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1992 No. 367 MIGRATION (1993) REGULATIONS - SCHEDULE 4
SCHEDULE 4 Regulation 1.3
PUBLIC INTEREST CRITERIA 4001. (1) Subject to subclause (3), the applicant is
of good character.
(2) For the purposes of this clause, a person is to be taken not to be of good
character if:
(a) in the case of an applicant for a visa or an entry permit of any class
- the applicant:
(i) has been assessed by the competent Australian authorities to be
directly or indirectly a risk to Australian national security;
or
(ii) has at any time been convicted of a crime and sentenced to
death, or to imprisonment for life or to a period of not less
than 1 year; or
(iii) has at any time been convicted of 2 or more crimes and
sentenced to imprisonment for periods that add up to at least 1
year if:
(a) any period concurrent with part of a longer period is disregarded; and
(b) any periods not disregarded that are concurrent with each other are
treated as one period; whether or not:
(c) the crimes were of the same kind; or
(d) the crimes were committed a the same time; or
(e) the convictions were at the same time; or
(f) the sentencings were at the same time; or
(g) the periods were consecutive;
(iv) has at any time been charged with a crime and either found
guilty of having committed the crime while of unsound mind or
acquitted on the ground that the crime was committed while the
person was of unsound mind; or
(v) has been deported from another country; or
(vi) has been excluded from another country in the circumstances
prescribed for the purposes of subparagraph 20 (1) (d) (vi) of
the Act; or
(vii) has, in the reasonable belief of the Minister, been involved in
activities indicating contempt, or disregard, for the law or
for human rights; and
(b) in the case of an applicant for a permanent entry visa or
permanent entry permit - the applicant has at any time been convicted
of an offence (other than an offence referred to in paragraph (a)) in
circumstances indicating, in the reasonable belief of the Minister,
habitual contempt, or disregard, for the law or for human rights.
(3) The Minister may waive the requirements of subclause (1) if:
(a) the applicant satisfies all other public interest criteria for the
grant of the visa or entry permit applied for; and
(b) the Minister is satisfied that:
(i) in the case of the circumstance referred to in subparagraph (2)
(a) (i) - the circumstance no longer obtains; or
(ii) in the case of conduct referred to in any other subparagraph of
paragraph (2) (a) - the applicant has shown by subsequent
conduct that he or she is reformed; and
(c) the Minister is satisfied that undue harm would be unlikely to result
to the Australian community if the visa or entry permit was granted;
and
(d) in the case of an applicant for a refugee or humanitarian visa or
entry permit, the Minister is satisfied:
(i) that the applicant satisfies the other criteria for the grant
of (a refugee visa or entry permit or) a Group 1.3 (permanent
resident (refugee and humanitarian)) visa or entry permit; and
(ii) that any period of imprisonment imposed on the applicant was
imposed, in reality, for a political offence. 4002. (1) The
applicant is not determined by the Minister, acting personally,
to be likely to become involved in activities disruptive to, or
violence threatening harm to, the Australian community or a
group within the Australian community.
(2) If the applicant is a member of an organisation or group of persons that
is a declared body for the purposes of regulation 1.18, the applicant has
satisfied the Minister, acting personally, that the applicant is not likely to
become involved:
(a) in the planning of any criminal or illegal activity to be carried out
inside or outside Australia; or
(b) in the carrying out, inside or outside Australia, of any criminal or
illegal activity. 4003. The applicant is not determined by the
Foreign Minister to be a person whose presence in Australia would
prejudice relations between Australia and a foreign country. 4004. The
applicant does not have outstanding debts to the Commonwealth unless
the Minister is satisfied that appropriate arrangements have been made
for payment. 4005. The applicant:
(a) is free from tuberculosis or any other communicable disease of a fatal
or serious nature which, 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
(b) is free from any other disease or condition which, in the opinion of a
Commonwealth medical officer, would be a danger to members of the
Australian community; and
(c) is free of any disease or condition which, 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) would result in the applicant becoming a significant charge on
public funds. 4006. The applicant has been found to be free
from any disease or condition that, if offspring were produced,
would, in the opinion of a Commonwealth medical officer, result
in the offspring being affected by a disease or condition
referred to in clause 4005. 4007. (1) Subject to subclause (2),
the applicant:
(a) is free from tuberculosis or any other communicable disease of a fatal
or serious nature which, 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
(b) is free from any other disease or condition which, in the opinion of a
Commonwealth medical officer, would be a danger to members of the
Australian community; and
(c) is free of any disease or condition which, 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) would result in the applicant becoming a significant charge on
public funds.
