Commonwealth Numbered Regulations
[Index]
[Table]
[Search]
[Search this Regulation]
[Notes]
[Noteup]
[Previous]
[Download]
[Help]
MIGRATION REGULATIONS (AMENDMENT) 1997 No. 279 - SCHEDULE 2
SCHEDULE 2 Regulations 11 and 12
NEW PARTS FOR INSERTION IN SCHEDULE 2
PART 1 - NEW PART 450
SUBCLASS 450 - Resolution of Status - Family Member (Temporary) 450.1
INTERPRETATION [NOTE: "member of the family unit" is defined in regulation
1.12, and "member of the immediate family" in regulation 1.12AA. There are no
interpretation provisions specific to this Part.] 450.2 PRIMARY CRITERIA
[NOTE: All applicants must satisfy the primary criteria.] 450.21 Criteria to
be satisfied at time of application 450.211 The applicant:
(a) is a member of the immediate family of a person ("the sponsor") who:
(i) has made an application for a Resolution of Status (Temporary)
(Class UH) visa mentioned in paragraph 1216A (3) (a) of
Schedule 1; and
(ii) on the basis of the information provided in that application,
appears to satisfy the criteria in Subdivision 850.21; and
(b) is sponsored by the sponsor. 450.212 Except if the applicant became a
dependent child of the sponsor after 13 June 1997, the applicant was,
on that date, a member of the immediate family of the sponsor. 450.213
Except if the applicant became a dependent child of the sponsor after
the date of the application, by the sponsor, that is mentioned in
subparagraph 450.211 (a) (i), the applicant is, in that application:
(a) identified as a member of the immediate family of the sponsor; and
(b) sponsored by the sponsor. 450.22 Criteria to be satisfied at time of
decision 450.221 The applicant continues to satisfy clause 450.211 and
the sponsor is a person who, having satisfied the primary criteria, is
the holder of a Subclass 850 (Resolution of Status (Temporary)) or
Subclass 851 (Resolution of Status) visa. 450.222 The applicant
satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009
and 4010. 450.223 Each member of the family unit of the applicant who
is not an applicant for a Subclass 450 visa is a person who satisfies:
(a) public interest criteria 4001, 4002, 4003 and 4004; and
(b) public interest criterion 4007, unless the Minister is satisfied that
it would be unreasonable to require the person to undergo assessment
in relation to that criterion. 450.224 If the applicant is, or has
been, a student under a scholarship scheme or training program
approved by AusAID:
(a) the applicant made the application more than 2 years after the
applicant's departure from Australia on ceasing the course of studies
under the scheme or program; or
(b) the applicant has the support in writing of AusAID for the grant of
the visa. 450.225 If the applicant has previously been in Australia,
the applicant satisfies special return criteria 5001 and 5002. 450.226
The Minister is satisfied that the grant of the visa to the applicant
would not prejudice the rights and interests of any person who has
custody or guardianship of, or access to, the applicant. 450.3
SECONDARY CRITERIA: Nil. [NOTE: All applicants must satisfy the
primary criteria.] 450.4 CIRCUMSTANCES APPLICABLE TO GRANT 450.411 The
applicant must be outside Australia when the visa is granted. [NOTE:
The second instalment of the visa application charge must be paid
before the visa can be granted.] 450.5 WHEN VISA IS IN EFFECT 450.511
Temporary visa permitting the holder:
(a) to travel to and enter Australia until a date specified by the
Minister; and
(b) to remain in Australia until the end of the day on which:
(i) the holder is notified that the holder's application for a
Resolution of Status (Residence) (Class BL) visa has been
decided; or
(ii) that application is withdrawn. 450.6 CONDITIONS 450.611 First
entry must be made before a date specified by the Minister for
the purpose. 450.612 Condition 8515 may be imposed. 450.7 WAY
OF GIVING EVIDENCE 450.711 Visa label affixed to a valid
passport.
