MIGRATION REGULATIONS 1994 - SCHEDULE 4 Public interest criteria and related provisions

MIGRATION REGULATIONS 1994 - SCHEDULE 4

(regulation   1.03)

Part   1 -- Public interest criteria

4001     Either:

  (a)   the person satisfies the Minister that the person passes the character test; or

  (b)   the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

  (c)   the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

  (d)   the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

4002     The applicant is not 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 .

4003     The applicant:

  (a)   is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia is, or would be, contrary to Australia's foreign policy interests; and

  (b)   is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction; and

  (c)   either:

  (i)   is not 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; or

  (ii)   if the applicant is declared--is 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 .

4003A     The applicant is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.

4003B     The Minister has not determined that there is an unreasonable risk of an unwanted transfer of critical technology by the applicant.

4004     The applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment.

4005   (1)   The applicant:

  (aa)   if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:

  (i)   must undertake any medical assessment specified in the instrument; and

  (ii)   must be assessed by the person specified in the instrument;

    unless a Medical Officer of the Commonwealth decides otherwise; and

  (ab)   must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and

  (a)   is free from tuberculosis; and

  (b)   is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and

  (c)   is, unless the applicant is a minor born in Australia and is ordinarily resident in Australia, free from a disease or condition in relation to which:

  (i)   a person who has it would be likely to:

  (A)   require health care or community services; or

  (B)   meet the medical criteria for the provision of a community service;

    during the period described in subclause   (2); and

  (ii)   the provision of the health care or community services would be likely to:

  (A)   result in a significant cost to the Australian community in the areas of health care and community services; or

  (B)   prejudice the access of an Australian citizen or permanent resident to health care or community services;

    regardless of whether the health care or community services will actually be used in connection with the applicant; and

  (d)   if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow - up medical assessment--has provided the undertaking.

  (2)   For subparagraph   (1)(c)(i), the period is:

  (a)   for an application for a permanent visa--the period commencing when the application is made; or

  (b)   for an application for a temporary visa:

  (i)   the period for which the Minister intends to grant the visa; or

  (ii)   if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph--the period commencing when the application is made.

  (3)   If:

  (a)   the applicant applies for a temporary visa; and

  (b)   the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph   (2)(b)(ii);

the reference in sub - subparagraph   (1)(c)(ii)(A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.

4007   (1)   The applicant:

  (aa)   if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:

  (i)   must undertake any medical assessment specified in the instrument; and

  (ii)   must be assessed by the person specified in the instrument;

    unless a Medical Officer of the Commonwealth decides otherwise; and

  (ab)   must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and

  (a)   is free from tuberculosis; and

  (b)   is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and

  (c)   subject to subclause   (2)--is, unless the applicant is a minor born in Australia and is ordinarily resident in Australia, free from a disease or condition in relation to which:

  (i)   a person who has it would be likely to:

  (A)   require health care or community services; or

  (B)   meet the medical criteria for the provision of a community service;

    during the period described in subclause   (1A); and

  (ii)   the provision of the health care or community services would be likely to:

  (A)   result in a significant cost to the Australian community in the areas of health care and community services; or

  (B)   prejudice the access of an Australian citizen or permanent resident to health care or community services;

    regardless of whether the health care or community services will actually be used in connection with the applicant; and

  (d)   if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow - up medical assessment--has provided the undertaking.

  (1A)   For subparagraph   (1)(c)(i), the period is:

  (a)   for an application for a permanent visa--the period commencing when the application is made; or

  (b)   for an application for a temporary visa:

  (i)   the period for which the Minister intends to grant the visa; or

  (ii)   if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph--the period commencing when the application is made.

  (1B)   If:

  (a)   the applicant applies for a temporary visa; and

  (b)   the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph   (1A)(b)(ii);

the reference in sub - subparagraph   (1)(c)(ii)(A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.

  (2)   The Minister may waive the requirements of paragraph   (1)(c) if:

  (a)   the applicant satisfies all other criteria for the grant of the visa applied for; and

  (b)   the Minister is satisfied that the granting of the visa would be unlikely to result in:

  (i)   undue cost to the Australian community; or

  (ii)   undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.

4009     The applicant:

  (a)   intends to live permanently in Australia; and

  (b)   if the applicant seeks entry to Australia as a member of a family unit, also satisfies the Minister that the applicant could obtain support in Australia from other members of the family unit.

4010     If the applicant seeks to remain in Australia permanently, or temporarily for longer than 12 months, the applicant is likely to become established in Australia without undue personal difficulty and without imposing undue difficulties or costs on the Australian community.

4011   (1)   If the applicant is affected by the risk factor specified in subclause   (2), the applicant satisfies the Minister that, having regard to the applicant's circumstances in the applicant's country of usual residence, there is very little likelihood that the applicant will remain after the expiry of any period during which the applicant might be authorised to remain after entry.

