(b) a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group IV in the ASCO; or
(c) a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group 3 in ANZSCO.
2.26B Relevant assessing authorities
Specifying relevant assessing authorities
(1) Subject to subregulation (1A), the Minister (the Immigration Minister) may, by legislative instrument, specify a person or body as the relevant assessing authority for:
(a) an occupation; and
(b) one or more countries;
for the purposes of an application for a skills assessment made by a resident of one of those countries.
(1A) The Immigration Minister must not specify a person or body as the relevant assessing authority for an occupation and one or more countries unless the person or body has been approved as the assessing authority for the occupation and the countries under subregulation (1B).
Approving assessing authorities
(1B) For the purposes of subregulation (1A), the Skills Assessment Minister may:
(a) approve a person or body as the assessing authority for:
(i) an occupation; and
(ii) one or more countries; and
(b) impose one or more conditions on the approval.
(1BA) The Skills Assessment Minister must not approve a person or body under subregulation (1B) unless the Minister is satisfied that the person or body is suitable to be so approved.
(1BB) The Skills Assessment Minister must, as soon as practicable after approving a person or body under subregulation (1B):
(a) give the person or body a written notice that sets out:
(i) the decision; and
(ii) the reasons for the decision; and
(iii) the conditions (if any) imposed on the approval; and
(b) give a copy of the notice to the Immigration Minister.
Imposition etc. of conditions after approval
(1BC) If a person or body has been approved under subregulation (1B), the Skills Assessment Minister may, at any time, do any one or more of the following:
(a) impose one or more additional conditions on the approval;
(b) vary a condition that has been imposed on the approval;
(c) remove a condition that has been imposed on the approval.
(1BD) If a condition is imposed or varied under subregulation (1BC), the condition only applies in relation to a thing done, or not done, on or after the day the decision to impose or vary the condition takes effect.
(1BE) If the Skills Assessment Minister makes a decision in relation to a person or body under subregulation (1BC), the Skills Assessment Minister must, as soon as practicable after making the decision:
(a) give the person or body a written notice that sets out:
(i) the decision; and
(ii) the reasons for the decision; and
(iii) the day the decision takes effect; and
(iv) if an additional condition is imposed on their approval—that condition; and
(v) if a condition that has been imposed on their approval is varied—the condition as varied; and
(vi) if a condition that has been imposed on their approval is removed—the removed condition; and
(vii) if subparagraph (iv) or (v) applies—the effect of subregulation (1BD); and
(b) give a copy of the notice to the Immigration Minister.
Agreement of Immigration Minister to the imposition etc. of conditions
(1BF) Before the Skills Assessment Minister imposes a condition, or varies or removes a condition that has been imposed, on the approval of a person or body approved under subregulation (1B) or (1BC), the Immigration Minister must agree to the imposition, variation or removal of the condition.
Revocation of approval
(1BG) If a person or body has been approved under subregulation (1B) as the assessing authority for an occupation and one or more countries, the Skills Assessment Minister may revoke the approval if the Minister:
(a) is no longer satisfied that the person or body is suitable to be so approved; or
(b) is satisfied that the person or body has breached a condition imposed on the approval; or
(c) is satisfied that another person or body is more suitable to be approved as the assessing authority for the occupation and one or more of those countries.
(1BH) Before the Skills Assessment Minister revokes the approval of a person or body under subregulation (1BG), the Minister must consult the Immigration Minister.
(1BI) The Skills Assessment Minister must, as soon as practicable after revoking the approval of a person or body under subregulation (1BG):
(a) give the person or body a written notice that sets out:
(i) the decision; and
(ii) the reasons for the decision; and
(iii) the day that the revocation takes effect; and
(b) give a copy of the notice to the Immigration Minister.
Note: The review of a decision revoking the approval of an assessing authority is dealt with in Division 4.4 of Part 4.
(1BJ) If the approval of a person or body is revoked under subregulation (1BG), the revocation does not affect, for the purposes of these Regulations, an assessment of the skills of an individual that was completed by the person or body before the day the revocation takes effect.
(1C) The Skills Assessment Minister may, in writing, delegate the Minister’s powers under this regulation (other than the power under subregulation (1BG) to revoke the approval of a person or body as the assessing authority for an occupation and one or more countries) to:
(a) the Skills Assessment Secretary; or
(b) an SES employee, or acting SES employee, who:
(i) is in the Skills Assessment Department; and
(ii) has responsibilities relating to skills assessment services.
Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
Standards against which skills are assessed
(2) The standards against which the skills of a person are assessed by a relevant assessing authority for an occupation must be the standards set by the relevant assessing authority for the occupation.