PART 2 - NEW PARTS 850 AND 851
SUBCLASS 850 - Resolution of Status (Temporary) 850.1 INTERPRETATION [NOTE:
"member of the family unit" is defined in regulation 1.12, and "member of the
immediate family" in regulation 1.12AA. There are no interpretation provisions
specific to this Part.] 850.2 PRIMARY CRITERIA [NOTE: The primary criteria
must be satisfied by at least 1 person. The members of the immediate family of
that person who are applicants for a visa of this Subclass need satisfy only
the secondary criteria.] 850.21 Criteria to be satisfied at time of
application 850.211 If:
(a) the applicant:
(i) was in Australia on 1 September 1994; and
(ii) was, immediately before 1 September 1994, a person to whom
section 37 of the Act as in force immediately before that date
applied; and
(iii) has not been granted a substantive visa on or after 1 September
1994; or
(b) the applicant is a person to whom section 48 of the Act applies; the
applicant has not been refused a visa, or had a visa cancelled, under
section 501 of the Act. 850.212 (1) The applicant entered Australia,
as the holder of:
(a) a valid passport of a country mentioned in subclause (3); and
(b) an entry permit or an entry visa that had effect as an entry permit.
(2) The applicant so entered Australia on or before the date specified in
subclause (3) in relation to that country.
(3) The countries and dates mentioned in subclauses (1) and (2) are as
follows:
(a) Iraq - 31 October 1991;
(b) Kuwait - 31 October 1991;
(c) Lebanon - 30 November 1991;
(d) PRC - 1 November 1993;
(e) Sri Lanka - 1 November 1993;
(f) Socialist Federal Republic of Yugoslavia - 1 November 1993;
(g) Federal Republic of Yugoslavia - 1 November 1993;
(h) Former Yugoslav Republic of Macedonia - 1 November 1993;
(i) Republic of Bosnia and Herzegovina - 1 November 1993;
(j) Republic of Croatia - 1 November 1993;
(k) Republic of Slovenia - 1 November 1993. 850.213 Immediately before the
date when the applicant entered Australia as mentioned in clause
850.212, the applicant was a citizen of the country the government of
which issued the passport, and was usually resident:
(a) if the applicant was a citizen of Iraq - in Iraq; or
(b) if the applicant was a citizen of Kuwait - in Kuwait; or
(c) if the applicant was a citizen of Lebanon - in Lebanon; or
(d) if the applicant was a citizen of PRC - in PRC; or
(e) if the applicant was a citizen of Sri Lanka - in Sri Lanka; or
(f) if the applicant was a citizen of:
(i) the Socialist Federal Republic of Yugoslavia; or
(ii) the Federal Republic of Yugoslavia; or
(iii) the Former Yugoslav Republic of Macedonia; or
(iv) the Republic of Bosnia and Herzegovina; or
(v) the Republic of Croatia; or
(vi) the Republic of Slovenia - in a place that, on 19 June 1991,
formed part of the Socialist Federal Republic of Yugoslavia.
850.214 (1) The applicant was in Australia for a period that
is, or for periods that total, not less than 90% of the period
that began on a date when the applicant entered Australia as
mentioned in clause 850.212 and ended on the date of the making
of the application.
(2) For the purposes of subclause (1), where the applicant was not in
Australia for 90% of the period, the Minister may include periods when the
applicant was outside Australia if:
(a) the applicant has maintained close business, cultural or personal ties
in Australia; and
(b) the Minister is satisfied that compelling or strongly compassionate
circumstances exist that explain why the applicant was outside
Australia during those periods. 850.215 On 13 June 1997:
(a) the applicant was in Australia; or
(b) the applicant was outside Australia and was the holder of a visa that
was in effect and permitted the applicant to travel to and enter
Australia. 850.216 The applicant is not the holder of a Diplomatic
(Temporary) (Class TF) visa or a transitional (temporary) visa that
the applicant is taken to hold because the applicant, before 1
September 1994, held, or applied for:
(a) a diplomatic (code number 995) visa under the Migration (1989)
Regulations; or
(b) a Class 995 (Diplomatic) visa under the Migration (1993) Regulations.
