Please note: this area of law changes rapidly. Before relying on information provided here, it is advisable to seek professional advice from a Registered Migration Agent or lawyer. The information provided here is a guide only and does not substitute legal advice on specific circumstances.

The sources of migration law

16 Sep 2016 - 12:29 | Version 10 |

Based on the contribution of Michael Clothier for The Law Handbook 2016, published by Fitzroy Legal Service, as amended by Kevin Kardirgamar and current to 1 May 2016

The Migration Act 1958 (Cth) ('Migration Act') and the Migration Regulations 1994 ('Migration Regulations') are the two most important sources of migration legislation in Australia.

The bulk of the Migration Act deals with the control of arrival of non-citizens to Australia. Part 2 of the Migration Act deals extensively with the arrival, presence and departure of non-citizens, conditions that may preclude or invalidate a visa, and the enforcement of non-citizens with respect to deportation.

The Migration Regulations list 12 schedules in total. The first two schedules are generally considered to be the most important. Schedule 1 of the Regulations lists the (alphabetical) visa classes and (numerical) subclasses, with the form and fee, place of lodgment and other circumstances that that must be met in order to validly lodge a visa application. Schedule 2 prescribes the individual requirements of each visa subclass and 'stream' within a subclass (where applicable), including the conditions for grant of each visa.

The Procedures Advice Manual , published by the Australian Government Department of Immigration and Border Protection (DIBP) is currently in its third edition. Its main purpose is to annotate migration legislation, providing both policy and procedural instruction relevant to the legislation. It is intended to be a guide to departmental officers when administering migration legislation and determining the status of related applications, but is not legally binding.

Referring to the manual is very helpful for those who seek to understand how migration legislation is administered, and for those seeking to gauge the likelihood of success of migration applications. You can access the Procedures Advice Manual by lodging a request 'with the DIBP under the Freedom of Information Act 1982 (Cth)' to obtain copies of relevant chapters (for DIBP's contact details, see 'Contacts' at the end of this chapter).

Entry to Australia: visas

Non-citizens entering Australia are required to have visas, which are permits that can allow either temporary or permanent stay. Visas are issued by the DIBP (s 29 Migration Act). Since the abolition of the 'entry permit' system in 1994 this is the only document required for travelling to and entering Australia.

The Migration Act (s 29(1)) defines a visa as meaning permission for a non-citizen to travel to, enter, or remain in Australia.

Possession of a visa indicates to carriers, such as airlines, and to Australian immigration officials that an examination has been carried out overseas, and that the person has satisfied the requirements for the type of entry specified in the visa. Generally, the possession of a visa at the border (called 'immigration clearance') gives the holder a right to enter the country for the period stated in the visa.

This does not mean that all persons granted visas will be cleared by DIBP: the department has the power to cancel the visa either before or after entry to Australia (ss 109, 116, 128, 134, 140, 501). The holders of valid visas, however, are entitled to be granted entry unless a serious problem (e.g. involving health, character, or fraud in obtaining the visa) becomes evident.

Usually, an airline would not allow a passenger to travel to Australia without a visa, and a person so travelling would probably not be granted a visa on arrival (although a 'border visa' is available in some circumstances to genuine visitors etc., who may simply have forgotten to obtain a visa before flying to Australia).

A non-citizen who enters Australia without a visa and who is not immigration-cleared, or who overstays a visa, becomes unlawful (s 14(1)) and is therefore liable to detention and removal (see Removal and deportation).

A temporary visa may be granted subject to a condition imposing restrictions on the work that may be performed by the holder in Australia, including restrictions on performing any work, or work other than that specified (s 41(2)).

A person overseas (who is not already an Australian citizen or an Australian permanent resident) who needs a visa and wishes to live in Australia must have a permanent entry visa, which will be issued by an authorised overseas post when it has been established that the person concerned can meet Australian immigration requirements, as set out in the Migration Regulations.

A person who is granted a permanent visa and has then been through immigration clearance becomes a permanent resident of Australia. Such a person will have most of the rights of an Australian citizen, except for the right to vote (there are some exceptions for certain British subjects) and to hold public office. Social security payments are generally not available within the first two years of entry (except special benefits).

An authorised officer may grant a visa to a person for a single journey, a specific number of journeys, or for any number of journeys to or from Australia while the visa remains in force.

A person who enters Australia as the spouse of a person with a visa, and whose name is included in the passport or other document of identity, is deemed to be included in the visa if that visa is so endorsed (s 83(1)).

A child who enters Australia with a parent, and whose name is included in the passport or other document of identity of the parent, is deemed to be included in any visa granted to that parent (s 83(2)). A child born in Australia to such parents is taken to have been granted at birth a visa of the same kind as its parents (s 78).

If a person resident in Australia leaves the country even temporarily, the original visa ceases to be in effect, unless the visa specifically authorises re-entry or 'multiple travel'. There are approximately a million permanent residents in Australia who are subject to this rule, i.e. if they leave the country they have no automatic right to return. Australian residents going abroad must therefore ensure that they possess a resident return visa prior to departure. When permanent residence is granted, it currently includes a five-year multiple return visa, but after the first five years,residents must specifically obtain one at DIBP or, after leaving Australia, at any overseas Australian consulate or embassy (s 79).

A resident return visa may be granted to an Australian permanent resident who is residing or has resided in Australia and wishes to return. A resident return visa will not be granted to the holder of a temporary visa. However, holders of temporary visas often have permission to travel to and from Australia on any number of occasions. This was previously endorsed on the visa label in their passports, but as the DIBP has now moved to 'electronic' visas, labels are rarely put in passports. If you want a visa label in your passport, DIBP charges $80 to do this. To determine your visa status, without paying $80, you need to enter a Visa Entitlement Verification Online request (see www.border.gov.au/vevo).

Where a non-Australian citizen who does not have a visa is transported to Australia, the master, owner, agent, charterer and operator of the vessel (which includes an aircraft) is guilty of an offence and liable to a fine of up to $10,000 (s 229).

An offence is not committed if the master, owner, etc. of the vessel satisfies the court that the person possessed a current visa when boarding the vessel, or that the vessel entered Australia because of the illness of a person on board, stress of weather or other circumstances beyond the master's control (s 229(5)).

There are more than 40 different classes of permanent visa under the Migration Regulations. There are also more than 70 different classes of temporary visa. The main classes of visa are set out below, together with the general criteria needed to meet them.

Visitor visas

Eligibility for a visitor visa

Visitor visas can be applied for at overseas Australian posts and on the internet to applicants seeking to visit Australia for a short period for such purposes as tourism (sightseeing), business (negotiations, discussions, inspections, etc.), seeing relatives or friends, or pre-arranged medical treatment.

Visitors' visas are refused where applicants clearly do not intend bona fide (i.e. in good faith) visits in accordance with their type of visa. If there are doubts, authorities issuing visas are required to make whatever inquiries they consider necessary, including personal interviews, to resolve the doubts before taking any decision. Applicants for visitors' visas are sometimes required to sign a declaration that on arrival in Australia they will be in possession of a return or onward passage ticket and sufficient funds to maintain themselves in Australia for the length of the proposed visit, and that they will not engage in employment or formal studies (i.e. studies leading to a qualification) in Australia and will not apply to become a permanent resident. Sometimes a special condition is put on their visa (Condition 8503 'No further stay'). This last undertaking or visa condition (which is mandatory for sponsored family visitor stream) means it is very difficult, but not impossible, to apply for, and be granted, permanent residence after entry for a temporary stay (see Changing status).