  (2)   An applicant is affected by the risk factor referred to in subclause   (1) if:

  (a)   during the period of 5 years immediately preceding the application, the applicant has applied for a visa for the purpose of permanent residence in Australia; or

  (b)   the applicant has all the characteristics of a class of persons specified in a legislative instrument made by the Minister for the purposes of this paragraph.

  (2A)   In specifying a class of persons for the purposes of paragraph   (2)(b), the Minister must have regard to statistics prepared by the Secretary:

  (a)   from movement records kept by Immigration about persons who have remained in Australia after expiry of the period during which each person was authorised to remain in Australia under the visa with which he or she last entered Australia; and

  (b)   having regard to one or more of the characteristics mentioned in subclause   (3).

  (3)   For the purposes of paragraph   (2)(b), a characteristic is any of the following:

  (a)   nationality;

  (b)   marital or relationship status;

  (c)   age;

  (d)   sex;

  (e)   occupation;

  (f)   the class of visa currently applied for;

  (g)   the place of lodgment or posting of the application for that visa.

4012     In the case of an applicant:

  (a)   who has not turned 18; and

  (b)   whose intended stay in Australia will not be in the company of either or both of his or her parents or guardians; and

  (c)   whose application expresses an intention to visit, or stay with, a person in Australia who is not a relative of the applicant; and

  (d)   who is not a member of an organised tour and for whom no adequate maintenance and support arrangements have been made for the total period of stay in Australia;

an undertaking to provide accommodation for, and to be responsible for the support and general welfare of, the applicant during the applicant's stay in Australia is given to the Minister by a person who, in the reasonable belief of the Minister, is of good character.

4012A     In the case of an applicant who has not turned 18:

  (a)   the application expresses a genuine intention to reside in Australia with a person who:

  (i)   is a parent of the applicant or a person who has custody of the applicant; or

  (ii)   is:

  (A)   a relative of the applicant; and

  (B)   nominated by a parent of the applicant or a person who has custody of the applicant; and

  (C)   aged at least 21; and

  (D)   of good character; or

  (b)   a signed statement is given to the Minister by the education provider for the course in which the applicant is enrolled confirming that appropriate arrangements have been made for the applicant's accommodation, support and general welfare for at least the minimum period of enrolment stated on the applicant's:

  (i)   confirmation of enrolment; or

  (ii)   AASES form;

    plus 7 days after the end of that period; or

  (c)   if the applicant is a Foreign Affairs student or a Defence student, appropriate arrangements for the applicant's accommodation, support and general welfare have been approved by:

  (i)   in the case of a Foreign Affairs student--the Foreign Minister; and

  (ii)   in the case of a Defence student--the Defence Minister.

4013   (1)   If the applicant is affected by a risk factor mentioned in subclause   (1A), (2), (2A) or (3):

  (a)   the application is made more than 3 years after the cancellation of the visa or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or

  (b)   the Minister is satisfied that, in the particular case:

  (i)   compelling circumstances that affect the interests of Australia; or

  (ii)   compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa within 3 years after the cancellation or determination.

  (1A)   A person is affected by a risk factor if a visa previously held by the person was cancelled:

  (a)   under section   109, paragraph   116(1)(d), subsection   116(1AA) or (1AB) or section   133A of the Act; or

  (b)   under section   128 of the Act because the Minister was satisfied that the ground mentioned in paragraph   116(1)(d) of the Act applied to the person; or

  (c)   under section   133C of the Act because the Minister was satisfied that the ground mentioned in paragraph   116(1)(d) or subsection   116(1AA) or (1AB) of the Act applied to the person.

  (2)   A person is affected by a risk factor if a visa previously held by the person was cancelled under section   116, 128 or 133C of the Act:

  (a)   because the person was found by Immigration to have worked without authority; or

  (b)   if the visa was of a subclass specified in Part   2 of this Schedule--because the person did not comply with a condition specified in that Part   in relation to that subclass; or

  (c)   if the visa was a Subclass 773 (Border) visa and, at the time of grant of the visa, the person was apparently eligible for a substantive visa of a subclass specified in Part   2 of this Schedule--because the person did not comply with a condition specified in that Part   in relation to that subclass of substantive visa; or

  (ca)   because the person held a student visa and the Minister was satisfied that a ground mentioned in paragraph   116(1)(fa) of the Act applied to the person; or

  (d)   because the Minister was satisfied that a ground prescribed by paragraph   2.43(1)(ea), (i), (ia), (j), (k), (ka), (kb), (kc), (m), (na), (o), (oa), (ob), (s) or (t) applied to the person.

  (2A)   A person is affected by a risk factor if a visa previously held by the person was cancelled under section   137J of the Act.

  (3)   A person is affected by a risk factor if a visa previously held by the person was cancelled because the Minister was satisfied that a ground mentioned in paragraph   116(1)(e) of the Act applied to the person.

