Immigration, Refugees and Citizenship

Visas

General Requirements for Visas

Applicants for all types of visas must ensure they lodge a valid visa application (see Lodging a valid visa application). Likewise, almost all visa applicants must satisfy certain character and health requirements known as Public Interest Criteria (see Public Interest Criteria). Members of the family unit of the visa applicant must fulfil 'secondary criteria' even if, in some instances, they are not included in the application (see Members of a visa applicant's family). Finally, many visa applicants also require a sponsor (see Sponsorship) and / or an Assurance of Support (see Assurances of Support). They may also be affected by the Minister's decision to limit the number of visas granted each year and to prioritise the processing of certain visa applications (see Cap and queue and priority processing).

Lodging a valid visa application

Before the Department considers whether a person meets the criteria for a certain visa class, they must lodge a valid visa application (s 46). Schedule 1 of the Migration Regulations sets out the requirements for lodging a valid application. Schedule 1 stipulates:

• which form the applicant must lodge;
• the fee or visa application charge (VAC) to be paid;
• other relevant conditions such as:
• where the application must be made;
• where the applicant must be when the application is made;
• how the application may be made (electronically, orally, or in writing);
• other miscellaneous criteria, for example, the age of the applicant; and
• whether family unit members can make a combined application.

Lodging a valid visa application is therefore more complex than merely choosing and signing the correct form. In addition to the Schedule 1 criteria, reg 2.07(3) requires the applicant to complete the application form "in accordance with any directions on it" and to set out his or her residential address in the application form or accompanying documents.

If the requirements of Schedule 1 and reg 2.07 are not met, then the application is invalid and cannot be considered (s 47).

In addition to these requirements, the Migration Act prevents people who are already in Australia from making a valid application for certain types of visas. Whether or not a person in Australia can make a valid application depends largely upon the following factors:

• whether the visa that the person holds is a substantive visa or a non-substantive visa (see Basic Terminology);
• whether the person has had another visa application refused or a visa cancelled; (see Compliance); and
• whether the person's previous visa had a 'no further stay' condition (see Limitations on applying for other visas in Australia, at A. No Further Stay).

Public Interest Criteria

Certain Public Interest Criteria (PIC) must be satisfied for the grant of each visa. The PIC are outlined in Schedule 4 of the Migration Regulations and fall into eight principal categories:

• Good character (see A. Character);
• Security risk;
• Outstanding debts to the Commonwealth;
• Health (see B. Health);
• Settlement prospects;
• Immigration risk;
• Criteria relating to children under 18 years old; and
• Values Statement.

Applicants can find out which PIC they need to meet by referring to the specific visa criteria in Schedule 2 of the Migration Regulations (see the Visa Subclass heading at Basic Terminology).

A. Character

All visa applicants must satisfy character requirements to be granted a visa. It is a Schedule 2 criterion (see the Visa Subclass heading at Basic Terminology) for most visas that applicants satisfy PIC 4001. Indeed, some visas stipulate that the applicant's family members also meet PIC 4001. PIC 4001 requires that the applicant meet the character test, however, it also provides the Minister with discretion to waive the character requirement.

Even where a visa does not require an applicant to meet PIC 4001, the Minister has a general power under s 501(1) of the Act to refuse to grant a visa if an applicant does not satisfy the character test. Again, this power is discretionary and applicants may apply to the Minister to waive the character requirement. The Minister's Direction 41 outlines the considerations decision-makers are to take into account when considering whether or not to exercise their discretion to cancel or refuse a visa on character grounds.

The character test is outlined in s 501(6) of the Act. A person does not pass the character test if:

• the person has a substantial criminal record; or
• the person has been associated with an individual, group, or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
• based on the person's general or criminal conduct the person is not of good character; or
• there is a significant risk that the person would:
• engage in criminal conduct;
• harass, molest, intimidate or stalk another person;
• vilify a segment of the Australian community;
• incite discord in the Australian community; or
• represent a danger to the Australian community (s 501(6)(a) - (e)).

Where a delegate of the Minister has decided to refuse a visa on character grounds, the Administrative Appeals Tribunal may be able to review the decision (s 500(1)). However, if the Minister has personally made the decision, no right to merits review exists (see Which decisions are reviewable?). The Minister's personal decision can only be reviewed by a Court on the basis of jurisdictional error.

B. Health

Almost all visa applicants must satisfy health criteria. The different health criteria are found in PIC 4005 - 4007 of Schedule 4 of the Migration Regulations. Applicants should check Schedule 2 visa criteria to ascertain which of the health clauses is applicable to the grant of their visa. Section 65(1) of the Act specifies that the Minister cannot grant a visa if the health criteria are not satisfied.

Importantly, health requirements are often imposed on both the primary applicant and members of their family whether those family members intend to enter Australia or not. In such cases, the 'one fails, all fail' rule applies - if a member of the applicant's family does not satisfy the health criteria then the visa application will be refused. The 'one fails, all fail' rule is set out in Schedule 2 under the subclasses to which it applies. The rule does not apply to most temporary visas. However, it is important to check the particular temporary visa in question.

Essentially, the health requirements in PIC 4005 - 4007 provide that applicants must not have a medical condition:

• that is considered a public health risk (such as tuberculosis);
• that is likely to require health care or community services; or
• that is likely to result in significant cost to the Australian community and prejudice the access of Australians to treatment.