Possession of a visitor visa generally ensures that immigration clearance is granted on arrival (e.g. business visitor, tourist). It is still possible to arrive and obtain a 'border visa' (subclass 773) if it can be shown that the person would have been granted a visitor visa in any case, had they applied overseas, or in a narrow range of other circumstances. However, approximately 1,500 people per year are 'turned around' at Australian airports, because they are not considered genuine visitors. They are refused immigration clearance, their visas (if they have one) are cancelled, and if they do not apply for refugee status they are placed back on the same aircraft (usually) that just brought them to Australia.

Visitor visa options - visitor visa (subclass 600)

On 23 March 2013, a new visitor (subclass 600) visa was introduced to replace a number of previous tourist visas. It has four 'streams':

tourist stream: for people travelling to Australia for a holiday, recreation or to visit family and friends. If you apply for this visa in Australia, you must be in Australia when the visa is decided. If you apply for this visa outside Australia, you must be outside Australia when the visa is decided.

business visitor stream: for business people travelling to Australia for a short business visit. This includes making a general business or employment enquiry, negotiations or participating in a conference. You must be outside Australia when you apply and when the visa is decided.

sponsored family stream: for people travelling to Australia to visit their family. You must have a sponsor (must be a close family who is an Australian citizen or Permanent Resident) who might be asked to provide a bond of up to $15,000, which is usually forfeited if the visitor does not leave. You must be outside Australia when you apply and when the visa is decided. You cannot apply for another visa after you have arrived in Australia because condition 8503 ('no further stay') is applied to the visa. This condition can be waived by application to the Department in cases where there are compelling and circumstance that arose after entry into Australia that affects a person's return (see below).

approved destination status stream: for people from the People's Republic of China who are travelling in an organised tour group. You must be outside Australia when you apply and when the visa is decided.

People from certain countries can apply online (i.e. make an electronic application) for this visa. To apply online for the visitor (subclass 600) visa, you must hold a passport from the following countries (note: more countries continue to be added to this list):

Andorra, Argentina, Austria, Bahrain, Belgium, Brazil, Brunei, Bulgaria, Canada, Chile, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, Former Yugoslav Republic of Macedonia (FYROM), France, Germany, Greece, Hong Kong (SAR), Hungary, Iceland, Ireland, Italy, Japan, Kuwait, Latvia, Liechtenstein, Lithuania, Luxembourg, Malaysia, Maldives, Malta, Federated States of Micronesia, Monaco, Montenegro, The Netherlands, Norway, Oman, Papua New Guinea, Poland, Portugal, Qatar, Romania, Kingdom of Saudi Arabia, San Marino, Serbia, Singapore, Slovak Republic, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, Turkey, United Arab Emirates, United Kingdom / British Citizen, United States of America, Vatican City.

Visitor visa options / Electronic Travel Authority (subclass 601)

As well as the tourist stream subclass 600 visa above, travellers from certain countries have access to the Electronic Travel Authority (ETA) (subclass 601) visa. This lets you enter Australia as many times as you want for up to 12 months if you are a tourist or travelling for business purposes, and you can stay in Australia for up to three months on each visit.

The ETA is an electronically stored authority for travel to Australia. You must be outside Australia when you apply and when the ETA is granted.

An ETA is linked electronically to your passport. It can be seen by staff at airlines, travel agencies and Australian border agencies. To apply, you must be a citizen and hold a passport issued by one of these countries:

Andorra, Austria, Belgium, Brunei, Canada, Denmark, Finland, France, Germany, Greece, Hong Kong (SAR), Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Malaysia, Malta, Monaco, Norway, Portugal, Republic of San Marino, Singapore, South Korea, Spain, Sweden, Switzerland, Taiwan, The Netherlands, United Kingdom / British citizen, United Kingdom / British national (overseas), United States, Vatican City. (See www.border.gov.au/Trav/Visa-1/601-.)


Assessing whether the applicant meets the 'genuine visitor' requirement

Immigration policy in relation to visitors theoretically applies to all visitors, but in practice it is mainly used with people visiting from developing countries: generally, any country where an applicant cannot obtain an eVisitor visa or an Electronic Travel Authority as described above.

The policy states that considerations in assessing whether an applicant is a 'genuine visitor' may include, but are not limited to:

personal circumstances that may encourage the applicant to leave Australia at the end of the proposed visit;

the applicant's immigration history (e.g. previous travel, compliance with immigration laws of Australia or other countries, previous visa applications/compliance action);

personal circumstances in the applicant's home country that may encourage them to remain in Australia (e.g. military service commitments, economic situation, civil disruption);

conditions that may encourage the applicant to remain in Australia;

the credibility of the applicant in terms of character and conduct (e.g. false and misleading information provided with visa application);

whether the purpose and proposed duration of the applicant's visit, and proposed activities in Australia are reasonable and consistent (e.g. the period of stay is consistent with tourism); and

information contained in statistical, intelligence and analysis reports on migration fraud and immigration compliance developed by DIBP about nationals from the applicant's home country. Such information, compiled as a 'profile' may assist assessing officers in determining whether closer examination of an application is required to ensure the integrity of the visitor visa program.

Personal circumstances that may encourage the applicant to return to their home country (home country being country of usual residence), include:

ongoing employment;

the presence of immediate family members in their home country (Does the applicant have more close family members living in their home country than in Australia?);

property, or other significant assets, owned in their home country;

the applicant's economic situation, including unemployment or employment that, based on knowledge of local employment conditions, such as salary rates, would not constitute a strong incentive for the applicant to leave Australia; and

currently residing in a country whose nationals represent a low risk of immigration non-compliance, even though the applicant is originally from a country whose nationals represent a statistically higher risk of non-compliance.

Consideration of the applicant's immigration history may include, but is not limited to:

previous travels to Australia (Has the applicant previously travelled to Australia? Did they comply with the conditions of their visa? If not, were the circumstances beyond their control? Did they depart prior to the expiry of their visa?);

previous visa applications for Australia (Has the applicant previously applied for a permanent Australian visa?); and

previous travels overseas (Has the applicant travelled to countries other than Australia? Has the applicant travelled to a country where there would be significant incentives for them to remain, and complied with the immigration laws of that country?).

Officers may give weight to applicants who had travelled to and complied with the immigration laws of countries that have significant incentives for the applicant to remain in that countries, either for economic or personal reasons, when assessing this factor. However, officers may have to use judicious discretion where there is a lack of travel history.

Conditions that may encourage the applicant to remain in Australia, include:

the applicant's personal ties to Australia (Does the applicant have more close family members living in Australia than in their home country? Is the applicant subject of adoption proceedings that have not been resolved in their home country?);

military service commitments;

civil disruption, including war, lawlessness or political upheaval in the applicant's home country; and

economic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant's home country.

Where consideration of the factors above raise doubts about the applicant's ability to meet the 'genuine visitor' criterion, such as where the applicant's circumstances may suggest the need for greater scrutiny, officers may consider/request additional evidence to demonstrate that the applicant intends a genuine visit.

