Migration (Income Threshold and Exemptions for Subclass 189 Visa (New Zealand Stream)) Instrument (LIN 21/018) 2021

The instrument hinges on a small number of legal and administrative concepts. Understanding how they are defined and used in the text is essential to applying the instrument.

Income requirement: The core concept is the “minimum amount of income for an income year” used to assess whether an applicant meets the income test in paragraph 189.233(1)(a) of Schedule 2 to the Regulations. Section 6 provides a ten-year table specifying the dollar amount for each income year (2011-12 to 2020-21). The instrument does not define “income” itself; instead it references “income year” as a term with the same meaning as in the Income Tax Assessment Act 1997 (s 3). That cross‑reference means that the temporal unit is the Australian tax year, but the instrument leaves open whether “income” for the purpose of paragraph 189.233(1)(a) aligns with taxable income as assessed under the ITAA definitions. The instrument’s text confines itself to the amount for each income year, not the accounting rules for computing income.

Exempt applicant: Section 7 implements subparagraph 189.233(1)(b) by defining the circumstances in which an applicant is to be treated as an “exempt applicant.” Subsection 7(1) is structured in two limbs: 7(1)(a) covers applicants who could not meet the income requirement for any period in the five years immediately before application and who fall into items 1-3 of Schedule 1, and 7(1)(b) addresses applicants who could not meet the income requirement specifically for the 2019-20 or 2020-21 income years and meet the COVID‑19 related class in item 4 of Schedule 1. The instrument therefore distinguishes between longer-term income shortfalls (five-year lookback) and pandemic-specific shortfalls.

Evidence specification: Schedule 1 is not merely advisory. Section 7(2) states that the evidence set out in each item of Schedule 1 is “specified” for each class of exempt applicants. Schedule 1 lists precise documents and types of attestations: parenting orders or registered parenting plans (item 1); statutory declarations, employer declarations, medical certificates and official compensation or rehabilitation documentation (item 2); statutory declarations, employer return-to-work notices, birth certificates and approved parental leave notices (item 3); and combinations of employer letters, payslips, employment contracts or ATO/Services Australia documentation plus employer statutory declarations or JobKeeper/JobSeeker documentation to evidence pandemic impacts (item 4). The instrument therefore prescribes evidentiary pathways that an applicant must produce to qualify as an exempt applicant.

Cross‑statutory definitions: The instrument borrows definitions from other Commonwealth instruments and statutes. It imports the meaning of employer and jobkeeper payment from the Fair Work Act 2009, income year from the Income Tax Assessment Act 1997, jobseeker payment from the Budget 2017-18 Welfare Reform, and medical certificate from the Fair Work Act 2009 (s 3). It also defines COVID‑19 pandemic by reference to the WHO declaration. Those cross‑references set the terms for interpreting evidence (for example, what counts as a jobseeker payment) and the temporal reference for income calculation.

Application and temporal operation: Section 5 makes clear the instrument applies to Subclass 189 (NZ stream) visa applications made on or after commencement and to those made before commencement but not finally determined before commencement. The instrument therefore functions as both new law and transitional provision for pending applications.

Interplay with Schedule 2 of the Regulations: The instrument explicitly operates to supply figures and evidentiary prescriptions for particular paragraphs and subparagraphs of Schedule 2 (notably 189.233(1)(a) and 189.233(1)(b)(i)/(ii)). It therefore does not itself restate the decision-making criteria in Schedule 2 but complements them by providing particular numerical and documentary content.

Practical consequence: Decision-makers must apply the dollar amounts from s 6 when assessing the income test in paragraph 189.233(1)(a) and must treat applicants who fit the Schedule 1 classes and produce the specified documents as exempt applicants under subparagraph 189.233(1)(b). The instrument therefore converts abstract regulatory tests into operational outcomes through numeric and documentary prescriptions.

Primary affected group: The instrument affects applicants for the Subclass 189 (Skilled-Independent) (New Zealand stream) visa, because it applies to applications for that visa made on or after its commencement or made but not finally determined before commencement (s 5). That stream is the only visa class referenced by the instrument (see definition of “Subclass 189 visa”, s 3).