(3) A relevant assessing authority may set different standards for assessing an occupation for different visa classes or subclasses.
2.27C Skilled occupation in Australia
In determining whether an applicant satisfies a criterion that the applicant has been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant:
(a) held:
(i) a substantive visa; or
(ii) a Subclass 010 Bridging A visa; or
(iii) a Subclass 020 Bridging B visa;
authorising him or her to work during that period; and
(b) complied with the conditions of that visa.
2.27D Study in Australia
In determining whether an applicant satisfies a criterion for the grant of a General Skilled Migration visa that the applicant has studied in Australia for a certain period, a period of study cannot be counted unless the applicant:
(a) held:
(i) a substantive visa; or
(ii) a Subclass 010 (Bridging A) visa; or
(iii) a Subclass 020 (Bridging B) visa;
authorising him or her to study during that period; and
(b) complied with the conditions of that visa.
2.28 Notice of putting application aside
(1) If the Minister puts an application aside under paragraph 94(3)(a) of the Act, he or she must notify the applicant in writing that he or she has done so.
(2) A notification under subregulation (1) must set out:
(a) the decision of the Minister; and
(b) the reason for the decision; and
(c) that the decision can be reviewed; and
(d) the time in which an application for review may be made; and
(e) who can apply for the review; and
(f) where the application for review can be made.
Division 2.8—Special purpose visas
2.40 Persons having a prescribed status—special purpose visas (Act, s 33(2)(a))
Persons who hold prescribed status
(1) For the purposes of paragraph 33(2)(a) of the Act (which deals with persons who are taken to have been granted special purpose visas), and subject to this regulation, each non‑citizen who is included in one of the following classes of person has a prescribed status:
(a) members of the Royal Family;
(b) members of the Royal party;
(c) guests of Government;
(d) SOFA forces members;
(e) SOFA forces civilian component members;
(f) Asia‑Pacific forces members;
(g) Commonwealth forces members;
(h) foreign armed forces dependants;
(j) foreign naval forces members;
(l) airline positioning crew members;
(m) airline crew members;
(n) transit passengers who belong to a class of persons specified in a legislative instrument made by the Minister for the purposes of this paragraph;
(p) persons visiting Macquarie Island;
(q) children born in Australia:
(i) of a mother who at the time of the birth holds a special purpose visa, if only the mother is in Australia at that time; or
(ii) to parents both of whom, at the time of the birth, hold special purpose visas, if at that time both parents are in Australia;
(t) Indonesian traditional fishermen visiting the Territory of Ashmore and Cartier Islands.
Note: the terms used in paragraphs (1)(a) to (n) are defined in regulation 1.03.
Armed forces members
(2) A person included in a class of persons specified in paragraph (1)(d), (e), (f), (g) or (j) has a prescribed status only while he or she is not absent without leave.
Armed forces dependants
(3) A person included in a class of persons specified in paragraph (1)(h) has a prescribed status only while the person of whom he or she is a spouse or de facto partner, or on whom he or she is dependent, is not absent without leave.
Persons must not work in Australia
(4) A person included in a class of persons specified in paragraph (1)(d), (e), (f), (g), (j), (l) or (m) has a prescribed status only while he or she does not perform work in Australia (other than work of a kind that he or she normally performs during the course of his or her duties as a person of a kind referred to in the relevant paragraph).
Note: Regulation 2.40A sets out further restrictions on the work airline positioning crew members and airline crew members may perform in Australia.
Foreign naval forces members
(5) A person included in a class of persons specified in paragraph (1)(j) has a prescribed status if and only if the vessel on which he or she enters the migration zone has the prior approval of the Australian government to do so.
Airline positioning crew members
(9) A person included in a class of persons specified in paragraph (1)(l) has a prescribed status for the period of 5 working days beginning when he or she disembarks from the aircraft on which he or she travelled to Australia if and only if he or she:
(a) holds a passport that is in force; and
(b) carries a letter from his or her employer certifying aircrew status and setting out the purpose of the person’s travel to Australia and the arrangements for the person to leave Australia.
Airline crew members
(10) A person included in a class of persons mentioned in paragraph (1)(m) has a prescribed status for 30 days, beginning when he or she disembarks from the aircraft on which he or she travelled to Australia, if and only if he or she:
(a) holds a passport that is in force; and
(b) holds:
(i) a valid airline identity card issued by his or her employer; or
(ii) for a person who is an aircraft safety inspector:
(A) a valid government identity document showing that he or she is employed by a foreign government; or
(B) an ICAO Safety Inspector Certificate; and
(c) is included in a list of members of the crew of the aircraft provided to Immigration by or for the international air carrier that operates the aircraft.