Officers may request further evidence from the applicant where considered appropriate, if departmental statistical or intelligence reports on migration fraud, or profiles based on such reports, indicate that there is a significantly greater likelihood of nationals from the applicant's home country:

staying in Australia beyond the expiry of their visa;

having their visa cancelled;

being refused entry to Australia; or

lodging protection visa (PV) applications.

Officers should, however, be aware that when applicants match the characteristics of a 'profile', this is not grounds to refuse to grant a visa. Profiles are merely an alert that closer scrutiny of the applicant's circumstances may be required. All applications must be considered on their own merits, taking into account all the information and supporting documentation provided by the applicant.

Additional evidence that officers may wish to consider to determine whether or not the applicant is a genuine visitor include:

evidence that the applicant has been employed for at least the previous 12 months, has approved leave for the period of stay sought, and will continue to be employed on their return home; or

if self-employed, evidence they have owned their own business for the previous 12 months; or

if retired/non-working, have other financial commitments and/or family/social ties that would provide sufficient inducement for them to return to their home country at the end of their visit; or

good immigration history.

Generally, where an applicant is from a developing country, offers of support or guarantees given by family and friends in Australia are not, by themselves, sufficient evidence of a genuine visit. The onus is on the applicant to satisfy the decision-maker that they intend to only visit Australia. If they pass that hurdle, then financial guarantees from connections in Australia can be important in assessing whether an applicant has, or has access to, adequate funds.

People who have had a visa cancelled while previously in Australia, or who overstayed their previous visa by more than 28 days, are subject to a three-year ban on re-entry (cls 4013-4014, sch 4).

Where a person wishes to visit a close relative in Australia but fits a profile of an over stayer (usually any citizen from a developing country), it is often better to apply for a 'Sponsored Family' stream in the subclass 600 visa, as this is more likely to be granted, given that the Australian relative/sponsor usually has to pay a bond to ensure that the visa holder leaves the country (see 'Eligibility for a visitor visa', above).

Extending a visit

Once a visa is granted and a visitor enters Australia, they may wish to apply for extensions of stay. The maximum length of time is not generally set out in the regulations governing such extensions, but the criteria to be satisfied in the visitor classes for another visa are as follows.

General criteria

1 The applicant has complied substantially with any conditions subject to which the visa was granted;

2 The applicant satisfies character and health criteria;

3 The applicant intends to comply with any conditions subject to which the visa is to be granted; and

4 The applicant must also establish that:

a the visit is a genuine visit and that they have adequate financial support for the proposed period of stay; or

b because of financial hardship as a result of a change in circumstances since entering Australia, the applicant is likely to become a charge on public funds, and cannot leave Australia for reasons beyond their control, and has compelling personal reasons to work in Australia; or

c if a student, has completed their studies and wishes to remain in Australia as a visitor; or

d if the holder of a working holiday visa, there are exceptional reasons for the grant of a visitor visa to extend the stay.

Criteria for extensions of visitor visas with condition '8503 - no further stay'

It is not possible to apply for a further visitor visa in Australia if the former visitor visa has, or had, a condition 8503 on it, unless that condition is removed. It can only be removed if events of a 'compassionate and compelling' nature have occurred since the visa was granted that are beyond the control of the visa holder and that necessitate a further stay in Australia.

Length of stay

DIBP's policy is not to grant visitor visas that would extend a total stay beyond 12 months, except for students (above) or for other 'exceptional' reasons.

Temporary residence

Eligibility

Temporary residence is the entry for specified short- or long-term periods to engage in employment or other pursuits in Australia (not business discussion, negotiations, inspections, etc., which come within the visitors' entry category). It covers such major groups as:

skilled workers sponsored by overseas or Australian businesses, company staff, i.e. senior management and executive and specialist technical staff for Australian companies including branches of overseas companies, joint ventures, etc. (subclass 457);

the Temporary Work (Long Stay Activity) visa (subclass 401) is for people who want to come to Australia on a temporary basis under one of the four 'streams' described in this visa:

1 exchange stream: to work in a skilled position under a reciprocal staff exchange arrangement to:

give participants an opportunity to experience another culture;

enhance international relations;

broaden participants' experience and knowledge.

2 sport stream: to improve the quality of sport in Australia through participation in high-level competition with Australian residents to:

participate in a specific event or series of events as an individual or as part of a team or its support staff;

play, coach or instruct for an Australian sporting team or organisation under contractual arrangements;

judge or adjudicate a sporting competition or show.

3 religious worker stream: to be a full-time religious worker, serving the religious objectives of a religious institution in Australia.

4 domestic worker (executive) stream: to work full time in the household of certain senior foreign executives.

staff for tertiary and research organisations (subclass 402);

staff for diplomatic and consular missions (subclass 403);

service personnel for training, etc. (subclass 403).;

entertainers (subclass 420);

Pacific seasonal workers and participants in youth or cultural exchange programs (subclass 416); and

working holiday makers (subclass 417).

- Students

The procedures generally involve sponsorship by the interested party in Australia (although no sponsorship is required for working holiday makers). People entering for temporary residence for a period of more than 12 months are often required to undergo health and character checking, depending on their country of origin.

People approved for entry under temporary residence categories may be accompanied by their dependants (including same-sex partners). Dependants of temporary residents may usually undertake employment or studies in Australia, depending on the particular temporary residence class. There are over 60 types of temporary residence described in the regulations, all with different criteria that must be met.

Category: temporary business entrants - 457 visa, business sponsored

This is by far the largest group of temporary residents in Australia (currently about 100,000 primary visa holders). Applicants have to prove that they are being sponsored by an 'approved' Australian business, or an overseas business in connection with a business activity in Australia: the tasks of which correspond to the tasks of an occupation specified in the consolidated sponsored occupations list (CSOL). This list includes a number (an ANZSCO Code) and an Occupation Title. A description of the qualifications and experience required for each of the eligible occupations is found in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary (see www.abs.gov.au):

which is of benefit to Australia; and

for which they will be paid market rates for their occupation and this cannot be less than the Temporary Skilled Migration Income Threshold (TSMIT) ($53,900 at 30 June 2015).

Subclass 457 visa applicants who are sponsored by a Standard Business Sponsor (a business operating in Australia that has been approved by DIBP to sponsor 457 employees) must demonstrate that they have English language proficiency that is equivalent to an International English Language Testing System (IELTS) test score of at least 4.5 in each of the four test components of speaking, reading, writing and listening, with an average score of at least five across all bands. Where an applicant is being paid a base salary in excess of $96,400 English testing is not required.

Where the nominated occupation requires a higher level of English (equivalent to IELTS test score of more than five in each of the four test components) because it forms part of that occupation's registration, licensing or membership requirement, the visa applicant must have at least the standard of English language proficiency required for the grant of that registration, licence or membership.

There are a number of requirements that have to be met by the sponsoring employer, including:

- Demonstrating a genuine need for a fulltime position in the nominated occupation

- Demonstrating financial capacity to meet employment obligations

- Undertaking labour market testing to evidence that no suitable candidate was identified in the local labour market

- Commitment to training Australian employees or donating to a training fund

Category: entertainers

People in this category may be considered for temporary entry only if they are nominated by an acceptable sponsor in Australia to undertake a specific engagement or program of engagements. The sponsor must be a person or body with good professional and financial standing who has consulted with relevant Australian unions in relation to the employment of the person from overseas.