The Minister is unable to waive the health requirements set out in PIC 4005. However, the Minister may under certain circumstances waive the health requirements set out in PIC 4006A and 4007 (for example, where an applicant's employer / business sponsor provides an undertaking to meet costs of treatment or where they can show that family members will provide support for them rather than the cost being borne by the public). For more information about how to apply for a health waiver, see Kamand et al (2008, pp117 -119).

Members of a visa applicant's family

In many cases, visa holders are able to bring their family with them to Australia. The person who applied for the visa is known as the 'primary applicant' and members of the visa applicant's family are 'secondary applicants'. If both a primary and secondary applicant(s) apply for a visa, they are said to make a 'combined' application.

Schedule 1 of the Regulations stipulates whether or not applicants for a particular visa class can make a combined application. Schedules 1 and 2 stipulate which members of the primary applicant's family can apply as secondary applicants. This varies according to the visa class and subclass for which the applicant is applying.

For most visas, a person who is a 'member of the family unit' (MOFU) of the primary applicant is able to apply as a secondary applicant. For the purposes of the majority of visas, a person is considered to be a MOFU of the primary applicant if they are:

• their spouse or de facto partner;
• a dependent child of the primary applicant and/or their spouse/partner (see reg 1.03 for definition of dependent child);
• the child of the dependent child; or
• a relative of the primary applicant or of their spouse/partner, who is resident in the primary applicant's household, and who does not have a spouse or partner and is dependent on the primary applicant (reg 1.12(1)). (See s 5(1) of the Act for the meaning of 'dependent').

However, it is important to note that for some visas (such as student visas - see Student Visas) the definition of a MOFU is different (reg 1.12). Other visas require secondary applicants to be members of the immediate family of the primary applicant. A person will be a member of the immediate family of a primary applicant if they are the applicant's spouse or de facto partner or dependent child, or if they are the applicant's parent where the applicant is under 18 years old (reg 1.12AA).

Sponsorship

Some visas require the visa applicant to have an Australian sponsor. Usually a sponsor will be an individual but, for some visas, the sponsor could be an organisation (for example, the company employing the visa applicant).

If the sponsorship is approved and a visa granted, the sponsor takes on certain obligations for a specified period of time. In the case of family visas, the sponsor will have an obligation to assist the visa holder financially and/or with accommodation.

If employer / corporate sponsors do not fulfil their obligations, the Minister can impose a variety of penalties. They may be prevented from sponsoring another applicant in the future, forfeit any security they have offered as part of the sponsorship or be fined (s 140K).

Assurances of Support

Many permanent visas that require a sponsor in Australia also demand that an Assurance of Support (AOS) be provided.

An AOS is a legal commitment by one or more Australian residents (the assurer) to repay to the Government certain welfare payments made to a new resident (the assuree) while the AOS is in effect. The assurer does not have to be the sponsor. Anyone who meets the residency and income requirements can be the assurer (for a discussion of these requirements see Kamand, 2008, pp143 -144)). An AOS usually lasts for two years but in the case of Contributory Parent visas lasts for 10 years (reg 2.36).

An AOS can be mandatory (also known as a 'required assurance') or discretionary. This depends on the visa requirements set out in Schedule 2 of the Migration Regulations. If an AOS is mandatory a monetary bond must be paid before the visa can be granted (s 1061ZZGD(3) of the Social Security Act 1991 (Cth)). This requirement cannot be waived. The Department may impose a discretionary AOS if it believes the visa applicant is at risk of becoming a burden on Australia's welfare system.

Centrelink is responsible for administering the AOS Scheme and will assesses whether the proposed assurer has the capacity to repay welfare payments. Acceptance of an AOS by Centrelink does not guarantee a visa will be granted.

For more information about how the AOS scheme works and the procedures for lodging an AOS and recovering welfare payments, see www.centrelink.gov.au/internet/internet.nsf/factors/assurance_support.htm#factsheets.

For the monetary value of the security bonds payable in relation to particular visas see Commonwealth of Australia Gazette, Special, No. S241 (30 June 2004) at www.ag.gov.au/portal/govgazonline.nsf/7942C189816F70D0CA256EC300229C99/$file/S241.pdf

Cap and queue and priority processing

The Minister for Immigration has a number of legal powers available for managing the flow of migration to Australia according to government policy. The Minister may 'cap' the number of visas of a particular visa class that can be granted in a specified financial year (s 85).

Once the cap is reached, no further visas in that class can be granted in that year (s 86). Applicants then wait in a queue for their visa application to be considered in the following year, subject to places becoming available. This capping power cannot be used to limit the grant of visas to applicants on the basis of being a spouse, partner or dependent child of an Australian. For further information on current caps see Fact Sheet 21: Managing the Migration Program www.immi.gov.au/media/fact-sheets/21managing.htm.

The Minister can consider applications in any order of priority he / she thinks appropriate (s 51). This ensures that where there is very high demand for places under the Migration Program, processing priority is given to applicants who have the most compelling claims in terms of the Government's policy priorities.

For information on the Department's processing priorities for Skilled Migration Visas at September 2010, see the Department's Updated Priority Processing Arrangements, www.immi.gov.au/skilled/general-skilled-migration/pdf/priority-processing-14-july-2010.pdf. Note that after Employer Nominated and Regional sponsored visas, priority is given to people applying for jobs on the Skilled Occupation List.

For information on the Department's processing priorities for family stream migration, see Family Visas.

