(2B) The overseas country in which an ineligible child is taken to reside is:
(a) the overseas country in which the child is usually resident; or
(b) the last overseas country in which the child was usually resident; or
(c) if the child no longer has a right of return to the country mentioned in paragraph (a) or (b)—the child’s country of citizenship.
(2C) A parent satisfies the balance of family test if the number of eligible children is greater than or equal to the number of ineligible children.
(2D) However, if the greatest number of children who are:
(a) ineligible children; and
(b) usually resident in a particular overseas country;
is less than the number of eligible children, then the parent satisfies the balance of family test.
(3) In applying the balance of family test, no account is to be taken of a child of the parent:
(a) if the child has been removed by court order, by adoption or by operation of law (other than in consequence of marriage) from the exclusive custody of the parent; or
(b) if the child is resident in a country where the child suffers persecution or abuse of human rights and it is not possible to reunite the child and the parent in another country; or
(c) if the child:
(i) is resident in a refugee camp operated by the United Nations High Commissioner for Refugees; and
(ii) is registered by the Commissioner as a refugee.
1.05A Dependent
(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
(2) A person (the first person) is dependent on another person for the purposes of an application for:
(d) a protection visa; or
(ea) a Refugee and Humanitarian (Class XB) visa; or
(i) a Temporary Safe Haven (Class UJ) visa;
if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.
1.06 References to classes of visas
A class of visas may be referred to:
(a) in the case of a class of visas referred to in Schedule 1—by the code allotted to the class in the heading of the item in Schedule 1 that relates to that class of visas; or
(b) in the case of a transitional visa, by the following codes:
(i) transitional (permanent): BF;
(ii) transitional (temporary): UA.
Note: For example, a Special Program (Temporary) (Class TE) visa may be referred to as a Class TE visa.
1.07 References to subclasses of visas
(1) A reference to a visa of a particular subclass (for example, ‘a visa of Subclass 414’) is a reference to a visa granted on satisfaction of the criteria for the grant of the visa, or the grant of the visa in a stream, set out in the Part of Schedule 2 that bears the number of the subclass.
Note: The criteria for the grant of the visa may include criteria described as a ‘stream’: see subregulation 2.03(1A).
(2) A reference to an applicant for a visa of a particular subclass is a reference to an applicant who applies for a visa of a class that may, under Schedule 1, be granted on satisfaction of the criteria for the grant of the visa, or the grant of the visa in a stream, set out in the Part of Schedule 2 that bears the number of the subclass.
Note: The criteria for the grant of the visa may include criteria described as a ‘stream’: see subregulation 2.03(1A).
1.08 Compelling need to work
For the purposes of these Regulations, a non‑citizen has a compelling need to work if and only if:
(a) he or she is in financial hardship; or
(d) he or she:
(i) is an applicant for a Temporary Business Entry (Class UC) visa who seeks to satisfy the criteria for the grant of a Subclass 457 (Temporary Work (Skilled)) visa; and
(ii) is identified in an approved nomination of an occupation made by:
(A) a standard business sponsor; or
(B) a former standard business sponsor; or
(C) a party to a labour agreement;
who is specified in the application for that visa; and
(iii) appears to the Minister, on the basis of information contained in the application, to satisfy the criteria for the grant of that visa.
1.09 Criminal detention
For the purposes of these Regulations, a person is in criminal detention if he or she is:
(a) serving a term of imprisonment (including periodic detention) following conviction for an offence; or
(b) in prison on remand;
but not if he or she is:
(c) subject to a community service order; or
(d) on parole after serving part of a term of imprisonment; or
(e) on bail awaiting trial.
1.09A De facto partner and de facto relationship
(1) For subsection 5CB(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB(2)(a), (b), (c) and (d) of the Act exist.
Note 1: See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2: The effect of subsection 5CB(1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB(2) sets out conditions about whether a de facto relationship exists, and subsection 5CB(3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day‑to‑day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being in a de facto relationship with each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long‑term one.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
1.11 Main business
(1) For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:
(a) the applicant has, or has had, an ownership interest in the business; and
(b) the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and
(c) the value of the applicant’s ownership interest, or the total value of the ownership interests of the applicant and the applicant’s spouse or de facto partner, in the business is or was:
(i) if the business is operated by a publicly listed company—at least 10% of the total value of the business; or
(ii) if:
(A) the business is not operated by a publicly listed company; and
(B) the annual turnover of the business is at least AUD400 000;
at least 30% of the total value of the business; or
(iii) if:
(A) the business is not operated by a publicly listed company; and
(B) the annual turnover of the business is less than AUD400 000;
at least 51% of the total value of the business; and
(d) the business is a qualifying business.