Entertainers are permitted to enter Australia only for periods sufficient to enable them to meet their approved engagements (see subclass 420, sch 2 Migration Regulations).

Category: sportspeople

The regulations provide for the temporary entry of sportspeople to undertake specific engagements in Australia. They must be sponsored by an acceptable entrepreneur or club. People considered to be of international repute, including those accepted as participants in international tournaments, may be granted a sports visa. People who are not of international repute but who have an established reputation in the field of sport, or judges, coaches and team assistants, can also be granted a sports visa if they are sponsored by an Australian sporting organisation with a good reputation in the sporting community and have entered into a formal arrangement about the sporting activities. They must also come within the approved maximum number of visas for that particular sport (see subclass 401, sch 2 Migration Regulations).

Category: domestic servants

Domestic servants may be brought to Australia for temporary stay by diplomatic and consular representatives and by persons admitted for temporary residence as the chief executives in Australia of substantial overseas firms (see subclass 401, sch 2 Migration Regulations).

Category: religious workers

Regulations provide for the entry of persons, irrespective of denomination, who are authorised by their organisation to undertake work in Australia directly serving the organisation's religious objectives (see subclass 401, sch 2 Migration Regulations).

Category: working holidays for young people

The aim of the working holiday maker scheme is to promote international understanding by providing opportunities for young people to gain experience of other countries. The scheme makes it possible for young people who are resourceful, self-reliant and adaptable and who wish to holiday and travel in Australia to work to supplement their funds.

To be eligible for entry or stay in Australia as a working holiday maker, a person must (see subclass 417, sch 2 Migration Regulations):

be single or married and not accompanied by dependent children;

be aged between 18 and 31 years; and

be a national of one of the following countries with which Australia has a working holiday maker arrangement: United Kingdom, Republic of Ireland, Italy, France, Belgium, Finland, the Netherlands, Republic of Cyprus, Canada, Germany, Malta, Norway, Sweden, Denmark, Estonia, Japan, Hong Kong, Korea and Taiwan.

In all cases, applicants must:

lodge an application for a visa to enter Australia for a working holiday (Form 1150) and pay the prescribed fee; and

satisfy the Minister for Immigration and Border Protection ('the minister') that:

a they have sufficient funds for a return fare and to support themselves in Australia for the initial part of the proposed holiday period; and

b the prime intention is to holiday in Australia and that any work performed will be incidental to that purpose and will not exceed six months with the same employer; and

c they will have reasonable prospects of obtaining temporary employment to supplement holiday funds; and

d formal studies, other than a short-term non-formal course, will not be undertaken while in Australia; and

e they will depart Australia at the end of the temporary stay.

Working holiday makers may apply for a second 12-month working holiday visa if they can show that they have worked at least three months in particular primary industries such as fishing, pearling, butchering and forestry or doing seasonal harvest or building construction work in regional Australia. Such work must be paid work and can not longer be as a volunteer.

Where to lodge applications

Citizens of the United Kingdom, Republic of Ireland, Italy, France, Belgium, Finland, the Netherlands, Germany, Canada, Korea, Norway, Sweden, Denmark or Estonia aged between 18 and 31 years may apply for working holiday maker visas at any Australian processing office overseas (but not in Australia). Japanese, Maltese, Hong Kong, Cyprus, Korean and Taiwan citizens must apply in their own country in accordance with Australia's working holiday agreement with those countries.

If the applicant has entered Australia previously on a working holiday visa, then they must post their application to the Cairns Second Working Holiday Centre (PO Box 1269, Cairns, Queensland 4870).

Category: work and holiday visa (subclass 462)

This is a visa is for tertiary educated people aged 18 to 30 who are interested in a working holiday of up to 12 months in Australia but who do not come from one of the countries with whom Australia has a working holiday arrangement (see 'Category: working holidays for young people', above). The subclass 462 visa allows applicants to supplement the cost of their holiday through periods of temporary or casual employment. Currently, the Work and Holiday visa arrangement is in place for people from Argentina, Bangladesh, Chile, Indonesia, Malaysia, Thailand, Turkey, the USA and Uruguay. Citizens of Iran who are currently in Australia on a Work and Holiday visa may also be eligible to apply for further Work and Holiday visas.

Category: Student Visas (Subclasses 570-574)

These are for students who have obtained a confirmation of enrollment in an Australian institution. Applicants must demonstrate a genuine intention to study and remain temporarily, and must have sufficient funds to support themselves in Australia. International students can legally work only for 40 hours a fortnight during teaching periods.

Visa options for overseas students who have graduated

The subclass 485: skilled / graduate (temporary) visa allows overseas students who are under 50 years of age and do not meet the points test for a permanent visa to remain in Australia for 18 months to gain skilled work experience or improve their English language skills, which might then allow them to pass the points test or gain sponsorship by an Australian employer. Holders of this visa may apply for permanent residence at any time if they are able to meet the pass mark on the General Skilled Migration points test (see 'Skilled migrants: the points test and other issues', below) and they are invited to apply under the SkillSelect system. There are two streams to the 485 visa:

graduate work stream for international students with an eligible qualification who graduate with skills and qualifications that relate to an occupation on the Skilled Occupation List. A visa in this stream is granted for 18 months from the date of grant.

post-study work stream for international students who graduate with a higher education degree from an Australian education provider, regardless of their field of study. This stream is only available to students who applied for, and were granted, their first student visa to Australia on or after 5 November 2011. A visa in this stream can be granted for up to four years from the date the visa is granted, depending on the visa applicant's qualification.

Evidence of funds

Evidence of funds for some visitor and temporary visa classes should be in the form of passbooks, account statements and letters from banks or other financial institutions. Letters should be on letterhead, dated and signed.

Adequate funds to cover initial period of stay could vary, depending on:

the proposed length of stay and the extent of travel proposed; or

the extent to which accommodation and other assistance will be available from relatives and friends in the initial period after arrival.

As a guide, approximately A$5,000 (in addition to funds for a return airline ticket) could be regarded as being sufficient to cover the costs of an initial stay for an applicant who intends to stay in Australia for at least six months (for more information, refer to the 'Temporary Residence' section of the Procedures Advice Manual).

Changing status

Visitors and temporary residents in Australia may apply for change of status to another temporary class or a permanent class if they meet the legal requirements of that particular class. Visitors and temporary residents wishing to change status to another temporary or permanent class must meet the criteria of that class set out in schedule 2 of the Migration Regulations.

Permanent visas

There are a number of permanent visas which are granted based on sponsorship by an Australian citizen or permanent resident family member, special skills of the applicant, employer sponsorship, former residential status or on a humanitarian basis. There are more than 40 types of permanent entry visas which fall into one of the categories mentioned.

Principles

The principles on which the federal government's immigration policy is based, as published in DIBP's Procedures Advice Manual, are:

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 that 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.

Recent policy

In recent years, immigration policy has served a range of national and community purposes, including:

reuniting close family members in recognition of kinship ties and the bonds of mutual dependency and support within families;

responding to Australia's international humanitarian objectives in respect of refugees;

supplementing the supply of skills needed in the labour force;

promoting the inflow of overseas technology and expansion of the business sector; and

assisting in Australia's population growth.