Applicants in the five‑year lookback window: Subsection 7(1)(a) targets applicants who “are not able to meet the income requirement for any period in the 5 years immediately before the date of application” and who fall into items 1-3 of Schedule 1. Those applicants may be temporarily or persistently below the income threshold for up to five years and seek an exemption because of specified caring, injury/compensation or parental/carer leave circumstances (s 7(1)(a) and Schedule 1 items 1-3). This identifies a cohort of applicants whose recent employment or earning history is relevant.

Applicants affected by COVID‑19: Subparagraph 7(1)(b) specifically targets applicants who cannot meet the income requirement for the 2019-20 or 2020-21 income years and who seek exemption for one of those years; they must also be in the class in item 4 of Schedule 1 and provide the specific evidence required for pandemic-related loss of income (s 7(1)(b) and Schedule 1 item 4). This creates an explicit pathway for pandemic-impacted applicants.

Employers: The instrument affects employers insofar as it requires documentary statements from employers in multiple places. Schedule 1 invites or requires signed letters on company letterhead, statutory declarations by employers stating return-to-work dates and income amounts, and employer statutory declarations acknowledging COVID‑19-related reductions in income (Schedule 1 items 2-4). Employers will need to provide accurate and possibly attestatory documents. The instrument borrows the meaning of employer from the Fair Work Act 2009 (s 3), so the familiar notion of employer applies.

Australian government departments and agencies: The Department of Home Affairs will use the income table and evidentiary rules when making visa decisions. Other agencies such as the Australian Taxation Office and Services Australia (Centrelink) are implicated because the instrument permits documents / statements from them (Schedule 1 item 4 includes ATO statements and Services Australia-Centrelink letters). The instrument therefore imposes inter-agency interaction for evidence production and verification.

Representative/agent practitioners: Migration agents, solicitors and accountants preparing Subclass 189 (NZ stream) applications will need to advise on documentary pathways set out in Schedule 1, including statutory declarations, employer letters, ATO statements and welfare payments documentation. They must reconcile the instrument’s evidentiary list with clients’ available documents.

Family members and third parties: Where Schedule 1 requires parenting orders signed by all parents, registered parenting plans or consent orders (item 1), other parents, courts and registries may be invited to produce documents or certificates that affect an applicant’s status. Similarly, medical practitioners providing medical certificates, compensation authorities issuing rehabilitation documentation, and employers providing statements may be called on to produce documents.

Notably excluded groups: The instrument does not change the substantive eligibility criteria other than the income thresholds and specified exemptions. It does not purport to affect applicants for other visa subclasses, nor does it create exemptions outside the four classes listed in Schedule 1. It also does not itself redefine “income” beyond cross-referencing the ITAA term “income year” (s 3), so any questions about what receipts constitute income will be resolved against the Regulations and other tax law rather than this instrument.

Temporal cohorts: Because the income years specified run from 2011-12 to 2020-21 (s 6 table), applicants whose income is relevant to earlier or later tax years are affected only insofar as the Regulations’ Schedule 2 requires assessment across particular income years. The instrument provides the amounts for those specified years; decision-makers must apply the table as the operative amounts.

Who bears the compliance cost: Practically, applicants bear the primary evidentiary burden set by Schedule 1; employers and third parties bear the cost of preparing and signing letters or declarations; the Department bears verification and decision costs. The instrument therefore redistributes administrative tasks among applicants, employers and government agencies.

Duties on decision-makers (administrative application): The instrument imposes duties on decision-makers under the Migration Regulations to apply the specified income amounts in s 6 when assessing the income test in paragraph 189.233(1)(a). It also requires decision-makers to treat as “specified” the evidentiary items in Schedule 1 for the purposes of classifying an applicant as an “exempt applicant” under subparagraph 189.233(1)(b) (s 7(2)). These are practical duties: the Department must use the instrument’s numbers and documentary lists when making decisions on Subclass 189 (NZ stream) applications that fall within the instrument’s application window (s 5).

