29.3 Entry by migrants

There is a lot of debate in the community about migration. The makers and supporters of Australia's migration policies argue that they are selective but non-discriminatory in terms of race, nationality, creed or sex, and based principles of humanity, equity and compassion. Not everyone agrees.

The principles underlying migration policy

The following principles form Australia's migration policy and are published in PAM:

• The Australian government alone will determine who will be admitted to Australia.
• Admission will be consistent with the laws enacted by the Federal Parliament to regulate immigration.
• Only an Australian citizen has a right to enter Australia.
• Immigration policies will be determined by Australia's national interests as defined by major government policies and strategies for Australia's social, economic and cultural development. Policies will seek a harmony of outcomes between economic and social interests and respond to Australia's foreign policy interests.
• Immigration will respond to the needs of Australian citizens or Australian permanent residents by upholding, in accordance with government policies and strategies, close family reunion and humanitarian assistance.
• Immigration policies will be non-discriminatory on grounds of race, colour, national or ethnic origin, sex and religion.
• Applicants may be considered for immigration as individuals and family units but will not be considered as community groups.
• Migrants are expected to respect the institutions and principles which are basic to Australian society, including parliamentary democracy, the rule of law and equality before the law, freedom of the individual, freedom of speech, freedom of the press, freedom of religion, equality of the sexes and universal education. Reciprocally, Australia will be committed to the equal participation of migrants in society.
• Citizenship will be given due recognition as a symbol of commitment to Australia and its future.
• Immigration policies will be determined and implemented in such a way as to maintain and protect the health, safety and good order of Australian society.

Criteria for entry

Generally, applicants seeking to migrate to Australia must:

• be interviewed and evaluated by an Australian migration officer
• be of good character (this involves a police and security check)
• be in good health and undergo a medical examination by a doctor approved by the Australian government (in exceptional circumstances this criteria can be waived for some classes of visa, but not all)
• intend to live permanently in Australia
• satisfy the specific criteria for their class of permanent visa.

Migration categories

There are a large number of permanent visas, which can be divided into the three major groups:

• family and spouse migration visas
• skilled business and skilled worker migration visas
• humanitarian/ refugee visas.

Family and spouse migration

A person may be able to apply for migration to Australia based on their relationship with an Australian citizen, settled permanent resident or eligible New Zealand citizen (referred to as 'Australian' below). They must be sponsored by their Australian relative. An applicant may apply from either outside or inside Australia, depending on their circumstances. The applicant may include 'members of the family unit' on their application, for example dependent children or unmarried relatives who normally live with them. In many cases an 'Assurance of Support' is required. This is an Australian who undertakes to repay to the Australian Government any social security payments made to the migrant in the first (usually) two years of residence.

DIAC has a number of booklets about family migration, which cover the areas of partner migration, child migration, parent migration and other family migration.

Spouse (married, de facto and 'interdependent' partners)

An applicant who is married to or in a de facto or same sex relationship with an Australian may apply under this category. Not all foreign marriages are recognised under the MA, for example, polygamous marriages are not recognised under Australian law. Same sex partners are called 'interdependent' partners under the MA and MR. For interdependent relationships, both partners must be 18 years old.

De facto and same sex couples must show that they have been living together in an exclusive relationship for at least 12 months before the application is made, unless there are compassionate and compelling reasons. Couples, whether married, de facto or interdependent, must show that:

• they have a mutual commitment to a shared life to the exclusion of all other spouses or partners
• their relationship is genuine and continuing
• they are living together on a permanent basis.

There is no need to prove a sexual relationship.

Applicants will need to provide information about the financial and social side to their relationship and outline their living arrangements. They need to provide evidence of their relationship, including statements from friends and/or family about their relationship.

Unless the applicant has been in a 'long term relationship' (of five years or more duration) with their Australian partner, qualifying spouses and interdependent partners are initially only granted a 'provisional spouse visa'. The decision on whether to grant a permanent spouse visa is deferred for two years, after which time the application is reviewed. The permanent spouse visa is only granted at this time if the relationship is genuine and continuing. An exception to this is when the applicant has experienced domestic violence by their Australian sponsor. In this case an applicant can apply for a permanent visa immediately after the relationship has broken down. Another exception is where the applicant has a parenting order giving them residence or contact in relation to a child in respect of whom their sponsor also has a parenting order or an obligation to pay maintenance.

If applying from outside Australia, the relevant visa subclasses are 309 (provisional) and 100 (permanent) for spouses and subclasses 310 (provisional) and 110 (permanent) for interdependent relationships. If applying from inside Australia the relevant visa subclasses are 820 (provisional) and 801 (permanent) for spouses and subclasses 826 (provisional) and 814 (permanent) for interdependent relationships.

Fiancés

Australians can sponsor their fiancés for the Prospective Marriage (subclass 300) visa to enable their fiancé to travel to Australia to get married. The fiancé must be outside Australia when they lodge the application. This visa is only valid for nine months (temporary visa). Within that nine month period, the applicant and sponsor should marry and then apply for the Temporary and Permanent Spouse Visas [subclass 820 and 801, respectively].