(2) The Minister may waive the requirements subclause (1) if:
(a) the applicant satisfies all other criteria for the grant of the visa
or entry permit applied for (other than public interest criterion
4008, if applicable); and
(b) a Commonwealth medical officer has formed the opinion that the
applicant:
(i) is free of tuberculosis and other communicable diseases of a
fatal or serious nature which are a threat to public health in
Australia; and
(ii) is free of other diseases and conditions which are a danger to
members of the Australian community; and
(iii) is free of diseases and conditions which are likely to result
in offspring being produced with disease or condition referred
to in subparagraph (i) or (ii); and
(iv) is unlikely, as a result of a disease or condition, to
prejudice the access to health care of any Australian citizen
or Australian permanent resident; and
(c) the Minister is satisfied that undue harm or undue cost would be
unlikely to result to the Australian community if the visa or
entry permit was granted. 4008. (1) Subject to subclause (2), the
applicant has been found to be free from any disease or condition
that, if offspring were produced, would, in the opinion of a
Commonwealth medical officer, result in offspring affected by a
disease or condition referred to in clause 4007.
(2) The Minister may waive the requirements subclause (1) if:
(a) the applicant satisfies all other criteria for the grant of the visa
or entry permit applied for (other than public interest criterion
4007); and
(b) a Commonwealth medical officer has formed the opinion that the
applicant:
(i) is free of tuberculosis and other communicable diseases of a
fatal or serious nature which are a threat to public health in
Australia; and
(ii) is free of other diseases and conditions which are a danger to
members of the Australian community; and
(iii) is free of diseases and conditions which are likely to result
in offspring being produced with disease or condition referred
to in subparagraph (i) or (ii); and
(iv) is unlikely, as a result of a disease or condition, to
prejudice the access to health care of any Australian citizen
or Australian permanent resident; and
(b) the Minister is satisfied that undue harm or undue cost would be
unlikely to result to the Australian community if the visa or
entry permit was granted. 4009. The applicant:
(a) intends to live permanently in Australia; and
(b) if the applicant seeks entry to Australia as a member of a family
unit, also satisfies the Minister that the applicant could obtain
support in Australia from other members of the family unit. 4010. If
the applicant seeks permanent entry, or temporary entry for a stay
exceeding 12 months, to Australia, the applicant is likely to become
established in Australia without undue personal difficulty and without
imposing undue difficulties or costs on the Australian community.
4011. (1) If the applicant is affected by the risk factor specified in
subclause (2), the applicant satisfies the Minister that, having
regard to the applicant's circumstances in the applicant's country of
usual residence, there is very little likelihood that the applicant
will remain after the expiry of any period during which the applicant
might be authorised to remain after entry.
(2) An applicant is affected by the risk factor referred to in subclause (1)
if:
(a) during the period of 5 years immediately preceding the application,
the applicant has applied for a visa or entry permit for the purpose
of residence in Australia; or
(b) the applicant has one or more relevant characteristics in common with
a class of persons shown by statistics prepared by the Secretary from
the movement records kept by Immigration to be persons who have
remained in Australia after the expiry of the respective periods of
time during which they were authorised to remain in Australia.
(3) For the purposes of subclause (2), a relevant characteristic is any of the
following characteristics:
(a) nationality;
(b) marital status;
(c) age;
(d) sex;
(e) occupation;
(f) the class of visa currently applied for;
(g) the place of lodgment or posting of the application for that visa.