Transit passengers
(11) A person included in a class of persons specified in paragraph (1)(n) has a prescribed status only while he or she remains in the airport transit lounge.
Macquarie Island visitors
(12) A person included in a class of persons specified in paragraph (1)(p) has a prescribed status:
(a) only while he or she remains on Macquarie Island; and
(b) only if the Secretary of the Department of Primary Industries, Parks, Water and Environment of the State of Tasmania has granted written permission in advance for the person to visit that Island.
Children born in Australia
(13) A person included in a class of persons specified in paragraph (1)(q) has a prescribed status:
(a) in the case of a child referred to in subparagraph (1)(q)(i)—until the child’s mother ceases to have a prescribed status; or
(b) in the case of a child referred to in subparagraph (1)(q)(ii)—until whichever of the child’s parents last ceases to have a prescribed status ceases to have that status.
Indonesian traditional fishermen
(16) A person included in the class of persons specified in paragraph (1)(t) has a prescribed status only if the person:
(a) is a traditional fisherman within the meaning of the Memorandum of Understanding made at Jakarta on 7 November 1974 between Australia and the Republic of Indonesia regarding the operations of Indonesian fishermen in areas of the Australian Exclusive Fishing Zone and Continental Shelf; and
(b) when visiting the Territory of Ashmore and Cartier Islands, is engaged in an activity described in the Memorandum of Understanding, as varied by the 1989 Practical Guidelines for Implementation contained in the Annex to the Agreed Minutes of Meeting between officials of Australia and Indonesia on fisheries of 29 April 1989.
Note: The Memorandum, as varied by the Guidelines, has the general effect of accommodating a traditional fisherman engaged in taking fish or marine sedentary organisms by a method that has been a traditional method over decades of time, who is:
(a) actually taking fish or marine sedentary organisms; or
(b) sheltering within the territorial sea of the Territory; or
(c) on shore at the island known as West Islet, for the purpose only of getting fresh water.
Expressly excluded is fishing using a motorised, or motor‑assisted, vessel or method.
2.40A Conditions applicable to special purpose visas
For subsection 41(1) of the Act:
(a) a special purpose visa taken to be granted to an airline positioning crew member is subject to condition 8117; and
(b) a special purpose visa taken to be granted to an airline crew member is subject to condition 8118.
Division 2.9—Cancellation or refusal to grant visas
Subdivision 2.9.1—Cancellation under Subdivision C of Division 3 of Part 2 of the Act
Note: The obligations of a visa holder under Subdivision C of Division 3 of Part 2 of the Act are: to supply correct information on his or her application form (s 101), including answers on passenger cards (s 102); not to give bogus documents (s 103); to notify changes in circumstances (s 104); and, if incorrect information is given, to correct it (s 105). The obligation is not affected by other sources of information being available (s 106). If the Minister gives a visa holder a notice under s 107(1) stating that there may have been non‑compliance and asking the visa holder for a response, the answers must be correct (s 107(2)).
2.41 Whether to cancel visa—incorrect information or bogus document (Act, s 109(1)(c))
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d) the circumstances in which the non‑compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non‑compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non‑compliance;
(j) any breaches of the law since the non‑compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
Note: Under s. 109 of the Act, the Minister may cancel a visa if there was non‑compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.
Subdivision 2.9.2—Cancellation generally
2.43 Grounds for cancellation of visa (Act, s 116)
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
(a) that the Foreign Minister has personally determined that:
(i) in the case of a visa other than a relevant visa—the holder of the visa is a person whose presence in Australia:
(A) is, or would be, contrary to Australia’s foreign policy interests; or
(B) may be directly or indirectly associated with the proliferation of weapons of mass destruction; or
(ii) in the case of a relevant visa—the holder of the visa is a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction;
Note: A relevant visa is explained in subregulation (3).
(aa) in the case of a person who is the holder of a visa other than a relevant visa, the person:
(i) is declared under paragraph 6(b) or 6A(1)(b), (2)(b), (4)(b), (5)(b), (8)(b) or (9)(b) of the Autonomous Sanctions Regulations 2011 for the purpose of preventing the person from travelling to, entering or remaining in Australia; and
(ii) is not a person for whom the Foreign Minister has waived the operation of the declaration in accordance with regulation 19 of the Autonomous Sanctions Regulations 2011;
(b) that the holder of the visa has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979;