(2) If an applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this subregulation, be a main business in relation to the applicant, the applicant must not nominate more than 2 of those qualifying businesses as main businesses.
1.11A Ownership for the purposes of certain Parts of Schedule 2
(1) Subject to subregulation (4), for Parts 188 and 888 of Schedule 2, ownership by an applicant, or the applicant’s spouse or de facto partner, of an asset, an eligible investment or an ownership interest, includes beneficial ownership only if the beneficial ownership is evidenced in accordance with subregulation (2).
(2) To evidence beneficial ownership of an asset, eligible investment or ownership interest, the applicant must show to the Minister:
(a) a trust instrument; or
(b) a contract; or
(c) any other document capable of being used to enforce the rights of the applicant, or the applicant’s spouse or de facto partner, as the case requires, in relation to the asset, eligible investment or ownership interest;
stamped or registered by an appropriate authority under the law of the jurisdiction where the asset, eligible investment or ownership interest is located.
(3) A document shown under subregulation (2) does not evidence beneficial ownership, for subregulation (1), for any period earlier than the date of registration or stamping by the appropriate authority.
(4) Beneficial ownership is not required to be evidenced in accordance with subregulation (2) if the person who has legal ownership of the asset, eligible investment or ownership interest in relation to which the applicant, or the applicant’s spouse or de facto partner, has beneficial ownership:
(a) is a dependent child of the applicant; and
(b) made a combined application with the applicant; and
(c) has not reached the age at which, in the jurisdiction where the asset, eligible investment or ownership interest is located, he or she can claim the benefits of ownership of the asset, eligible investment or ownership interest.
1.11B ETA‑eligible passport
(1) A passport is an ETA‑eligible passport in relation to an application for a visa if:
(a) it is a valid passport of a kind specified in a legislative instrument made by the Minister as an ETA‑eligible passport; and
(b) the conditions (if any) specified in a legislative instrument made by the Minister for passports of that kind are satisfied in relation to that application.
(2) A passport is an ETA‑eligible passport in relation to a visa of a particular Subclass if:
(a) it is an ETA‑eligible passport in accordance with subregulation (1); and
(b) it is specified in a legislative instrument made by the Minister to be an ETA‑eligible passport for that Subclass.
(3) A passport is an ETA‑eligible passport for the purposes of regulation 1.15J if it is a valid passport of a kind specified for paragraph (1)(a).
1.11C eVisitor eligible passport
A passport is an eVisitor eligible passport if:
(a) it is a valid passport of a kind specified by the Minister in an instrument in writing for this paragraph to be an eVisitor eligible passport; and
(b) the conditions (if any) specified in the instrument are satisfied.
1.12 Member of the family unit
Scope
(1) This regulation has effect for the purposes of the definition (the main definition) of member of the family unit in subsection 5(1) of the Act.
General rule
(2) A person is a member of the family unit of another person (the family head) if the person:
(a) is a spouse or de facto partner of the family head; or
(b) is a child or step‑child of the family head or of a spouse or de facto partner of the family head (other than a child or step‑child who is engaged to be married or has a spouse or de facto partner) and:
(i) has not turned 18; or
(ii) has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or
(iii) has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or
(c) is a dependent child of a person who meets the conditions in paragraph (b).
This subregulation has effect subject to the later subregulations of this regulation.
Protection, refugee and humanitarian visas
(3) Subregulation (4) has effect for the purposes of the main definition so far as it is relevant to a provision of the Act or these Regulations applying in relation to any of the following visas:
(a) a Protection (Class XA) visa;
(b) a Refugee and Humanitarian (Class XB) visa;
(c) a Temporary Protection (Class XD) visa;
(d) a Safe Haven Enterprise (Class XE) visa;
(e) a Resolution of Status (Class CD) visa;
(f) a Temporary Safe Haven (Class UJ) visa;
(g) a Temporary (Humanitarian Concern) (Class UO) visa;
(h) a Territorial Asylum (Residence) (Class BE) visa.
(4) A person is a member of the family unit of another person (the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of:
(i) the family head; or
(ii) a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of:
(i) the family head; or
(ii) a spouse or de facto partner of the family head; or
(d) a relative, of the family head or of a spouse or de facto partner of the family head, who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head’s household; and
(iii) is dependent on the family head.
Member of the family unit of applicant for a new visa on the basis of earlier status as member of the family unit
(5) In addition to subregulation (2), a person is a member of the family unit, of an applicant for a visa (the new visa) described in column 1 of an item of the following table who seeks to satisfy the primary criteria for the new visa, if, at the time of the application for the new visa, the person:
(a) is included in the application for the new visa; and
(b) holds a visa (the old visa) described in column 2 of the item granted on the basis that the person was a member of the family unit of a person who held a visa of the same kind as the old visa.