4 Convention on the Prevention and Punishment of the Crime of Genocide, approved in New York on 9 December 1948.
5 The First Convention within the meaning of the Geneva Conventions Act 1957.
6 The Second Convention within the meaning of the Geneva Conventions Act 1957.
7 The Third Convention within the meaning of the Geneva Conventions Act 1957.
8 The Fourth Convention within the meaning of the Geneva Conventions Act 1957.
9 Protocol I within the meaning of the Geneva Conventions Act 1957.
10 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non‑International Armed Conflicts (Protocol II), done at Geneva on 8 June 1977.
11 Statute of the International Criminal Tribunal for the former Yugoslavia, adopted by the United Nations Security Council on 25 May 1993.
12 Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994; adopted by the United Nations Security Council on 8 November 1994.
2.04 Circumstances in which a visa may be granted
For subsection 40(1) of the Act and subject to other provisions of these Regulations, a visa may be granted to a person who has satisfied the criteria in the relevant Part of Schedule 2 only if:
(a) the circumstances set out in that Part exist; and
(b) if the person has been required under section 257A of the Act to provide one or more personal identifiers—the person has complied with the requirement, or the requirement has been withdrawn.
2.05 Conditions applicable to visas
(1) For subsection 41(1) of the Act, a visa is subject to any conditions specified for that Subclass of visa in Schedule 2, subject to subregulation (2) and regulation 2.25AE.
Note: Regulation 2.40A prescribes conditions in relation to special purpose visas taken to have been granted to airline positioning crew members and airline crew members.
(2) For subsection 41(3) of the Act, the conditions that the Minister is permitted to impose on a visa are the conditions (if any) specified as permitted for that Subclass of visa in Schedule 2.
Note: Conditions referred to by number in Schedule 2 are set out in Schedule 8: see the definition of condition in regulation 1.03.
(3) For the purposes of subsections 29(2) and (3) of the Act (which deal with the period during which the holder of a visa may travel to, enter and remain in Australia), the limits on the period within which a person may:
(a) remain in Australia; or
(b) travel to, enter, and remain in Australia;
as the case requires, under the authority of a visa of a particular subclass are specified in the relevant Part of Schedule 2.
(4) For subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act are that:
(a) since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:
(i) over which the person had no control; and
(ii) that resulted in a major change to the person’s circumstances; and
(b) if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and
(c) if the person asks the Minister to waive the condition, the request is in writing.
(4AA) For subsection 41(2A) of the Act, a further circumstance in which the Minister may waive condition 8503 in relation to a visa is that the holder of the visa has a genuine intention to apply for:
(a) a General Skilled Migration visa; or
(c) a Subclass 186 (Employer Nomination Scheme) visa; or
(d) a Subclass 187 (Regional Sponsored Migration Scheme) visa; or
(e) a Subclass 188 (Business Innovation and Investment (Provisional)) visa; or
(ea) a Subclass 191 (Permanent Residence (Skilled Regional)) visa; or
(f) a Subclass 482 (Skills in Demand) visa; or
(g) a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa.
(4AB) For subsection 41(2A) of the Act, further circumstances in which the Minister may waive condition 8503 in relation to a visa are that the holder of the visa:
(a) either:
(i) holds a safe haven enterprise visa; or
(ii) is a lawful non‑citizen who has ever held a safe haven enterprise visa; and
(b) satisfies the requirements of subregulation 2.06AAB(2).
(4AC) For paragraph 41(2B)(b) of the Act, the following visas are prescribed:
(a) a Subclass 400 (Temporary Work (Short Stay Specialist)) visa;
(b) a Subclass 457 (Temporary Work (Skilled)) visa;
(ba) a Subclass 482 (Skills in Demand) visa;
(c) a Subclass 482 (Temporary Skill Shortage) visa;
(d) a Subclass 988 (Maritime Crew) visa held by a petroleum export tanker crew member.
(5A) For subsection 41(2A) of the Act, further circumstances in which the Minister may waive condition 8534 in relation to a visa are that the holder of the visa:
(a) has completed the course for which the visa was granted; and
(b) has a genuine intention to apply for:
(i) a General Skilled Migration visa; or
(iii) a Subclass 186 (Employer Nomination Scheme) visa; or
(iv) a Subclass 187 (Regional Sponsored Migration Scheme) visa; or
(v) a Subclass 188 (Business Innovation and Investment (Provisional)) visa; or
(va) a Subclass 191 (Permanent Residence (Skilled Regional)) visa; or
(vi) a Subclass 482 (Skills in Demand) visa; or
(vii) a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa.
2.05A Extension of certain visas held by Ukraine passport holders etc.
