Subclass 189 — Skilled—Independent

189.1—Interpretation

Note 1: For registered course, relevant assessing authority and skilled occupation: see regulation 1.03. Note 2: Regulation 1.03 also provides that competent English has the meaning set out in regulation 1.15C. Note 3: There are no interpretation provisions specific to this Part.

189.2—Primary criteria

Note: The primary criteria for the grant of a Subclass 189 visa include criteria set out in streams. For a Subclass 189 visa in the Points-tested stream, the criteria in Subdivisions 189.21 and 189.22 are the primary criteria. For a Subclass 189 visa in the New Zealand stream, the criteria in Subdivisions 189.21 and 189.23 are the primary criteria. For a Subclass 189 visa in the Hong Kong stream, the criteria in Subdivisions 189.21 and 189.24 are the primary criteria. The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a Subclass 189 visa need satisfy only the secondary criteria in Division 189.3. All criteria must be satisfied at the time a decision is made on the application.

189.21—Common criteria

Note: These criteria are for all applicants seeking to satisfy the primary criteria for a Subclass 189 visa.

189.211

(1) The applicant (the primary applicant) satisfies public interest criteria 4001, 4002, 4003, 4003B, 4004, 4020 and 4021.

(2) If the primary applicant has turned 18 at the time of application, the primary applicant satisfies public interest criterion 4019.

(3) Each person who is covered by subclause (4), (5) or (6) satisfies public interest criteria 4001, 4002, 4003, 4003B, 4004, 4010 and 4020.

(4) This subclause covers a person who is a member of the family unit of the primary applicant who is also an applicant for a Subclass 189 visa.

(5) This subclause covers a person (the relevant person) if:

(a) the relevant person was, at the time of the primary applicant’s application, a member of the family unit of the primary applicant; and

(b) the relevant person is an applicant for a Subclass 189 visa; and

(c) the Minister is satisfied that:

(i) the relevant person; or

(ii) a member of the family unit of the relevant person who has made a combined application with the relevant person or with the primary applicant; or

(iii) a dependent child of the relevant person or of the primary applicant;

has experienced family violence committed by the primary applicant. Note: For special provisions relating to family violence, see Division 1.5.

(6) This subclause covers a person if:

(a) the person is an applicant for a Subclass 189 visa; and

(b) the person is a member of the family unit of a person covered by subclause (5).

(7) Each person:

(a) who either:

(i) is a member of the family unit of the primary applicant and also an applicant for a Subclass 189 visa; or

(ii) is covered by subclause (5) or (6); and

(b) who had turned 18 at the time of the primary applicant’s application;

satisfies public interest criterion 4019.

(8) If a person:

(a) either:

(i) is a member of the family unit of the primary applicant and also an applicant for a Subclass 189 visa; or

(ii) is covered by subclause (5); and

(b) has not turned 18;

public interest criteria 4015 and 4016 are satisfied in relation to the person.

(9) Each person:

(a) who is a member of the family unit of the primary applicant; and

(b) who is not an applicant for a Subclass 189 visa;

satisfies public interest criteria 4001, 4002, 4003, 4003B and 4004.

(10) Each person:

(a) who was, at the time of the primary applicant’s application, a member of the family unit of the primary applicant but is no longer a member of the family unit of the primary applicant; and

(b) who is a member of the family unit of a person who is covered by subclause (5); and

(c) who is not an applicant for a Subclass 189 visa;

satisfies public interest criteria 4001, 4002, 4003, 4003B and 4004.

189.212

(1) The applicant satisfies special return criteria 5001 and 5002.

(2) Each person covered by subclause 189.211(4), (5) or (6) satisfies special return criteria 5001 and 5002.

189.22—Criteria for Points-tested stream

Note: These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 189 visa in the Points-tested stream.

189.221

The applicant was invited, in writing, by the Minister to apply for the visa.

189.222

(1) At the time of invitation to apply for the visa:

(a) the relevant assessing authority for the applicant’s nominated skilled occupation had assessed the applicant’s skills as suitable for that occupation; and

(b) the assessment was not for a Subclass 485 (Temporary Graduate) visa; and

(c) if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment—the period had not ended; and

(d) if paragraph (c) did not apply—not more than 3 years had passed since the date of the assessment.

(2) If the assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.

189.223

At the time of invitation to apply for the visa, the applicant had competent English.

189.224

(1) The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the score stated in the invitation to apply for the visa.

(2) The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the qualifying score for that Subdivision. Note: Subdivision B of Division 3 of Part 2 of the Act provides for the application of a points system under which applicants for relevant visas are given an assessed score based on a prescribed number of points for particular attributes, assessed against the relevant pool mark and pass mark: see sections 92 to 96 of the Act. The prescribed points and the manner of their allocation are provided for in Division 2.6 and Schedule 6D of these Regulations. Pool marks and pass marks are set from time to time by the Minister by instrument: see section 96 of the Act.

