Visas for non-citizens

Contributed by LydiaWells and current to 27 July 2018

Visa applications

Under the Migration Act 1958 the Minister for Immigration and his or her delegates (within the Department of Home Affairs) have the sole authority to grant a non-citizen a visa to travel to and enter Australia or to remain in Australia (s 29 Migration Act 1958).

A person must apply for a visa class in accordance with the Act (s 45 Migration Act 1958). Section 47 of the Act requires the Minister to consider a valid application for a visa until the application is withdrawn or the visa is granted or refused. Under s 47(3) the Minister is specifically prohibited from considering an invalid application.

Sections 45 to 46 of the Act, Division 2.2 (more specifically regulation 2.07 and regulation 2.10) and Schedule 1 of the Migration Regulations establish a legislative scheme that outlines the requirements for a valid visa application for each specified class of visa.

A valid visa application must be considered (s. 47(1) Migration Act) until:

(a) the application is withdrawn; or

(b) the Minister grants or refuses to grant the visa; or

(c) further consideration of the application is prevented by s 39 Migration Act 1958 (limiting number of visas able to be granted in a particular year) or s 84 Migration Act 1958 (suspension of consideration).

It is important to remember that when a person applies for a visa it is for a CLASS of visa (as set out in Sch 1 of the Migration Regulations 1994 (Cth)).

Visa CLASSES comprise of one or more SUBCLASSES. You do not apply for SUBCLASSES eg for a person to bring their husband or wife to Australia they apply for a Partner (Migrant) (Class BC). The Partner 100 visa refers to the Subclass number and name from Schedule 2 of the Migration Regulations, which sets out the criteria to meet to obtain the visa. An application for a visa of a particular class means the applicant will be considered against the criteria for all the subclasses within that class.

The following information may assist legal practitioners and others to understand how the legislation is structured.

The visa classes are listed in Schedule 1 of the Migration Regulations. These set out the class together with the requirements for making a valid application for each visa class

*Format of Schedule 1* 1XXX Class Name & Code 1. Form(s) to be used 2. Visa Application Charge: First payment (payable at time of application) Second instalment (payable prior to visa grant) 3. Other: Where application is to be lodged and may also prescribe where the applicant must be at the time of application May contain other conditions and requirements May contain a subclause to allow family unit members of the principal applicant to be included in application at time of application 4. Visa subclasses included in visa class 5. Definition of terms [may be included]

The visa subclasses are listed in Schedule 2 of the Migration Regulations this sets out the criteria ('recipe') which must be satisfied at the time of the application and at the time of the decision.

*Format of Schedule 2* XXX.1 Interpretation – may contain definitions and may refer to a definition from Part 1 of the Migration Regulations XXX.2 – Primary Criteria these are criteria that must be met by the primary applicant xxx.21 Criteria to be satisfied at the time of application xxx.22 Criteria that must be satisfied at the time of decision. Usually cross references to Sch 3, 4 or 6 (expressed as 4 digit numbers – eg 4005) XXX.3 Secondary Criteria. These are criteria that must be met by applicants who are members of the family unit of the primary applicant. xxx.31 Criteria to be satisfied at the time of application xxx.32 Criteria that must be satisfied at the time of decision XXX.4 Circumstances Applicable to Grant. This lists any special circumstances that must be satisfied at the time when a visa is granted e.g. where the applicant must be at the time of the grant (inside or outside Australia) XXX.5 When visa is in effect. Sets out the period of time the visa permits a person to remain in Australia and about the period in which the holder must travel to and enter Australia XXX.6 Conditions. Sets out conditions which are either mandatory or discretionary – usually cross references to Sch 8 (four digit codes beginning with 8)

Usually the Regulations will specify where the applicant must be (that is, in or outside Australia) to be granted their visa. (Even for combined visa applications, the requirement applies to each applicant.) An applicant who is in the wrong location at the time of decision must be refused their visa.

Temporary visas

There are a large number of temporary visas available to non-citizens. Temporary visas are generally available for periods of as little as one day, up to four years. The following visas types are available:

1. Visitor visas

2. Temporary work visas
3. Student visas
4. Bridging visas (although these visas are not 'substantive' visas under s5(1) Migration Act 1958, they are included here as short term visas which allow a person to remain lawfully present in Australia).

