Migration (Criteria and General) Regulations

EXPLANATORY STATEMENT

Subject - Migration Act 1958

Migration (Criteria and General) Regulations

1989 No. 365

Section 67 provides the power so far as is relevant to prescribe the making for and charging and recovery of fees; the making provision for the and in relation to the giving, lodging and service of documents on the Minister, Secretary or any other person or body for purposes of the Act; the conducting of English language tests; making provision for furnishing or obtaining information with respect to persons on board vessels arriving in or leaving Australia.

In addition, regulations were prescribed pursuant to the following powers:

- Sections 11D and 11P of the Migration Act 1958 (the Act) provide that without limiting the generality of section 67, the Governor-General may make the following regulations:

- in relation to the granting and refusal of visas and entry permits respectively which includes determining different classes of visas/entry permits, and the criteria in respect of each such class, and the granting subject to conditions and to limitation as to time the holder is authorised to stay in Australia;

- for the recording and evidencing of visas/entry permits

- in relation to the effect and operation of visas/entry permits

- in relation the cancellation of visas/temporary entry permits

- Section 11L provides the power to prescribe the “points” system.

- Section 11M provides the power to prescribe how the Minister reconsiders an application placed in the pool.

- Section 11S provides inter alia the power to prescribe the change in a person’s circumstances before that person can make a further application after review has taken place;

- Section 11T provides inter alia, the power to prescribe that where the person is an illegal entrant and review has not been applied for, the change in circumstances to make further applications;

- Section 11ZD provides inter alia the power

(1) that for the purposes of eligibility for a permanent entry permit after entry into Australia, to prescribe circumstances that the balance of an aged parent’s family shall be taken to be in Australia.

(2) to prescribe classes of persons for the definition of “prescribed non-citizen”;

- Section 11ZJ provides the power to prescribe entry permits to be granted or refused to statutory visitors, and any conditions and limitations as to time to be placed on the entry permit. The section also provides the power to prescribe regulations:

- for the recording and evidencing

- effect and operation

- and cancellation;

- Section 60 provides the power to prescribe the form of the document which contains information concerning certain deportees.

Regulations were prescribed pursuant to the following powers made as a result of the passage of the Migration Legislation Amendment (Consequential Amendments) Bill 1989:

- Section 17A provides that where the Minister subject to prescribed procedures, is satisfied that the person is an illegal entrant and the period of grace has expired shall order the deportation of that person.

- Section 18 provides that the Minister may after considering prescribed matters and no other matters order, the deportation of an illegal entrant.

- Section 20 provides inter alia that revocation of a deportation under section 18 may be made only after the Minister has considered prescribed matters.

- Section 31A provides inter alia that the Minister may after considering prescribed matters and no other matters, order an illegal entrant to leave Australia.

The purpose of these Regulations is to prescribe those matters required for the administration of the Migration Act 1958.

PART 1 - PRELIMINARY

Regulation 1 - Citation

This regulation merely provides that these Regulations may be cited as the Migration (Criteria and General) Regulations.

Regulation 2 - Interpretation

This regulation sets out a number of definitions for the purposes of the regulations, notably:

“aged dependent relative”, “close relative”, “orphan relative”, “relative”, “special need relative”. These definitions place on an outer limit of the type of relative required for the regulations.

“adopted” and “custody” are defined for the purposes of the regulations. It is intended that these definitions are not inconsistent with other Commonwealth legislation.

“spouse” and “de facto spouse” are defined, and reflect the spirit of other Commonwealth Legislation.

“humanitarian visa/entry permit”, “restricted refugee visa/entry permit”, “temporary resident visa/entry permit” and “visitor visa/entry permit” are defined for ease of reference in specific regulations.

“public interest criteria” define certain criteria (including good character) for the purpose to be satisfied for the of the grant of a visa or an entry permit.

Regulation 3 - Balance of Family Test

This regulation provides that an aged parent, or a working age parent (if he/she were an aged parent), satisfies the balance of family test in the circumstances prescribed in regulation 38 for the purposes of the grant of a permanent entry permit after entry.

Regulation 4 - Good Character

This regulation provides the circumstances in which an applicant is not of good character for the purposes of the regulations, in particular in relation to the public interest criteria. In short, the circumstances cover criminal and subversive activities.

Regulation 5 - Guardianship

This regulation provides a definition of guardianship for the purposes of the Regulations. It draws a distinction between “custody” and “guardianship”.

Regulation 6 - Labour Market Requirements

This regulation provides a definition of labour market requirements for the purposes of the Regulations.

Regulation 7 - Member of Family Unit

This regulation provides a definitive interpretation of family unit for the purposes of the Regulations. This definition is important in relation to applications for visas and entry permits. It distinguishes between applications for student visas/entry permits, and applications for all other visas/entry permits.

