Commonwealth Numbered Regulations

[Index] [Table] [Search] [Search this Regulation] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

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). 


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback