Immigration, Refugees and Citizenship

Overview

Immigration has been a topic of popular concern in Australia since before federation. Indeed, the development of modern Australia began in earnest with colonial emigration programs designed to foster the movement of British convicts to Australia in the 18th and 19th centuries.

By 1901, however, the federal Parliament had become more concerned with restricting migration to Australia than encouraging it. The first major piece of legislation passed by the Parliament was the Immigration Restriction Act 1901 (Cth) (IRA).

Without using blatantly racist language, the IRA had the effect of prohibiting most non-white, non-English speaking migrants from entering or remaining in Australia. In reality, it provided a means of implementing the 'White Australia' policy which had developed over the preceding decades.

After World War II, the White Australia policy gradually became less acceptable and less viable. The Australian Government saw the need to boost Australia's population and enhance its workforce. The Government introduced mass migration schemes which assisted non-English speaking Europeans to come to Australia. In 1958, the Parliament passed the Migration Act 1958 (Cth) ('the Act') which abolished the prohibitive measures contained in the Immigration Restriction Act 1901. At the same time, the need for strong relationships with Australia's Asia-pacific partners became increasingly important and resulted in a gradual relaxation of restrictions on non-European migration. The Whitlam Government formally abandoned the White Australia policy in 1973.

Since then, Australia has become increasingly multicultural and its body of migration law ever more complex. The 1970s saw the first significant movement of non-European migrants to Australia with the arrival of Vietnamese refugees. In 1989, the Hawke Government introduced major amendments to the Act to enhance business and skilled migration. In 1999, the Australian Multicultural Advisory Council (AMAC) recommended the adoption of the term 'Australian Multiculturalism'.

Today, Australia's Migration Program allows people from any country to apply to migrate, regardless of their ethnicity, culture, religion or language, provided that they meet the criteria set out in law. From July 2008 to June 2009, 158,021 people arrived from over 200 countries to settle in Australia.

Nevertheless, the subject of immigration and in particular, asylum-seekers and refugees still generates a significant amount of public debate and media interest. Australia's migration law is constantly changing to reflect the policies of the incumbent government and these, in turn, are influenced by the concerns of Australia's evolving multicultural populace, the business community and other groups.

Migration Law and Policy

The Australian Constitution provides the Federal government with power to legislate with respect to 'Naturalization and aliens' (s 51(xix)) and 'Immigration and emigration' (s 51(xxvii)). Currently, the government uses the 'Naturalization and aliens' power to make migration laws.

The core pieces of legislation governing migration law in Australia today are the Migration Act 1958 (Cth) ('the Act') and the Migration Regulations 1994 (Cth) ('the Regulations').

The Act governs diverse aspects of Australia's immigration system including 'Control of Arrival and Presence of Non-Citizens' (Part 2), 'Migration Agents and Immigration Assistance' (Part 3) and 'Review of Decisions' (Part 5). The Regulations dictate how the powers provided by the Act are administered and decisions are made.

'Instruments in writing' or Gazette Notices made under the Act and Regulations add to the body of migration law. They are often used as a quick way to change the law to keep visa criteria relevant.

It is also important to be aware of the various 'Ministerial Directions' made by the Minister of Immigration (the Minister). Section 499 of the Act authorizes the Minister to issue directions about the exercise of powers or functions under the Act. Generally, these directions are written to clarify procedures for determining a visa application. Unless they are inconsistent with the law contained in the Act, Ministerial Directions are binding on any person or body who has powers or functions under the Act, including the Migration Review Tribunal, Refugee Review Tribunal and Administrative Appeals Tribunal.

Policy plays an important role in influencing how the law is interpreted and applied by decision-makers. Policy documents from the Department of Immigration and Citizenship (the Department) include the Procedures Advice Manual ('PAM') and Migration Series Instructions ('MSI'). The PAM assists decision makers by providing a departmental interpretation of the Migration Regulations 1994. MSIs comment on specific immigration issues arising from the interpretation of the Migration Act 1958 (Cth) and update various policies and procedures in the PAM.

Other migration-related legislation

Other pieces of legislation which are relevant to Australian migration law include the following:

Australian Citizenship Act 2007 (Cth);

Australian Passports Act 2005 (Cth);

Migration Agents Regulations 1998 (Cth);

Migration Agents Registration Application Charge Act 1997 (Cth);

Migration (Health Services) Charge Act 1991 (Cth);

Migration (Sponsorship Fees) Act 2007 (Cth);

Migration (Visa Application) Charge Act 1997 (Cth);

Education Services for Overseas Student Act 2000 (Cth) - this Act regulates education providers who offer courses to overseas students and provides financial and tuition assurances to overseas students;

Immigration (Guardianship of Children) Act 1946 (Cth) - this Act deals with the guardianship of non-citizen children who are not under the care of a parent or relative;

Aliens Act Repeal Act 1984 (Cth);

Australian Citizenship Act (Transitionals and Consequentials) Act 2007 (Cth);

Immigration (Education) Act 1971 (Cth); and

Immigration (Education) Charge Act 1992 (Cth).