Visa conditions

When granting a visa, the Minister has the power to attach particular conditions to it. (s 41(1)) The types of conditions the Minister can or must attach to a visa are listed under the relevant visa subclass in Schedule 2 of the Regulations below the heading 'Conditions'. In general, the conditions appear as four digit numbers beginning with '8' and refer to items in Schedule 8 of the Regulations. For example, Item 8101 in Schedule 8 stipulates that "the holder must not engage in work in Australia." Once the visa is granted and if the holder has been provided with a visa label, the conditions attached to the visa can usually be found on the label.

Visa holders whose visa is subject to condition 8503 should pay particular attention to the fact that this may prevent them from applying for any other substantive visa while in Australia (see Limitations on applying for other visas in Australia). All visa holders need to know that a breach of visa conditions could lead to cancellation of their visa (see Visa cancellation).

Visitor Visas

Visitor visas are temporary visas catering for people who wish to come to Australia for short-term purposes. There are three broad categories of visitor visa:

• 'tourist visas' for people who want to have a holiday or visit family (see Tourist Visas);
• 'visitor visas for workers' for people on business trips, working holidays or undertaking training or professional development (see Visitor Visas for Workers xx]); and
• 'medical treatment visitor visas' for those who are arranging to have medical treatment in Australia (see Medical Treatment Visitor Visas).

All visitor visa applicants must satisfy the Department that they genuinely intend to visit Australia for the purposes of their visa (see Genuine visitor requirement). Some tourist visa applicants also need to show they have adequate funds to support themselves during their stay (see Adequate funds).

Tourist visas

The Tourist (Subclass 676) Visa enables holders to visit Australia for the purpose of:

• holidays and recreational activities;
• visiting people;
• studying for less than three months; or
• other short-term (non-work and non-medical) purposes.

The visa is granted for a specified duration, with the longest period permitted to stay being 12 months. The visa may permit the holder to enter Australia only once, or may be granted allowing multiple entries. Applicants can apply for the visa from inside or outside of Australia.

Applicants must satisfy the Department that they have a genuine intention to visit Australia temporarily (see Genuine visitor requirement) and have access to adequate funds to support themselves during their stay (see Adequate funds). While the tourist visa is not suitable for those wanting paid employment in Australia, tourist visa holders may be able to do genuine, unpaid volunteer work for no more than three months, for example with an organisation such as Willing Workers on Organic Farms (WWOOF). A 'no work' condition (8101) (see Visa conditions) is imposed on all Subclass 676 visas except where the applicant is already in Australia and for reasons beyond their control has a compelling need to work. Offshore applicants from certain countries can apply for a Subclass 676 visa online.

A Sponsored Family Visitor (Subclass 679) Visa is for people who wish to visit close family members in Australia or to visit Australia short-term for purposes other than business or medical treatment. A visa holder is only allowed to enter Australia on one occasion and may stay for up to a maximum of 12 months (although the visa may be granted for a shorter period). Applicants must satisfy the genuine visitor requirement (see Genuine visitor requirement), have adequate funds (see Adequate funds) and be outside Australia at the time of grant.

Applicants must be sponsored. The sponsor can be either a 'settled' Australian citizen or resident (see Basic Terminology for the meaning of settled) who is a relative of the applicant, a member of parliament, a mayor, or a government agency. In some cases, a monetary security bond may be requested.

The sponsored family visitor visa has similar conditions to the tourist visa including no work. It also has a condition that the visa holder will not stay in Australia beyond the expiry of their visa. Any security paid in support of the visa application may be forfeited if the visa holder breaks any conditions attached to their visa.

Sponsors should lodge the application form, sponsorship form and VAC at a Department office in Australia.

Electronic Travel Authority (Visitor) (Subclass 976) Visa (Visitor ETA) enables nationals from certain countries to travel to Australia on multiple occasions for a period of up to 12 months. Each visit can last for three months. Applicants must be outside Australia or in immigration clearance (see Basic Terminology) when they apply. The visa is stored electronically.

Applicants outside Australia may lodge applications online, with approved agents or at an Australian immigration office overseas. Unfortunately, Taiwanese nationals and holders of UK British Nationals Overseas passports are unable to apply online.

An eVisitor (Subclass 651) Visa allows certain European nationals to visit Australia for tourism or business purposes. Holders can enter Australia on multiple occasions during a 12 month period with each visit lasting up to three months. Applicants can apply online. Once the visa is granted it is stored electronically; a passport label is not provided.

Applicants for all Visitor ETA and eVisitor visas must state that their intention to visit Australia temporarily is genuine. If they have previously overstayed a visa or had a visa cancelled their application will most likely be refused. Similarly, applicants with tuberculosis or a history of criminal convictions resulting in a prison sentence of 12 months or more are not eligible. Once in Australia, applicants on ETA visas and eVisitor visas for tourist purposes are not permitted to work.

A. Lodging applications online

Applicants outside Australia may lodge applications online, with approved agents or at an Australian immigration office overseas. Unfortunately, Taiwanese nationals and holders of UK British Nationals Overseas passports are unable to apply online.

As noted above. offshore applicants from certain countries can apply for a Subclass 676 visa online.

Once the visa is granted it is stored electronically; a passport label is not provided.

Visitor visas for workers

A. Business visitors

The Business (Short Stay) (Subclass 456) Visa is for people who wish to visit Australia for up to three months at a time for business purposes. The visa is valid for the life of the holder's passport or for ten years, whichever is shorter. Applicants must be outside Australia.

The Sponsored Business Visitor (Short stay) (Subclass 459) Visa also allows holders to visit Australia for up to three months at a time. However, applicants must be sponsored by a settled Australian citizen or resident (see Basic Terminology) who is a member of the Commonwealth, State or Territory governments or parliaments. Certain organisations may also sponsor applicants.