189.224A

(1) If, at the time of application:

(a) the applicant held a Subclass 491 (Skilled Work Regional (Provisional)) visa or a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa; or

(b) the last substantive visa held by the applicant was a Subclass 491 (Skilled Work Regional (Provisional)) visa or a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa;

the applicant must have held that visa for at least 3 years at the time of application unless circumstances specified in an instrument under subclause (2) exist.

(2) The Minister may, by legislative instrument, specify circumstances for the purposes of subclause (1).

189.225

(1) The applicant satisfies public interest criteria 4005 and 4010.

(2) Each person covered by subclause 189.211(4), (5) or (6) satisfies public interest criteria 4005 and 4010.

(3) Each member of the family unit of the applicant who is not an applicant for a Subclass 189 visa satisfies public interest criterion 4005, unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.

(4) Each person:

(a) who was, at the time of application, a member of the family unit of the applicant but is no longer a member of the family unit of the applicant; and

(b) who is a member of the family unit of an applicant covered by subclause 189.211(5) or (6); and

(c) who is not an applicant for a Subclass 189 visa;

satisfies public interest criterion 4005, unless it would be unreasonable to require the person to undergo assessment in relation to the criterion.

189.226

(1) The applicant satisfies special return criterion 5010.

(2) Each person covered by subclause 189.211(4), (5) or (6) satisfies special return criterion 5010.

189.23—Criteria for New Zealand stream

Note: These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 189 visa in the New Zealand stream.

189.231B

The application is made before 10 December 2022.

189.24—Criteria for Hong Kong stream

Note: These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 189 visa in the Hong Kong stream.

189.241

The applicant complied substantially with the conditions to which the following visas were subject:

(a) the Subclass 457 (Temporary Work (Skilled)) visa, Subclass 482 (Temporary Skill Shortage) visa, Subclass 482 (Skills in Demand) visa or Subclass 485 (Temporary Graduate) visa held by the applicant at the time of application;

(b) any subsequent bridging visa held by the applicant.

189.242

The applicant had been usually resident in Australia for a continuous period of at least 4 years immediately before the date of the application.

189.243

(1) The applicant satisfies public interest criterion 4007.

(2) Each person covered by subclause 189.211(4), (5) or (6) satisfies public interest criterion 4007.

(3) Each member of the family unit of the applicant who is not an applicant for a Subclass 189 visa satisfies public interest criterion 4007, unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.

(4) Each person:

(a) who was, at the time of application, a member of the family unit of the applicant but is no longer a member of the family unit of the applicant; and

(b) who is a member of the family unit of an applicant covered by subclause 189.211(5) or (6); and

(c) who is not an applicant for a Subclass 189 visa;

satisfies public interest criterion 4007, unless it would be unreasonable to require the person to undergo assessment in relation to the criterion.

189.3—Secondary criteria

Note: These criteria are for applicants seeking to satisfy the secondary criteria. All criteria must be satisfied at the time a decision is made on the application.

189.31—Criteria

189.311

(1) The applicant meets the requirements of subclause (2), (3), (4) or (5).

(2) The applicant:

(a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 189 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

(b) made a combined application with the primary applicant.

(3) The applicant meets the requirements of this subclause if:

(a) at the time of the application, the applicant was the spouse or de facto partner of a person (the primary applicant) seeking to satisfy the primary criteria for the grant of a Subclass 189 visa, and the primary applicant has since been granted that visa; and

(b) the relationship between the primary applicant and the applicant has ceased; and

(c) one or more of the following:

(i) the applicant;

(ii) a member of the family unit of the applicant who has made a combined application with the applicant or with the primary applicant;

(iii) a dependent child of the applicant or of the primary applicant; has experienced family violence committed by the primary applicant; and

(d) the applicant:

(i) was in Australia at the time the applicant’s visa application was made; or

(ii) entered Australia after the applicant’s visa application was made.

(4) The applicant meets the requirements of this subclause if:

(a) at the time of the application, the applicant was the spouse or de facto partner of a person (the primary applicant) seeking to satisfy the primary criteria for the grant of a Subclass 189 visa; and

(b) the relationship between the primary applicant and the applicant has ceased; and

(c) one or more of the following:

(i) the applicant;

(ii) a member of the family unit of the applicant who has made a combined application with the applicant or with the primary applicant;

(iii) a dependent child of the applicant or of the primary applicant; has experienced family violence committed by the primary applicant; and

(d) the applicant:

(i) was in Australia at the time the applicant’s visa application was made; or

(ii) entered Australia after the applicant’s visa application was made; and

(e) the Minister has decided to refuse to grant the primary applicant the visa for reasons including that the primary applicant had engaged in conduct involving family violence (whether or not the family violence was against a person mentioned in paragraph (c)).