Regulation 8 - Net Employment Benefit

This regulation provides a definition of net employment benefit for the purposes of the regulations.

Regulation 9 - Remaining Relative

This regulation provides the definition of remaining relative for the purposes of the Regulations. Subsection (1) sets out the persons who are said to be a remaining relative, while subsection (2) qualifies subsection (1) and extends the definition.

PART 2 - PROVISIONS IN RELATION TO VISAS AND ENTRY PERMITS

DIVISION 1 - VISAS

Regulation 10 - Classes of Visas

This regulation links the body of the regulation with the Schedule and other parts of the Regulations.

Regulation 11 - Application for Visa Outside Australia

This regulation provides the circumstances by which an application for a visa maybe lodged outside Australia and specifies special procedures in relation to certain countries.

Regulation 12 - Application for Visa Within Australia

This regulation provides the circumstances in which an application for a visa maybe lodged in Australia, for example for a return visa. This regulation is subject to regulation 34, which prescribes the situation where a person is in custody and who wishes to lodge an application for a visa.

Regulation 13 - Grant of Visa

This regulation repeats some of those matters contained in section 11A of the Migration Act prel989 amendment. It also sets out the visas which will have effect as a permanent or temporary permits on entering Australia. In addition, the regulation provides:

- the mechanism for the relevant class of visa to be identified by a code number specified in the relevant schedule.

- the conditions attached to the class may be identified either on the visa or by a document to be given to the applicant at time of grant. This ensures that the applicant is aware of the conditions attached to the visa.

Regulation 14 - Prescribed notification - paragraph 11E(3)(a) of the Act

This regulation provides a 30 day period in which an applicant has to notify the Minister of any material change in circumstances pursuant to paragraph 11E(3)(a) of the Act. ie after the Minister has not notified the applicant that he/she intends to grant the visa.

If the notification is not received within this time then the provisions of the Act will deem that no material changes have occurred.

Regulation 15 - Recording and Evidencing of Visas

This regulation provides the manner in which visas are recorded, distinguishing between visas which are manually issued and those which are issued by a computerised system. Any such record of a visa is evidence that the visa was issued according to the record.

Regulation 16 - Effect and Operation of Visas

This regulation provides many of the matters contained in section 11A of the Migration Act prel989 amendment. In addition it incorporates matters which have arisen under these regulations for example, the effect of the breach of a terminating condition, subregulation (8) provides a listing of the conditions which are to be terminating and the entitlements conferred by a return visa.

Regulation 17 - Conditions in Connection with Grant of Visas

This regulation sets down the list of conditions which may be imposed in connection with the grant of a visa and how they may be referred on the visa. It adopts by reference those general conditions in subsection 11D(4) of the Act. As a result of this inclusion, it is not necessary to articulate the specific conditions which subsection 11D(4) can encompass.

Regulation 18 - Mandatory Conditions for Grant of Visas

This regulation provides that certain classes of visas shall not be granted unless granted subject to specified conditions. Thus the conditions are attached to a class by operation of law, and not as a result of administrative discretion.

Regulation 19 - Grant of Return Visa in Emergency (Australian Permanent Resident)

This regulation enables a person who is overseas and who applies for a return visa on the basis that he/she is an Australian permanent resident, and who needs to travel to Australia urgently but who cannot fully substantiate the claim before travel to Australia, to be granted the return visa subject to the condition that the visa ceases to have effect on a certain day if the claim is not substantiated.

Regulation 20 - Reconsideration of Application that is put aside

This regulation reflects section 11M of the Act to provide that where an application is put into the pool and a new passmark is Gazetted, the Minister shall reconsider the application. Such reconsideration of an application may occur a maximum of 3 times.

DIVISION 2 - ENTRY PERMITS

Regulation 21 - Classes of Entry Permits

This regulation prescribes the classes of entry permits for the purposes of section 11P of the Act.

Regulation 22 - Application for Entry Permit

This regulation provides when an application for entry permit is made. It distinguishes between applications made on the approved form after entry into Australia, and applications made before entry by presentation of a valid visa at the point of entry into Australia.

Regulation 23 - Lodgment in Australia of Application for Entry Permit

This regulation provides for the circumstances in which lodgment of an application for an entry is made. This regulation is subject to regulation 34 which covers the situation where an applications is to be lodged by a person in custody.

Regulation 24 - Grant of Entry Permit

Some of the matters contained in this regulation reflect section 6 of the Act pre1989 amendment. The regulation provides the form of the entry permit, the information that is to be placed on the entry permit and which entry permits are permanent and which temporary. This regulation also provides that conditions which are placed on the entry permit may be either on the entry permit or in a document given to the applicant at time of grant. This ensures that the applicant is aware of the conditions.

