1.2 Migration Regulations 1994, Schedules, and Legislative Instruments

1.2 Migration Regulations 1994, Schedules, and Legislative Instruments

Quick Reference: While the Migration Act 1958 creates the statutory framework, the detailed operational rules of Australian immigration reside in the Migration Regulations 1994 (Cth). For migration agents, mastering the interaction between Section 46 (validity), Schedule 1 (application requirements), Schedule 2 (subclass criteria), Schedule 4 (Public Interest Criteria), Schedule 5 (Special Return Criteria), and Schedule 8 (conditions) is fundamental to professional practice.

---

1. Statutory Architecture of the Migration Regulations 1994

Section 504 of the Migration Act empowers the Governor-General to make regulations prescribing matters required or permitted by the Act. The Migration Regulations 1994 comprise regulations grouped into Parts, followed by several critical Schedules:

• Schedule 1: Prescribes how to make a valid application for each visa class (forms, fees, location, and applicant status).
• Schedule 2: Prescribes the substantive criteria for each visa subclass (eligibility, primary/secondary criteria, circumstances of grant).
• Schedule 3: Prescribes additional criteria for unlawful non-citizens or bridging visa holders applying onshore for substantive visas.
• Schedule 4: Prescribes Public Interest Criteria (PIC), including health, character, settlement, and integrity (PIC 4020).
• Schedule 5: Prescribes Special Return Criteria (SRC), governing exclusion periods for re-entry.
• Schedule 8: Prescribes Visa Conditions that can or must be imposed on granted visas (e.g., work limitations, study restrictions, reporting requirements).

---

2. Making a Valid Visa Application: Section 46 and Schedule 1

A critical threshold rule in Australian migration practice is that a visa application must be valid before the Department can consider it. Under Section 47(1), the Minister must consider a valid application. Conversely, under Section 47(3), an application that is not valid cannot be considered, cannot be approved, and cannot be refused under Section 65.

Requirements for Validity under Section 46

Under Section 46(1), an application for a visa is valid if and only if:

1. It is for a visa of a class specified in Schedule 1;
2. It satisfies the criteria and requirements prescribed in the relevant Schedule 1 item; and
3. It is not prevented by statutory bars (such as Section 46A, Section 46B, Section 48, or Section 48A).

Core Elements of Schedule 1 Items

Each Schedule 1 item—for example, current item 1222 for Student (Class TU), item 1240 for Skills in Demand (Class GK), and item 1214C for Partner (Temporary) (Class UK)—sets the class-specific application requirements. Always verify the current item rather than reusing an old number:

1. Approved Form: Must be made on the prescribed form, which is now predominantly an internet form lodged via ImmiAccount as specified in a Legislative Instrument (LIN).
2. Visa Application Charge (VAC):
   • First Installment: Paid at time of lodgement. Comprises the Base Application Charge (main applicant), Additional Applicant Charge (for adult or under-18 dependants), and where applicable, the Subsequent Temporary Application Charge (STAC) (reg 2.12C, a $700 surcharge for certain repeat onshore applications).
   • Second Installment: Paid before visa grant if required (e.g., English language fees for secondary applicants in skilled visas, or contribution charges for contributory parent visas).
3. Place and Manner of Application: Whether the applicant must be inside or outside the migration zone, or in an immigration clearance area, at the time of application.
4. Applicant Status: Specific requirements regarding the applicant's existing immigration status (e.g., whether the applicant must hold a substantive visa, or whether bridging visa holders are eligible).

Consequences of an Invalid Application:
- No decision under Section 65 can be made (no grant, no refusal).
- No Bridging Visa (such as BVA 010) is associated with or brought into effect by the application.
- If the applicant's previous substantive visa expires, they become an UNLAWFUL non-citizen.
- An invalidity notification is not a refusal under section 65. Check the legal basis, payment and portal record, any correction or fresh-lodgement option, and status consequences.
- Do not assume an invalidity dispute carries ordinary merits review. A legal error may instead require urgent judicial-review advice, subject to jurisdiction and time limits.

3. Schedule 2: Structure of Visa Subclass Criteria

Every visa subclass in Schedule 2 follows a standardized numerical decimal structure:

Subclass Structure (e.g., Subclass 482 - Skills in Demand):
  482.1  - Interpretation (subclass-specific definitions)
  482.2  - Primary Criteria
    482.21 - Criteria to be satisfied at Time of Application (TOA)
    482.22 - Criteria to be satisfied at Time of Decision (TOD)
  482.3  - Secondary Criteria (Dependants / Family Unit Members)
    482.31 - Criteria to be satisfied at Time of Application (TOA)
    482.32 - Criteria to be satisfied at Time of Decision (TOD)
  482.4  - Circumstances applicable to grant (in or outside Australia)
  482.5  - When visa is in effect (validity duration)
  482.6  - Conditions (mandatory and discretionary conditions)

Primary vs Secondary Applicants

• Primary Applicant (.2): Must satisfy the primary criteria (e.g., holding approved nomination, possessing required work experience, meeting skills standards). At least one person in an application must satisfy the primary criteria.
• Secondary Applicant (.3): Applies on the basis of being a Member of the Family Unit (MOFU) of the primary applicant (defined in Regulation 1.12), such as a spouse, de facto partner, or dependent child.