Australia's Visa System

Australia regulates its borders by requiring all non-citizens who wish to travel to or remain in Australia to have a valid visa (s 13(1)). If a non-citizen in Australia does not have a valid visa, they are 'unlawful' (s 14(1)) and subject to mandatory detention (s 189) (see The Consequences of being an Unlawful Non-Citizen).

Essentially, a visa is a permission to travel to, enter and/or remain in Australia (s 29). Visas indicate how long a person is entitled to stay and whether they can leave and come back into the country again. Visas also identify the conditions under which a person is permitted to remain, such as whether the visa holder is allowed to work in paid employment or access social security benefits.

In many cases, evidence that a person holds a visa is provided by a label affixed to their passport. However, the Regulations may list other ways to evidence a particular visa or specify that no evidence of a visa needs to be provided at all. A visa label is evidence of the existence of the visa, not the visa itself.

There are two main types of visa: permanent and temporary visas. Permanent visas allow holders to remain in Australia indefinitely (s 30(1)). They also give the holder permission to travel to and from Australia on an unlimited number of occasions for a certain period of time (usually five years). However, after this time has expired, permanent visa holders must obtain a resident return visa if they wish to leave and return to Australia (see Migration Law and Policy). Permanent visa holders are also known as permanent residents.

According to ss 30(2)(a) - (c) of the Act, temporary visas allow holders to remain in Australia "during a specified period", "until a specified event happens", or "while the holder has a specified status". Whether or not a temporary visa holder can travel to and from Australia for the duration of their visa depends on the particular type of temporary visa they hold.

Australia's Migration Program

Australia's migration program is broadly divided into two major components: non-humanitarian and humanitarian migration. A mixture of permanent and temporary visas is available in both sections of the program. In this chapter, non-humanitarian visas are discussed under the following headings:

• Visitor Visas;
• Family Visas;
• Student Visas;
• Skilled Visas;
• Business Visas; and
• Bridging Visas.

Visas available as part of the humanitarian scheme are discussed at Refugees and Humanitarian Entry.

Basic Terminology

Visa Class: There are different categories of visa called visa classes. Under the Act, it is not sufficient for a non-citizen who enters Australia to simply apply for a visa. A non-citizen must apply for a visa of a particular class (s 45). Schedule 1 of the Regulations sets out the 'prescribed' (see below) classes of visas. Other classes of visa are described in the Act itself.

Visa Subclass: Each class of visa is divided into subclasses. Every subclass of visa has different criteria. The criteria are established to meet Australia's national interests and can be based on a range of considerations such as relationship to an Australian permanent resident or citizen, skills, age, qualifications, capital and business acumen. Schedule 2 of the Regulations sets out the subclasses of visas and the criteria that must be met to qualify for them.

Substantive Visa: All visas apart from Criminal Justice visas, Enforcement visas and Bridging visas are substantive visas (s 5). In order for a person who is already in Australia to obtain a second visa, it is often a requirement that they hold or initially held a substantive visa.

Primary applicant: the main applicant for a visa. Primary applicants must fulfil the 'primary criteria' for the relevant visa subclass found in Schedule 2 of the Regulations.

Secondary applicant: a family member of the primary applicant. Secondary applicants are included on the visa application form of the primary applicant and must fulfil 'secondary criteria' for the visa found in Schedule 2 of the Regulations.

prescribed: means as prescribed or set out in the Regulations.

Immigration cleared: All non-citizens must be immigration cleared. This means they must provide a completed passenger card, evidence of identity (such as a passport) and a visa to an immigration clearance officer (s 166). A clearance officer is usually an official at an airport or seaport who checks travel documents.

Eligible New Zealand (ENZ) Citizen: A New Zealand citizen who satisfied certain health and good character criteria at the date of their last entry to Australia. The person must have been:

• In Australia on 26 February 2001 as the holder of a subclass 444 visa; or
• In Australia as the holder of a subclass 444 visa for not less than a cumulative total of 1 year from the period 26 February 1999 - 26 February 2001; or

Been issued a certificate stating that for the purposes of the Social Security Act 1991 (Cth), the person was residing in Australia on a particular date.

See Migration Regulations 1994 reg 1.03 for more detail.

settled: A 'settled' Australian citizen, permanent resident or eligible New Zealand citizen is someone who has been lawfully resident in Australia for a reasonable period. Under policy, DIAC has interpreted a 'reasonable period' to mean approximately two years. However, there are exceptions to this rule: see MSI 378: Form 40 - Sponsors and sponsorship.

The Department of Immigration and Citizenship

The immigration portfolio and the Department of Immigration were created in 1945 directly after World War II. Over the years, the name of the department has changed to reflect its responsibilities which, at different times, have included Local Government, Ethnic Affairs, Multicultural Affairs and Indigenous Affairs.

Currently, the department is known as the Department of Immigration and Citizenship (the Department). Its five key objectives as outlined in The DIAC Strategic Plan 2009-12 are as follows:

1. Contribute to Australia's future through managed migration.

2. Protect refugees and contribute to humanitarian policy internationally.

3. Contribute to Australia's security through border management and traveller facilitation.

4. Make fair and reasonable decisions for people entering and leaving Australia - ensuring compliance with Australia's immigration laws and integrity in decision making.

5. Support migrants and refugees to settle in the community and participate in Australian society (this includes citizenship services).

The Minister for Immigration and Citizenship (the Minister) is the Hon Chris Bowen, MP. Minister Bowen has responsibility for the Immigration portfolio which comprises the work of the Department, the Office of the Migration Agents Registration Authority, the National Accreditation Authority for Translator and Interpreters (NAATI) Limited, the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT).

The Department's website, www.immi.gov.au, provides a wealth of information on the Department itself as well as processes and procedures for immigration related matters.

The Department's central office is located at 6 Chan St, Belconnen, ACT. It also has numerous State and Territory offices, overseas offices, processing centres (responsible for processing particular types of visa applications) and Centres of Excellence (responsible for processing Subclass 457, 422 and 459 applications - see Employer Sponsored visas and Visitor visas for workers). For contact details, see www.immi.gov.au/contacts/offices.htm.

National phone numbers include:

• General enquiries: 131 881 (available from inside Australia). Hours of operation: Monday to Friday 9 am to 4 pm
• General Skilled Migration enquiries: 1300 364 613. Hours of operation: Monday to Friday 9 am to 4 pm
• Australian citizenship enquiries: 131 880. Hours of operation: Monday to Friday 8.30 am to 4.30 pm
• Translating and Interpreting Service: 131 450. Hours of operation: 24 hours a day / 7 days a week
• Employers' Immigration Hotline: 1800 040 070. Hours of operation: Monday to Friday 8.30 am to 4.30 pm

Individuals can telephone the Global Feedback Unit on 133 177 in order to make a complaint about the Department. It is also possible to submit a feedback form online or write a formal letter. For further contact details, visit the Department's website at www.immi.gov.au/contacts/forms/services/. The Department's Client Service Charter is available here: www.immi.gov.au/about/charters/client-services-charter/client-service-charter1.pdf.

Freedom of Information

The Freedom of Information Act 1982 (Cth) ('the FOI Act') provides every person with a right to access documents held by the Department (and other Commonwealth Government agencies) (s 11 of the FOI Act). People are able to obtain documents as long as the documents do not fall within any of the exempt categories outlined in the FOI Act.

The rights provided by the FOI Act are particularly useful in the immigration context. Individuals can obtain access to the PAM and MSI (see Migration Law and Policy) and gain information on how the Department is likely to apply the law to make a particular decision. People who have had a visa application refused or cancelled can access their files to get a better idea of the information held by the Department, the reasons for the decision and the prospects of success should they apply for review (see Review of Decisions).

For more information on freedom of information generally, see Chapter 41 Freedom of Information.

Making an FOI request

For privacy reasons, documents that contain personal information about an individual can generally only be accessed by that individual (s 41(2) of the FOI Act). Visa applicants or other parties wishing to obtain information from the Department should fill out Form 424A Request for access to documents or information www.immi.gov.au/allforms/pdf/424a.pdf.

Where someone wishes to access documents that were provided by another person or that contain information about another person, then the other person's consent must be obtained or their name and details erased from the document. If possible, the other person should sign the Form 424A to indicate that they consent to the release of information.

People wanting to access information from the Department should send their request forms to one of the addresses listed on the Department's FOI webpage www.immi.gov.au/about/dept-info/foi/contacts.htm.

If the Department refuses to release all or part of a file under an FOI request, applicants have the right to ask the Department to review its decision not to provide the documents. A request for internal review must be in writing and the current application fee is $40.00 (although from 1 November 2010 internal review applications will be free of charge). If the internal review fails to yield results, applicants may be able to apply to the Administrative Appeals Tribunal (AAT) for review.