850.217 If 2 or more persons have made a combined application as
mentioned in paragraph 1216A (3) (f) of Schedule 1, the applicant is
18 years or more. 850.22 Criteria to be satisfied at time of decision
850.221 The applicant satisfies public interest criteria 4001, 4002,
4003, 4004, 4007, 4009 and 4010. 850.222 Each member of the immediate
family of the applicant who is an applicant for a Subclass 850 visa is
a person who satisfies public interest criteria 4001, 4002, 4003,
4004, 4007, 4009 and 4010. 850.223 Each member of the family unit of
the applicant who is not an applicant for a Subclass 850 visa is a
person who satisfies:
(a) public interest criteria 4001, 4002, 4003 and 4004; and
(b) public interest criterion 4007, unless the Minister is satisfied that
it would be unreasonable to require the person to undergo assessment
in relation to that criterion. 850.224 The applicant has never entered
Australia otherwise than as the holder of:
(a) a valid passport; and
(b) a visa or entry permit. 850.225 If the applicant is, or has been, a
student under a scholarship scheme or training program approved by
AusAID:
(a) the applicant made the application more than 2 years after the
applicant's departure from Australia on ceasing the course of studies
under the scheme or program; or
(b) the applicant has the support in writing of AusAID for the grant of
the visa. 850.226 The Minister is satisfied that the grant of the visa
to the applicant would not prejudice the rights and interests of any
person who has custody or guardianship of, or access to, a dependent
child of the applicant. 850.3 SECONDARY CRITERIA [NOTE: A member of
the immediate family of an applicant who satisfies the primary
criteria is also eligible for the grant of the visa if the member
satisfies the secondary criteria.] 850.31 Criteria to be satisfied at
time of application 850.311 The applicant is a member of the immediate
family of a person ("the principal person") who:
(a) has made an application for a Resolution of Status (Temporary) (Class
UH) visa mentioned in paragraph 1216A (3) (a) of Schedule 1; and
(b) on the basis of the information provided in that application, appears
to satisfy the criteria in Subdivision 850.21. 850.312 Except if the
applicant became a dependent child of the principal person after 13
June 1997, the applicant was, on that date, a member of the immediate
family of the principal person. 850.313 The applicant has made (or is
taken by regulation 2.08B to have made) a combined application with
the principal person. 850.314 The applicant is not the holder of a
Diplomatic (Temporary) (Class TF) visa or a transitional (temporary)
visa that the applicant is taken to hold because the applicant, before
1 September 1994, held, or applied for:
(a) a diplomatic (code number 995) visa under the Migration (1989)
Regulations; or
(b) a Class 995 (Diplomatic) visa under the Migration (1993) Regulations.
850.32 Criteria to be satisfied at time of decision 850.321 (1) The
applicant meets the requirements of subclause (2) or (3).
(2) The applicant is a member of the immediate family of a person who, having
satisfied the primary criteria, is the holder of a Subclass 850 visa.
(3) If:
(a) at the time of the application, the applicant was the spouse of a
person ("the principal holder") who, having satisfied the primary
criteria, is the holder of a Subclass 850 visa; and
(b) the applicant would meet the requirements of subclause (2) except that
the relationship between the applicant and the principal holder has
ceased; and
(c) the applicant:
(i) has custody or joint custody of, or access to; or
(ii) has a residence order or contact order made under the Family
Law Act 1975 relating to; at least 1 child in respect of whom
the principal holder:
(iii) has been granted joint custody or access by a court; or
(iv) has a residence order or contact order made under the Family
Law Act 1975 ; or
(v) has an obligation under a child maintenance order made under
the Family Law Act 1975, or any other formal maintenance
obligation. 850.322 The applicant satisfies public interest
criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010. 850.323
The applicant has never entered Australia otherwise than as the
holder of:
(a) a valid passport; and
(b) a visa or entry permit. 850.324 If the applicant is, or has been, a
student under a scholarship scheme or training program approved by
AusAID:
(a) the applicant made the application more than 2 years after the
applicant's departure from Australia on ceasing the course of studies
under the scheme or program; or
(b) the applicant has the support in writing of AusAID for the grant of
the visa. 850.325 The Minister is satisfied that the grant of the visa
to the applicant would not prejudice the rights and interests of any
person who has custody or guardianship of, or access to, the
applicant. 850.4 CIRCUMSTANCES APPLICABLE TO GRANT 850.411 The
applicant must be in Australia, but not in immigration clearance, when
the visa is granted. [NOTE: The second instalment of the visa
application charge must be paid before the visa can be granted.] 850.5
WHEN VISA IS IN EFFECT 850.511 Temporary visa permitting the holder:
(a) to travel to and enter Australia until a date specified by the
Minister; and
(b) to remain in Australia until the end of the day on which:
(i) the holder is notified that the holder's application for a
Resolution of Status (Residence) (Class BL) visa has been
decided; or
(ii) that application is withdrawn. 850.6 CONDITIONS: Nil. 850.7 WAY
OF GIVING EVIDENCE 850.711 Visa label affixed to a passport.