Time of Application (TOA) vs Time of Decision (TOD)

This temporal distinction is one of the most heavily tested areas on the Capstone Assessment:

• Time of Application (TOA): Criteria that must be satisfied on the exact date and time the application is lodged. If an applicant fails a TOA criterion at lodgement, the defect cannot be cured later; the visa must be refused under Section 65.
• Time of Decision (TOD): Criteria that must be met at the time the delegate or tribunal makes the determination (e.g., character clearance, health examination, English language score where specified as TOD).

---

4. Schedule 4: Public Interest Criteria (PIC)

Schedule 4 sets out the Public Interest Criteria cross-referenced in Schedule 2 clauses. The four most prominent in practice are:

1. PIC 4001: Character Requirement

PIC 4001 contains four alternatives. They include satisfying the Minister that the person passes the section 501 character test, an appropriate-inquiries pathway, and cases where the Minister decides not to refuse despite the relevant suspicion or lack of satisfaction. Read the actual criterion and any section 501 process rather than reducing PIC 4001 to a no-conviction rule.

2. PIC 4005 vs PIC 4007: Health Requirement

Australia requires non-citizens to be free from tuberculosis, and free from diseases or conditions that would result in significant health care or community service costs, or prejudice access of Australian citizens or permanent residents to health services.

3. PIC 4020: Integrity and Bogus Documents

PIC 4020 was introduced to combat fraud in visa applications. It applies if an applicant provides a bogus document (defined in Section 97) or information that is false or misleading in a material particular in the current application, or held a visa granted on such basis in the preceding 12 months.

• Consequences: If the subclass requires PIC 4020 and the person does not satisfy the applicable limb, section 65 refusal follows unless the relevant waiver applies. A prior PIC 4020 refusal can engage the three-year rule in subclause (2); apply its dates, scope, and waiver rather than describing a universal exclusion bar.
• Identity Fraud (cl 4020(2A)): If the applicant fails to satisfy the Minister as to their identity, a 10-year exclusion bar applies.
• Waiver (cl 4020(4)): The waiver can apply to paragraphs (1)(a) and (b) and subclause (2) where the specified compelling-Australian-interest or compassionate-or-compelling family-interest test is met. It does not extend to the identity requirements in subclauses (2A) and (2B).

---

5. Schedule 8: Visa Conditions and Condition 8503

Schedule 8 contains standard conditions that may or must be imposed on a visa. Key conditions tested on the Capstone include:

• Condition 8101: No work in Australia.
• Condition 8534: A further-stay restriction that must be checked against the visa subclass and grant; do not infer it from an old visa-category list.
• Condition 8547: Limitation of working for a maximum of 6 months with any single employer on a Subclass 417/462 Working Holiday visa.
• Condition 8503 ('No Further Stay'): Imposed under Section 41(2) of the Act. While it remains in effect, Section 46(1A) prevents most onshore substantive-visa applications. The Act and Regulations contain prescribed classes and specific exceptions, so check the proposed visa and current regulation 2.05 framework rather than stating that Protection is the only possible class in every case.

The Section 41(2A) Waiver Test (Regulation 2.07AK)

Where the proposed application is barred by condition 8503, the holder ordinarily needs a waiver under Section 41(2A) unless a current statutory or prescribed-class exception applies. Under Regulation 2.07AK, the Minister may waive Condition 8503 only if satisfied that:

1. Since the visa was granted, compelling and compassionate circumstances have developed;
2. Over which the visa holder had no control; and
3. That resulted in a major change to the visa holder's circumstances.

---

6. Legislative Instruments (LINs) and Ministerial Directions (s 499)

• Legislative Instruments: Delegated legal instruments authorized by specific regulations. They specify dynamic, fluctuating criteria such as the Temporary Skilled Migration Income Threshold (TSMIT), eligible skilled occupation lists (Medium and Long-term Strategic Skills List - MLTSSL), acceptable English test providers and minimum scores, and approved forms.
• Ministerial Directions under Section 499: The Minister may issue written directions to a person or body having functions under the Act (including delegates and review tribunal members) about the performance of those functions. These directions are statutorily binding under Section 499(2A). Current examples include Direction No. 110 (character decisions under section 501) and Direction No. 117 (Family visa processing priorities). Check the direction in force and its application provisions.