Criteria for entry

Generally, applicants seeking entry for the purpose of residence must satisfy the following criteria:

1 They must be of good character (this involves a police and security check);

2 They must be of good health and undergo a medical examination by a medical practitioner approved by the Australian Government;

3 They must have the intention to reside permanently in Australia; and

4 They must satisfy the specific criteria under the regulations for their class of permanent visa.

5 Health and character tests

All people who migrate to Australia must, before their entry is approved, pass a full medical examination and a police and security check.

Category: family visas

Only certain family members who are resident overseas can be sponsored to enter by relatives who have permanent residence or citizenship in Australia.

Relatives are divided into visa categories and different tests apply to each category.

Parents

Subclass 143/173: contributory parent visa

This visa is available for parents who can afford to pay over $50,000 per adult plus have their sponsors lodge a $10,000 Assurance of Support bond plus $4,000 for each family member (i.e. spouse, children, etc.) for 10 years as a guarantee that the visa applicants will not access social security payments in that time. The parent must be sponsored by one of their children who is an Australian citizen or settled Permanent Resident, and must meet the 'balance of family test' such that at least half their children are in Australia as Australian citizens or permanent residents (see below). The parent must be offshore at the time of application and grant.

Subclass 864/884 (onshore); 143/173 (offshore): contributory aged parent visa:

This is for aged parents, and the same criteria as above applies. However, this visa can be applied in Australia.

Subclass 103: Parent Visa and Subclass 804: Aged Parent visa:

These non-contributory visas for parents and aged parents apply the same criteria as above but do not attract the substantial fees. However, the processing timeframes for these visas are extremely long, spanning to decades. The Parent Visa can only be applied offshore while the Aged Parent Visa can be lodged in Australia.

The balance of family test

If you are sponsoring your parents, they can only be considered in the parent visa category if they meet the balance of family test. The balance of family test requires at least half of their children to be living permanently in Australia, or that more of their children live permanently in Australia than in any other country. In order to count as living permanently in Australia, those children must be:

Australian citizens;

Australian permanent residents who are usually resident in Australia; or

eligible New Zealand citizens who are normally resident in Australia.

The test is applied on the following basis:

all children of both parents are counted, including any children of a de facto spouse;

all children of both parents are counted, regardless of whether the children are dependent or self-supporting, married, single or divorced;

all children of either of your parents from a previous marriage or relationship are counted, as well as any children adopted by either parent and any children in institutions (except for children born or adopted after the relationship or marriage ceased); and

children whose whereabouts are unknown or cannot be verified are counted as being in your parents' country of usual residence, unless their death can be presumed by their absence.

Children who are not counted in the test are:

children removed by court order, by adoption or by operation of law (other than marriage) from the exclusive custody of the parent;

children resident in a country where they suffer persecution or abuse of human rights in a situation such that it is not possible to reunite the children and the parent in another country; and

children resident in a refugee camp.

Other than in the exceptions noted above, the social and cultural values of your family, or the economic circumstances of the children, are not taken into account in applying the test (r 1.05 Migration Regulations).

Children

Subclass 802: child visa

This visa is available to an applicant in Australia who is a dependent child of an Australian citizen or permanent resident.

A dependent child is defined as the natural or adopted child of a person. The child must be less than 18 years, and unmarried (and not engaged to be married). If the child has turned 18 years, they must be dependent or at least substantially incapacitated for work because of a physical or mental impairment (see r 1.03 Migration Regulations).

Note that dependant is also defined in r 1.05A to mean someone who is 'wholly or substantially dependent on another person for financial support' (except for certain refugee visas that allow for psychological and physical dependence). Further, a child over 18 and not incapacitated for work must be under 24, and must have been continuously studying fulltime, unless there are compelling reasons as why they are not undertaking studies.

Subclass 837 (onshore), Subclass 117 (offshore): Orphan relative visa

This visa is available to an applicant in who is under 18, whose parents have both died or are missing and is sponsored by a close family member who is an Australian citizen or permanent resident.

Partners

Subclass 820/801 (onshore); 309/100 (offshore): partner visa

This visa is available to an applicant who is in a genuine marital or domestic relationship (heterosexual or same-sex) with an Australian citizen or resident. A de facto couple is required to produce evidence that they have lived together in such a relationship for at least 12 months prior to the date of application, unless there are compelling reasons to waive that requirement.

The relationship must be genuine and continuing until the date of decision whether to grant the visa, unless:

the Australian partner has died and the widow or widower would have continued with the relationship if the partner had not died, and has developed close business, cultural or personal ties in Australia; or

the relationship has ceased after the lodgment of the visa application, due to family violence committeed by the Australian partner; or

the marriage has ceased but the applicant has custody or joint custody of at least one child, in respect of whom a court has granted joint custody or access or a residence order or contact order to the Australian party, or the Australian party is subject to a formal maintenance obligation or other obligation under the Family Law Act 1975 (Cth) (see subclass 801, sch 2 Migration Regulations).

If the applicant is onshore at the time of application, the appropriate visa subclass is 820, and if offshore, subclass 309. If applying for a subclass 820 onshore, and the applicant is in Australia without holding a substantive visa (a visa other than a bridging visa or a criminal justice visa), there must be compelling or compassionate reasons at the time of application for the visa to be granted (Schedule 3, Migration Regulations).

The subclass 820 and 309 are granted on a provisional basis. Once granted, the applicant can travel to and remain in Australia with full work and study rights. Two years from the date of the lodgement of the visa application, the applicant will be eligible to be considered for permanent residency under subclass 801 (onshore) or 100 (offshore). In order for residency to be granted, the relationship must be ongoing at the time of decision, or must have ceased under one of the circumstances listed above.

Prospective marriage subclass 300:

Where an applicant is overseas and is engaged to be married to an Australian citizen or permanent resident, they can apply for a Prospective Marriage Visa, providing evidence of their genuine intention to marry the sponsor in Australia. The visa once granted is valid for 9 months, within which the applicant must enter Australia, get married and apply for a Subclass 820 Partner Visa.

Same-sex partner migration

On 1 July 2009 the Migration Regulations were amended to:

remove discrimination between same-sex and opposite-sex de facto couples, and between the children of same-sex and opposite-sex de facto couples; and

ensure that the regulations are consistent with amendments made by part 2 of schedule 10 to the Same-sex Relationships (Equal Treatment in Commonwealth laws - General Law Reform) Act 2008 (Cth) to the Migration Act.

For full details of these changes see www.border.gov.au/legislation/amendments

Subclass 115 (offshore); Subclass 835 (onshore): Remaining Relative Visa

This is for applicants who have all members of their immediate family (parents, siblings, spouses and non-dependent children) in Australia as Australian Citizens or Permanent Residents. They must be sponsored by one of such family members who has the capacity to provide for them in Australia. The processing timeframes for this visa are significant and can prolong for many years. If the application is lodged onshore, the applicant will be able to continue to live in Australia on a Bridging Visa until a final decision is made on the application.

Subclass 116 (offshore); Subclass 836 (onshore); Carer Visa

This visa option is available for applicants who are required to be in Australia to provide necessary care and support to an Australian citizen or Permanent Resident family member who is severely impaired. The person being cared for must have a particular impairment rating, and it must be demonstrated that the care that the applicant will provide is necessary and is such that it cannot be provided by services in the region in which the family member resides.