(1) Despite anything in Schedule 2 to these Regulations, a visa to which subregulation (2), (3) or (4) of this regulation applies is a temporary visa permitting the holder to travel to, enter and remain in Australia until 6 months after the original end date of the visa.
Eligibility for extension
(2) This subregulation applies to a visa, at and after the end of 23 February 2022, if:
(a) the visa is any of the following visas:
(i) a Subclass 400 (Temporary Work (Short Stay Specialist)) visa;
(ii) a Subclass 408 (Temporary Activity) visa;
(iii) a Subclass 457 (Temporary Work (Skilled)) visa;
(iv) a Subclass 482 (Temporary Skill Shortage) visa;
(v) a Subclass 485 (Temporary Graduate) visa;
(vi) a Subclass 500 (Student) visa; and
(b) on the date of grant of the visa, the person to whom the visa was granted held a valid passport issued by Ukraine; and
(c) the original end date of the visa is:
(i) on or after 23 February 2022; and
(ii) before 1 July 2022; and
(d) on 23 February 2022:
(i) the person is in Australia; and
(ii) the visa is in effect.
(3) This subregulation applies to a visa held by a person if:
(a) the visa was granted to the person on or before 23 February 2022 on the basis that the person satisfied the secondary criteria for the grant of the visa as a member of the family unit of a person who holds a visa (the primary visa) of the same subclass granted on the basis of satisfying the primary criteria for the grant of the visa; and
(b) subregulation (2) or (4) applies to the primary visa.
(4) If:
(a) a visa (the secondary visa) was granted to a person on or before 23 February 2022 on the basis that the person satisfied the secondary criteria for the grant of the visa as a member of the family unit of the person who holds a visa (the primary visa) of the same subclass granted on the basis of satisfying the primary criteria for the grant of the visa; and
(b) subregulation (2) applies to the secondary visa;
then this subregulation applies to the primary visa.
Original end date
(5) For the purposes of this regulation, the original end date of a visa mentioned in column 1 of an item of the following table is the day mentioned in column 2 of the item.
Original end dates
Item Column 1Visa Column 2Original end date
1 a visa not covered by another item of this table the last day on which, disregarding this regulation, the holder of the visa can travel to, enter and remain in Australia under the visa
2 Subclass 400 (Temporary Work (Short Stay Specialist)) visa the last day of the period mentioned in paragraph 400.511(b) of Schedule 2 in relation to the visa
3 Subclass 408 (Temporary Activity) visa the day that, disregarding this regulation, is the last day of the relevant period of stay mentioned in clause 408.511 of Schedule 2
2.05B Extension of certain Subclass 600 visas held by Ukraine passport holders
(1) Despite anything in Division 600.5 of Schedule 2, a visa to which subregulation (2) of this regulation applies is a temporary visa permitting the holder to:
(a) travel to and enter Australia until the later of:
(i) the original validity end date of the visa; and
(ii) 6 months after the original remain end date of the visa; and
(b) remain in Australia, after each entry, for a period that is 6 months longer than the original remain period of the visa.
Eligibility for extension
(2) This subregulation applies to a visa, at and after the end of 23 February 2022, if:
(a) the visa is a Subclass 600 (Visitor) visa; and
(b) on the date of grant of the visa, the person to whom the visa was granted held a valid passport issued by Ukraine; and
(c) the original remain end date of the visa is:
(i) on or after 23 February 2022; and
(ii) before 1 July 2022; and
(d) on 23 February 2022:
(i) the person is in Australia; and
(ii) the visa is in effect.
Definitions
(3) In this regulation:
original remain end date of a Subclass 600 (Visitor) visa held by a person means the day that, on 23 February 2022, is the last day on which, disregarding this regulation, the person can remain in Australia under the visa (without leaving and re‑entering Australia).
original remain period of a Subclass 600 (Visitor) visa held by a person means the period specified in relation to the visa as mentioned in clause 600.511 or 600.512 of Schedule 2 as the period for which the person can remain in Australia after each entry under the visa.
original validity end date of a Subclass 600 (Visitor) visa held by a person means the last day on which, disregarding this regulation, the person can travel to and enter Australia under the visa.
2.06 Non‑citizens who do not require visas to travel to Australia
For subsection 42(3) of the Act (which deals with the classes of person who may travel to Australia without a visa that is in effect), the class of New Zealand citizens who hold and produce New Zealand passports that are in force is prescribed.
2.06AAA Entry to Australia—Maritime Crew (Temporary) (Class ZM) visas
(1) For subsection 43(1A) of the Act, a maritime crew visa that is in effect is permission for the holder to enter Australia on a non‑military ship at a proclaimed port, other than at an excised offshore place.