Visitor visas

There are a variety of visas which allow short term visits to Australia. Most, but not all, of the visitor-type visas restrict work and study available to the holder. They also place other restrictions and obligations on holders. For example, holders will generally be required to maintain private health insurance during their stay in Australia (with failure to do so being a breach of a visa condition which may lead to cancellation of the visa). Holders may also have restricted entry and re-entry dates and periods, and may also be required to meet other obligations such as notifying the Department of changes to their address and so on.

The following are the most common visitor visas:

Visitor subclass 600 visa

The main visitor visa is the subclass 600 visa. It is divided into several 'streams'. Applicants apply for a particular stream, depending on their eligibility.

All applicants must satisfy 'common' criteria for the subclass 600 visa, and then satisfy the criteria for the particular stream applied for.

The common criteria are as follows:

• The genuine temporary stay criterion: all visitors must 'genuinely intend' to enter Australia for a visit or tourism or similar purposes and do not intend to stay beyond a short period.
• Applicants must have adequate money to support themselves during their stay, normally evidenced if required by bank account statements and/or an onward air ticket or other, already paid, travel arrangements.
• Applicants must meet some basic health and character requirements.
• The Department must be satisfied that the grant of the visa will not allow the applicant to stay longer than 12 consecutive months on a visitor-type visa or a bridging visa, unless there are ‘exceptional circumstances’.

The streams are:

• Tourist
• Sponsored Family
• Business visitor
• Approved destination status (PRC only)
• Frequent Traveller

The Tourist stream requires

The Sponsored Family stream is an alternative for applicants from 'higher risk' countries and situations who have close family in Australia as permanent residents or Australian citizens and these relatives are willing and able to sponsor the applicant.

The Business Visitor stream is

The Approved Destination Status stream is only available to nationals of the People's Republic of China (PRC) who enter Australia on approved group tours which are arranged by approved travel agents.

The Frequent Traveller stream is a new stream which is intended to allow long term visitor visas to be available to nationals of the PRC. These visas are valid for up to ten years and allow multiple re-entries to Australia.

Visitor - Medical Treatment subclass 602 visa

The Medical Treatment visa is a very useful visa that may be used where

Working Holiday subclass 417 and Work and Holiday subclass 462 ('backpacker') visas

These two visitor visas are very popular. They are available to young (under 35) visitors to Australia, who wish to have a working holiday. They are available for one year initially and may be extended in certain circumstances for up to another year. These visas have fewer work restrictions, generally allowing multiple periods of work for a single employer for up to 6 months. Details of each visa are as follows:

Subclass 417 (Working Holiday) visa

The Working Holiday (Schedule 2 Subclass 417 Migration Regulations 1994) visa program allows young people, from 18 to 35 years of age, from certain countries35 to have an extended holiday, supplemented by short term employment, in Australia with special focus on regional areas (ranging from, for example, fruit picking; mining; fishing; construction etc).

If a subclass 417 visa holder has undertaken three months’ specified work in regional Australia while holding their first Working Holiday visa, they may be eligible to apply for a second Working Holiday visa.36

A person cannot enter Australia on more than two Working Holiday visas in their lifetime. If a person is granted a Working Holiday visa but does not enter Australia within the validity of the travel component of the visa (12 months from date of grant), they are able to apply and be granted another visa, as long as they continue to meet the visa criteria. That is, the initial visa is not counted towards the maximum of two Working Holiday visas per person if it was not activated and used to enter Australia.

The applicant cannot be accompanied by any dependent children and also have adequate funds for return travel and expenses while in Australia.

The initial visa is valid for 12 months after entry (i.e. entry is required within 12 months of grant) and second visas are an effective 12 month extension. The applicant for the initial visa must be outside of Australia at time of application and grant. Subsequent applications may be made inside or outside Australia.

Subclass 462 (Work and Holiday) visa

This visa is available to citizens of a limited number of countries where those countries have bilateral agreements with Australia.

The applicant must:

• be a citizen of a country listed in an instrument for the purpose of paragraph 1224A(3)(a) of Schedule 1 to the Regulations;
• meet educational requirements;
• be at least 18 but not yet 35; and
• provide evidence that their stay in Australia has been agreed to by their government (except for USA citizens).

Applications for the first visa must be made outside Australia and similarly applicants must be outside of Australia for the grant. Iranian applicants for further subclass 462 visas must be in Australia at time of application and grant.

No provision is made for secondary applicants.

The visa is valid for 12 months and allows for multiple entries.