Regulation 25 - Prohibition against Grant of Entry Permit

This regulation provides a prohibition on an illegal entrant being granted an entry permit. In short where an illegal entrant is arrested under section 38 or section 39 of the Act, the illegal entrant cannot lodge an application more than two days after such an arrest. Any other illegal entrant can not lodge an application more than 12 months after becoming an illegal entrant. However, this regulation does not extend to where the person has been granted refugee status or territorial asylum or to a person who entered Australia as a fiance (male of female) before 2 April 1984 (commencement of Migration Amendment Act 1983) and who married, or before 1 January 1975, but did nothing about obtaining a permanent entry permit provided the person has not departed Australia since their initial entry and have developed close personal ties with Australia.

Regulation 26 - Recording and Evidencing Entry Permits

This regulation merely provides the manner in which entry permits are recorded, distinguishing between entry permits which are issued manually and those which are issued by a computerised system. Any such record is evidence that entry permit was issued according to the record.

Regulation 27 - Effect and Operation of Entry Permits

This regulation provides the circumstances in which an entry permit comes into force and when it ceases to be in force. This regulation also lists the conditions which are terminating.

Regulation 28 - Conditions in Connection with Grant of Temporary Entry Permits

This regulation sets down the list of conditions which may be attached to a temporary entry permit. It adopts, by reference, the general conditions in subsection 11P(4) of the Act.

As these general conditions include the specific there is no need to list the specific conditions and, any specific condition can be adopted and placed on the temporary entry permit.

This regulation also provides that any breach of a condition is a ground for cancellation and that conditions may be set out on the temporary entry permit in a notation form, as approved by the Minister.

Regulation 29 - Mandatory Conditions for Grant of Entry Permits

This regulation provides the mandatory conditions which are to be attached to certain classes of entry permit by reference to Schedule 5. These conditions are thereby attached to a class by operation of law.

DIVISION 3 - STATUTORY VISITORS

Regulation 30 - Statutory Visa

This regulation provides that the visa granted under subsection 11ZH(2) of the Act is a statutory visitor visa. This may be granted subject to a limited number of specified conditions.

Regulation 31 - Classes of Entry Permit - Statutory Visas

This provision prescribes the two classes of entry permit that may be granted to a statutory visitor.

Regulation 32 - Grant and Effect of Entry Permit - Statutory Visitor

The type of entry that may be granted of a class specified in regulation 32, may be either permanent or temporary. The regulation also includes the technical matters of the form of such an entry permit, when it comes into force and in the case of a temporary entry permit, when it ceases to be in force. The regulation also provides the terminating conditions.

Regulation 33 - Conditions in Connection with Grant of Temporary Entry Permit - Statutory Visitor

This regulation prescribes the conditions which may be attached to a temporary entry permit issued to a statutory visitor.

DIVISION 4 - GENERAL

Regulation 34 - Application for Visa or Entry Permit in Relation to Person in Custody

This regulation prescribes the circumstances in which a person in custody under the Act is able to lodge an application for a visa or entry permit.

Regulation 34A - Prescribed Criteria Not to Operate Prospectively

This regulation provides that the prescribed criteria an applicant must satisfy for the grant of a visa/entry permit, are those obtaining at the time of the application and also that the applicant must satisfy those criteria at the time of the application.

Regulation 34B - Entry Permit to be Subject to Conditions of Visa or Previous Entry Permit

This regulation ensures that where a visa is granted subject to conditions, the conditions automatically apply to the entry permit granted on the basis of the visa.

The regulation also ensures that where a person is granted a student entry permit/visa as the member of the family unit of a person holding a student entry permit and the family unit member has been granted his/her visa/entry permit subject to the condition that the family member is to leave Australia not later than the “principal applicant”, then any subsequent entry permit granted to the first mentioned holder must contain that same condition.

Regulation 35 - Notice of Decision on Application for Visa or Entry Permit

This regulation provides that where the Minister refuses to grant a visa or an entry permit, other than one at the point of entry (eg at the airport), the Minister is obligated to notify the applicant in writing of that decision. The way in which notification is to be achieved is prescribed, thereby avoiding any doubt. In addition, the time at which notification is deemed to have occurred is defined by reference to subregulations 173(1) or (2).

Regulation 35A - Grant of Visa or Entry Permit after Expiry

This regulation allows a person who has been granted an entry visa or entry permit, and whose entry visa or entry permit has expired, and has therefore become an illegal entrant, to be granted an entry permit of the same class as that originally held. However the person must apply within 28 days of becoming an illegal entrant and also satisfy the Minister of stated criteria.

In addition the Minister is limited to granting a visa or entry permit to such persons, once. ie where an illegal entrant has been granted a visa or entry permit pursuant to regulation 35A, no further application, as an illegal entrant can be made under this regulation.

The regulation is subject to a sunset clause.