Both Subclass 456 and Subclass 459 applicants must:

• demonstrate a genuine intention to visit Australia for business purposes;
• have personal attributes and business background consistent with the nature of the applicant's proposed business in Australia (for example, this could include education, qualification and company position);
• have adequate funds to support themselves during their stay; and
• not intend to engage in activities that will have adverse consequences for employment conditions or opportunities for Australian citizens or residents.

Electronic Travel Authority (Business Entrant) Visas are available to people from certain countries who are outside of Australia or in immigration clearance (see Basic Terminology). These can be divided into two subclasses. Both enable the holder to visit Australia for up to three months at a time for business purposes.

The Electronic Travel Authority (Business Entrant - Short Validity) (Subclass 977) visa is valid for up to 12 months.

The Electronic Travel Authority (Business Entrant - Long Validity) (Subclass 956) is valid for the life of the holder's passport.

Applicants outside Australia can apply via approved agents or at Department offices overseas. All applicants, apart from Taiwanese nationals and holders of UK British Nationals Overseas passports, can also apply online.

It is important to note that all business visa holders must ensure they do not engage in work in Australia that might otherwise be carried out by an Australian citizen or an Australian permanent resident.

B. Working holidays

The Working Holiday (Subclass 417) Visa (WHV) is available to applicants from certain countries whose principal purpose is to holiday in Australia. WHV holders must enter Australia within 12 months of the date of visa grant. They are entitled to remain in Australia for 12 months from the date they entered.

Applicants for the WHV and the Work and Holiday Visa (below) must:

• be outside Australia;
• be aged between 18 and 30 years (inclusive);
• not be accompanied by dependent children during their intended stay;
• have adequate funds to support themselves during their stay (taking into account the fact they will be working in Australia); and
• have adequate funds to pay for a return airfare.

Applicants must not spend any more than six months working for any one employer or spend more than four months studying. They must satisfy the Minister they are 'genuine visitors' (see Genuine visitor requirement). Any work the applicant intends to engage in should be incidental to their holiday.

WHV holders may extend their stay or come back to Australia by applying for a second WHV visa. However, to be eligible, they will need to show they have spent at least three months carrying out specific work in regional Australia.

The Work and Holiday (Subclass 462) Visa is for people from fix link countries which have work and holiday arrangements with Australia. As with the WHV, applicants must show they are genuine visitors whose main purpose is to holiday in Australia. Applicants for this visa are required to have a functional English language ability.

Unlike the WHV, applicants must meet the requirements of the relevant arrangement between Australia and their government. Currently, unless applicants are from the United States, they must also provide evidence that their government has agreed to their stay in Australia. Addresses for lodgement of applications also vary according to the nationality of the applicant. See www.immi.gov.au/visitors/working-holiday/462/ and select a particular country to find the correct lodgement address and specific criteria that applicants must meet.

C. Trainees

The Occupational Trainee (Subclass 442) Visa (OTV)allows people to come to Australia for work-place based training programs designed to increase their level of skill in their occupation or area of expertise.

Applicants may be inside or outside Australia and should be at least 18 years old unless exceptional circumstances exist. Applicants inside Australia must have substantially complied with the conditions of any visas they previously held. Onshore applicants who hold or last held the following visas will not qualify for an OTV:

• Subclass 560 (Student) visa;
• Subclass 562 (Iranian Postgraduate Student) visa;
• Subclass 563 (Iranian Postgraduate Student Dependant) visa;
• Subclass 571 (Schools Sector) visa;
• Subclass 576 (AusAID or Defence Sector) visa;
• Subclass 771 (Transit) visa; and
• Special purpose visa.

The application process for an OTV generally occurs in three stages:

1 An Australian organisation or government agency applies to the Department for approval as a sponsor (see reg 2.60J for criteria for approval as a sponsor);

2 The approved sponsor then lodges a nomination with the Department (where the Commonwealth is the sponsor this step is omitted);

3 The applicant identified in the nomination lodges their visa application.

In order to have their nominations approved (step 2), sponsors must show that occupational training is necessary to enable the identified applicant:

• to become registered or licensed;
• to enhance their skills; or
• to build capacity overseas on return to their home country. (Criteria for approval of nominations can be found in Div 2.17 of the Migration Regulations).

OTV applicants must demonstrate that their main reason for coming to Australia is to undertake occupational training. The Minister must also be satisfied that the grant of the visa will not have a negative impact on the occupational opportunities available to Australian citizens or permanent residents.

The Professional Development (Subclass 470) Visa caters for professionals, managers and government officials who wish to come to Australia to undertake approved programs of professional development. Applicants must be outside Australia and at least 18 years old unless exceptional circumstances exist.

Like the OTV, the application process can be divided into three steps:

1 An Australian organisation or government agency enters into a professional development agreement with an overseas organisation (reg 2.60);

2 The organisation in Australia applies to be a professional development sponsor (reg 2.60);

3 The approved professional development sponsor lodges visa applications for the overseas applicants participating in their professional development program (Sch 1, Item 1220B, also see Lodging a valid visa application).

The sponsor must be satisfied that the applicant will undertake the program and has the relevant skills to do so. It is Departmental policy to rely on the sponsor's assessment of the applicant when deciding whether the applicant genuinely intends to visit Australia to undertake professional development.