SCHEDULE 5 Regulation 1.3
SPECIAL RE-ENTRY CRITERIA 5001. The applicant is not a person who has been
deported from Australia under section 55, 56 or 57 of the Act (or section 12,
13 or 14 of the Act as in force before 19 December 1989). 5002. If the
applicant is a person who has been deported from Australia otherwise than
under section 55, 56 or 57 of the Act (or section 12, 13 or 14 of the Act as
in force before 19 December 1989):
(a) the application is made more than 30 months after the deportation; or
(b) the Minister is satisfied that, in the particular case, compassionate
or compelling circumstances justify the waiver of the requirements of
paragraph (a). 5003. If the applicant is a person who has been
deported from Australia otherwise than under section 55, 56 or 57 of
the Act (or section 12, 13 or 14 of the Act as in force before 19
December 1989):
(a) the application is made more than 5 years after the deportation; or
(b) the Minister is satisfied that, in the particular case, compassionate
or compelling circumstances justify the waiver of the requirements of
paragraph (a). 5004. If the applicant is a person who has left
Australia (otherwise than as a deportee) following:
(a) compliance action by Immigration resulting in the detection of the
person as an illegal entrant or prohibited non-citizen; or
(b) the cancellation of a temporary entry permit held by the person as the
result of the holder being found by Immigration to have worked without
authority; or
(c) a determination by the Minister that the person had failed to comply
with a terminating condition to which a temporary entry permit held by
the person was subject, with the result that that entry permit ceased
to be in force; either:
(d) the application is made more than 12 months after the departure of the
person from Australia; or
(e) the Minister is satisfied that, in the particular case, compassionate
or compelling circumstances justify the waiver of the requirements of
paragraph (d). 5005. If the applicant is a person who has left
Australia (otherwise than as a deportee) following:
(a) compliance action by Immigration resulting in the detection of the
person as an illegal entrant or prohibited non-citizen; or
(b) the cancellation of a temporary entry permit held by the person as the
result of the holder being found by Immigration to have worked without
authority; or
(c) a determination by the Minister that the person had failed to comply
with a terminating condition to which a temporary entry permit held by
the person was subject, with the result that that entry permit ceased
to be in force; either:
(d) the application is made more than 3 years after the departure of the
person from Australia; or
(e) the Minister is satisfied that, in the particular case, compassionate
or compelling circumstances justify the waiver of the requirements of
paragraph (d). 5006. If the applicant is:
(a) person who has left Australia after having been determined by the
Minister to have contravened a condition of a temporary entry permit
held by the person, whether or not the period of effect of that
entry permit had expired at the time of the determination; or
(b) person who:
(i) has left Australia on or after 1 November 1990 and after the
expiry of a period of grace that applied to the person; and
(ii) is not a person who :
(a) applied for review by a review authority; and
(b) left Australia within 7 days of being notified of the decision on the
application for review; either:
(c) the application is made more than 6 months after the departure of the
person from Australia; or
(d) the Minister is satisfied that, in the particular case, compassionate
or compelling circumstances justify the waiver of the requirements of
paragraph (c). 5007. If the applicant is:
(a) person who has left Australia after having been determined by the
Minister to have contravened a condition of a temporary entry permit
held by the person, whether or not the period of effect of that
entry permit had expired at the time of the determination; or
(b) person who:
(i) has left Australia on or after 1 November 1990 and after the
expiry of a period of grace that applied to the person; and
(ii) is not a person who :
(a) applied for review by a review authority; and
(b) left Australia within 7 days of being notified of the decision on the
application for review; either:
(c) the application is made more than 12 months after the departure of the
person from Australia; or
(d) the Minister is satisfied that, in the particular case, compassionate
or compelling circumstances justify the waiver of the requirements of
paragraph (c). 5008. (1) If the applicant:
(a) has left Australia on or after 1 November 1990 and after the expiry of
a period of grace that applied to the applicant; and
(b) is not a person who:
(i) applied for review by a review authority; and
(ii) left Australia within 7 days of being notified of the decision
on the application for review; either:
(c) the applicant meets the requirements of subclause (2); or
(d) the Minister is satisfied that, in the particular case, compassionate
or compelling circumstances justify the waiver of those requirements.