Regulation 35B - Extension of time to satisfy requirement or condition

This regulation merely enables the holder of specified visas or entry permits which are granted subject to the satisfaction of a requirement or condition before expiry, and where it was not possible to satisfy those requirements in the specified time, to be granted the same or equivalent entry permit or further entry permit. This entry permit is to be granted subject to the same condition(s).

Regulation 36 - Restrictions on Re-entry

This regulation provides the prohibitions on persons re-entering Australia (ie persons who were previously in Australia and are applying to re-enter).

In short, the length of time a person is unable to be granted a visa or entry permit, is dependent on either the reason for which they entered Australia (eg a subsidised student) or the reason for which they were required to leave Australia (eg deported) and the reason they have applied for readmittance. In addition, in some classes of visa or entry permit the prohibition does not apply.

Regulation 37 - “Prescribed Vessel” and “Prescribed Crew”

This regulation provides a definition of both for the purposes of the definition of “exempt non-citizen” in the Act. The definition of prescribed vessel is intended to cover pleasure craft, and the prescribed crew members are intended to cover persons who are not genuinely part of the crew ie passengers.

Regulation 37A - Endorsement of visa or entry permit in relation to section 11A notice - code or abbreviation

This regulation provides that the endorsements to be placed on visas or entry permits may be in a code form which is specified in Schedule 7.

Regulation 38 - Prescribed Circumstances Section 11ZD

This regulation, together with regulation 3, prescribes the balance of family test for section 11ZD of the Act, namely particular eligibility for the grant of a permanent entry permit on grounds of being an aged parent.

Regulation 39 - Prescribed Class of Persons: Prescribed Non-citizen: 11ZD(7) of the Act

This regulation defines the classes of persons who fall within this definition for the purposes of subsection 11ZD(7) of the Act.

Regulation 40 - Prescribed Change in Circumstances - 11S and 11T of the Act

This regulation sets down the circumstances in which a person is able to apply for an entry permit either after the person has applied for review and section 64C of the Act has applied to that person or where the person has applied and been refused an entry permit and section 64C of the Act has not applied to that person. This regulation enables a person to apply for an entry permit where they would otherwise not be entitled. This regulation also makes a distinction between 11S and 11T in relation to applications received before 7 March 1989 in relation to a request for reconsideration.

PART 3 - PRESCRIBED CRITERIA FOR CLASSES OF VISAS AND ENTRY PERMITS

DIVISION 1

This Division prescribes the mechanism for linking Division 2 of this Part and the relevant Schedule.

Regulation 41 - Prescribed Criteria - Class of Visas

This regulation provides the mechanism by which a person may be granted a visa. It explains the relationship between Schedules 1 and 2 and the criteria which is to apply with respect to classes of visas.

Regulation 42 - Prescribed Criteria - Classes of Entry Permit

This regulation provides the mechanism by which a person may be granted an entry permit. The regulation distinguishes between entry permits granted on arrival by presentation of the visa, and those entry permits which may be granted to a person after they have entered Australia. It also provides for an entry permit to be granted on the presentation of a visa which was granted prior to commencement of section 4 of the Migration Legislation Amendment Act 1989.

In relation to entry permits granted before entry, the prescribed criteria are set out in this regulation including those matters contained in subsection 11A(1) or (2) of the Act. The entry permits which are to be granted before entry are those equivalent to the visa held by the applicant. In relation to entry permits granted after entry, the prescribed criteria is set out in Part 2 of Schedule 3.

Regulation 43 - Additional Criteria

This regulation applies to both visas and entry permits. It provides that any additional criteria in this Part eg in Division 2, are to be prescribed criteria in relation to the specified classes of visas or entry permits.

DIVISION 2 - ADDITIONAL CRITERIA FOR VISAS

Regulation 44 - 98 inclusive

This Division sets out the specific criteria for each class of entry, temporary resident, student, visitor and return visas referred to in Part 1 of Schedule 2.

DIVISION 3 - ADDITIONAL CRITERIA IN RELATION TO VISAS SUBJECT TO SPECIAL PROVISION

Regulation 99 - Division to Cease to Have Effect

This regulation provides for Division 3 and Part 2 of Schedule 2 to cease to have effect on 30 June 1990.

Regulation 100 - Interpretation

This regulation defines who is a person subject to persecution and who is a person subject to discrimination for the purposes of this Division.

Regulations 101 - 107 inclusive - Humanitarian Program Visas

These regulations set out the specific criteria for each class of humanitarian visas referred to in Part 2 of Schedule 2.

DIVISION 4 - PRESCRIBED CRITERIA IN RELATION TO VISAS AND ENTRY PERMITS: SPECIAL CASES

Regulation 108 - Grant of Visa or Entry Permit to Accompanying Dependant or Dependant in Australia

This regulation provides the mechanism by which a member of the family unit who is included in the principal applicant’s application for a visa or entry permit or where a dependant of the principal applicant is in Australia, obtains the same visa or entry permit as that applied for in the principal application.

