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Entry to Australia: Visas

Based on the contribution of Michael Clothier, Accredited Immigration Law Specialist, as amended by Er-kai Wang, registered migration agent and Associate Lecturer at the ANU College of Law and current to 19 July 2018

NOTE: Readers should be aware that the Migration Regulations change rapidly. Before using the information listed here, we recommend that you check if the law still current by seeking advice from a migration agent or visiting the Department of Home Affairs'.

Non-citizens entering Australia are required to hold valid visas, which allow entry and either temporary or permanent stay. Visas are granted by the Department (s 29, Migration Act). Since the abolition of the “entry permit” system in 1994, a valid visa is the only document required for travelling to and entering Australia.

The Migration Act (s 29(1)) defines a visa as a 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 assessment has been carried out either in Australia or 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 the permission to enter the country for the period stated in the visa.

This does not mean that all persons granted visas will be cleared by the Department of Home Affairs: 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). Some people (e.g. holders of New Zealand passports) do not need a visa to travel to Australia but are granted a special category visa (s 32) upon presenting a valid (e.g. New Zealand) passport. However, immigration officials may refuse the grant of the visa if the New Zealand citizen is of 'behaviour or character concern'; if granted, these visas may be cancelled in immigration clearance.

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) Migration Act) 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 and/or study rights of 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 visa (s 30(1)) This visa is granted when it has been established that the person concerned meets the legislative requirements, as set out in the Migration Act and 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. Centrelink 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 effect.

A person who enters Australia as the spouse or de facto partner 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 comes in the form of a five-year multiple return visa, but older residents must specifically obtain one at the Department 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 Department has now moved to “electronic” visas, labels are rarely put in passports. To determine your visa status, you need to enter a “visa entitlement verification online request”. Click on the link here for more information.

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 100 penalty units or $21,000 (s 229 and s 4AA of the Crimes Act 1914 (Cth)).

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 around 40 different classes of permanent visa under the Migration Regulations. There are also more than 30 different classes of temporary visa. The main classes of visa are set out below, together with the general criteria needed to meet them.

Permanent Visas

Australia’s immigration policy is stated to be selective but non-discriminatory in terms of race, religion, ethnicity or gender, each visa application is assessed in accordance with criteria set out in the Migration Act and Regulations.

The Migration Regulations provide more than 40 types of permanent visa, which can be divided into four major groups:
  1. Family stream migration (see below - Permanent visa: family stream migration);
  2. Skilled migrants;
  3. Humanitarian/refugee visas;
  4. Special eligibility (this covers a small number of people in special circumstances, for example, those who are former permanent residents).

Purpose of Migration

The purpose of migration is said to build the economy, shape society, support the labour market and reunite family.

Criteria for Entry

Generally, applicants based overseas seeking entry for the purpose of residence need to satisfy the following criteria:
  1. For certain applications, they must attend an interview with an Australian migration officer overseas and answer questions in relation to their visa application;
  2. They must be of good character (this involves a police and security check);
  3. They must be of good health and undergo a medical examination by a medical practitioner approved by the Australian Government;
  4. They must have the intention to reside permanently in Australia; and
  5. They must satisfy the specific criteria under the regulations for their class of permanent visa.

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.

Migration review rights

For the review rights available where a sponsored or nominated person is refused migrant entry. See Review Rights.

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