Dependent child of provisional spouse/interdependent visa holders

The subclass 445 visa is issued to the offshore dependent children of people who have been granted a provisional spouse or interdependent visa and the child was not included in the application. The child should then be added to the permanent spouse or interdependent visa application before the grant of the permanent visa.

Dependent children

An Australian parent can sponsor their child for a permanent visa where the child is either inside [subclass 802] or outside [subclass 101] Australia. A child can be their birth, adopted or step child and must be dependent [MR reg.1.05A]. For a child to be dependent they must not be married, engaged or divorced and under 18 or if they are over 18 they must be financially dependent, under 25 and a full-time student (unless they have a disability which prevents them from being independent).

Where an adopted child is applying from inside Australia and was adopted while the parents were in Australia, generally speaking the Adoption Authority in the State or Territory where the parents live needs to be involved. If the parents were living overseas when the child was adopted:

• the adoptive parents must have been living overseas for more than 12 months when the adoption took place. This requirement may not apply when compelling or compassionate circumstances exist
• the adoptive parents were living overseas for other reasons than to adopt a child
• the adoption was in accordance with the laws of the country in which the child lives
• the adoption gives full and permanent parental rights to the adoptive parents.

Adopted children applying from outside Australia must have been adopted before their parent became an Australian.

If the child was adopted after the sponsoring parent became an Australian, they should apply for the Adoption (subclass 102) visa. The child must be overseas when the visa is applied for and when it is granted. If the adoptive parents are in Australia, the relevant State or Territory Adoption Authority must be involved. If the parents are overseas, the same rules apply as outlined in the above bullet points.

When a child is under 18 years of age, it has to be shown that they are not subject to any guardianship or custody order in favour of an overseas parent unless the parent has consented to the child's removal.

See The refugee and humanitarian program, this chapter, in relation to sponsorship of a dependent child by a refugee/humanitarian or protection visa holder or former holder.

Parents

A parent can apply for migration either as a 'member of the family unit' of another visa applicant or through sponsorship for one of eight different parent visas by their Australian child(ren). The two categories of parent visa are 'Contributory Parent Category' and 'Parent Category'. The main difference between the categories is the size of the visa application charge. An applicant for a 'Contributory Parent' type of visa can expect to pay approximately $33,000 before being granted their permanent residence. The application charge for the Parent Category is approximately $2500. There are many more visas allocated to 'Contributory Parents' and therefore these qualifying applicants can expect to be granted a visa more quickly. There is a substantial wait for a visa in the 'Parent Category' (up to eight years).

Within both categories, there are 'aged parent' visas and 'parent' visas. For a person to be classified as 'aged' they have to be old enough to apply for the aged pension under the Social Security Act 1991 (aged 65 years for men and on a sliding scale between 60 to 64.5 years for women depending when they were born).

In order to qualify for a parent visa of any category they must show they satisfy the balance of family test - which broadly means the applicant has at least the same number of children lawfully and permanently resident in Australia as overseas, or more children lawfully and permanently resident in Australia than in any other single country.

Other family - carers, remaining relatives, orphaned relatives and aged dependent relatives

Carer visa [subclass 116 and 836]

To qualify for a carer visa, an applicant has to be a relative of an Australian who has a medical condition which causes a physical, intellectual or sensory impairment of the ability of the person to attend to the practical aspects of daily life. The impairment must be likely to last at least two years and be rated at least 30 points under the Social Security Act. Also the applicant must be unable to get adequate assistance from the welfare, hospital, nursing or community services or family in Australia. The impairment is assessed by Health Services Australia (see Legislation and Resources above). The carer is allowed a permanent resident visa to come to Australia to care for the Australian relative or a disabled family member of the Australian relative.

Remaining relative [subclass 115 and 835]

An applicant for the remaining relative visa must be sponsored by their Australian sibling or parent. The applicant has to have no living relatives (parent, sibling or independent child) other than those who live in Australia. When considering who are the 'living relatives' of the applicant, the relatives of the applicant's spouse (if any) are also counted. A spouse or dependent child is not counted.

Aged dependent relative [subclass 114 and 838]

To qualify for this category, the aged dependent relative has to be old enough to apply for the aged pension under the Social Security Act, dependent on the Australian relative sponsor for at least three years and not have a spouse. 'Dependent' is defined to mean wholly or substantially dependent on the Australian relative for financial support for the basic needs of food, shelter and clothing. The Australian relative may be the spouse, child, parent, sibling, grandparent, grandchild, aunt or uncle, niece or nephew of an Australian.

Orphan relative visa [subclass 117 and 837]

This visa may be applied for by a person who is under 18 years of age, who does not have a spouse and both of whose parents are either dead or unable to care for them because of permanent disability or because their whereabouts is unknown. They must be sponsored by an Australian who is their child, sibling, grandparent, grandchild, aunt or uncle, niece or nephew. It must also be determined that it is in the best interest of the applicant to settle in Australia with the sponsor.