(5) The applicant meets the requirements of this subclause if:

(a) the applicant is a member of the family unit of a person (the secondary applicant) who meets the requirements of subclause (3) or (4); and

(b) the applicant has made a combined application with either the secondary applicant or the primary applicant mentioned in subclause (3) or (4) (whichever applies to the secondary applicant); and

(c) a Subclass 189 visa has since been granted to the secondary applicant. Note: For special provisions relating to family violence, see Division 1.5.

189.312

(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4003B, 4004, 4020 and 4021.

(2) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

(3) If the applicant has not turned 18, the applicant satisfies public interest criteria 4017 and 4018.

(4) If:

(a) the primary applicant mentioned in clause 189.311 in relation to the applicant holds a Subclass 189 visa in the Points-tested stream; or

(b) at the time of the application, the primary applicant mentioned in clause 189.311 in relation to the applicant was seeking to satisfy the primary criteria for the grant of a Subclass 189 visa in the Points-tested stream;

the applicant satisfies public interest criteria 4005 and 4010.

(5) If:

(a) the primary applicant mentioned in clause 189.311 in relation to the applicant holds a Subclass 189 visa in the Hong Kong stream; or

(b) at the time of the application, the primary applicant mentioned in clause 189.311 in relation to the applicant was seeking to satisfy the primary criteria for the grant of a Subclass 189 visa in the Hong Kong stream;

the applicant satisfies public interest criterion 4007.

189.313

(1) If:

(a) the primary applicant mentioned in clause 189.311 in relation to the applicant holds a Subclass 189 visa in the Points-tested stream; or

(b) at the time of the application, the primary applicant mentioned in clause 189.311 in relation to the applicant was seeking to satisfy the primary criteria for the grant of a Subclass 189 visa in the Points-tested stream;

the applicant satisfies special return criteria 5001, 5002 and 5010.

(2) If:

(a) the primary applicant mentioned in clause 189.311 in relation to the applicant holds a Subclass 189 visa in the Hong Kong stream; or

(b) at the time of the application, the primary applicant mentioned in clause 189.311 in relation to the applicant was seeking to satisfy the primary criteria for the grant of a Subclass 189 visa in the Hong Kong stream;

the applicant satisfies special return criteria 5001, 5002 and 5010.

(3) If:

(a) the primary applicant mentioned in clause 189.311 in relation to the applicant holds a Subclass 189 visa in the New Zealand stream; or

(b) at the time of the application, the primary applicant mentioned in clause 189.311 in relation to the applicant was seeking to satisfy the primary criteria for the grant of a Subclass 189 visa in the New Zealand stream;

the applicant satisfies special return criteria 5001 and 5002.

189.314

(1) This clause applies if the applicant (the secondary applicant) meets the requirements of subclause 189.311(4).

(2) Each member of the family unit of the secondary applicant who is an applicant for a Subclass 189 visa satisfies:

(a) public interest criteria 4001, 4002, 4003, 4003B, 4004 and 4020; and

(b) special return criteria 5001 and 5002.

(3) Each member of the family unit of the secondary applicant who is an applicant for a Subclass 189 visa and who has turned 18 at the time of application satisfies public interest criterion 4019.

(4) Public interest criteria 4015 and 4016 are satisfied in relation to each member of the family unit of the secondary applicant who is an applicant for a Subclass 189 visa and who has not turned 18 at the time of application.

(5) Each member of the family unit of the secondary applicant who is not an applicant for a Subclass 189 visa satisfies public interest criteria 4001, 4002, 4003, 4003B and 4004.

Points Tested stream

(6) If the primary applicant mentioned in clause 189.311 was seeking to satisfy the criteria for a Subclass 189 visa in the Points Tested stream at the time of application:

(a) each member of the family unit of the secondary applicant who is an applicant for a Subclass 189 visa satisfies public interest criteria 4005 and 4010 and special return criterion 5010; and

(b) each member of the family unit of the secondary applicant who is not an applicant for a Subclass 189 visa satisfies public interest criterion 4007 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.

Hong Kong stream

(7) If the primary applicant mentioned in clause 189.311 was seeking to satisfy the criteria for a Subclass 189 visa in the Hong Kong stream at the time of application:

(a) each member of the family unit of the secondary applicant who is an applicant for a Subclass 189 visa satisfies public interest criterion 4007; and

(b) each member of the family unit of the secondary applicant who is not an applicant for a Subclass 189 visa satisfies public interest criterion 4007 unless the Minister is satisfied that it would be unreasonable to require the member to undergo assessment in relation to the criterion.

189.4—Circumstances applicable to grant

189.411

The applicant may be in or outside Australia when the visa is granted, but not in immigration clearance. Note: The second instalment of visa application charge must be paid before the visa can be granted.

189.5—When visa is in effect

189.511

Permanent visa permitting the holder to travel to and enter Australia for 5 years from the date of grant.

189.6—Conditions

189.611

If the applicant is outside Australia when the visa is granted:

(a) first entry must be made before the date specified by the Minister; and

(b) if the applicant satisfies the secondary criteria for the grant of the visa, condition 8515 may be imposed.