Medical Treatment Visitor visas

Medical Treatment Visitor visas are for people who wish to visit Australia for medical consultation, medical treatment or other related purposes. They are also available to people who wish to provide emotional or other support to a medical visa applicant. In general, applicants need to satisfy the 'genuine visitor requirement' (see Genuine visitor requirement), have adequate funds to support themselves for the duration of their stay (see Adequate funds), show that their access to medical treatment in Australia does not have the effect of disadvantaging any Australian citizens or permanent residents: see PAM3:Sch2Visa685 for more detail. Applicants who are coming to Australia in connection with an organ transplant must fulfil extra requirements.

The Medical Treatment (Short Stay) (Subclass 675) Visa enables holders to visit Australia for medical purposes for up to three months. Prospective applicants can apply for this visa from both inside and outside of Australia.

The Medical Treatment (Long Stay) (Subclass 685) Visa allows holders to visit Australia for medical purposes, usually for up to 12 months. As for the short stay visa, applicants can apply from inside or outside of Australia.

Genuine visitor requirement

It is a requirement for all visitor visas that applicants genuinely intend to visit Australia temporarily for the purpose of their visa. The length an applicant must go to in order to convince the Department they are a genuine applicant depends on the type of visa for which they are applying.

All ETA, eVisitor, Working Holiday and Work and Holiday visa applicants must make a declaration stating that their intention to visit Australia temporarily is genuine. The Department will generally accept a declaration at face value. However, where there is evidence that contradicts the declaration, such as information showing the applicant has previously overstayed or been refused a visa, the Department may request further evidence and may decide the applicant does not meet the 'genuine visitor' requirement (see PAM3: GenGuide H).

Applicants for the following visas face a more difficult task persuading the Department they are genuine visitors:

• Tourist (Subclass 676) Visa;
• Sponsored Family Visitor (Subclass 679) Visa;
• Business (Short Stay) (Subclass 456) Visa; and
• Sponsored Business Visitor (Short stay) (Subclass 459) Visa.

Factors decision makers may take into account in deciding whether an applicant meets the genuine visitor requirement for the Tourist (Subclass 676) Visa and Sponsored Family Visitor (Subclass 679) Visa include:

• personal circumstances that may encourage the applicant to leave Australia at the end of the proposed visit (for example, on-going employment in an applicant's home country);
• the applicant's immigration history (for example, if an applicant has previously overstayed a visa then the Department may request extra evidence which proves that they intend to stay only for the duration of the visa);
• personal circumstances in the applicant's home country that may encourage them to remain in Australia (for example, military service commitments, economic situation, civil disruption);
• the credibility of the applicant in terms of character and conduct (for example, false and misleading information provided with visa application); and
• whether the purpose and proposed duration of the applicant's visit, and proposed activities in Australia are reasonable and consistent (for example, period of stay consistent with tourism).

Applicants for the Subclass 456 and Subclass 459 visas must demonstrate that they genuinely intend to enter Australia temporarily for business purposes. Business purposes may include visiting Australia to:

• explore existing or future business opportunities in Australia;
• attend a conference or meeting relevant to applicant's occupation or business activities; and
• undertake training relevant to the applicant's occupation or business activities (not including work placements).

Like the Subclass 676 and 679 visas, ongoing employment in the applicant's home country and their immigration history may be taken into consideration when assessing whether an applicant is a genuine visitor.

Adequate funds

Applicants for Tourist (Subclass 676) and Sponsored Family Visitor (Subclass 679) visas must demonstrate that have access to adequate funds for personal support during their stay in Australia. Applicants for the Business (Short Stay) (Subclass 456) Visa must have adequate funds for each occasion they come to Australia. The main applicant for the Sponsored Business Visitor (Short stay) (Subclass 459) Visa must have adequate funds for personal support as well as for their accompanying partner/dependent children.

The funds do not need to belong to the applicant (they may, for example, be provided by a relative). The amount required will depend on the applicant's purpose in visiting Australia and accommodation arrangements.

Evidence may include bank statements, access to credit, return airline tickets and travel insurance. Travellers cheques and cash are generally not considered acceptable. Where a person other than the applicant is providing funds, they can assist by writing to the Department and attaching proof of their ability to provide funds.

Importantly, people applying in Australia for a Tourist (Subclass 676) Visa with work rights on the basis of financial hardship or compelling reasons do not have to show they have adequate funds.

Family Visas

Family Visas provide a way for family members of Australian citizens, permanent residents, or eligible New Zealand citizens to migrate to Australia. There are specific categories of visa for partners, children and parents. In addition there are visas for which other relatives (such as siblings, aunts and uncles, nieces and nephews, grandparents and grandchildren) may be eligible (see Other Family visas). The basic eligibility criteria for each type of visa is outlined below.

On 18 July 2009, the Department adopted a new policy for considering and disposing of Family Stream Visa applications. The Department's highest priority is to provide for the reunion in Australia of immediate family members, such as partners, fiancées, dependent and adopted children, and orphan relatives. After considering applications from immediate family members, decision-makers will process carer visa applications and finally, other visa applications such as parent, remaining relative and aged dependent relative applications. Apart from parent visa applications, the Department may give special consideration to applicants who can demonstrate compelling circumstances. (See Direction 43, Order for considering and disposing of Family stream visa applications).

Partner visas

Partner visas are available to applicants whose partners are Australian Citizens, Australian permanent residents or Eligible New Zealand Citizens. Applicants must be sponsored by their Australian partner and the sponsorship must be approved by the Department (see Sponsorship).