This regulation applies to all visa and entry permit classes (temporary or permanent) except those in subregulation (4).

Regulation 109 - Entry Permit for Statutory Visitors

This regulation enables a statutory visitor to be granted a statutory visitor (territorial asylum) entry permit or a statutory visitor (refugee) entry permit on satisfying prescribed criteria.

Regulation 110 - Transit Visa

This regulation provides for a person to spend less than 72 hours in Australia if simply passing through Australia or entering Australia to join the crew of a ship.

Regulation 111 - Border Visa

This regulation allows for a person who arrives in Australia without a visa but who can provide evidence of being an Australian permanent resident, or can satisfy the Minister that he/she has reasonable grounds for entering Australia on a temporary basis other than as a refugee, to be granted a visa.

Regulation 112 - Border Entry Permit

This regulation enables a border entry permit to be granted to a person who has been granted a border visa.

Regulation 112A - Restricted Passport Visa

This regulation enables a person who is the holder of a restricted passport to be granted a visa, which will allow the entry permit for which they have applied, to be granted on arrival in Australia.

Regulation 113 - Emergency (temporary entry) Visa

This regulation enables a person who has applied for a visa to enter Australia on a temporary basis but who has compelling reasons to travel to Australia before he/she can meet all applicable public interest and health criteria, to be granted that visa ie the one applied for. The visa/entry permit granted on the basis of it, will cease to have effect if the remaining criteria are not met by a date specified by the issuing officer.

Regulation 114 - Emergency (permanent) Entry

This regulation enables a person who has applied for a visa to enter Australia on a permanent basis but who has compelling reasons to travel to Australia before he/she can meet all applicable public interest and health criteria to be granted an emergency (permanent) visa. The applicant will then be able to apply for a permanent entry permit after entry into Australia when the outstanding requirement(s) have been satisfied.

Regulation 115 - Grant of Visa to Enable Re-enter to Australia

This regulation enables persons who are temporarily resident in Australia to leave Australia and re-enter on the basis of a visa of the same or equivalent class of entry visa or entry permit held before leaving Australia and under the same conditions.

This regulation also allows a person who has been granted refugee status to re-enter Australia on the same visa as that originally held.

Regulation 116 - Refugee A (restricted) visa or entry permit

This visa or entry permit can be granted to a person who has been granted refugee status, is present in Australia, qualifies for permanent settlement, but does not hold a visa or entry permit valid for the purposes of s11ZD. The criteria also apply to the case of an applicant who has not entered Australia.

Regulation 117 - Refugee B (restricted) visa or entry permit

This visa or entry permit is granted to enable a person who has been granted refugee status but who does not qualify for permanent settlement in Australia or who does not wish to stay permanently in Australia, to remain legally in Australia for a temporary stay while more permanent arrangements are being made.

This visa or entry permit is not valid for the purposes of s11ZD. Holders can, however, be granted a Refugee A (restricted) or another Refugee B (restricted) entry permit at the time of expiry of their current entry permit or visa.

Regulation 118 - Refugee C (restricted) entry permit

This entry permit is granted to a person who holds a valid temporary entry permit or entry visa at the time of making a claim of substance (ie a prima facie case exists) for refugee status, so that the person can remain lawfully in Australia while their refugee claim is being determined.

This entry permit is valid for the purposes of section 11ZD but will only enable the applicant to be granted a refugee (after entry) permanent entry permit or a permanent entry permit for which he/she would have qualified prior to applying for refugee status. Thus, is it excludes the grant of a permanent entry permit on grounds which may have arisen subsequent to the application for refugee status.

Regulation 119 - Refugee D (restricted) entry permit

This regulation provides for the grant of a temporary entry permit to a person who has been assessed as having a claim of substance to refugee status, but who did not hold a valid temporary entry permit at the time of applying for refugee status.

This entry permit will only allow access to Refugee A and B (restricted) entry permits at its expiry.

Regulation 119A - Grant of return visa, Class B in certain circumstances

This regulation allows a person who is the holder of a return endorsement or an authority to return and who lodges the application not later than 31 December 1989, to be granted a return visa Class B.

Regulation 119B - Processing Visa

This regulation enables a person who is in Australia and who holds a processing entry permit to be granted a visa to enable the person on leaving Australia, to travel back to Australia.

Regulation 119C - Return entry permit, Class E - return endorsement

This regulation enables a return Entry Permit, Class E to be granted to a person who holds a return endorsement or a return visa, Class E.