What is required of sponsors?

You must be either an Australian citizen or a permanent resident and must be aged 18 years or over. However, if you are under 18 years and sponsoring a spouse, parent or fiance/fiancee, then your parent or close relative, guardian and in some cases even a community organisation may sponsor. In many cases (but never for spouses) you must also have been resident here for a reasonable period (currently regarded as two years by DIBP unless exceptional circumstances exist). You must ensure that your relative will have accommodation and sufficient money to look after themself for at least 12 months after arrival. A promise is required that you will provide general information and advice to help your relative settle.

If you are sponsoring parents or any relatives in the other family visa category (or relatives outside these categories who are unable to support themselves), you will be required to sign an 'Assurance of Support' and you will be responsible for their financial support for the first two years after entry.

Assurance of support

All visa applications that require an 'assurance of support' are now subject to the following rules.

The validity of the assurance is 10 years for Contributory Parent visa applicants, and two years for all others;

Liability covers any payments of Special Benefit, Job Search or Newstart Allowances made by the Department of Social Security (DSS) to the migrating relatives (parents, preferential and concessional classes) during those two years;

The assurance consists of a refundable bond of $10,000 per principal applicant and $4,000 per secondary applicant for Contributory Parent visa applicants, and $5,000 per principal applicant and $2,000 per other adult for all others. The bond will be returned (with interest) two years after the migrant's entry into Australia, provided that the DSS makes no claim on the money; and

The assurance also requires the payment of a non-refundable health levy of $1,050 per visa applicant. Adults and children are treated equally.

It should be noted that the sponsor does not necessarily have to be the person who supplies the assurance of support, nor even a relative. The assurer must just be someone with sufficient assets or income to be acceptable to Centrelink (this department has been given the task of assessing assurances of support for DIBP). However, given the large sums of money now involved in sponsoring relatives, it will be fairly rare that a friend of the family will want to sign such a document and pay the money involved upfront. Accordingly, assurers need to consider their obligations carefully, as even the refundable bond may not be the limit of liability if a greater amount is paid by Centrelink to the migrating relative during the first two years. (The conditions are contained on Form 28; read it carefully.) For more information visit DIBP's website at www.border.gov.au.

Category: Skills

Subclass 189: Independent Skilled Visa/Subclass 190: State Sponsored Skilled Visa

These visas are for those who are under 50 years of age, hold qualifications in skilled occupations that are in demand in Australia. Applicants must obtain a positive skills assessment from the relevant authority for an occupation that is on the Skilled Occupations List (189) or the Consolidated Sponsored Occupations List (CSOL), meet the English language requirement, and meet a migration points test.

Applicants for the Skilled Visa program must complete an 'expression of interest' indicating which stream they are interested in and whether they are seeking nomination by a state or territory. The applicant will then be 'invited' to apply for the visa.

The expression of interest must be accompanied by a skills assessment by the appropriate skills assessing body for the applicant's occupation (obtained at the applicant's expense) and other personal information. Only those occupations on the relevant Skilled Occupation List will be considered (see www.border.gov.au). DIBP will then decide whether it will accept their offer by 'selecting' them.

Whether a SkillSelect offer will be made will depend upon how many applicants for each skilled occupation have already been selected in the migrant program year. If the number in a particular occupation has been reached, no offer will be made. If the number has not been reached and the Expression of Interest indicates that the proposed applicant would score more than 60 points, an offer may be made. However, if the numbers in the particular occupation category are greater than needed, offers only go to the highest points scored in that round.

The government hopes, by this system, to avoid long standing problems it has had with its 'pipeline' of skilled visa applicants in particular occupational groups 'clogging up' the system, when there are already enough skilled migrants in that occupation. Of course, this increased efficiency is at the expense of the rights of visa applicants, because they will not know, at the time they make their Expression Of Interest, whether they will be selected. If they are not selected, they cannot recover the money they have spent on getting a skills assessment, undergoing English testing, etc. in making the expression of interest. This same SkillSelect selection system also applies to business owners who wish to apply for a visa to start a business in Australia.

Consolidated Skilled Occupation List

On 1 July 2012, the Consolidated Sponsored Occupation List (CSOL) was approved. This is a single list of occupations that replaced the state/territory nominated (STATSOL) list, the Employer Nomination Scheme (ENSOL) list, the subclass 442 Occupational Trainee list and the subclass 457 Skilled Occupation List.

The CSOL is used for those who have an Australian or overseas business willing to sponsor them and should not be confused with the skilled list for independent skilled migration (i.e. no sponsor) called the Skilled Occupation List (SOL).

The CSOL has over 640 occupations, while the SOL only lists around 180 occupations. Skilled migration is biased towards sponsored migration because research indicates that there is a far greater probability of an intending migrant having future work in their skilled occupation, where there is an Australian employer who is sponsoring.

Points test

The points test is a mechanism used to help select skilled migrants who offer the best in terms of economic benefit to Australia. As part of the new 'SkillSelect' process, potential visa applicants will be tested in evidence and given a nominal score as part of the selection process involved in 'inviting' an applicant to apply. The points test as part of the selection process, awards points to the skills and attributes considered to be in need in Australia. The points test focuses on:

English levels;

extensive skilled employment;

high level qualifications obtained in Australia and overseas; and

targeted age ranges.

Summary of how points are allocated - the pass mark is currently 60 points.

Factor

Description

Points

Age

18-24

25

25-32

30

33-39

25

40-44

15

45-49

0

English language * (or equivalent standard in a specified test)

Competent English - IELTS 6*

0

Proficient English - IELTS 7*

10

Superior English - IELTS 8*

20

Australian or overseas skilled employment in nominated occupation or a closely related occupation undertaken in the past 10 years

Note: Maximum points that can be awarded for any combination of Australian or overseas skilled employment is 20 points

One year in Australia

5

Three years in Australia

10

Five years in Australia

15

Eight years in Australia

20

Three years overseas

5

Five years overseas

10

Eight years overseas

15

Qualifications (Australian or recognised overseas)

Australian Diploma or trade qualification or other qualification recognised by a relevant Assessing Authority

10

At least a Bachelor degree

15

Doctorate

20

Australian study requirement

Minimum two years full-time (Australian study requirement)

5

Study in a regional area

Must meet the Australian Study Requirement while studying in a regional area

5

Professional Year

Completion of a recognised Professional Year

5

Credentialed Community language

NAATI accreditation

5

Partner skills

Primary applicants partner meets threshold requirements for skilled migration visa

5

Nomination by state or territory government (subclass 190)

Nomination by a state or territory government under a state migration plan

5

Designated area sponsorship or nominated by state or territory government (subclass 489)

Sponsorship by an eligible relative, or nomination by a state or territory government under a state migration plan, for living in a designated area

10

Designated areas of Australia

Applicants for a Skilled - Regional Sponsored (Provisional) visa, who have a relative in that area gain extra points under the points test: The sponsor must be usually resident in one of the following designated areas:

State or territory

Designated areas

Victoria

Anywhere

South Australia

Anywhere

Northern Territory

Anywhere

Tasmania

Anywhere

Australian Capital Territory

Anywhere

Queensland

Postcode areas 4019-4028, 4037-4050, 4079-4100, 4114, 4118, 4124-4150, 4158-4168, 4180-4899 (anywhere except Brisbane metropolitan area)

Western Australia

Anywhere

New South Wales

Post areas 2311-2312, 2328-2333, 2336-2490, 2535-2551, 2575-2739, 2787-2898 (anywhere except Sydney, Newcastle and Wollongong)

Subclass 858: distinguished talent visa

This visa is available to an applicant who:

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

a profession;

a sport;

the arts; or

academia and research; and

is still prominent in the area; and

would be an asset to the Australian community; and

would have no difficulty in obtaining employment, or

is becoming established independently in Australia in the area; and

produces a nomination testifying to their achievement and standing in the area from:

an Australian citizen; or

an Australian permanent resident; or

an eligible New Zealand citizen; or

an Australian organisation;

having a national reputation in relation to the area; and

if the applicant has not turned 18, or is at least 55 years old, at the time of application.