Applicants for review before the Migration Review Tribunal (MRT) or Refugee Review Tribunal (RRT) can make an FOI request through those tribunals (go to www.mrt-rrt.gov.au/Forms-and-Brochures/default.asp to access the relevant form). Applicants to the MRT may also fill out the form entitled "Consent to Release of Personal Information" to obtain relevant documents. Applying to the tribunals directly is often much quicker and easier than contacting the Department to obtain the same documents. The tribunals do not usually require payment but reserve the right to charge a $30 fee in certain circumstances.

Privacy

The Department must deal with the personal information of individuals in accordance with the Privacy Act 1988 (Privacy Act). The Privacy Act contains 11 Information Privacy Principles (IPP) governing the way in which Commonwealth agencies, such as the Department, should deal with personal information. IPP 6 states that an individual is entitled to access to their own personal information. It also allows a department to refer a request for a document to the FOI process.

Individuals should use the same method to request information under the Privacy Act as for Freedom of Information requests (Form 424A - see Making an FOI request). For more information on the law of privacy generally, see Chapter 43 Privacy Law.

Providing Migration Advice

Given the complexity of migration law and the potential vulnerability of migration clients, the migration advice industry has become more regulated. With very few exceptions, only registered migration agents are allowed to provide immigration assistance (s 280). Anyone who receives payment in return for immigration assistance without being registered may be imprisoned for up to 10 years (s 281). Immigration assistance is defined in s 276 of the Act and includes:

• Assisting someone to prepare or advising someone about either a visa application or application for review of a visa cancellation (ss 276(a) - (b)).
• Preparing for or representing an applicant in Court proceedings in relation to a visa application or an application for review of a visa cancellation (ss 276 (c) - (d)).

Lawyers who are not registered agents are permitted to provide 'immigration legal assistance' (s 280(3)). This means lawyers can prepare for or represent an applicant in Court proceedings where the proceedings relate to a visa application or an application for review of a visa cancellation (s 277(1)). However, they may not, among other things, advise on or assist someone to complete a visa application or application for review of cancellation.

Potential agents must have specific qualifications (s 289A) and prove they are of good character (s 290) to become and remain registered. Once they are registered they must comply with the 'Code of Conduct' set out in Schedule 2 of the Migration Agents Regulations 1998 (Cth) (s 314(2)). They must complete a certain number of courses each year as part of their 'Continuing Professional Development' in order to renew their registration each year (s 290A).

There is no statutory scale of fees to regulate the cost of obtaining migration advice. However, migration agents must set and charge a fee that is reasonable in all the circumstances (see Code of Conduct, Item 5.1).

The costs associated with accessing migration advice can be prohibitive for some people. In this case, migration clients may be able to use the services provided by not-for-profit organisations or apply for assistance under the Department's Immigration Advice and Application Assistance Scheme (IAAAS). There are a number of not-for-profit organisations that engage the services of migration agents to provide free assistance to migrants and refugees (see Contacts, Links and Resources for details of some of these). Alternatively, there are 23 IAAAS providers around Australia, who are Registered Migration Agents or officers of legal aid commissions, see www.immi.gov.au/media/fact-sheets/63advice_providers.htm.

Protection visa applicants in detention and certain disadvantaged visa applicants in the community are eligible for free immigration assistance under the IAAAS scheme. To find out more about the IAAAS and who qualifies as a 'disadvantaged' applicant see the Department's Fact Sheet 63: Immigration Advice and Application Assistance Scheme at www.immi.gov.au/media/fact-sheets/63advice.htm or contact a provider.

The Migration Agents Registration Authority

The Migration Agents Registration Authority (MARA) is responsible for dealing with migration agent registration, monitoring the conduct of agents, investigating complaints against agents and taking disciplinary action where appropriate (s 316).

The Migration Institute of Australia (MIA) is the peak industry or representative body of the migration advice profession. From 1998 until June 2009, the MIA was also appointed to carry out the functions of the MARA (under s 315). The tensions and conflicts of interest between the MIA's role as representative body and regulator of the profession were discussed in the government's formal review: 2007-08 Review of Statutory Self-Regulation of the Migration Advice Profession (December 2008) www.immi.gov.au/gateways/agents/pdf/2007-08-migration-advice-profession-review-report.pdf. Following the review the Minister revoked the MIA's appointment as the MARA and established the Office of the Migration Agents Registration Authority.

The Office of the Migration Agents Registration Authority (Office of the MARA) is a discrete office attached to the Department. The Office of the MARA has published its own Probity Statement that sets out a range of strategies put in place to ensure independence from the Department, see https://www.mara.gov.au/About-Us/Office-of-the-MARA-Documentation/default.aspx.