SUBCLASS 851 - Resolution of Status 851.1 INTERPRETATION [NOTE:
"member of the family unit" is defined in regulation 1.12, and
"member of the immediate family" in regulation 1.12AA. There
are no interpretation provisions specific to this Part.] 851.2
PRIMARY CRITERIA [NOTE: The primary criteria must be satisfied
by at least 1 person. The members of the immediate family of
that person who are applicants for a visa of this Subclass need
satisfy only the secondary criteria.] 851.21 [No criteria to be
satisfied at time of application] 851.22 Criteria to be
satisfied at time of decision 851.221 Either:
(a) the applicant is the holder of a Subclass 850 (Resolution of Status
(Temporary)) visa; or
(b) if the applicant held a Subclass 850 visa that ceased on notification
of a decision of the Minister to refuse a Subclass 851 visa - a review
officer or the Tribunal has determined that the applicant satisfies
the criteria for the grant of a Subclass 851 visa apart from the
criterion that the applicant hold a Subclass 850 visa. 851.222 (1) The
applicant has been in Australia for a period of, or for periods that
total, not less than 10 years in the 12 years from the date, or the
date that is the earliest of the dates, in relation to which the
applicant satisfies the criterion mentioned in clause 850.214.
(2) The Minister may waive the requirement in subclause (1) if:
(a) at least 12 years have passed since the date mentioned in subclause
(1); and
(b) the applicant has maintained close business, cultural or personal ties
in Australia; and
(c) the Minister is satisfied that compelling or strongly compassionate
circumstances exist for the failure of the applicant to comply with
the requirement in subclause (1).
(3) Nothing in subclause (1) prevents the Minister, less than 12 years after
the date mentioned in that clause, from refusing to grant a Subclass 851 visa.
851.223 The applicant satisfies public interest criteria 4001, 4002, 4003,
4004, 4007, 4009 and 4010. 851.224 Each member of the immediate family of the
applicant who is an applicant for a Subclass 851 visa is a person who
satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and
4010. 851.225 Each member of the family unit of the applicant who is not an
applicant for a Subclass 851 visa is a person who satisfies:
(a) public interest criteria 4001, 4002, 4003 and 4004; and
(b) public interest criterion 4007, unless the Minister is satisfied that
it would be unreasonable to require the person to undergo assessment
in relation to that criterion. 851.226 The Minister is satisfied that
the grant of the visa to the applicant would not prejudice the rights
and interests of any person who has custody or guardianship of, or
access to, a dependent child of the applicant. 851.3 SECONDARY
CRITERIA [NOTE: A member of the immediate family of an applicant who
satisfies the primary criteria is also eligible for the grant of the
visa if the member satisfies the secondary criteria.] 851.31 Criteria
to be satisfied at time of application 851.311 The applicant has made
(or is taken by regulation 2.08B to have made) a combined application
with the person who satisfies the primary criteria unless the
applicant is the holder of a Subclass 450 visa. 851.32 Criteria to be
satisfied at time of decision 851.321 (1) The applicant meets the
requirements of subclause (2), (3), (4) , (5), (6) or (7).
(2) An applicant meets the requirements of this subclause if the applicant is
a person who:
(a) is the holder of a Subclass 450 visa; and
(b) is a member of the immediate family of a person who:
(i) sponsored the applicant as mentioned in clause 450.211; and
(ii) having satisfied the primary criteria, is the holder of a
Subclass 851 visa.
