Subclass 201 — In-country Special Humanitarian

201.1—Interpretation

Note: member of the family unit and member of the immediate family are defined in regulation 1.03.

201.111

In this Part: relevant Minister means any of the following:

(a) the Attorney-General;

(b) the Defence Minister;

(c) the Foreign Minister;

(d) the Minister.

201.2—Primary criteria

Note: The primary criteria must be satisfied by all applicants except certain applicants who are members of the family unit, or members of the immediate family, of certain applicants who satisfy the primary criteria. Those other applicants need satisfy only the secondary criteria.

201.21—Criteria to be satisfied at time of application

201.211

(1) The applicant:

(a) is subject to persecution in the applicant’s home country and is living in the applicant’s home country; or

(aa) meets the requirements of subclause (1A); or

(b) meets the requirements of subclause (2); or

(c) is covered by subitem 1402(3B) of Schedule 1.

(1A) The applicant meets the requirements of this subclause if:

(a) the Minister has specified, in an instrument in writing, one or more classes of persons for this paragraph; and

(b) a relevant Minister has certified that the applicant is:

(i) in one of those classes; and

(ii) at risk of harm for a reason, or reasons, that relate to the applicant being in that class of persons.

(1B) Before making the instrument mentioned in paragraph (1A)(a), the Minister must consult:

(a) the Prime Minister; and

(b) the Finance Minister; and

(c) any other relevant Minister that has an interest in the specification of that class of persons or that is affected by the specification.

(1C) A relevant Minister may, in writing, delegate the relevant Minister’s powers to certify an applicant for the purposes of paragraph (1A)(b) to:

(a) in the case of a relevant Minister other than the Attorney-General:

(i) the Secretary of the Department administered by the relevant Minister; or

(ii) an SES employee, or acting SES employee, in the Department administered by the relevant Minister; or

(b) in the case of the Attorney-General:

(i) the Secretary of the Department administered by the Attorney-General; or

(ii) an SES employee, or acting SES employee, in the Department administered by the Attorney-General; or

(iii) the Commissioner of the Australian Federal Police; or

(iv) a Deputy Commissioner of the Australian Federal Police; or

(v) a senior executive AFP employee (within the meaning of the Australian Federal Police Act 1979).

Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.

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

(a) the applicant’s entry to Australia has been proposed in accordance with approved form 681 by an Australian citizen or an Australian permanent resident (in this subclause called the proposer) who is, or has been, the holder of a Subclass 201 visa; and

(aa) the application is made within 5 years of the grant of that visa; and

(b) on the date of grant of that visa, the applicant was a member of the immediate family of the proposer; and

(c) the applicant continues to be a member of the immediate family of the proposer; and

(d) before the grant of that visa, that relationship was declared to Immigration.

201.22—Criteria to be satisfied at time of decision

201.221

The applicant continues to satisfy the criteria in clause 201.211.

201.222

The Minister is satisfied that there are compelling reasons for giving special consideration to granting to the applicant a permanent visa having regard to:

(a) the degree of persecution to which the applicant is subject in the applicant’s home country; and

(b) the extent of the applicant’s connection with Australia; and

(c) whether or not there is any suitable country available, other than Australia, that can provide for the applicant’s settlement and protection from persecution; and

(d) the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia.

201.223

The permanent settlement of the applicant in Australia would be consistent with the regional and global priorities of the Commonwealth in relation to the permanent settlement of persons in Australia on humanitarian grounds.

201.224

The Minister is satisfied that permanent settlement in Australia:

(a) is the appropriate course for the applicant; and

(b) would not be contrary to the interests of Australia.

201.225

Grant of the visa would not result in either:

(a) the number of Subclass 201 visas granted in a financial year exceeding the maximum number of Subclass 201 visas, as determined by the Minister by legislative instrument, that may be granted in that financial year; or

(b) the number of visas of particular classes, including Subclass 201 visas, granted in a financial year exceeding the maximum number of visas of those classes, as determined by the Minister by legislative instrument, that may be granted in that financial year.

201.226

The applicant:

(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010; and

(b) if the applicant had turned 18 at the time of application—satisfies public interest criterion 4019.

201.227

If the applicant has previously been in Australia, the applicant satisfies special return criterion 5001.

201.228

If a person (in this clause called the additional applicant):

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

(b) has not turned 18; and

(c) made a combined application with the applicant—

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

201.229

(1) Each member of the family unit of the applicant who is an applicant for a Subclass 201 visa is a person who:

(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010; and

(aa) if the person had turned 18 at the time of application, satisfies public interest criterion 4019; and

(b) if the person has previously been in Australia, satisfies special return criterion 5001.

(2) Each member of the family unit of the applicant who is not an applicant for a Subclass 201 visa is a person who:

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

(b) satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

(3) Subclause (2) does not apply if the applicant is covered by subitem 1402(3B) of Schedule 1.

201.3—Secondary criteria

Note: These criteria must be satisfied by applicants who are members of the family unit, or members of the immediate family, of certain persons who satisfy the primary criteria.

201.31—Criteria to be satisfied at time of application

201.311

The applicant:

(a) is a member of the family unit of, and made a combined application with, a person who meets, or has met, the requirements of paragraph 201.211(1)(a), (aa) or (c); or

(b) is a member of the immediate family of, and made a combined application with, a person who meets, or has met, the requirements of paragraph 201.211(1)(b).

201.32—Criteria to be satisfied at time of decision

201.321

The applicant:

(a) continues to be a member of the family unit of a person who, having satisfied the primary criteria and, in particular, having met the requirements

of paragraph 201.211(1)(a), (aa) or (c), is the holder of a Subclass 201 visa; or

(b) continues to be a member of the immediate family of a person who, having satisfied the primary criteria (and, in particular, having met the requirements of paragraph 201.211(1)(b)), is the holder of a Subclass 201 visa.

201.322

If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.

201.323

The applicant:

(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010; and

(aa) if the applicant had turned 18 at the time of application—satisfies public interest criterion 4019; and

(b) if the applicant has previously been in Australia—satisfies special return criterion 5001.

201.4—Circumstances applicable to grant

201.411

(1) Unless subclause (2) applies, the applicant must be outside Australia when the visa is granted.

(2) If the applicant is covered by subitem 1402(3B) of Schedule 1, the applicant may be in or outside Australia, but not in immigration clearance, when the visa is granted.

201.5—When visa is in effect

201.511

Permanent visa permitting the holder to travel to and enter Australia within 5 years of grant.

201.6—Conditions

201.611

If the applicant is outside Australia when the visa is granted, entry must be made before the date specified by the Minister for the purpose.

201.612

Condition 8502 may be imposed.