Category: Employer sponsored visas

Subclass 186: Employer Nomination Scheme/Subclass 187: Regional Sponsored Migration Scheme

These are for applicants who have been offered a fulltime skilled position under a contract of employment with a duration of at least 2 years. Subclass 187 is for those employed in a regional area while the 186 is open to those in non-regional area. In both cases, employers must submit a nomination application, with evidence that there is a genuine need for the position in the business, that the business has financial capacity to meet its obligations, and meet other relevant criteria. An additional requirement for 187 visas is that the nomination must be certified by the Regional Certifying Body, which in the NT is the Department of Business.

In both cases, the applicants must demonstrate that they hold requisite qualifications and experience to perform in the role and meet the English language requirement. Depending on circumstances, they may also be required to obtain a positive skills assessment.

Both subclasses have three streams. The Temporary Residence Transition stream is for subclass 457 visa holders who have worked for two years and their employer wants to offer them a permanent position. The Direct Entry stream is for people who have never, or only briefly, worked in the Australian labour market. The Agreement stream is for people sponsored by a employer through a labour or regional migration agreement.

Category: Business and investor visas

Business talent (permanent) (subclass 132) visa

This visa has two streams:

Significant Business History stream

You, your partner, or you and your partner combined must have all of the following:

total net assets of at least AUD400 000 as the ownership interest in one or more qualifying businesses for least two of the four fiscal years immediately before you are invited to apply and if the qualifying business(es) was a publicly listed company, a shareholding of at least 10 per cent of the total issued capital;

net business and personal assets of at least AUD1.5 million that are legally acquired and can be transferred to Australia within two years after the visa is granted;

a total annual turnover of at least AUD3 million in one or more of your main businesses in at least two of the four fiscal years immediately before you are invited to apply;

ownership of at least:

51 per cent of a business with turnover of less than AUD400 000 per year

30 per cent of a business with turnover of more than AUD400 000 per year, or

10 per cent of a publicly listed company

an overall successful business career;

no involvement in unacceptable business activities; and

a genuine desire to own and maintain a management role in a business in Australia.

You must also be younger than 55 years of age, although a state or territory can waive this requirement if your proposed business will be of exceptional economic benefit to the region where it will operate.

Venture Capital Entrepreneur stream

You must have received at least AUD$1 million in funding from an Australian venture capital firm.

The funding must be for the start-up, product commercialisation or business development of a promising high-value business idea.

The venture capital firm must be a member of the Australian Private Equity and Venture Capital Association Limited (AVCAL). AVCAL has information about the venture capital category of membership in its venture capital entrepreneur visa factsheet. You must have entered into a formal (contractual) agreement with the venture capital firm for the funding.

Business Innovation and Investment (Provisional) (subclass 188) visa

The purpose of these visas is to boost Australia's economy and to compete effectively for high net worth individuals seeking investment migration. Applicant's must be invited to apply by the minister and, in some cases, must be sponsored by the relevant state or territory.

This visa includes four streams:

Business innovation stream: for people with business skills who want to establish, develop and manage a new or existing business in Australia.

Investor stream: for people who want to make a designated investment of at least AUD$1.5 million dollars into an Australian state or territory and want to maintain business and investment activity in Australia after the original investment has matured.

Significant investor stream: for investors who are willing to invest at least AUD$5 million dollars into complying investments in Australia and want to maintain business and investment activity in Australia.

Premium investor stream: for investors who make a complying and designated investment of AUD$15 million dollars into an Australian state or territory.

Holding this visa is the first stage before becoming eligible to qualify for a Business Innovation and Investment (Permanent) visa (subclass 888).

Business Innovation and Investment (Permanent) (subclass 888) visa

The Business Innovation and Investment (Permanent) visa (subclass 888) is the second stage of the Business Innovation and Investment (Provisional) visa (subclass 188). Applicants can apply for this visa after satisfying the requirements of their provisional visa.

For holders of a subclass 188 visa, the subclass 888 visa is the expected pathway to Australian permanent residency.

Category: Resident Return

Subclasses 155, 157, 159 and 808

Those who have held permanent residency in Australia but whose travel facilities have since expired, and are intent on returning to Australia are eligible for these visas. It must be shown that the applicant has substantial ties with Australia.

Category: Humanitarian visas

Subclass 866: protection (residence) visa

This visa is available to applicants who arrived in Australia, sought asylum and have been granted refugee status (see subclass 866, sch 2 Migration Regulations). Under legislation introduced in December 2014, this permanent protection visa is no longer available for those who arrived without a valid visa. Such individuals can only be considered for temporary protection (see Temporary Protection Visa and Safe Haven Enterprise Visa).

The United Nations Convention Relating to the Status of Refugees ('the Convention'), as amended by the Protocol, defines a refugee as a person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

This definition is incorporated into the definition of 'Refugee' in the Migration Act.

Australia became a party to the 1951 Convention in 1954 and acceded to the 1967 Protocol on the Status of Refugees ('the Protocol') (to remove time and geographical limitations from the Convention definition of a refugee) in 1973.

As the number of refugees seeking to come to Australia is greater than the number of places available, not all persons who match the United Nations definition meet Australia's own criteria for determining refugee status and satisfy the prevailing program selection criteria. The DIBP administers both an onshore and an offshore program.

Subclass 800: territorial asylum visa

This visa is available to an applicant in Australia who has been granted territorial asylum by a government minister. (This is different from refugee status, and is very rare; see subclass 800, sch 2 Migration Regulations.)

Special humanitarian visas

In addition to the above, the government from time to time introduces special temporary or permanent visas as a humanitarian response to people temporarily in Australia.

The subclass 785 and 786 visas are such visas. They were created to allow a three-year temporary stay for certain asylum seekers who arrived by boat during certain periods in the past and certain holders of Temporary Safe Haven visas. They are currently in use for some asylum seekers who arrived by boat, who are found to be refugees prior to certain dates.

The present federal government has adopted a harsher attitude towards asylum seekers who arrive by boat without visas (as opposed to asylum seekers who arrive by plane). The government has moved asylum seekers who arrive by boat 'offshore' to regional refugee processing centres, which will be expected to house them until various countries are willing to take them. The government has reached agreements with Nauru and Papua New Guinea to open such centres, and is negotiating with Cambodia to accept people in them who are found to be refugees.