4014   (1)   If the applicant is affected by the risk factor specified in subclause   (4):

  (a)   the application is made more than 3 years after the departure of the person from Australia referred to in that subclause; or

  (b)   the Minister is satisfied that, in the particular case:

  (i)   compelling circumstances that affect the interests of Australia; or

  (ii)   compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa within 3 years after the departure.

  (4)   Subject to subclause   (5), a person is affected by a risk factor if the person left Australia as:

  (a)   an unlawful non - citizen; or

  (b)   the holder of a Bridging C (Class (WC), Bridging D (Class WD) or Bridging E (Class WE) visa.

  (5)   Subclause   (4) does not to apply to a person if:

  (a)   the person left Australia within 28 days after a substantive visa held by the person ceased to be in effect; or

  (b)   a bridging visa held by the person at the time of departure was granted:

  (i)   within 28 days after a substantive visa held by the person ceased to be in effect; or

  (ii)   while the person held another bridging visa granted:

  (A)   while the person held a substantive visa; or

  (B)   within 28 days after a substantive visa held by the person ceased to be in effect.

4015     The Minister is satisfied of 1 of the following:

  (a)   the law of the additional applicant's home country permits the removal of the additional applicant;

  (b)   each person who can lawfully determine where the additional applicant is to live consents to the grant of the visa;

  (c)   the grant of the visa would be consistent with any Australian child order in force in relation to the additional applicant.

4016     The Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the additional applicant.

4017     The Minister is satisfied of 1 of the following:

  (a)   the law of the applicant's home country permits the removal of the applicant;

  (b)   each person who can lawfully determine where the applicant is to live consents to the grant of the visa;

  (c)   the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

4018     The Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.

4019   (1)   The applicant has signed a statement (a values statement ) in accordance with Part   3.

Note:   Part   3 sets out further provisions relating to values statements and the requirements for this criterion.

  (2)   However, if compelling circumstances exist, the Minister may decide that the applicant is not required to satisfy subclause   (1).

4020   (1)   There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the ART during the review of a reviewable migration decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

  (a)   the application for the visa; or

  (b)   a visa that the applicant held in the period of 12 months before the application was made.

  (2)   The Minister is satisfied that during the period:

  (a)   starting 3 years before the application was made; and

  (b)   ending when the Minister makes a decision to grant or refuse to grant the visa;

the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause   (1).

  (2AA)   However, subclause   (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

  (2A)   The applicant satisfies the Minister as to the applicant's identity.

  (2B)   The Minister is satisfied that during the period:

  (a)   starting 10 years before the application was made; and

  (b)   ending when the Minister makes a decision to grant or refuse to grant the visa;

neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause   (2A).

  (2BA)   However, subclause   (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

  (3)   To avoid doubt, subclauses   (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

  (4)   The Minister may waive the requirements of any or all of paragraphs   (1)(a) or (b) and subclause   (2) if satisfied that:

  (a)   compelling circumstances that affect the interests of Australia; or

  (b)   compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa.

  (5)   In this clause:

"information that is false or misleading in a material particular" means information that is:

  (a)   false or misleading at the time it is given; and

  (b)   relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

Note:   For the definition of bogus document , see subsection   5(1) of the Act.

4021     Either:

  (a)   the applicant holds a valid passport that:

  (i)   was issued to the applicant by an official source; and

  (ii)   is in the form issued by the official source; and

  (iii)   is not in a class of passports specified by the Minister in an instrument in writing for this clause; or

  (b)   it would be unreasonable to require the applicant to hold a passport.

4022     Either:

  (a)   the applicant has signed a code of behaviour that:

  (i)   has been approved by the Minister in accordance with Part   4; and

  (ii)   is in effect for the subclass of visa; or

  (b)   the Minister does not require the applicant to sign a code of behaviour that is in effect for the subclass of visa.

Part   2 -- Conditions applicable to certain subclasses of visas for the purposes of subclause   4013(2)

Part   3 -- Requirements for public interest criterion 4019

3.1   Values statement

Statement

  (1)   For public interest criterion 4019, the Minister must, by instrument in writing, approve one or more values statements for the subclasses of visas specified in the instrument.

  (2)   A values statement must include provisions relating to:

  (a)   values that are important to Australian society; and

  (b)   matters concerning Australian citizenship (if relevant); and

  (c)   compliance with the laws of Australia.

  (3)   A values statement may include other provisions.

Signing values statement--Internet application

  (4)   For public interest criterion 4019, a values statement is taken to have been signed by an applicant who makes an Internet application if the instructions for signing the values statement are followed.

Part   4 -- Requirements for public interest criterion 4022

4.1   Code of behaviour

    For public interest criterion 4022, the Minister must, by instrument in writing, approve one or more written codes of behaviour for the subclasses of visas specified in the instrument.