Migration Regulations 1994

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:

the primary criteria set out in a relevant Part of Schedule 2; or

if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.

However, if one or more criteria are set out in a Subdivision of a Part of Schedule 2 as a ‘stream’:

the primary criteria mentioned in paragraph (1)(a) are taken to be:

the primary criteria described as that stream; and

all primary criteria that are not described as a stream; and

the secondary criteria mentioned in paragraph (1)(b) are taken to be:

the secondary criteria described as that stream; and

all secondary criteria that are not described as a stream.

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.

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]’.

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.

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.

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:

if:

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

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

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

if:

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

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

either:

in the case of an application made before 19 December 1989—the Minister had not made a decision on the application; or

in any other case—the application had not been finally determined;

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).