(c) if the Minister is not satisfied that the alleged victim has experienced the relevant family violence:
(i) the Minister must seek the opinion of an independent expert about whether the alleged victim has experienced the relevant family violence; and
(ii) the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have experienced family violence.
(11) The alleged victim is taken to have experienced family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) an application for a visa includes a non‑judicially determined claim of family violence; and
(b) the Minister is satisfied under paragraph (10)(b) that the alleged victim has experienced relevant family violence.
(12) For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while:
(a) the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator; or
(b) the relationship existed between the alleged perpetrator and the prospective spouse of the alleged perpetrator.
(13) The alleged victim is taken to have experienced family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) an application for a visa includes a non‑judicially determined claim of family violence; and
(b) the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has experienced relevant family violence.
(14) For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has experienced relevant family violence must have occurred while:
(a) the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator; or
(b) the relationship existed between the alleged perpetrator and the prospective spouse of the alleged perpetrator.
1.24 Evidence
The evidence mentioned in paragraph 1.23(9)(c) is:
(a) a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and
(b) the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.
1.25 Statutory declaration by alleged victim etc
(1) A statutory declaration under this regulation must be made by the spouse or de facto partner of, or the prospective spouse of, the alleged perpetrator.
(2) A statutory declaration under this regulation that is made by a person mentioned in subregulation (1) who alleges that he or she is the victim of relevant family violence (within the meaning of regulation 1.21) must:
(a) set out the allegation; and
(b) name the person alleged to have committed the relevant family violence; and
(c) if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i) name the person whom the conduct of the alleged perpetrator was towards; and
(ii) identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards.
(3) A statutory declaration under this regulation that is made by a person mentioned in subregulation (1) who alleges that another person is the victim of relevant family violence (within the meaning of regulation 1.21) must:
(a) name that other person; and
(b) set out the allegation; and
(c) identify the relationship of the maker of the statutory declaration to that other person; and
(d) name the person alleged to have committed the relevant family violence; and
(e) if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i) name the person whom the conduct of the alleged perpetrator was towards; and
(ii) identify the relationship between the alleged victim and the person whom the conduct was towards; and
(iii) identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards; and
(f) set out the evidence on which the allegation is based.
1.27 Documents not admissible in evidence
A document mentioned in the table is not admissible in evidence before a court or tribunal otherwise than in:
(a) an application for judicial review of a decision to refuse to grant a visa the application for which included the non‑judicially determined claim of family violence to which the document relates; or
(b) an application for merits review of a decision to refuse to grant a visa the application for which included the non‑judicially determined claim of family violence to which the document relates; or
(c) a prosecution of a maker of the statutory declaration under section 11 of the Statutory Declarations Act 1959.
Item
Document
1
A statutory declaration that is a type of evidence specified by the Minister under paragraph 1.24(b)
2
A statutory declaration under regulation 1.25
3
An opinion of an independent expert mentioned in subparagraph 1.23(10)(c)(i)
Division 1.6—Immigration Minister’s suspension certificate under Education Services for Overseas Students Act 2000
1.29 Score relevant to suspension of registered provider
(1) This regulation is made for the purposes of paragraph 97(2)(d) of the Education Services for Overseas Students Act 2000.
(2) In considering whether to give an Immigration Minister’s suspension certificate to a registered provider at a particular time, the Minister may have regard to the relevant score that has effect for the registered provider at that time.
(3) The Minister may, by legislative instrument, specify the following:
(a) the method for working out a score for a registered provider;
(b) when, and how often, a relevant score for a registered provider is to be worked out;
(c) the period for which a relevant score has effect for a registered provider.
(4) Without limiting paragraph (3)(a), the method specified in the instrument made under that paragraph may take into account the following:
(a) matters relating to overseas students, or intending overseas students, in respect of:
(i) the registered provider; or
(ii) another provider that is an associate of the registered provider;
(b) matters that occurred during a particular period, whether that period ends before or after the commencement of this regulation.
(5) In this regulation:
associate has the same meaning as in the Education Services for Overseas Students Act 2000.
Immigration Minister’s suspension certificate has the same meaning as in the Education Services for Overseas Students Act 2000.
intending overseas student has the same meaning as in the Education Services for Overseas Students Act 2000.
overseas student has the same meaning as in the Education Services for Overseas Students Act 2000.
registered provider has the same meaning as in the Education Services for Overseas Students Act 2000.
relevant score means a score that is worked out for a registered provider using the method specified in the instrument made under paragraph (3)(a).
1.30 Prescribed non‑citizen
For section 101 of the Education Services for Overseas Students Act 2000, a non‑citizen who is an applicant for, or the holder of, a student visa is prescribed.
Part 2—Visas
Division 2.1—Classes, criteria, conditions etc
2.01 Classes of visas
Classes of visas prescribed by section 31 of the Act
(1) For the purposes of section 31 of the Act, the prescribed classes of visas are:
(a) such classes (other than those identified by an item in the table in subregulation (2)) as are set out in the respective items in Schedule 1; and
(b) the following classes:
(i) transitional (permanent); and
(ii) transitional (temporary).
Classes of visas provided for by the Act
(2) A class of visas provided for by the Act that is identified by an item in the following table is classified under these Regulations, by Class and Subclass, as indicated in the item.
Classes of visas provided for by the Act
Item Provision of the Act Class of visa provided for by the Act Classification by Class under these Regulations Classification by Subclass under these Regulations
1 section 32 special category visas Special Category (Temporary) (Class TY) Subclass 444 (Special Category)
Note 1: Subsection 35A(4) of the Act provides that additional classes of permanent and temporary visas may be prescribed as protection visas for the purposes of section 31.
Note 2: For table items 4‑12, section 37 provides that there are classes of temporary visas, to be known as bridging visas.