Applicant duties: Applicants who rely on exemption categories must produce the documents specified in Schedule 1 for their class. For example, an applicant relying on item 1 must provide a parenting order, a registered parenting plan, a written parenting plan or a consent order that assigns primary care and is signed by all parents or bears a court seal (Schedule 1 item 1). An applicant invoking the compensation exemption (item 2) must provide one or more of the enumerated documents such as statutory declarations, employer declarations, medical certificates, official compensation documentation or official rehabilitation documentation (Schedule 1 item 2). The COVID‑19 exemption (item 4) requires a two-part set of documents: evidence that the applicant was likely to meet the threshold absent the pandemic (employer letter or payslips/contracts) plus any of a set of documents proving the pandemic reduced income, including employer statutory declarations, documentation of JobKeeper access, or Services Australia letters showing JobSeeker payments (Schedule 1 item 4). These are precise documentary duties on the applicant.

Rights of applicants: Applicants have the right to rely on the exemptions if they meet the classes and provide the specified evidence. The instrument treats the Schedule 1 evidence as "specified" for subparagraph 189.233(1)(b)(ii) (s 7(2)), which gives applicants clarity about the documentary routes to exemption. Applicants whose applications were made before commencement but not finally determined have the right to be assessed under the new instrument (s 5(b)), so there is a transitional right to the updated thresholds and evidentiary regime.

Third‑party duties: Employers and other evidence providers (medical practitioners, compensation authorities) have a practical duty to provide letters, statutory declarations, medical certificates or official documentation if the applicant seeks to rely on the corresponding exemption. The instrument contemplates employer statutory declarations acknowledging reductions in income due to COVID‑19 and employer letters confirming prior salary levels (Schedule 1 item 4). Employers choosing not to assist will affect applicants’ ability to access exemptions; the instrument does not compel employers to produce such statements, but treats them as appropriate evidence if offered.

Document authenticity and verification: While the instrument specifies the documents that will count, it does not set out verification procedures. The practical duty on decision-makers to accept or verify documents will be exercised under the Migration Regulations and Departmental practice. The instrument’s specification of “official” documentation (for compensation or rehabilitation documentation, Schedule 1 items 2 and 4) suggests a higher evidentiary quality is expected, but the instrument itself does not articulate standards for authenticity, notarisation or verification.

No criminal penalties included: The instrument specifies documentary and numeric rules but does not create express criminal offences or administrative penalties within its text. It therefore imposes rights and duties within the visa assessment process rather than prescribing penalty regimes for non-compliance in the instrument itself.

Burden of proof: Practically, the burden falls on the applicant to provide the specified evidence. The instrument’s language , applicants “provide the evidence mentioned in the item” (s 7(1)(a)(iii), 7(1)(b)(iii)-(iv)) , places the onus on applicants to supply the listed documents to demonstrate exemption eligibility.

Discretion remains with decision-maker under Regulations: The instrument supplies prescribed amounts and specified documentation, but the ultimate decision to grant a visa remains a matter taken under the Migration Regulations and decision-making provisions of the Migration Act and Regulations. The instrument prescribes inputs into that decision-making architecture rather than displacing regulatory discretion entirely.

The instrument does not itself create criminal sanctions, civil fines or administrative penalties. It is a prescriptive, regulatory instrument that supplies numerical thresholds and required documentary evidence for purposes of visa eligibility. Enforcement in the sense of compliance with the instrument happens through the visa assessment process administered by the Department of Home Affairs under the Migration Regulations and the Migration Act.

Administrative enforcement (decision outcomes): The practical enforcement mechanism is administrative: an applicant who does not meet the income requirement set out in s 6 and who fails to qualify as an exempt applicant under s 7 and Schedule 1 will not satisfy the relevant criterion in Schedule 2 (paragraph 189.233(1)(a) and subparagraph 189.233(1)(b)), which may lead to refusal of the Subclass 189 (NZ stream) visa application. The instrument therefore affects visa grants by defining pass/fail inputs, and non-compliance with the evidentiary requirements will be met with administrative consequences in the visa decision.

Evidence requirements and rejection risk: Schedule 1 is explicit about the documents required to qualify for the various exemption classes. If an applicant does not provide one of the specified documents, the instrument provides the Department with a straightforward basis for declining to treat the applicant as an exempt applicant. The instrument does not create discretion to accept alternative evidence; it says the evidence mentioned in an item is “specified” (s 7(2)). In practice this limits the Department’s obligation to accept only the listed types unless other Regulations or departmental policy allow flexibility.

