the nominating spouse has ceased; and”.
55.1 Clause 826.711:
Omit “valid”.
[NOTE: In the Note at the end of subclause 826.211 (4), “regulation 1.03” should be substituted for “regulation 1.X”.]
56.1 Clause 831.211:
Omit the clause, substitute:
“831.211 The applicant:
(a) is the holder of a subclass 300 (prospective marriage) visa; and
(b) has married the nominating spouse under a marriage that is recognised as valid for the purposes of the Act; and
(c) is nominated by the nominating spouse; and
(d) is the spouse of the nominating spouse.”.
56.2 Paragraph 831.221 (2) (b):
Omit the paragraph, substitute:
“(b) the applicant is the spouse of the nominating spouse; and”.
56.3 Paragraph 831.221 (3) (c):
Omit the paragraph, substitute:
“(c) the applicant satisfies the Minister that the applicant would have continued to be the spouse of the nominating spouse if the nominating spouse had not died; and”.
56.4 Paragraph 831.221 (4) (b):
Omit the paragraph, substitute:
“(b) the applicant would meet the requirements of subclause (2) if the relationship between the applicant and the nominating spouse had not ceased; and”.
56.5 Paragraph 831.221 (4) (c):
Omit the paragraph.
57.1 After clause 4005, insert:
(1) The applicant:
(a) both:
(i) is free from tuberculosis or any other communicable disease of a fatal or serious nature that, in the opinion of a Commonwealth medical officer, is a threat to public health in Australia, and is not suspected of having contracted such a disease; and
(ii) if the applicant is a person from whom a Commonwealth medical officer has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical examination, has provided such an undertaking; and
(b) is free from any other disease or condition that, in the opinion of a Commonwealth medical officer would be a danger to members of the Australian community; and
(c) subject to subclause (2), is free of any disease or condition that, during the applicant’s proposed period of stay in Australia, would, in the opinion of a Commonwealth medical officer:
(i) require significant care or significant treatment (or both); or
(ii) require care or treatment (or both) involving the use of community resources in short supply; or
(iii) prevent the applicant from pursuing the applicant’s intended occupation (if any) in Australia; or
(iv) result in the applicant becoming a significant charge on public funds.
The Minister may waive the requirements of paragraph (1) (c) if the relevant employer has given the Minister a written undertaking that the relevant employer will meet all costs (if any) related to the disease or condition that causes the applicant to fail to meet the requirements of that paragraph.
In subclause (2),
(a) in the case of an applicant to whom the primary criteria apply—of the applicant; or
(b) in the case of an applicant to whom the secondary criteria apply—of the person:
(i) who meets the primary criteria; and
(ii) of whose family unit the applicant is a member.”.
58.1 Omit the heading to the Schedule, substitute:
“
PART 1—SPECIAL RETURN CRITERIA”.
58.2 Subparagraph 5004 (2) (a) (i):
Omit “the Table at the end of this Schedule”, substitute “Part 2 of this Schedule”.
58.3 Subparagraph 5004 (2) (b) (ii):
Omit “the Table”, substitute “that Part”.
58.4 Subparagraph 5004 (2) (b) (iii):
Omit “the Table”, substitute “that Part”.
58.5 Subparagraph 5005 (2) (a) (i):
Omit “the Table at the end of this Schedule”, substitute “Part 2 of this Schedule”.
58.6 Subparagraph 5005 (2) (b) (i) (second occurring):
Omit the subparagraph, substitute:
“(ii) at the time of grant of that visa, the person was apparently eligible for a substantive visa of a subclass listed in that Part; and”.
58.7 Subparagraph 5005 (2) (b) (iii):
Omit “the Table”, substitute “that Part”.
58.8 Sub-subparagraph 5006 (b) (ii) (B):
Omit “review”, substitute “review; or”.
58.9 Sub-subparagraph 5007 (b) (ii) (B):
Omit “review”, substitute “review; or”.