The legislation has a rule limiting 'serial sponsorship' of partners (including fiancé(e)s). According to subreg 1.20(J)(1), the Minister must not approve sponsorship where the Australian partner:

• has already sponsored more than one other person for a partner visa;
• has previously sponsored another person for a partner visa and at least five years has not passed since the date of that visa application;
• has engaged in family violence against a previously sponsored party; or
• was themselves sponsored to come to Australia on a partner visa and at least five years has not passed since the date of that visa application.

However, the Minister has a discretion to approve a serial sponsorship where he or she is satisfied that there are compelling circumstances affecting the sponsor: reg 1.20J(2). The Department notes that under policy, the death of a previous partner, the existence of dependent children of the relationship or the longstanding nature of the relationship would constitute compelling circumstances: PAM 3L Div 1.4B. However, this is not an exhaustive list, other circumstances may prove to be equally compelling.

Holders of Subclass 143 and Subclass 864 visas (see Parent Visas under A. Contributory Parent visas) granted on or after 1 July 2009 are also prevented from sponsoring a partner for at least five years from the date of grant unless they can demonstrate compelling reasons or meet specific criteria (see reg 1.20(K)(A)).

Women at Risk visa holders are prevented from sponsoring in certain circumstances. See cl 820.2112B of Sch 2 to the Regulations.

A. Fiancà ƒ ©e

Prospective Marriage (Subclass 300) Visas also known as 'Fiance visas' are for people outside Australia who wish to come to Australia to marry their Australian partner (see Partner visas). The visa is valid for nine months and the applicant must marry within that time.

Both parties must have met (as adults) and be known to each other personally. They must show they intend to live together as spouses once they are married. The applicant needs to provide evidence of the parties' intention to marry within the visa period. As a matter of policy, the Department requires applicants to provide a letter which has been signed and dated by the authorised marriage celebrant who will conduct the ceremony.

B. Partner

Partner visas enable people who are already married or in a de facto relationship to move to (or remain in) Australia to live with their Australian partner (see [42.3.1]). Both spouses and de facto couples are eligible for this visa.

Spouses

Section 5F of the Act stipulates that to be spouses, partners must:

• be legally married to each other;
• have a mutual commitment as husband and wife (in other words, be of the opposite sex) to the exclusion of all others;
• have a genuine and continuing relationship; and
• live together or not live separately on a permanent basis.

Same-sex marriages are not recognised for migration or citizenship purposes, except to the extent that they are non-conclusive evidence of a de facto partner relationship (see De facto couples below). The law applicable to determining whether a marriage is valid for the purposes of migration is laid out in the Marriage Act 1961 (Cth) (s 12). In particular, foreign marriages and marriages by 'proxy' are acceptable as long as they are recognised under the local law in the country in which they took place; arranged marriages are valid as long as both parties have provided what is known as 'real consent' (see s 23B of the Marriage Act 1961) and; polygamous or bigamous marriages are not recognised as valid marriages. Where a couple marry while one of the parties is married to someone else, the marriage is not valid even if the first marriage has subsequently ended. Affected applicants should instead apply for a partner visa on the basis of a de facto relationship.

De facto couples

According to s 5CB of the Act, two people (whether of the same sex or of the opposite sex) are in a de facto relationship where:

• they have a mutual commitment to a shared life to the exclusion of all others;
• the relationship between them is genuine and continuing;
• they live together or do not live separately on a permanent basis; and
• they are not related by family (either as a child or descendant of the other, or have a parent in common).

Both spouses and de-facto couples bear the onus of proving they are in a genuine and continuing relationship. Possession of a marriage certificate, for example, is not enough. Among other things, the decision maker will consider the financial and social aspects of the relationship, household responsibilities and arrangements, and the length of time the couple has been together. See http://www.immi.gov.au/migrants/partners/evidence-of-relationship.htm for further information on the evidence applicants and sponsors (partners) should provide to the Department in order to prove they are in a genuine and continuing relationship. An exhaustive list of factors the Department will take into account can also be found in reg 1.15A(3).

Applicants for a Partner visa apply for a provisional (temporary) and permanent visa in the same application. The temporary visa is granted first and generally the permanent visa is granted two years after the date the visas were applied for, providing the couple remains in a genuine continuing relationship - with some exceptions (see below). However, if at the time of applying the couple are in a 'long term partner relationship', that is, they have been together for at least three years or, if the couple has a dependent child, for at least two years, then the applicant is eligible for grant of the permanent partner visa immediately, without waiting the usual two years.

Applicants inside Australia should apply for the Partner (temporary) (Subclass 820) Visa and Partner (permanent) (Subclass 801) Visa.

Applicants outside Australia apply for the Partner (temporary) (Subclass 309) Visa and Partner (permanent) (Subclass 100) Visa.

C. Recent changes

On 1 July 2009, changes to the Act and Regulations came into effect. The changes extended the Department's recognition of same-sex couples and their children for migration and citizenship purposes, resulting in same-sex de facto partners having the same rights and responsibilities as opposite-sex de facto partners. As outlined above, same-sex partners are now able to apply for Partner visas along with opposite sex de facto couples.

Prior to these changes, opposite-sex applicants and their sponsors applied for the following visas:

Applicants inside Australia applied for the Spouse (temporary) (Subclass 820) Visa and Spouse (permanent) (Subclass 801) Visa.

Applicants outside Australia applied for Spouse (temporary) (Subclass 309) Visa and Spouse (permanent) (Subclass 100) Visa.