DIVISION 5 - PRESCRIBED CRITERIA IN RELATION TO TEMPORARY ENTRY PERMITS GRANTED ONLY IN AUSTRALIA

Regulation 120 - Grant of Temporary Entry Permit (other than working holiday entry permit) to Holder of Visitor Visa or Entry Permit

This regulation sets out the criteria enabling the holder of a class of visitor visa or entry permit to be granted a further visitor entry permit, a temporary resident entry permit (other than a working holiday or a domestic worker (diplomatic or consular), or a student entry permit.

Regulation 121 - Grant of Temporary Entry Permit to Holder of Working Holiday Visa or Entry Permit

This regulation sets out the criteria enabling the holder of a working holiday entry permit or entry visa to be granted a class of temporary resident entry permit (other than a domestic worker (diplomatic or consular) entry permit), a further working holiday maker entry permit or a class of visitor entry permit.

Regulation 122 - Grant of Temporary Entry Permits to Holders of Certain Student Visas or Entry Permits

This regulation sets out the criteria enabling the holder of a private subsidised student or a student (formal course) visa or entry permit to be granted a class of temporary resident permit other than a working holiday or a domestic worker (diplomatic or consular) entry permit, a class of visitor entry permit, or a class of student entry permit.

Regulation 123 - Grant of Visitor of Student Entry Permits to Holders of Certain Student Visas or Entry Permits

The regulation sets out the criteria enabling the holder of a class of student entry permit or entry visa other than a private subsidised student or a student (formal course) entry permit or entry visa to be granted visitor entry permit or a class of student entry permit.

Regulation 124 - Grant of Student Entry Permit to Holder of or Person included in Diplomatic Visa)

This regulation sets out the criteria enabling the grant of a class of student permit to a person who is the dependent of the holder of a diplomatic visa.

Regulation 125 - Grant of Temporary Entry Permit to Lawful Temporary Resident)

This regulation sets out the criteria enabling the holder of a class of temporary resident entry permit or visa to be granted a further class of temporary resident entry permit (other than a working holiday or domestic worker (diplomatic or consular) entry permit, a class of visitor entry permit, or a class of student entry permit.

Regulation 126 - Extended eligibility (spouse) entry permit

This regulation provides for the grant of temporary entry permit valid for the purposes of s11ZD to a person who since arriving in Australia has become the spouse of an Australian citizen or permanent resident. This temporary entry permit cannot be granted to such a person if the person entered Australia as the holder of a class of visitor entry permit or is an illegal entrant.

Regulation 127 - Extended eligibility (family) entry permit

This regulation provides for the grant of a temporary entry permit valid for purposes of section 11ZD to:

(i) a dependent child who has been placed in the parental custody of Australian citizens or permanent residents because of the death of his/her last custodial parent since the child’s arrival in Australia;

(ii) an aged parent who since arriving in Australia satisfies the balance of family test;

(iii) a person who since arrival in Australia has, as the result of the death or permanent incapacitation of a relative, become eligible for the grant of a preferential family entry permit.

Regulation 128 - Extended eligibility (economic) entry permit

This regulation provides for the grant of a temporary entry permit valid for the purposes of section 11ZD to a person who:

(i) would be eligible for the grant of a labour agreement, employer nomination, business (joint venture), business (other), distinguished talent (Australian support) or distinguished talent (independent) entry permit, provided the applicant

(a) is not, nor has been in the 10 years immediately preceding the application, a prescribed non-citizen for the purposes of section 11ZD;

(b) is not the holder of a visitor visa or entry permit or is an illegal entrant;

(c) has been permitted to stay temporarily in Australia for at least twelve months in aggregate (other than as a working holiday, retirement or domestic worker (diplomatic or consular)) and has permission to work at the time of application;

(d) has held one or more student (formal course) entry permits or entry visas which have entitled the applicant to stay in Australia for more than 12 months in aggregate and has permission to work at the time of application;

(e) holds a working holiday entry permit or entry visa

provided that the applicant:

(1) has not been a prescribed non-citizen for the purposes of s11ZD at any time during the 10 years immediately preceding the day the application was made, or

(2) is not the holder of a visitor visa or entry permit or is an illegal entrant

Regulation 129 - Extended eligibility (other) entry permit

This regulation provides for the grant of a temporary entry permit to a person who after his/her entry into Australia, is severely and directly affected as a member of a group or body by a major natural disaster, significant political, social or religious change which has occurred in the applicant’s usual country of residence and which has been specified by the Minister in the Gazette.

Regulation 130 - Extended eligibility (limited) entry permit

This regulation is similar to regulation 129 but because permanent settlement in Australia is not the appropriate course for the applicant and there maybe another country in which the applicant is entitled to reside, this entry permit is not valid for section 11ZD of the Act.