58.10 Omit:
“THE TABLE REFERRED TO IN SUBCLAUSES 5004 (2)
AND 5005 (2)”
and the Table following, substitute:
“PART 2—CONDITIONS APPLICABLE TO CERTAIN SUBCLASSES OF VISAS FOR THE PURPOSES OF CLAUSES 5004 AND 5005
Column 1 Item | Column 2 Visa subclass | Column 3 Title of visa subclass | Column 4 Conditions |
1 | 410 | Retirement | 8101 |
2 | 419 | Visiting academic | 8103 |
3 | 425 | Family relationship | 8101 |
4 | 432 | Expatriate | 8101 |
5 | 442 | Occupational trainee | 8202 or 8102 |
6 | 560 | Student | 8101, 8104, 8105, 8202, 8501, 8517 or 8518 |
7 | 562 | Iranian postgraduate student | 8105, 8202, 8501 or 8517 |
8 | 563 | Iranian postgraduate student (dependant) | 8104, 8501 or 8518 |
9 | 661 | Tourist (special arrangements) | 8101 or 8201 |
10 | 670 | Tourist (short stay) | 8101 or 8201 |
11 | 672 | Business visitor (short stay) | 8201 |
12 | 673 | Close family visitor (short stay) | 8101 or 8201 |
13 | 674 | Visitor (other) (short stay) | 8101 or 8201 |
14 | 675 | Medical treatment (short stay) | 8101 or 8201 |
Column 1 Item | Column 2 Visa subclass | Column 3 Title of visa subclass | Column 4 Conditions |
15 | 680 | Tourist | 8101 or 8201 |
16 | 682 | Business visitor | 8201 |
17 | 683 | Close family visitor | 8101 or 8201 |
18 | 684 | Visitor (other) | 8101 or 8201 |
19 | 685 | Medical | 8101 or 8201 |
20 | 771 | Transit | 8101 or 8201”. |
59.1 Subparagraph 6101 (a) (iv):
Omit the subparagraph, substitute:
“(iv) in respect of which, at least 3 years before the relevant application was made, the applicant:
(A) obtained a degree, trade certificate, diploma, associate diploma or post-trade qualification assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(B) completed work experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(C) completed a combination of academic or professional study or trade training and work experience that together are assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; and”.
59.2 Paragraph 6101 (c):
Omit the paragraph, substitute:
“(c) was employed in that occupation on the day that is 3 years before the day on which the relevant application was made; and
(d) has worked in that occupation or in a closely related occupation for a period of 2 years, or periods that total 2 years, in the period of 3 years ending on the day before the day on which the relevant application was made”.
59.3 Paragraph 6102 (c):
Omit the paragraph, substitute:
“(c) is an occupation in respect of which, at least 3 years before the relevant application was made, the applicant:
(i) obtained a degree, trade certificate, diploma, associate diploma or post-trade qualification assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(ii) completed work experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(iii) completed a combination of academic or professional study or trade training and work experience that together are assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; and”.
59.4 Paragraph 6102 (e):
Omit the paragraph, substitute:
“(e) is an occupation in which the applicant was employed on the day that is 3 years before the day on which the relevant application was made; and
(f) is an occupation:
(i) in which the applicant has worked; or
(ii) is closely related to an occupation in which the applicant has worked;
for a period of 2 years, or periods that total 2 years, in the period of 3 years ending on the day before the day on which the relevant application was made”.
59.5 Paragraph 6104 (c):
Omit the paragraph, substitute:
“(c) is an occupation in respect of which, at least 3 years before the relevant application was made, the applicant:
(i) obtained a diploma or associate diploma assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(ii) completed work experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(iii) completed a combination of academic or professional study or trade training and work experience that together are assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; and”.
59.6 Paragraph 6104 (e):
Omit the paragraph, substitute:
“(e) is an occupation in which the applicant was employed on the day that is 3 years before the day on which the relevant application was made; and
(f) is an occupation:
(i) in which the applicant has worked; or
(ii) is closely related to an occupation in which the applicant has worked;
for a period of 2 years, or periods that total 2 years, in the period of 3 years ending on the day before the day on which the relevant application was made”.
59.7 Paragraph 6105 (b):
Omit the paragraph, substitute:
“(b) has worked, after receiving the qualification or equivalent study training or work experience referred to in paragraph 6104 (c) and immediately before making the relevant application, in the applicant’s usual occupation, or a closely related occupation, for a period of less than 3 years”.
59.8 After item 6311, insert:
“6311A | The applicant provides evidence that he or she has successfully completed, in Australia, at least 1 year of full-time study or equivalent part-time study towards a degree, higher degree, diploma or associate diploma at an institution or institutions where all the instruction was conducted in English | 10”. |
1. Notified in the
Commonwealth of Australia Gazette on 16 November 1994.2. Statutory Rules 1994 No. 268 as amended by 1994 Nos. 280 and 322.
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