Subclass 858 — National Innovation

858.1—Interpretation

Note: There are no interpretation provisions specific to this Part.

858.2—Primary criteria

Note: 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 visa of this subclass need satisfy only the secondary criteria.

858.21—Criteria to be satisfied at time of application

858.211

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

858.212

(1) The applicant meets the requirements of:

(a) both subclauses (2) and (3); or

(b) subclause (4).

(2) The applicant:

(a) has an internationally recognised record of exceptional and outstanding achievement in one of the following areas:

(i) a profession;

(ii) a sport;

(iii) the arts;

(iv) academia and research; and

(b) is still prominent in the area; and

(c) would be an asset to the Australian community; and

(d) would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area; and

(e) produces a completed approved form 1000; and Note: An approved form 1000 requires the applicant’s record of achievement in an area (as mentioned in paragraph (a)) to be attested to by:

(a) an Australian citizen; or

(b) an Australian permanent resident; or

(c) an eligible New Zealand citizen; or

(d) an Australian organisation; who has a national reputation in relation to the area.

(f) if the applicant has not turned 18, or is at least 55 years old, at the time of application—would be of exceptional benefit to the Australian community.

(3) The area in which the applicant has an internationally recognised record of exceptional and outstanding achievement and the applicant’s achievements in

that area is the area and those achievements stated in the invitation to apply for the visa.

(4) The applicant meets the requirements of this subclause if, in the opinion of the Minister, acting on the advice of:

(a) the Minister responsible for an intelligence or security agency within the meaning of the Australian Security Intelligence Organisation Act 1979; or

(b) the Director-General of Security;

the applicant has provided specialised assistance to the Australian Government in matters of security.

858.213

(1) If, at the time of application:

(a) the applicant is the holder of 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).

858.22—Criteria to be satisfied at time of decision

858.221

The applicant:

(a) satisfies public interest criteria 4001, 4002, 4003, 4003B, 4004, 4007, 4009, 4010 and 4021; and

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

858.223

(1) Each person who is covered by subclause (2), (3) or (4) satisfies public interest criteria 4001, 4002, 4003, 4003B, 4004, 4007, 4009 and 4010.

(2) This subclause covers a person:

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

(b) who is also an applicant for a Subclass 858 visa.

(3) 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 858 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.

(4) This subclause covers a person if:

(a) the person is an applicant for a Subclass 858 visa; and

(b) the person is a member of the family unit of a person covered by subclause (3).

(5) Each person:

(a) who either:

(i) is a member of the family unit of the primary applicant and also an applicant for a Subclass 858 visa; or

(ii) is covered by subclause (3) or (4); and

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

satisfies public interest criterion 4019.

(6) 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 858 visa;

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

(7) 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 (3); and

(c) who is not an applicant for a Subclass 858 visa;

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

858.224

If a person:

(a) either:

(i) is a member of the family unit of the primary applicant and also an applicant for a Subclass 858 visa; or

(ii) is covered by subclause 858.223(3) or (4); and

(b) has not turned 18;

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

858.225

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

858.227

Unless the applicant meets the requirements of subclause 858.212(4):

(a) the applicant satisfies public interest criteria 4020; and

(b) each person covered by subclause 858.223(2), (3) or (4) satisfies public interest criterion 4020.

858.228

(1) The applicant satisfies special return criteria 5001, 5002 and 5010.

(2) Each person covered by subclause 858.223(2), (3) or (4) satisfies special return criteria 5001, 5002 and 5010.

858.3—Secondary criteria

Note 1: These criteria are for applicants seeking to satisfy the secondary criteria. Note 2: Whether a person is a member of the family unit of an applicant for a National Innovation (Class BX) visa who has not turned 18 is worked out under subregulation 1.12(2) or (7). Only subregulation 1.12(2) is relevant if the applicant has turned 18.

858.31—Criteria to be satisfied at time of application

858.311

The applicant is a member of the family unit of a person who:

(a) has applied for a National Innovation (Class BX) visa; and

(b) on the basis of the information provided in his or her application, appears to satisfy the criteria in Subdivision 858.21;

and the Minister has not decided to grant or refuse to grant the visa to that other person.

858.32—Criteria to be satisfied at time of decision

858.321

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

(2) The applicant meets the requirement of this subclause if the applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 858 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

(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 858 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.

(3A) 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 858 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)).

(4) 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 (3A); and

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

(c) a Subclass 858 visa has since been granted to the secondary applicant. Note: For special provisions relating to family violence, see Division 1.5.

858.322

The applicant:

(a) satisfies public interest criteria 4001, 4002, 4003, 4003B, 4004, 4007, 4009, 4010 and 4021; and

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

858.324

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

858.326

Unless the primary applicant mentioned in clause 858.321 in relation to the applicant met the requirements of subclause 858.212(4), the applicant satisfies public interest criteria 4020.

858.327

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

858.328

(1) This clause applies if the applicant (the secondary applicant) meets the requirements of subclause 858.321(3A).

(2) Unless the secondary applicant was, at the time of application, the spouse or de facto partner of a primary applicant who met the requirements of subclause 858.212(4), each member of the family unit of the secondary applicant satisfies public interest criterion 4020.

(3) Each member of the family unit of the secondary applicant who is an applicant for a Subclass 858 visa satisfies:

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

(b) special return criteria 5001, 5002 and 5010.

(4) Each member of the family unit of the secondary applicant who is an applicant for a Subclass 858 visa and who has turned 18 at the time of application satisfies public interest criterion 4019.

(5) 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 858 visa and who has not turned 18 at the time of decision.

(6) Each member of the family unit of the secondary applicant who is not an applicant for a Subclass 858 visa:

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

(b) 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 that criterion.

858.4—Circumstances applicable to grant

858.411

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

858.5—When visa is in effect

858.511

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

858.6—Conditions

858.611

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.