Subclass 790 (Safe Haven Enterprise Visa (SHEV)) and Subclass 785 (Temporary Protection Visa (TPV))

These visa was introduced in December 2014 to process and grant temporary visas for those who arrived by boat prior to the introduction of regional processing. In order to be eligible to apply for such a visa, a person must be invited by the Minister (through the DIBP) to make an application. The TPV provides the right to reside and work in Australia for 3 years, after which the visa holder can only apply for another TPV for a further 3 years. The SHEV provides the right to reside and work in Australia for 5 years. If the visa holders lives and works in a designated area for 3 of those years, they can then apply for other permanent visas, other than a permanent protection visa. The criteria for the SHEV and TPV are similar to that of a Protection Visa Subclass 866, in that must be evidenced that the applicants meet the definition of 'refugee' under the Migration Act (i.e. there is a real chance that they will suffer serious harm in their home country for reasons of their race, religion, membership in a particular social group, or political opinion), or meet the criteria for complementary protection (they are likely to suffer significant harm in their home country). In addition to this, the applicants must also be able to satisfy the DIBP of their identity using official documentation, or be able to provide adequate explanation as to why such documentation is not available.

Summary of visa processing policy of maritime arrivals

Pre-13 August 2012 arrivals

People who arrived illegally before 13 August 2012 (including IMAs and UAAs) who lodged a valid application for a permanent protection visa that had not been finally determined on 16 December 2014 are taken to have, and to always have, made a valid application for a temporary protection visa (TPV) instead of a valid application for a permanent protection visa. The application will accordingly being assessed against the criteria for a TPV. For more information, refer to the Conversion Regulations for the legacy caseload.

Post-13 August 2012 arrivals

IMAs and UAAs who arrived on or after 13 August 2012 who have not been permitted to lodge a valid application for a protection visa prior to 18 April 2015. Individuals making up the legacy caseload are only eligible to make an application for a TPV or SHEV - refer to Temporary Protection (Class XD) subclass 785 visa and Safe Haven Enterprise (Class XE) subclass 790 visa - and are not eligible to apply for a permanent protection visa. The majority of IMAs will be processed under the fast track assessment process - refer to Part 2: The fast track assessment process.

Post-19 July 2013 arrivals

As a matter of policy, anyone who arrived as an IMA after 19 July 2013 but before 1 January 2014 who has not been transferred to a regional processing country will have their protection claims assessed in Australia. This is despite being liable for transfer to a regional processing country. Such people may meet the definition of a fast track applicant (refer to the definition of fast track applicant in section 5(1) of the Act) and therefore eligible for processing under the fast track assessment process. For further information, refer to Part 2: The fast track assessment process.

Those who are residing in a regional processing country will have their protection claims assessed in that country. If they are found to meet the requirements of the relevant criteria for protection in that country, they will be eligible for settlement in that country.

Individuals who were transferred to a regional processing country but who have since returned to Australia may be eligible to apply for a TPV or SHEV once relevant application bars are lifted. Currently, members of this cohort are not subject to the fast track assessment process as they do not meet the definition of fast track applicant. All cases should be escalated to the Refs Help Onshore mailbox for advice on processing.

There is significant confusion surrounding refugee decision making at the present time, as policy is still being formulated and the roadmap for applicants towards permanent visas is unclear.

The subclass 852

Witness protection (trafficking) (permanent) visa allows a person to stay in Australia after giving evidence against a trafficker. If the Attorney-General certifies that the person has made a significant contribution to the prosecution of a trafficker and the minister is satisfied that the person's life would be in danger upon return to their home country, this visa can be granted in the same way that a protection visa is granted to a refugee.

Dealing with the DIBP

Record-keeping and timeframes

Whenever you make contact with DIBP you should keep a note of the time and the name of the officer with whom you spoke. Notes of the advice received from any officer should be kept. Copies of every document that is lodged with DIBP should also be kept. Whatever application you make to DIBP, a file number will be allocated to it; whenever you contact or write to DIBP this file number should be quoted. Most application forms provide a space for you to give reasons in support of your application. These spaces are often not large enough to tell the complete story. Any further material you wish to put to DIBP in support of your application should be attached to the application form.

Almost all applications take a long time to be processed by DIBP. If you receive no response to your application for several months. this is not unusual and not a cause for worry. However, if after contacting DIBP to enquire as to the progress of your application, you do not receive a satisfactory explanation, then you may wish to contact your local Commonwealth member of parliament to make enquiries, or the Commonwealth Ombudsman if you believe there has been unreasonable delay.

Visa applications and fees

The manner in which applications are to be lodged and the fees associated with lodgement are provided in Schedule 1 of the Regulations. It is important to check this as the regulations change constantly.

Contacts

For information

The following agencies provide free information about immigration matters. Keep in mind that only a registered migration agent is allowed to provide immigration advice. Some of the agencies in this list may not be allowed to give advice or (like the DIBP) may have a policy of not advising potential applicants and limit themselves to only providing information.

Australian Government Department of Immigration and Border Protection (DIBP)

Pella House, 40 Cavanagh Street,
Darwin NT 0800
Tel: 13 18 81
Web: www.border.gov.au

Law Society of the NT

Level 3
9 Cavenagh Street, Darwin NT 0800
Tel: 08 8981 5104
Email: lawsoc@lawsocietynt.asn.au
Web: www.lawsocietynt.asn.au

Multicultural Council of the NT Inc

Malak Shopping Centre, Malak Place,
Malak NT 0812
Tel: 08 8945 9122
Email: admin@mcnt.org.au

Gay and Lesbian Immigration Task Force

PO Box 2387,
Richmond South Vic 3121
Tel: (03) 5294 0293
Email: info@glitfvic.org.au
Web: www.glitf.org.au
(A member of the International Lesbian and Gay Association)

Tribunals

On 1 July 2015, the Migration Review Tribunal and the Refugee Review Tribunal merged with the Administrative Appeals Tribunal.

Administrative Appeals Tribunal (AAT)
Migration and Refugee Division
Level 10, 120 Spencer Street,
Melbourne Vic 3000
Tel: 1800 228 333
Email: mrdivision@aat.gov.au
Web: www.aat.gov.au

Other sources of information

Printed materials

DIBP produces a number of leaflets, available free of charge at the addresses given above.

A particularly good and detailed source of advice and information is the Immigration Kit (9th edition), obtainable from:

The Federation Press
PO Box 45,
Annandale NSW 2038
Tel: (02) 9552 2200
Email: info@federationpress.com.au
Web: www.federationpress.com.au

Advice on individual cases

The Multicultural Council of the Northern Territory (MCNT) provides a pro bono immigration law advice session on a monthly basis. Bookings can be made by contacting MCNT on 08 8945 9122.

Translating and interpreting service

The Australian Government, through DIBP, provides a Translating and Interpreting Service (TIS) for people who do not speak English and for English speakers needing to communicate with them. TIS is a national service, and is available 24 hours a day, 7 days a week, to any person or organisation in Australia requiring interpreting assistance. It is accessible from anywhere in Australia for the cost of a local call.

Translating and Interpreting Service (TIS)

Tel: 13 14 50

Web: www.tisnational.gov.au

This service available Australia-wide, 24 hours a day, 7 days a week.

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