False statements and statutory declaration consequences: The instrument permits statutory declarations as specified evidence in multiple items (Schedule 1 items 2-4). Statutory declarations are legally significant instruments; making a false statutory declaration is an offence under the Commonwealth Criminal Code and the Statutory Declarations Act 1959. While the instrument does not restate those offences, when an applicant or employer provides a statutory declaration they become subject to the general legal consequences of false declarations. The instrument’s reliance on statutory declarations therefore imports the ordinary legal risks of false testimonial statements without adding novel sanctioning provisions.

Verification and referral: The instrument lists documents from ATO and Services Australia (Schedule 1 item 4). If the Department suspects falsification of documents such as ATO statements or employer letters, it may refer the matter to relevant authorities or use departmental verification procedures. The instrument itself does not delineate verification protocols or referral thresholds.

No monetary penalty schedule: The instrument does not prescribe monetary penalties for non-compliance with documentary requirements or for misstatements. Any penalties for fraudulent behaviour in an application will arise from existing criminal or administrative law outside this instrument.

Remedies and review rights: The instrument does not change existing review or merits appeal rights available under the Migration Act, Migration Regulations, or Administrative Decisions (Judicial Review) Act. It does, however, affect the factual matrix on which those review rights would operate because the Department will assess applicants according to the threshold amounts and specified evidence. Any applicant seeking merits review or judicial review will be judged against the instrument’s prescriptions where applicable.

Administrative burden enforcement: Enforcement also occurs through document handling costs, processing times and possible requests for further evidence. The instrument prescribes documents that the Department may require; failure to supply them can be enforced by refusing to accept an exemption claim and proceeding to refuse or not favourably consider the visa under Schedule 2.

This instrument is an instrument made under the Migration Regulations 1994 and explicitly cross-references and imports terms defined in other Commonwealth legislation and instruments. Those cross-references shape interpretation and interaction across administrative regimes.

Migration Regulations 1994: The instrument operates by specifying amounts and evidence for particular paragraphs and subparagraphs of Schedule 2 of the Regulations (notably paragraph 189.233(1)(a) and subparagraph 189.233(1)(b)). It therefore functions as an implementing instrument within the framework of the Regulations. The Regulation bodies provide the decision-making powers; this instrument supplies numerical and documentary detail. Any interaction required to apply the thresholds or exemptions will be through the Regulations’ decision provisions.

Income Tax Assessment Act 1997: The instrument borrows the meaning of “income year” from the Income Tax Assessment Act 1997 (s 3). That cross-reference fixes the temporal unit to the tax year (1 July-30 June) for reporting and calculation purposes. However, the instrument does not itself define “income” or taxable income. Where the Regulations or departmental guidance require calculation of income, the ITAA definitions and tax law practice will govern what receipts are counted, timing of assessable income, and whether concessional items are included. Practitioners should note the instrument’s silence on the precise income measure, and that tax law definitions will likely determine what counts as income when decision-makers apply the thresholds.

Fair Work Act 2009: The instrument imports the meaning of employer and jobkeeper payment from the Fair Work Act 2009 (s 3). This affects who can legitimately sign employer letters and what JobKeeper-related documentation may be referenced. The instrument also references medical certificate as having the same meaning as in the Fair Work Act 2009, which implicates how medical evidence is characterised and who may issue it.

Budget 2017-18 Welfare Reform: The instrument borrows the term jobseeker payment from the Budget 2017-18 Welfare Reform (s 3) and later references Services Australia-Centrelink letters showing an applicant claimed and received JobSeeker payments as acceptable evidence for COVID‑19-related income reduction (Schedule 1 item 4(b)(iv)). This creates an inter-agency evidentiary link between Departmental visa assessment and Centrelink’s administrative records.

Criminal and statutory declaration law: The instrument relies on statutory declarations as specified evidence in several places (Schedule 1 items 2-4). Statutory declarations are governed by the Commonwealth Statutory Declarations Act 1959 and making false statutory declarations has criminal implications under the Criminal Code. The instrument therefore integrates with the law on declarations and false statements, even though it does not restate those consequences.

Services Australia and Australian Taxation Office documentation: Schedule 1 item 4 expressly allows ATO statements or alternative ATO statements at an applicant’s request, and Services Australia letters proving JobSeeker receipt, to be used as evidence. That creates practical interaction in which applicants must obtain documents from other agencies to satisfy Migration Department requirements. The instrument thereby requires inter-agency documentary cooperation.

