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MIGRATION REGULATIONS 1994 - REG 2.40

Persons having a prescribed status--special purpose visas (Act, s 33(2)(a))

Persons who hold prescribed status

             (1)  For the purposes of paragraph 33(2)(a) of the Act (which deals with persons who are taken to have been granted special purpose visas), and subject to this regulation, each non-citizen who is included in one of the following classes of person has a prescribed status:

                     (a)  members of the Royal Family;

                     (b)  members of the Royal party;

                     (c)  guests of Government;

                     (d)  SOFA forces members;

                     (e)  SOFA forces civilian component members;

                      (f)  Asia-Pacific forces members;

                     (g)  Commonwealth forces members;

                     (h)  foreign armed forces dependants;

                      (j)  foreign naval forces members;

                      (l)  airline positioning crew members;

                    (m)  airline crew members;

                     (n)  transit passengers who belong to a class of persons specified in a legislative instrument made by the Minister for the purposes of this paragraph;

                     (p)  persons visiting Macquarie Island;

                     (q)  children born in Australia:

                              (i)  of a mother who at the time of the birth holds a special purpose visa, if only the mother is in Australia at that time; or

                             (ii)  to parents both of whom, at the time of the birth, hold special purpose visas, if at that time both parents are in Australia;

                      (t)  Indonesian traditional fishermen visiting the Territory of Ashmore and Cartier Islands.

Note:          the terms used in paragraphs (1)(a) to (n) are defined in regulation 1.03.

Armed forces members

             (2)  A person included in a class of persons specified in paragraph (1)(d), (e), (f), (g) or (j) has a prescribed status only while he or she is not absent without leave.

Armed forces dependants

             (3)  A person included in a class of persons specified in paragraph (1)(h) has a prescribed status only while the person of whom he or she is a spouse or de facto partner, or on whom he or she is dependent, is not absent without leave.

Persons must not work in Australia

             (4)  A person included in a class of persons specified in paragraph (1)(d), (e), (f), (g), (j), (l) or (m) has a prescribed status only while he or she does not perform work in Australia (other than work of a kind that he or she normally performs during the course of his or her duties as a person of a kind referred to in the relevant paragraph).

Note:          Regulation 2.40A sets out further restrictions on the work airline positioning crew members and airline crew members may perform in Australia.

Foreign naval forces members

             (5)  A person included in a class of persons specified in paragraph (1)(j) has a prescribed status if and only if the vessel on which he or she enters the migration zone has the prior approval of the Australian government to do so.

Airline positioning crew members

             (9)  A person included in a class of persons specified in paragraph (1)(l) has a prescribed status for the period of 5 working days beginning when he or she disembarks from the aircraft on which he or she travelled to Australia if and only if he or she:

                     (a)  holds a passport that is in force; and

                     (b)  carries a letter from his or her employer certifying aircrew status and setting out the purpose of the person's travel to Australia and the arrangements for the person to leave Australia.

Airline crew members

           (10)  A person included in a class of persons mentioned in paragraph (1)(m) has a prescribed status for 30 days, beginning when he or she disembarks from the aircraft on which he or she travelled to Australia, if and only if he or she:

                     (a)  holds a passport that is in force; and

                     (b)  holds:

                              (i)  a valid airline identity card issued by his or her employer; or

                             (ii)  for a person who is an aircraft safety inspector:

                                        (A)  a valid government identity document showing that he or she is employed by a foreign government; or

                                        (B)  an ICAO Safety Inspector Certificate; and

                     (c)  is included in a list of members of the crew of the aircraft provided to Immigration by or for the international air carrier that operates the aircraft.

Transit passengers

           (11)  A person included in a class of persons specified in paragraph (1)(n) has a prescribed status only while he or she remains in the airport transit lounge.

Macquarie Island visitors

           (12)  A person included in a class of persons specified in paragraph (1)(p) has a prescribed status:

                     (a)  only while he or she remains on Macquarie Island; and

                     (b)  only if the Secretary of the Department of Primary Industries, Parks, Water and Environment of the State of Tasmania has granted written permission in advance for the person to visit that Island.

Children born in Australia

           (13)  A person included in a class of persons specified in paragraph (1)(q) has a prescribed status:

                     (a)  in the case of a child referred to in subparagraph (1)(q)(i)--until the child's mother ceases to have a prescribed status; or

                     (b)  in the case of a child referred to in subparagraph (1)(q)(ii)--until whichever of the child's parents last ceases to have a prescribed status ceases to have that status.

Indonesian traditional fishermen

           (16)  A person included in the class of persons specified in paragraph (1)(t) has a prescribed status only if the person:

                     (a)  is a traditional fisherman within the meaning of the Memorandum of Understanding made at Jakarta on 7 November 1974 between Australia and the Republic of Indonesia regarding the operations of Indonesian fishermen in areas of the Australian Exclusive Fishing Zone and Continental Shelf; and

                     (b)  when visiting the Territory of Ashmore and Cartier Islands, is engaged in an activity described in the Memorandum of Understanding, as varied by the 1989 Practical Guidelines for Implementation contained in the Annex to the Agreed Minutes of Meeting between officials of Australia and Indonesia on fisheries of 29 April 1989.

Note:          The Memorandum, as varied by the Guidelines, has the general effect of accommodating a traditional fisherman engaged in taking fish or marine sedentary organisms by a method that has been a traditional method over decades of time, who is:

(a)    actually taking fish or marine sedentary organisms; or

(b)    sheltering within the territorial sea of the Territory; or

(c)    on shore at the island known as West Islet, for the purpose only of getting fresh water.

                   Expressly excluded is fishing using a motorised, or motor-assisted, vessel or method.



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