(2) An applicant meets the requirements of this subclause if:
(a) the applicant became an illegal entrant upon the expiry of a Group 2.2
(student) entry permit held by the applicant; and
(b) documents relevant to the establishing of the applicant's eligibility
for the grant of the entry permit applied for were given to Education,
or to an Australian educational institution, at any time after 1
January 1990 but before the expiry of the entry permit mentioned in
paragraph (a); and
(c) the present application was made before:
(i) 1 April 1991 (in the case an application for a visa); or
(ii) 1 January 1992 (in the case of an application for an
entry permit). 5009. If the applicant:
(a) was a prohibited non-citizen on or before 18 December 1989; and
(b) was not detained or arrested under the Act on or after 10 December
1990; and
(c) made an unsuccessful application:
(i) in accordance with these Regulations for a Class 440 (December
1989 (temporary) entry permit or a Class 812 (December 1989
(permanent)) entry permit; or
(ii) an accordance with the Migration (1989) Regulations for a
corresponding entry permit; and
(d) subsequently left Australia but was not deported; either:
(e) the unsuccessful application was made before 19 December 1991; or
(f) both:
(i) the unsuccessful application was made on or after 19 December
1991 but before 19 December 1992; and
(ii) the present application is made more than 2 years after the
applicant left Australia; or
(g) both:
(i) the unsuccessful application was made on or after 19 December
1992 but before 19 December 1993; and
(ii) the present application is made more than 5 years after the
applicant left Australia; or
(h) the Minister is satisfied that, in the particular case, compassionate
or compelling circumstances justify the waiver of the requirements of
paragraphs (e) to (g). 5010. If the applicant:
(a) was a prohibited non-citizen on or before 18 December 1989; and
(b) was detained or arrested under the Act on or after 10 December 1990;
and
(c) made an unsuccessful application :
(i) in accordance with these Regulations for a Class 440 (December
1989 (temporary) entry permit or a Class 812 (December 1989
(permanent)) entry permit; or
(ii) an accordance with the Migration (1989) Regulations for a
corresponding entry permit; and
(d) subsequently left Australia but was not deported; either:
(e) both:
(i) the unsuccessful application was made before 19 December 1991;
and
(ii) the present application is made more than 12 months after the
applicant left Australia; or
(f) both:
(i) the unsuccessful application was made on or after 19 December
1991 but before 19 December 1992; and
(ii) the present application is made more than 2 years after the
applicant left Australia; or
(g) both:
(i) the unsuccessful application was made on or after 19 December
1992 but before 19 December 1993; and
(ii) the present application is made more than 5 years after the
applicant left Australia; or
(h) the Minister is satisfied that, in the particular case, compassionate
or compelling circumstances justify the waiver of the requirements of
paragraphs (e) to (g). 5011. (1) If the applicant is a person who
commenced a subsidised course in Australia after 22 August 1979:
(a) the application is made more than 2 years after the person's departure
from Australia; or
(b) the Minister is satisfied that it would not be detrimental to
Australia's policies in respect of overseas students to grant the visa
or entry permit; or
(c) the Minister is satisfied that, in the particular case, compassionate
or compelling circumstances justify the waiver of the requirements of
paragraphs (a) and (b).
(2) For the purposes of subclause (1), a subsidised course is a course of
studies lasting more than 12 months undertaken:
(a) under the Private Subsidised Overseas Student Program or under EMSS;
or
(b) with the approval of the Minister of State for the time being
administering AIDAB; or
(c) the Minister is satisfied that, in the particular case, compassionate
or compelling circumstances justify the waiver of the requirements of
paragraphs (a) and (b).
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