(2) For subsection 43(1A) of the Act, a maritime crew visa that is in effect is permission for the holder to enter Australia if:
(a) the holder is on a non‑military ship; and
(b) the ship enters Australia at an excised offshore place that is:
(i) a proclaimed port; or
(ii) a place for which permission has been given, in advance under section 58 of the Customs Act 1901, for the ship to be brought to that place; and
(c) before the holder enters Australia, the operator of the ship has complied with the reporting requirements in sections 64, 64ACA and 64ACB of the Customs Act 1901 in accordance with those sections and the Customs Regulation 2015.
Note: The reporting requirements in sections 64, 64ACA and 64ACB of the Customs Act 1901 provide, in general, that an operator of a ship that is due to arrive at a port must:
(a) report the impending arrival of the ship; and
(b) report to the Department on the passengers who will be on board the ship at the time of its arrival in port; and
(c) report to the Department on the crew who will be on board the ship at the time of its arrival in port.
The Customs Act and the Customs Regulation 2015 specify time limits within which the reporting is to be done.
(3) For subsection 43(1A) of the Act, a maritime crew visa that is in effect is permission for the holder to enter Australia in a way other than those described in subregulations (1) and (2) if:
(a) health or safety reasons require entry in that way; and
(b) the holder of the visa does not enter Australia at an excised offshore place.
(4) For subsection 43(1A) of the Act, a maritime crew visa that is in effect is permission for the holder to enter Australia in a way other than those described in subregulations (1), (2) and (3) if an authorised officer authorises the holder to enter Australia in that way.
2.06AAB Visa applications by holders and certain former holders of safe haven enterprise visas
(1) For paragraph 46A(1A)(b) of the Act, visas of the subclasses listed in the following table are prescribed:
Visas for which holders and certain former holders of safe haven enterprise visas may apply
(2) For the purposes of paragraph 46A(1A)(c) of the Act, an applicant for a visa of a class mentioned in subregulation (1), who currently holds, or has ever held, a safe haven enterprise visa must:
(a) subject to subregulation (4), for a period or periods totalling 42 months (which need not be continuous), as the holder of one or more safe haven enterprise visas, satisfy one of the following requirements:
(i) the applicant does not receive any social security benefits determined under subregulation (3), and is engaged in employment, as determined under that subregulation, in a regional area specified, at that time or at any later time occurring before the application is made, under subitem 1404(4) of Schedule 1;
(ii) the applicant is enrolled in full‑time study at an educational institution, as determined under subregulation (3), in a regional area specified, at that time or at any later time occurring before the application is made, under subitem 1404(4) of Schedule 1;
(iii) the applicant satisfies a combination of the requirements in subparagraph (i) and subparagraph (ii), at different times; or
(b) be the member of the same family unit of, and have made a combined application with, a non‑citizen who:
(i) is an applicant for the same class of visa; and
(ii) meets the requirements of paragraphs 46A(1A)(a) and (b) of the Act; and
(iii) meets the requirements of paragraph (a) of this subregulation.
(3) The Minister may, by legislative instrument, make a determination for the purposes of subparagraphs (2)(a)(i) and (ii).
(4) Any of the following periods may be counted for the purposes of calculating the period or periods totalling 42 months mentioned in paragraph (2)(a):
(a) any period during which the applicant receives social security benefits determined under subregulation (3) during a concession period;
(b) any period during which the applicant is unemployed during a concession period;
(c) any period during which the applicant is, during a concession period, employed in employment that is determined to be an essential service by the Minister under subregulation (5).
(5) The Minister may, by legislative instrument, make a determination for the purposes of paragraph (4)(c).
2.06AAC Entry to Australia—persons entering to participate in, or support, offshore resources activities
(1) For paragraph 43(1)(c) of the Act, the following reason is prescribed:
(a) the visa held by the visa holder is:
(i) a permanent visa; or
(ii) a Subclass 400 (Temporary Work (Short Stay Specialist)) visa; or
(iii) a Subclass 457 (Temporary Work (Skilled)) visa; or
(iiia) a Subclass 482 (Skills in Demand) visa; or
(iv) a Subclass 482 (Temporary Skill Shortage) visa; and
(b) the holder is a person who will be in an area to participate in, or to support, an offshore resources activity in relation to that area.
Note 1: Paragraph 43(1)(c) of the Act provides that if the holder of a visa that is in effect travels to Australia on a vessel, and a prescribed reason makes it necessary to enter Australia in a way other than at a port, or on a pre‑cleared flight, the visa is permission for the holder to enter Australia in that other way.
Note 2: Paragraph (b)—for the definition of offshore resources activity, see subsection 9A(5) of the Act.
(2) For the purposes of paragraph 43(1A)(b) of the Act, a prescribed reason is that the holder of the maritime crew visa is a petroleum export tanker crew member.