Review rights

An Australian sponsor of a family migration applicant can appeal to the Migration Review Tribunal (MRT) if their relative's application is rejected. The review fee is $1400. This may be waived if the review applicant can show financial hardship. If the case is successful, the fee is refunded.

Skilled migration

As with family migration, in many cases skilled migrants can include members of their family unit on the application for permanent residence.

DIAC has a number of booklets about skilled visas which cover the areas of employer sponsored migration, general skilled migration, business skills entry and special migration.

DIAC also has a number of relevant information forms in this area available from the website, including Form 966i 'Migrating to Australia - English language assessment'.

Business related visas

In addition to a number of temporary visas of up to three months duration for overseas business people to come to Australia on business [subclasses 456, 459, 956 and 977], there are the provisional and permanent 'Business Development' visas. These are for successful business owners [subclasses 160 and 163], senior executives [subclasses 161 and 164] and major investors [subclasses 162, 165 and 405] to establish a business in Australia, manage a new or existing business in Australia under the auspice of a major overseas business or invest in a business in Australia. The applicant may be independent or sponsored by the relevant State or Territory. After two years, in each case other than the investor visa, the provisional visa holder may apply for permanent residence [subclasses 845, 846, 890, 892 and 132]. Permanent visas for investors are available in certain circumstances [subclasses 891 and 893].

Skilled workers (non-business)

Employer sponsored

There are three categories of permanent visa for employer sponsored skilled migrants: the Employer Nomination Scheme (ENS), the Regional Sponsored Migration Scheme (RSMS) and Labour Agreements. Within each category are visa subclasses that are applied for either onshore (depending on the previous visa held and other factors) or off-shore.

The permanent visas under ENS are subclass 856 (on-shore) and subclass 121 (off-shore). These visas are for highly skilled workers in occupations that are on the Employer Nomination Scheme Occupations List (Information Form 1121i, available on the DIAC website). For these visas, the employer needs to nominate a full-time position in their business and show that they have a vacancy in that position for at least three years. The employer nomination should be lodged with DIAC either before or with the visa application. Unless the worker is to be paid in excess of $165,000 per annum salary, the worker must have had their skills assessed by the relevant skills assessing authority (see Form 1121i on DIAC website) and unless exceptional circumstances apply, have at least three years work experience in the occupation immediately before applying for the visa. The worker must be under 45 years of age and have vocational English.

The permanent visas under RSMS are subclass 857 (on-shore) and subclass 119 (off-shore). These visas enable employers in regional Australia (which includes the whole of the NT) to fill skilled positions that they cannot fill through the local labour market. The position must be a genuine full-time position that is available for at least two years and require a person with qualifications equivalent to at least the Australian diploma level or trade certificate (unless exceptional circumstances apply). The employer must obtain certification from the Regional Certifying Body (Business and Skilled Migration Services, NT Department of Business, Economic and Regional Development). The employee must be under 45 years of age, have functional English and possess the requisite qualifications for the position.

Labour Agreements may be used where an employer industry association negotiates a wide agreement for the supply of needed skills on a permanent basis or where an employer can show that there is a genuine skills shortage in an occupation that is not on one of the approved occupation lists for other visas. The permanent visa subclasses are 120 (off-shore) and 855 (on-shore). The employer asks the Australian government to access a labour agreement, which is then considered. Once approved, the employer may nominate applicants on the 'Skill Matching Database' or from elsewhere. The worker must then apply for the visa.

Independent skilled migrants

Certain people may apply off-shore for permanent residence on the basis of their skills and work experience alone. In this case the relevant visa is subclass 175. The person must be under 45, have the skills and qualifications that meet the Australian standard of an occupation on the Skilled Occupations List (Form 1121i) and satisfy the points test. You can claim points under a range of different factors. The DIAC website has a demonstration points test accessible from the pages on the subclass 175 visa so that a prospective applicant can self-assess their points. The pass mark for this visa is currently 120 points. If an applicant meets the 'pool mark' for this visa (currently 100 points) their application can be kept for two years in the 'pool' and if the pass mark is lowered in that time they may be considered. Alternatively the person may apply for a visa with a lower points test.

Family or regional sponsored visa

The subclass 176 enables those applicants unable to meet the higher points test to migrate to Australia if they are sponsored by an eligible Australian relative or the NT government. The requirements are generally similar to the Independent Skilled visa outlined above, however the pass mark is 100 points and the pool mark is 80 points.

For regional sponsorship, the applicant may contact the NT government directly or enter their details on the Skill Matching Database, from which the NT government may choose to nominate applicants. For family sponsorship the Australian sponsor needs to be in one of the following relationships with the applicant: non-dependent child/parent, siblings or niece or nephew/aunt or uncle. Your relative can be living anywhere in Australia.

Review rights

Whether or not there is a right of review if an application is rejected depends on a variety of factors, including where the applicant was at the time of the application. In many cases it will be the sponsor that has the right to apply to the MRT to review the decision. A person who has their application for a visa reviewed should seek expert advice immediately as there are strict time limits for lodging the application for review. The review fee is $1400. This may be waived if the review applicant can show financial hardship. If the case is successful, the fee is refunded.