Migration Act review and appeals: While the instrument does not explicitly reference review rights, any decision under the Regulations that applies the instrument will remain subject to the Migration Act’s review and appeal structure. The instrument changes the factual inputs into decisions and therefore indirectly affects administrative law outcomes. The instrument’s application to pending applications (s 5) also interacts with existing review processes for those applications.

No interaction with state family law decisions beyond evidence: The Schedule 1 item 1 accepts parenting orders, registered or written parenting plans, and consent orders that assign primary care. Those instruments are typically made under state and territory family law regimes. The instrument treats such documents as relevant evidence for exemption; however, it does not alter family law or child custody law itself. The interaction is evidentiary: the Migration Department will accept court orders or parenting plans as documentation that an applicant has primary care and was prevented from leaving Australia.

JobKeeper and JobSeeker schemes: The instrument treats access to JobKeeper or JobSeeker as admissible evidence of pandemic-related income impacts (Schedule 1 item 4(b)(iii)-(iv)). JobKeeper and JobSeeker were separate federal policy responses; the instrument allows their documentation to be used to connect economic effects with an applicant’s income shortfall. It thereby formalises the evidentiary weight of those programmes for visa assessment.

No change to criminal or civil liability beyond existing law: The instrument operates within these other laws but does not purport to change their substantive provisions. The cross-references indicate that interpretation of terms and documentary evidence will be shaped by the law referenced, and applicants will need to consult those statutes for issues such as statutory declaration consequences, the nature of employer definitions, the scope of JobKeeper/JobSeeker documentation, and the taxation measure of income.

The compilation note and the tabular amendment history in the instrument record the instrument’s creation and subsequent amendment pathway. The instrument as compiled on 13 November 2021 takes into account amendments up to LIN 21/048 (Migration (Income Threshold and Exemptions for Subclass 189 Visa (New Zealand Stream)) Amendment Instrument (LIN 21/048) 2021) (Compilation note, top of document).

Initial registration and commencement: The instrument LIN 21/018 was registered on 19 May 2021 as F2021L00596 and commenced on 31 May 2021 (Table of instruments). Section 5 of the instrument confirms application to any Subclass 189 (NZ stream) visa application made on or after commencement, and to applications made but not finally determined before commencement (s 5).

Amendment LIN 21/048: The compiled table indicates an amendment instrument LIN 21/048 (F2021L01544), registered on 12 November 2021 and commencing 13 November 2021. The table of amendments sets out the specific provisions affected by that amendment instrument. The amendment table shows that provisions in sections 2 and 4 were repealed and replaced as per the Legislation Act 2003 cross-references; more specifically, the amendment instrument made changes to subparagraph 7(1)(b)(i) (amendment), subparagraph 7(1)(b)(iii) (repealed and substituted), and added subparagraph 7(1)(b)(iv) (ad.) under the authority F2021L01544. Schedule 1, item 4 was also repealed and substituted by F2021L01544 (Table of amendments).

Content of amendments to Schedule 1 item 4: The table indicates that item 4 of Schedule 1 was replaced by the amendment instrument. The compiled Schedule 1 we have in the instrument is the amended content (the compilation date post-dates the amendment). That amended item 4 provides the COVID‑19 related evidence package comprising (a) either an employer letter on company letterhead or payslips/employment contracts showing salary pre‑1 February 2020 to demonstrate likelihood of meeting the threshold, and (b) any of a list of documents showing pandemic‑related reduction in income, including statutory declarations by employers, employer statements relating to termination linked to COVID‑19 effects, documentation proving access to JobKeeper, and Services Australia letters evidencing JobSeeker receipts (Schedule 1 item 4). The amendment table confirms those changes were introduced by LIN 21/048.

Repeals and substitutions referenced to the Legislation Act 2003: The table signals that sections 2 and 4 of the original instrument were repealed with reference to the Legislation Act 2003, ss 48D and 48C respectively. Those are technical amendment records recorded in the compilation. The specific practical effect is that certain earlier text was replaced to align with legislative drafting conventions under the Legislation Act.

Compilation and administrative notes: The instrument’s compilation note states that the Department prepared the document on 17 November 2021, taking into account amendments up to LIN 21/048 (Compilation no. 1, compilation date 13 November 2021). The instrument’s published notes include a Table of Instruments showing registration, number, commencement and application provisions, and a Table of Amendments indicating which provisions were added, amended, repealed or substituted and by which subsequent instrument (Table of amendments).