Meanwhile, same-sex applicants and their sponsors were eligible to apply for the following:

Applicants inside Australia applied for the Interdependency (temporary) (Subclass 826) Visa and Interdependency (permanent) (Subclass 814) Visa;

Applicants outside Australia applied for the Interdependency (temporary) (Subclass 310) Visa and Interdependency (permanent) (Subclass 110) Visa.

If applicants lodged an application for a Spouse or Interdependency visa or were granted a temporary Spouse or Interdependency visa before 1 July 2009, they will be granted a Spouse or Interdependency visa at both the temporary and permanent stages of the application after 1 July 2009.

D. What if the relationship breaks down?

If the relationship does not last for the two year period required for an applicant to acquire a permanent visa, the applicant may still be given permanent residency where:

• the Australian partner has died;
• the applicant or dependent child has suffered family violence committed by the Australian partner; or
• a child is involved and a Court has made an order granting the Australian partner custody or contact with a child to whom the applicant also has custody or access, or where the Australian partner has a child maintenance obligation.

E. Family violence

The family violence provisions, set out in Division 1.5 of the Regulations are designed to prevent a partner from having to remain in an abusive relationship in order to obtain permanent residence in Australia. If the holder of a temporary partner visa can prove to the Department that family violence has occurred, they may be granted permanent residency regardless of the fact their relationship has broken down.

Family violence is defined in reg 1.21 as "conduct, whether actual or threatened, towards"that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety."

Three important requirements must be met in order to benefit from the family violence provisions:

• the violence must have been committed by the Australian partner (sponsor);
• the victim must be:
• the spouse or de facto partner of the perpetrator;
• the dependent child of the perpetrator and/or their partner; or
• a member of the family unit of the perpetrator and/or of the applicant(reg 1.23(9)(b)) (see discussion of 'member of the family unit at Members of a visa applicant's family); and
• there must be sufficient evidence to prove the violence occurred.

Regulation 1.23 provides that the following constitutes evidence of family violence:

Definitive evidence of family violence

A restraining order or protection order (made after a full hearing) or injunction issued by a court against the alleged perpetrator (for example an Apprehended Violence Order, or AVO).

Evidence that the alleged perpetrator was convicted or found guilty of assault or some other violent offence against the victim (reg 1.23(6))

*Evidence which is NOT definitive*

Joint undertakings given to a court by the perpetrator and victim (for example, an undertaking by the perpetrator to stay away from the victim) (reg 1.23(8))

The visa applicant and two 'competent persons' (see below) sign statutory declarations to the effect that family violence has taken place (regs 1.23(9) and 1.24(1)(b))

The visa applicant and one competent person sign statutory declarations stating that family violence has taken place. In addition, the applicant provides the Department with a police record of an assault by the perpetrator against the victim (reg 1.24(1(a)))

If an applicant gives the Department 'non-definitive' evidence of family violence, then, if after reviewing this evidence, the DIAC officer is not satisfied family violence has occurred, he or she must refer the matter to an independent expert (reg 1.23(10)) for a final decision. At present, Centrelink provides an independent expert to assess whether or not family violence has occurred.

An applicant can only rely on the family violence provisions where the violence, or part of the violence, occurred while the partner relationship between the perpetrator and the applicant partner existed.

In addition to Partner visas, the following visa subclasses include provisions that may result in the visa being granted on the grounds of family violence:

• Established Business in Australia (Subclass 845) (seeBusiness Visas);
• State / Territory Sponsored Regional Established Business in Australia (Subclass 846) (see Business Visas);
• Resolution of Status (Subclass 851);
• Labour Agreement (Subclass 855);
• Employer Nomination Scheme (Subclass 856);
• Regional Sponsored Migration Scheme (Subclass 857); and
• Distinguished Talent (Subclass 858) Visa (see Distinguished Talent visas).

Children's visas

There are three types of permanent visa specifically for children:

• the Child visa (see A. Child below);
• the Adoption visa (see B. Adoption below); and
• the Orphan relative visa (see C. Orphan relative below).

In all cases, where the applicant child has not turned 18, Public Interest Criteria 4017 and 4018 must be satisfied (see Public Interest Criteria). PIC 4018 specifies that the Minister must be satisfied "that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant".

A. Child

Child visas enable dependent children of Australian Citizens, permanent residents or Eligible New Zealand Citizens to migrate to Australia. Regulation 1.03 defines 'dependent child' as

the child or step-child of [a] person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

(a) has not turned 18; or

(b) has turned 18 and:

(i) is dependent on that person; or

(ii) is incapacitated for work due to the total or partial loss of the child's bodily or mental functions.

Child visas are generally also available to step-children. However, where the child's natural or adoptive parent is no longer married to, or in a de facto relationship with, the Australian step-parent, extra criteria apply. The applicant must be under 18 and the Australian step-parent must have legal responsibilities towards them (via court order, for example).

Child visas are only available to adopted children if the child was adopted overseas before the parent became an Australian citizen, permanent resident or ENZ citizen.

Applicants inside Australia should apply for a Child (Subclass 802) Visa.

Applicants outside Australia should apply for a Child (Subclass 101) Visa.

The Dependant Child (Subclass 445) Visa is a temporary visa for the dependent children of the holder of a provisional partner visa when the child was not included in their parent's partner visa application - for instance because the child was overseas. It enables the child to be reunited with their parent in Australia. Once in Australia, the child should then be added to the parent's permanent partner visa application. Applicants can apply from both inside and outside Australia and must be sponsored by their parent's Australian sponsor.

B. Adopted Child

The Adoption (Subclass 102) Visa is available to children under 18 years of age who have been adopted or are going to be adopted by an Australian Citizen, permanent resident or Eligible New Zealand Citizen.