Regulation 131 - Processing Entry Permit

This regulation provides that where a person has applied for a further temporary entry permit or a permanent entry permit, and before that is determined the person’s current entry permit will expire, the person is able to apply for an entry permit. This regulation prevents a person becoming an illegal entrant while the principal application for an entry permit is being determined.

DIVISION 6 - PRESCRIBED CRITERIA IN RELATION TO CERTAIN CLASSES OF PERMANENT ENTRY PERMITS GRANTED ONLY AFTER ENTRY TO AUSTRALIA

Regulation 133 - Application of this Division

This regulation merely links this Division to the entry permits specified in Part 2 in Schedule 3.

Regulation 134 to 142

These regulations prescribe the criteria for the grant of the relevant permanent entry permit after entry.

DIVISION 7 - WAIVER OF PRESCRIBED CRITERIA

Regulations 143 - Waiver of Good Character Requirement

This regulation provides that a visa or entry permit may be granted despite the applicant failing to satisfy the public interest criteria on the grounds of not being of good character. The waiver is intended to allow flexibility where the Minister is satisfied of certain specified matters.

Regulation 144 - Waiver of Health

This regulation provides that a visa or an entry permit may be granted despite the applicant failing to satisfy the health criteria, where the Minister is satisfied that waiving the requirement would not result in undue harm, or costs imposed on the Australian community or prejudicing the access of an Australian citizen to health care. This regulation only applies to certain classes of visas or entry permits.

DIVISION 8 - PRESCRIBED QUALIFICATIONS: APPLICATION OF POINTS SYSTEM

Regulation 145, 146 and 147

For the purposes of sections 11L and 11X of the Act, these regulations together with Schedule 4 specify the points which an applicant can obtain in respect of:

(1) the applicant’s employment qualifications, age, language skill and relationship to sponsor.

(2) the sponsor’s Australian citizenship and its duration, settlement qualifications and place and duration of residence.

PART 4 - COLLECTION OF INFORMATION WITH RESPECT TO PERSONS ON VESSELS

Regulation 148AA - Provision of Information - General requirement

This regulation provides that persons arriving or departing Australia on an international flight or is on board an aircraft operated by an international air carrier on eg a domestic leg of an international flight, is obliged to complete and furnish a passenger card in respect of specified information.

Regulation 148A - Use of Information

This regulation provides that information collected from passenger cards, notified data bases or passports may be used for specified purposes. However such information is not to be used unless with the approval of the Minister.

The regulation also provides that where the Commonwealth has entered into an agreement with another country, the Minister may release, after notice of the agreement in the Gazette, the information.

PART 8 - MISCELLANEOUS

DIVISION 1 - LODGEMENT AND SERVICE OF DOCUMENTS

Regulation 169 - Service of Documents Generally

This regulation provides the circumstances as to the manner of giving or serving documents generally where other specific provisions do not apply. It distinguishes between persons who are illegal entrants and other people. The regulation also provides that in relation to illegal entrants, service can take place by publishing the notice in abbreviated detail in the national press.

Regulation 170 - Service Outside Australia

This regulation provides the circumstances as to the service of documents outside Australia. As such it removes any doubt as to when service is to take effect.

Regulation 171 - Service on Owner Agent, or Character of Vessel or on Master

This regulation provides the circumstances as to service of documents distinguishing between service on the owner, agent or charter and service on the master of a vessel.

Regulation 172 - Service of Notice on Bank or Other Financial Institution - 21D(6) of the Act

For the purposes of subsection 21D(2) of the Act, this regulation provides the circumstances as to service of a document on a financial institution.

Regulation 173 - Time When Service Takes Effect

This regulation provides a period, depending on how service is effected, when service is taken to be received by the person on whom a document is served. This regulation is intended to clarify the point at which notification for the period of grace under section 5J of the Act is taken to have occurred.

DIVISION 2 - GENERAL

Regulation 174 - Summons to Attend as Witness

This regulation provides the circumstances as to the service of summons to attend as a witness for purposes under the Act.

Regulation 175 - Section 11A Notice

This regulation merely prescribes the form for the purposes of subsection 11A(3) of the Act.

Regulation 176 - Prescribed Diseases - 11A(1)(d)(i) of the Act

This regulation prescribes the diseases for which must be disclosed in relation to applications for visas. Failure to disclose such diseases will result in the person being an illegal entrant on entry into Australia.

Regulation 177 - Prescribed Circumstances - 11A(1)(d)(iv) of the Act

This regulation prescribes the circumstances in relation to the exclusion of a person from a foreign country, for the purposes of subparagraph 11A(1)(d)(vi) of the Act. This means that a person who fails to disclose such circumstances in relation to an application for entry into Australia will be an illegal entrant.

Regulation 178 - Prescribed procedures - subsection 17A(2) of the Act

This regulation provides the procedures to be followed by the Minister before the power in section 17(A) can be exercised.