Transitional application: Section 5 provides the instrument’s transitional effect by applying to applications made but not finally determined before commencement. The amendment instrument LIN 21/048 took effect on 13 November 2021 and the compilation incorporates it. Practitioners should note that applications pending at that date will be assessed under the amended Schedule 1 item 4 where relevant.

No further amendment history recorded in this compilation: The document does not list further amendments beyond LIN 21/048 within the compilation table. Any subsequent amendments after 13 November 2021 are not reflected in this compilation and would require checking later compilations or the Federal Register of Legislation for updates.

The instrument itself contains no litigation history, nor does it cite any judicial decisions. It is an administrative instrument that operates within the Migration Regulations scheme. The compilation record and Table of amendments show administrative amendment activity (LIN 21/048) but do not record court challenges or judicial consideration.

What the instrument tells us about litigation risk: Because the instrument prescribes numerical thresholds and rigid lists of acceptable documentary evidence (Schedule 1), disputes in administrative law are conceivable but none are recorded in the instrument. Challenges that might arise in practice (not recorded here) would likely concern administrative decisions that apply the instrument rather than the instrument itself, such as claims that decision-makers misapplied the table in s 6, improperly rejected specified evidence under Schedule 1, or applied an incorrect legal test for income calculation consistent with ITAA definitions. The instrument itself does not contain procedures for internal review, merits review, or judicial review; those avenues remain in the Migration Act and related administrative law frameworks.

Absence of cited cases in the instrument: The instrument contains no references to case law or prior decisions. It therefore does not evidence that the specific thresholds or exemptions have been litigated or tested in courts or tribunals to date of compilation.

Implications for legal practitioners: Practitioners preparing to litigate a decision that applied this instrument would need to rely on Migration Act and Migration Regulations review rights, statutory interpretation of how “income year” and “income” are to be measured, and the degree of deference afforded to the Department’s evidentiary acceptance of documents listed in Schedule 1. Because the instrument cross-references other statutes for definitional matters (s 3), litigation might engage interpretations of tax law (income), Fair Work definitions (employer), or statutory declaration law. The instrument does not supply litigation outcomes or precedent; it supplies the operative inputs to visa decision-making to which litigation could later relate.

No administrative precedent recorded: The instrument’s compilation is silent on any administrative decisions or tribunal determinations that interpret its terms. Any relevant tribunal or court decisions after the compilation date are not reflected here.

1. Income versus income year ambiguity: The instrument prescribes amounts for specific “income years” (s 6) and imports the meaning of “income year” from the Income Tax Assessment Act 1997 (s 3). However, it does not define what precise measure of “income” decision-makers should use (taxable income, assessable income, ordinary income, adjusted taxable income, or a cash receipts measure). That gap can create practical uncertainty for applicants and advisers about which line on an income tax return to use when comparing against the $53,900 (or earlier-year amounts). Practitioners should anticipate that the Department will look to tax-year based taxable income figures, but the instrument itself is silent on measurement methodology.

2. Frozen threshold across multiple years: The table in s 6 sets $53,900 for eight consecutive income years (2013-14 through 2020-21). This means applicants with incomes nominally around that figure across those years will be measured against the same dollar amount irrespective of inflation or wage growth. The instrument does not link the amounts to any indexed measure. That static dollar threshold may not reflect movements in average wages or cost of living, but the instrument does not provide mechanisms for indexation or adjustment.

3. Rigid evidentiary lists: Schedule 1 specifies discrete documents as “the evidence mentioned in the item” and states that evidence is “specified” for subparagraph 189.233(1)(b)(ii) (s 7(2)). The instrument provides little apparent room for alternative evidence forms. Applicants without access to the precise documents listed may struggle to satisfy the exemptions even if factual circumstances warrant it. For example, item 1 requires parenting orders or registered/written parenting plans “signed by all parents, or has a court seal attached.” Informal custody arrangements not recorded in those instruments may not suffice.

4. Employer cooperation required: Several exemption categories (items 2 and 4, and portions of item 3) require employer letters or employer statutory declarations. If an applicant’s employer is unwilling to produce such documentation, the applicant’s ability to claim exemption may be impeded. The instrument does not provide alternative pathways where employers refuse to cooperate.