(3) An applicant meets the requirements of this subclause if:
(a) the applicant is:
(i) the holder of a Subclass 850 visa; and
(ii) a member of the immediate family of a person with whom the
applicant has made (or is taken by regulation 2.08B to have
made) a combined application for a Subclass 851 visa; and
(b) that other person, having satisfied the primary criteria, is the
holder of a Subclass 851 visa.
(4) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 450 or Subclass 850 visa;
and
(b) at the time of the application, the applicant was a dependent child,
or a dependent child of a dependent child, of a person ("the principal
holder") who, having satisfied the primary criteria, is the holder of
a Subclass 851 visa; and
(c) either the principal holder:
(i) sponsored the applicant as mentioned in clause 450.211; or
(ii) is a person with whom the applicant has made (or is taken by
regulation 2.08B to have made) a combined application for a
Subclass 851 visa; and
(d) the applicant would meet the requirements of subclause (2) or (3)
except that:
(i) the applicant has ceased to be a dependent child of the
principal holder; or
(ii) the person of whom the applicant was a dependent child at the
time of the application has ceased to be a dependent child of
the principal holder.
(5) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 450 or Subclass 850 visa;
and
(b) the applicant would meet the requirements of subclause (2) or (3)
except that the person who would have satisfied the primary criteria
has died; and
(c) the Minister is satisfied that:
(i) the applicant would have continued to be a member of the
immediate family of that person if the person had not died; and
(ii) the applicant has maintained close business, cultural or
personal ties in Australia.
(6) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 450 or Subclass 850 visa;
and
(b) at the time of the application, the applicant was the spouse of a
person ("the principal holder") who either:
(i) sponsored the applicant as mentioned in clause 450.211; or
(ii) was a person with whom the applicant has made (or is taken by
regulation 2.08B to have made) a combined application for a
Subclass 851 visa; and
(c) the applicant would meet the requirements of subclause (2) or (3)
except that the relationship between the applicant and the principal
holder has ceased; and
(d) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a member of the immediate family of the principal holder
or of the applicant or of both of them; has suffered
domestic violence committed by the principal holder;
(ii) the applicant:
(A) has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the
Family Law Act 1975 relating to; at least 1 child in
respect of whom the principal holder:
(C) has been granted joint custody or access by a court; or
(D) has a residence order or contact order made under the
Family Law Act 1975 ; or
(E) has an obligation under a child maintenance order made
under the Family Law Act 1975, or any other formal
maintenance obligation. [NOTE: For special provisions
relating to domestic violence, see Division 1.5.]
(7) An applicant meets the requirements of this subclause if:
(a) the applicant was the holder of a Subclass 450 or Subclass 850 visa
that ceased on notification of a decision to refuse a Subclass 851
visa to the person of whose immediate family the applicant is a
member; and
(b) that person has subsequently been granted a Subclass 851 visa.
(8) In this clause, a person "A" is a member of the immediate family of
another person "B" if:
(a) A is a spouse of B; or
(b) A is a dependent child of B; or
(c) A is a parent of B, and B had not turned 18 at the time of the
application; or
(d) A is a dependent child of a person who is, or has been, a dependent
child of B. 851.322 The applicant satisfies public interest criteria
4001, 4002, 4003, 4004, 4007, 4009 and 4010. 851.323 The Minister is
satisfied that the grant of the visa to the applicant would not
prejudice the rights and interests of any person who has custody or
guardianship of, or access to, the applicant. 851.4 CIRCUMSTANCES
APPLICABLE TO GRANT 851.411 The applicant must be in Australia, but
not in immigration clearance, when the visa is granted. 851.5 WHEN
VISA IS IN EFFECT 851.511 Permanent visa permitting the holder to
travel to and enter Australia for a period of 5 years from date of
grant. 851.6 CONDITIONS: Nil. 851.7 WAY OF GIVING EVIDENCE 851.711
Visa label affixed to a passport.
AustLII: Copyright Policy
| Disclaimers
| Privacy Policy
| Feedback