Regulation 179 - Prescribed matters - subsections 18(1) and 31A(1) of the Act

This regulation provides those matters which are to be determined before the powers in sections 18(1) and 31A(1) may be exercised.

Regulation 180 - Prescribed matters - subsection 20(1) of the Act

This regulation provides those matters which are to be considered by the Minister before the power in regulation may be exercised.

Regulation 181 - Search Warrants under 21D(4) and 37(4) of the Act

This regulation prescribes form of search warrants for both subsections 21D(14) and 37(4) of the Act.

Regulation 182 - Document for Purposes of 60(2) of the Act

This regulation prescribes the document for the purposes of subsection 60(2) of the Act by reference to Form 4.

DIVISION 3 - FEES

Regulation 183 - Fees in respect of grant of visas and entry permits

This regulation prescribes the fees in relation to the grant of visas and entry permits by reference to Schedule 8. It also provides that in relation to an applicant for a student entry permit, the Minister may grant the entry permit where the fee is unpaid and the Minister is satisfied that the government of a country responsible for paying the fee will pay the fee.

Regulation 184 - Fee on application for permanent entry permit by holder of return visa

This regulation reflects the previous regulation 29A(2C) of the Migration Regulations to exempt from the payment of any fee a person who is a permanent resident but who on entry into Australia was granted a temporary entry permit, and who subsequently applies for a permanent entry permit.

Regulation 185 - Fee on application for temporary entry permit granted only in Australia

This regulation specifies the fees imposed in relation to regulations 120 to 125 inclusive.

Regulation 186 - Fee on application for certain entry permits

This regulation specifies the fees for the grant of certain permanent entry permits after entry. It distinguishes between the holder of an extended eligibility entry permit or Refugee A (restricted) visa/entry permit who applied for a permanent entry permit after entry, and any other person who so applies.

Regulation 187 - Fee on application for skilled occupation entry permit

This regulation specifies the fees payable for a skilled occupation entry permit, distinguishing between certain applicants.

Regulation 188 - Fee on application for confirmatory entry permit

This regulation specifies the fee payable for a confirmatory entry permit, distinguishing between certain applicants.

Regulation 189 - Fee on application for extended eligibility (economic) entry permit

This regulation specifies the fee payable for an extended eligibility (economic) entry permit, distinguishing between certain applicants.

Regulation 190 - Fee on application for return visa, Class B

This regulation specifies the fee payable for return visa, Class B distinguishing between applications made overseas and in Australia. In addition, no fee is payable where the applicant is the holder of a return endorsement or authority to return and who applies before 31 December 1989.

Regulation 191 - Fee on application for visa to enable re-entry to Australia

This regulation specifies the fee payable where regulation 115 applies.

Regulation 192 - Sponsorship fee

This regulation prescribes the fee payable where a sponsorship is made in respect of an application for a visa or temporary entry permit.

Regulation 194 - Fee for language test

This regulation prescribes the fee payable for a language test.

Regulation 195 - Refund of fees

This regulation specifies the circumstances in which a fee paid is refunded.

Regulation 196 - Fees transitional

This regulation exempts a person from the payment of a fee on applicant a visa or entry permit before 31 March 1990 where the applicant had previously made a request for reconsideration and such request was not determined before 19 December 1989.

SCHEDULE 1

This schedule lists common criteria for the purposes of classes of visas and entry permits. They are then identified by symbols as in Column 3.

SCHEDULE 2

Part 1

This Part of Schedule 2 lists the classes of visas the prescribed criteria to be met by an applicant and the code to attach to the class. The detail for how the Schedule works is contained in regulation 41.

Part 2

This Part of Schedule 2 lists those visas classes which are subject to the sunset clause in subregulation 41(4) of the Regulations.

Part 3

This part of Schedule 2 lists the classes of visas where no additional criteria is prescribed and subregulation 41(4) is not applicable.

SCHEDULE 3

Part 1

This part of Schedule 3 lists the classes of entry permits which are equivalent to those classes of visa in Part 1 of Schedule 2. The detail of how this Schedule works is contained in regulation 42.

Part 2

This part of Schedule 3 lists those permanent entry permits which are granted after entry into Australia, and the additional criteria to be met.

Part 3

This part of Schedule 3 lists those entry permits not otherwise issued.

SCHEDULE 4

This schedule lists the qualifications and points allocated for the purposes of regulation 145.

SCHEDULE 5  

This schedule sets out the conditions which are mandatory and the classes of visas and entry permits to which they apply for the purpose of regulations 18 and 30.

SCHEDULE 6

This schedule sets out all the forms to be prescribed in the regulations.

SCHEDULE 7

This schedule sets out the codes for the endorsements to be placed on visas and entry permits.

SCHEDULE 8

This schedule sets out the fees for certain visas and entry permits for purposes of regulation 183.