5. Evidence quality and verification gap: The instrument lists types of documents but does not state standards for their authenticity, notarisation, translation, or verification. Practitioners should expect the Department to verify documents but must prepare for possible requests for further evidence, certified copies, or corroboration, particularly where statutory declarations or employer letters are the only evidence.

6. Use of statutory declarations has legal risks: Applicants and employers supplying statutory declarations risk criminal liability for false statements under existing Commonwealth law. The instrument’s reliance on statutory declarations (Schedule 1 items 2, 3 and 4) means that false or careless declarations can create legal exposure beyond the immediate visa decision.

7. COVID‑19 evidence is two‑part and time‑sensitive: Item 4 requires evidence both that the applicant was likely to meet the threshold absent the pandemic (part (a)) and that the pandemic caused a drop in income (part (b)). Practically, applicants must produce pre‑1 February 2020 evidence of salary or a payslip/employment contract for 2019-20 or 2020-21 and then one of the enumerated pandemic-related proofs. Failure to produce both elements will jeopardise the exemption claim.

8. Transitional impact on pending applications: The instrument applies to applications made but not finally determined before commencement (s 5(b)). That transitional operation can produce practical unfairness if applicants submitted under prior understandings of documentation requirements and the Department now applies the amended Schedule 1 item 4. Applicants should be mindful of whether their pending application will be re-assessed under the new evidentiary regimes.

9. No explicit guidance about combined income sources: The instrument is silent about how non‑salary income such as business income, investment income, superannuation, or foreign income should be treated relative to the income requirement. Applicants with complex income streams will need to reconcile tax-year reporting with the Department’s approach, but the instrument itself does not guide on aggregation or exclusions.

10. Consequence of missing evidence is administrative refusal rather than a remedial path: Because the instrument does not create a mechanism for applicants to substitute different evidence or to cure evidentiary defects in a specified way, failing to provide the exact documents could result in refusal. Practitioners should therefore prepare complete documentary packets according to Schedule 1 or be prepared to argue that other material satisfies the Regulation’s underlying test, but that argument will face the instrument’s explicit “specified evidence” language.

Below are concrete steps and practical checks for applicants, representatives and employers seeking to comply with the instrument’s requirements when preparing a Subclass 189 (New Zealand stream) visa application.

1. Confirm application timing and applicability: Verify that the application was made on or after the instrument’s commencement date or was made but not finally determined before commencement (s 5). If the application is pending, confirm whether the amended Schedule 1 item 4 applies (LIN 21/048 amendments were compiled into this instrument).

2. Identify relevant income years: Determine which income years the Department will assess under paragraph 189.233(1)(a). The instrument provides amounts for 2011-12 through 2020-21 (s 6 table). Identify which income year(s) in the applicant’s tax history are relevant to the Department’s test.

3. Calculate income consistent with tax reporting: Since the instrument imports “income year” from the Income Tax Assessment Act 1997 (s 3), obtain the applicant’s tax returns (Notice of Assessment or tax return) for the relevant income year(s). Prepare a clear reconciliation showing taxable income, including any foreign income declared in Australia, business income and wages, aligned with the tax-year measure. Because the instrument does not define the specific income measure, present a clear narrative linking the tax return line items to the instrument’s income requirement to reduce ambiguity.

4. Prepare primary evidence of income: To demonstrate income equal to or above the thresholds in s 6, collect ATO Notices of Assessment, tax returns, payslips, payment summaries or employment contracts for the relevant income years. Keep originals and certified copies ready for submission, and consider including bank statements where they corroborate salary payments.

5. If relying on an exemption, assemble the specified documents in Schedule 1: Carefully map the applicant’s circumstances to one of the four Schedule 1 items.

   • Item 1 (primary care / parenting): Obtain the parenting order, registered parenting plan, written parenting plan, or consent order that assigns primary care and is signed by all parents or contains a court seal. Provide certified copies of court documents or parenting plan registrations. If a document is in a state/territory registry, include registry verification or certification.

