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These Regulations are the Migration Regulations 1994.
This Division sets out definitions that apply to the Regulations as a whole. Elsewhere in the Regulations there may be definitions that have more limited application. A term defined in section 5 of the Act has the same meaning in the Regulations, in the absence of a contrary intention.
A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:
formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or
formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or
other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.
For the purposes of paragraph (1)(c), arrangements are taken to be in the nature of adoption if:
the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and
the child‑parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and
the Minister is satisfied that:
formal adoption of the kind referred to in paragraph (1)(b):
was not available under the law of the place where the arrangements were made; or
was not reasonably practicable in the circumstances; and
the arrangements have not been contrived to circumvent Australian migration requirements.
In this regulation:
cease, in relation to a full‑time course of study or training, includes to complete, to withdraw from, or to be excluded from, that course.
Foreign Affairs student visa means a student visa granted to a person who, as an applicant:
satisfied the primary criteria for the grant of the visa; and
was a student in a full‑time course of study or training under a scholarship scheme or training program approved by the Foreign Minister or AusAID Minister.
A person is a Foreign Affairs recipient if:
either:
the person is the holder of a Foreign Affairs student visa and has ceased:
the full‑time course of study or training to which that visa relates; or
another course approved by the Foreign Minister or AusAID Minister in substitution for that course; or
if the person is not the holder of a Foreign Affairs student visa—the person has in the past been the holder of a Foreign Affairs student visa and has ceased:
the full‑time course of study or training to which the last Foreign Affairs student visa held by the person related; or
another course approved by the Foreign Minister or AusAID Minister in substitution for that course; and
the person has not spent at least 2 years outside Australia since ceasing the course.
A person is a Foreign Affairs student if:
the person has been approved by the Foreign Minister or AusAID Minister to undertake a full‑time course of study or training under a scholarship scheme or training program approved by the Foreign Minister or AusAID Minister; and
the person is:
the holder of a Foreign Affairs student visa granted in circumstances where the person intended to undertake the full‑time course of study or training; or
an applicant for a student visa whose application shows an intention to undertake a full‑time course of study or training; and
in the case of a person mentioned in subparagraph (b)(i)—the person has not ceased:
the full‑time course of study or training to which the visa relates; or
another course approved by the Foreign Minister or AusAID Minister in substitution for that course.
A person is a Defence student if:
the person has been approved by the Defence Minister to undertake a full‑time course of study or training under a scholarship scheme or training program approved by the Defence Minister; and
the person is:
the holder of a student visa granted in circumstances where the person intended to undertake the course of study or training; or
an applicant for a student visa whose application shows an intention to undertake the course of study or training; and
in the case of a person mentioned in subparagraph (b)(i)—the person has not ceased, completed, withdrawn from, or been excluded from:
the course of study or training to which the visa relates; or
another course approved by the Defence Minister in substitution for that course.
For the purposes of this regulation:
a person is a child of another person (the parent) if the person is a child or step‑child of:
the parent; or
a current spouse or current de facto partner of the parent; and
if the whereabouts of a child of the parent are unknown, the child is taken to be resident in the child’s last known usual country of residence.
For this regulation:
a child of the parent is an eligible child if the child is:
an Australian citizen; or
an Australian permanent resident usually resident in Australia; or
an eligible New Zealand citizen usually resident in Australia; and
any other child of the parent is an ineligible child.
An ineligible child is taken to be resident overseas.
The overseas country in which an ineligible child is taken to reside is:
the overseas country in which the child is usually resident; or
the last overseas country in which the child was usually resident; or
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.
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.
However, if the greatest number of children who are:
ineligible children; and
usually resident in a particular overseas country;
is less than the number of eligible children, then the parent satisfies the balance of family test.
In applying the balance of family test, no account is to be taken of a child of the parent:
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
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
if the child:
is resident in a refugee camp operated by the United Nations High Commissioner for Refugees; and
is registered by the Commissioner as a refugee.
Subject to subregulation (2), a person (the first person) is dependent on another person if:
at the time when it is necessary to establish whether the first person is dependent on the other person:
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
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
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.
A person (the first person) is dependent on another person for the purposes of an application for:
a protection visa; or
a Refugee and Humanitarian (Class XB) visa; or
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.
A class of visas may be referred to:
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
in the case of a transitional visa, by the following codes:
transitional (permanent): BF;
transitional (temporary): UA.
For example, a Special Program (Temporary) (Class TE) visa may be referred to as a Class TE visa.
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.
The criteria for the grant of the visa may include criteria described as a ‘stream’: see subregulation 2.03(1A).
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.
The criteria for the grant of the visa may include criteria described as a ‘stream’: see subregulation 2.03(1A).
For the purposes of these Regulations, a non‑citizen has a compelling need to work if and only if:
he or she is in financial hardship; or
he or she:
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
is identified in an approved nomination of an occupation made by:
a standard business sponsor; or
a former standard business sponsor; or
a party to a labour agreement;
who is specified in the application for that visa; and
appears to the Minister, on the basis of information contained in the application, to satisfy the criteria for the grant of that visa.
For the purposes of these Regulations, a person is in criminal detention if he or she is:
serving a term of imprisonment (including periodic detention) following conviction for an offence; or
in prison on remand;
but not if he or she is:
subject to a community service order; or
on parole after serving part of a term of imprisonment; or
on bail awaiting trial.
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.
See regulation 2.03A for the prescribed criteria applicable to de facto partners.
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.
If the Minister is considering an application for:
a Partner (Migrant) (Class BC) visa; or
a Partner (Provisional) (Class UF) visa; or
a Partner (Residence) (Class BS) visa; or
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).
The matters for subregulation (2) are:
the financial aspects of the relationship, including:
any joint ownership of real estate or other major assets; and
any joint liabilities; and
the extent of any pooling of financial resources, especially in relation to major financial commitments; and
whether one person in the relationship owes any legal obligation in respect of the other; and
the basis of any sharing of day‑to‑day household expenses; and
the nature of the household, including:
any joint responsibility for the care and support of children; and
the living arrangements of the persons; and
any sharing of the responsibility for housework; and
the social aspects of the relationship, including:
whether the persons represent themselves to other people as being in a de facto relationship with each other; and
the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
any basis on which the persons plan and undertake joint social activities; and
the nature of the persons’ commitment to each other, including:
the duration of the relationship; and
the length of time during which the persons have lived together; and
the degree of companionship and emotional support that the persons draw from each other; and
whether the persons see the relationship as a long‑term one.
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).