2.02 Subclasses
(1) Schedule 2 is divided into Parts, each identified by the word “Subclass” followed by a 3‑digit number (being the number of the subclass of visa to which the Part relates) and the title of the subclass.
(2) For the purposes of this Part and Schedules 1 and 2, a Part of Schedule 2 is relevant to a particular class of visa if the Part of Schedule 2 is listed under the subitem “Subclasses” in the item in Schedule 1 that refers to that class of visa.
2.03 Criteria applicable to classes of visas
(1) For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa) and subject to other provisions of these Regulations, the prescribed criteria for the grant to a person of a visa of a particular class are:
(a) the primary criteria set out in a relevant Part of Schedule 2; or
(b) if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.
(1A) However, if one or more criteria are set out in a Subdivision of a Part of Schedule 2 as a ‘stream’:
(a) the primary criteria mentioned in paragraph (1)(a) are taken to be:
(i) the primary criteria described as that stream; and
(ii) all primary criteria that are not described as a stream; and
(b) the secondary criteria mentioned in paragraph (1)(b) are taken to be:
(i) the secondary criteria described as that stream; and
(ii) all secondary criteria that are not described as a stream.
Example: Part 188 of Schedule 2 sets out the criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa. The Part includes a Subdivision setting out common primary criteria and several Subdivisions setting out primary criteria that are described as streams, including a Business Innovation stream. The primary criteria mentioned in paragraph (1)(a) are taken to be the Business Innovation stream and all primary criteria that are not described as a stream.
(1B) If one or more criteria are set out in a Subdivision of a Part of Schedule 2 as a ‘stream’, the visa to which the Part relates may be described as ‘[the Subclass of the visa] in the [name of the stream]’.
Example: A visa whose criteria are set out in Part 188 of Schedule 2, and include criteria in the Business Innovation stream, may be described as a Subclass 188 visa in the Business Innovation stream.
(2) If a criterion in Schedule 2 refers to a criterion in Schedule 3, 4 or 5 by number, a criterion so referred to must be satisfied by an applicant as if it were set out at length in the first‑mentioned criterion.
(3) If a criterion in Schedule 2 specifies that a person is to be the holder of, or have held, a visa of a particular class or subclass, that criterion is taken to be satisfied:
(a) if:
(i) before 1 September 1994, the person held a visa or entry permit that was granted under the Migration (1993) Regulations, the Migration (1989) Regulations or the Act as in force before 19 December 1989; and
(ii) the criteria that were applicable to, or the grounds for the grant of, that visa or entry permit are the same in effect as the criteria applicable to the new visa; and
(iii) the visa or entry permit was continued in force as a transitional visa on 1 September 1994 by the Migration Reform (Transitional Provisions) Regulations; or
(b) if:
(i) before 1 September 1994, the person applied for a visa or entry permit under the Migration (1993) Regulations, the Migration (1989) Regulations or the Act as in force before 19 December 1989; and
(ii) the criteria that were applicable to, or the grounds for the grant of, that visa or entry permit are the same in effect as the criteria applicable to the new visa; and
(iii) either:
(A) in the case of an application made before 19 December 1989—the Minister had not made a decision on the application; or
(B) in any other case—the application had not been finally determined;
before 1 September 1994; and
(iv) on or after 1 September 1994 the person was granted a transitional visa under the Migration Reform (Transitional Provisions) Regulations on the basis that he or she had satisfied the criteria, or the grounds, applicable to the visa or entry permit referred to in subparagraph (i).
2.03A Criteria applicable to de facto partners
(1) In addition to the criteria prescribed by regulations 2.03 and 2.03AA, if a person claims to be in a de facto relationship for the purposes of a visa application, the criteria in subregulations (2) and (3) are prescribed.
(2) If a person mentioned in subregulation (1) applies for a visa:
(a) the applicant is at least 18; and
(b) the person with whom the applicant claims to be in a de facto relationship is at least 18.
(3) Subject to subregulations (4) and (5), if:
(a) a person mentioned in subregulation (1) applies for:
(i) a permanent visa; or
(iia) a Business Skills (Provisional) (Class EB) visa; or
(iib) a Skilled Employer Sponsored Regional (Provisional) (Class PE) visa; or
(iii) a Student (Temporary) (Class TU) visa; or
(iv) a Partner (Provisional) (Class UF) visa; or
(v) a Partner (Temporary) (Class UK) visa; or
(vi) a General Skilled Migration visa; and
(b) the applicant cannot establish compelling and compassionate circumstances for the grant of the visa;
the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.
(4) Subregulation (3) does not apply if the applicant applies on the basis of being:
(a) in a de facto relationship with a person who:
(i) is, or was, the holder of a permanent humanitarian visa; and
(ii) before the permanent humanitarian visa was granted, was in a de facto relationship with the applicant and informed Immigration of the existence of the relationship; or
(b) in a de facto relationship with a person who is an applicant for a permanent humanitarian visa.
(5) Subregulation (3) does not apply if the de facto relationship is a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901.
2.03AA Criteria applicable to character tests and security assessments
(1) In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.
(2) If the Minister has requested the following documents or information, the person has provided the documents or information:
(a) a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;
(b) a completed approved form 80.
Note: For paragraph (a), an example of an appropriate authority is a police force.
(3) The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.
2.03B Protection visas—international instruments
For paragraph 5H(2)(a) and subparagraph 36(2C)(a)(i) of the Act, each international instrument that defines a crime against peace, a war crime or a crime against humanity is prescribed.
Examples of Instruments that may define crimes against peace, war crimes or crimes against humanity
1 Rome Statute of the International Criminal Court, done at Rome on 17 July 1998.
2 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed at London on 8 August 1945.
3 Charter of the International Military Tribunal, signed at London on 8 August 1945.