   • Item 2 (compensation for injury): Compile statutory declarations explaining personal circumstances, employer statutory declarations stating return-to-work dates and income amounts, medical certificates, official compensation documentation (e.g. workers’ compensation determinations), and official rehabilitation documentation. Provide originals or certified copies and ensure dates align to show the impact on income.

   • Item 3 (parental/carer’s leave): Provide statutory declaration(s), employer notice of approved parental leave, birth certificate of the child and employer confirmation of expected return-to-work date and expected income level. If the applicant has resumed employment at the qualifying income, include payslips or an employer letter confirming resumed earnings.

   • Item 4 (COVID‑19): Prepare the two-part evidence package. For part (a), supply a signed employer letter on company letterhead stating salary before 1 February 2020, or payslips, salary advices or employment contracts demonstrating the likely meeting of the income threshold in 2019-20 or 2020-21. For part (b), supply at least one of the enumerated proofs: an employer statutory declaration acknowledging COVID‑19 related income reduction (with specifics: reduced hours, illness, medically directed self-isolation, caring responsibilities, or business shutdowns); if terminated, an employer statutory declaration linking dismissal to pandemic effects; documentation proving access to JobKeeper (ATO forms, employee nomination forms, or ATO statements); or Services Australia letters proving JobSeeker receipt for the relevant period. Ensure employer declarations are specific about dates, income amounts and causal links to COVID‑19 effects.

6. Use statutory declarations cautiously and correctly: Where statutory declarations are required, follow the Statutory Declarations Act 1959 requirements regarding the form, witnessing, and content. Ensure declarants are truthful and provide evidence-based statements because false declarations have legal consequences outside the instrument’s visa framework.

7. Obtain ATO or Services Australia documentation proactively: For COVID‑19 evidence, request ATO statements or alternative ATO statements and Services Australia-Centrelink letters well before lodgement. The instrument expressly permits these documents as specified evidence (Schedule 1 item 4(b)(iii)-(iv)), and delays in obtaining inter-agency documents can delay processing.

8. Employer correspondence: If an employer is to provide a letter or statutory declaration, give them a concise template indicating the facts required by the instrument: dates of employment, salary amount before 1 February 2020 (for COVID evidence), whether shifts/hours were reduced and dates, whether dismissal resulted from COVID impacts, and return-to-work expectations. Ensure the employer signs on company letterhead where required and, where available, include company details and ABN to improve verifiability.

9. Certification and translation: Provide certified copies of original documents where originals cannot be lodged. If documents are in a language other than English, provide certified translations. The instrument does not specify certification standards; follow the Department of Home Affairs’ standard document certification and translation requirements.

10. Prepare a fronting statement and index: Given the instrument’s strict evidentiary lists, produce a cover memorandum mapping each piece of Schedule 1 evidence to the instrument clause that it is intended to satisfy. Include an index of documents and cross-references to ATO or Centrelink proofs. This reduces the risk of misclassification or omission by decision-makers.

11. Anticipate verification queries: Keep backups for all declarative statements, such as employer contact details, payroll records, tenancy or benefit records, and medical records. If the Department seeks further evidence, respond promptly with corroborating documents.

12. Consider alternatives early: If the applicant cannot produce the specified documents (for example, the employer will not provide a letter), consider whether another Schedule 1 exemption applies, whether the applicant can change the reporting period assessed (if the Regulations permit), or whether the applicant should prepare to challenge an adverse decision with merits review, noting that the instrument applies specified evidence as the formal pathway for exemption.

13. Keep records of lodgement timing: Because the instrument applies to pending applications (s 5(b)), maintain records establishing whether an application was lodged before or after the commencement date to determine which evidence rules apply. Where amendment instruments such as LIN 21/048 have substituted item 4, confirm which version applies to the pending application.

14. Engage practitioners where necessary: Given the possible ambiguities (income measurement, evidence sufficiency), practitioners should advise clients on assembling robust documentary packets and consider early liaison with the Department (where appropriate) or preparing a merits review strategy in case of adverse assessment.

Following these steps aligns document preparation and submission to the instrument’s prescriptive requirements. The instrument gives clear lists of acceptable documents but leaves measurement and verification practices to be interpreted against tax law and Departmental practice. Where doubt exists about the income measurement or admissibility of alternative evidence, prepare both the specified documents and additional supporting documentation to reduce the risk that a decision-maker will decline to treat an applicant as an exempt applicant.