In order to be eligible for a visa, the applicant must be subject to:

• an adoption arranged with the involvement of a Australian State / Territory government adoption authority; or
• an expatriate (private) adoption by Australians resident overseas for more than 12 months.

Australians who wish to adopt children from overseas should contact their State or Territory Authority [MSOffice1] for further information on the procedures concerning adoption. Different laws and processes will apply depending on the nationality of the child to be adopted.

Overseas adoption is a highly regulated area. If (potential) adoptive parents do not comply with the laws and processes in place, they may not be able to obtain a visa for their child.

In exceptional circumstances, children adopted privately by Australians who have been residing overseas for more than 12 months may be eligible for a visa. However, the Department must be satisfied that that the adoptive parent was not living overseas for the sole purpose of adopting a child and thereby circumventing the usual State / Territory government requirements.

The Australian Government Attorney-General's Department has primary responsibility for developing and maintaining intercountry adoption arrangements with other countries. For fundamental information on intercountry adoption, prospective parents should visit the Attorney-General's website.

C. Orphan Relative

Orphan Relative visas are available to children whose parents cannot care for them because each is either dead, permanently incapacitated or of unknown whereabouts and who have a relative who is an Australian Citizen, permanent resident or Eligible New Zealand Citizen. Applicants must be under 18 years old and must not be married or have a de facto partner. They must be sponsored by their Australian relative or their relative's spouse and the sponsor must be at least 18 and be 'settled' in Australia (see Basic Terminology). The relative must be:

• a close relative (that is, either the spouse de-facto, brother, sister, child, parent, step-child or step-parent); or
• grandparent, grandchild, aunt, uncle, niece or nephew, step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew

of the applicant. (See reg 1.03 for this definition).

Applicants inside Australia should apply for an Orphan Relative (Subclass 837) Visa.

Applicants outside Australia should apply for an Orphan Relative (Subclass 117) Visa.

Parent Visas

Parent visas enable an applicant with a child who is a settled Australian citizen, Australian permanent resident or eligible New Zealand citizen (ENZ) (see Basic Terminology) to migrate to Australia. Applicants for parent visas must be sponsored by their child or child's partner. Sponsors must be at least 18 years old and must be 'settled' in Australia (see Basic Terminology). Where the applicant's child is a minor (under 18) it is possible to have a substitute sponsor: the child's spouse / partner, relative or guardian (who is aged at least 18) or a community organisation.

Applicants for all parent visas must pass the 'balance of family test'. In order to pass the balance of family test, the number of children of the applicant parent who are lawfully and permanently resident in Australia (or eligible New Zealand citizens who are usually resident in Australia) must be:

a) at least equal to the total number of children who are resident overseas; or

b) greater than the highest number of children resident in any single overseas country (reg 1.05).

For example, where an applicant parent has four children, two who are permanently resident in Australia and two who are both resident in the same overseas country, the parent will not pass the test.

For the purposes of the balance of family test, a 'child' is a child or step-child of: the applicant parent; the parent's spouse or de-facto partner or; a previous spouse or de-facto partner of the parent (if the child was not born or adopted after the partner relationship ceased) (reg 1.05). Regulation 1.05 also sets out circumstances when a particular child of the parent will not be taken into account when assessing whether the parent has passed the balance of family test.

A. Contributory Parent visas

There are two types of visa, namely, Parent Visas and Contributory Parent Visas. Contributory Parent Visas are significantly more expensive than Parent Visas. The Department's policy is to give priority to Contributory Parent Visa applications (see Family Visas).

There a four types of Contributory Parent visas:

Offshore

• Contributory Parent (Subclass 143) Visa: applicants can be of any age and must be outside Australia at the time of grant. They are therefore ineligible for a bridging visa during processing. Applicants must have an assurance of support.
• Contributory Parent (Temporary) (Subclass 173) Visa: applicants can be of any age and must be outside Australia at the time of grant. This visa is valid for two years and applicants can apply for a permanent visa (Subclass 143) within that time. An assurance of support is not required.

Onshore

• Contributory Aged Parent (Subclass 864) Visa: Applicants must be in Australia and be old enough to be eligible for the aged pension in Australia.
• Contributory Aged Parent (Temporary) (Subclass 884) Visa: Applicants must be in Australia and old enough to qualify for the pension. The visa is valid for two years and applicants can apply for a permanent visa (Subclass 864) any time during this period.

B. Parent visas

There are two subclasses of Parent Visas:

• Parent (Subclass 103): applicants may be inside or outside Australia at the time of application but must be outside Australia at the time of grant;
• Aged Parent (Subclass 804): applicants must be old enough to be granted the pension in Australia. They must apply from within Australia and be in Australia at the time of grant. Most applicants are entitled to a bridging visa while their application is being processed.

Other Family visas

There are three other important paths to family reunification, namely the carer, remaining relative and aged dependent relative visas. For all three subclasses of visa, applicants must be the relative of an Australian citizen, Australian permanent resident or eligible New Zealand citizen (known as an 'Australian relative'). They must be sponsored by the Australian relative or the relative's cohabiting spouse or de facto partner. Either way, the sponsor must be over 18 and must be 'settled' in Australia (see Basic Terminology).

Carer visas enable people to migrate to Australia to care for an Australian relative (or a member of the relative's family unit) with a medical condition: (see reg 1.03 for the meaning of 'relative'). The medical condition must be such that they need direct assistance in attending to practical aspects of daily life for at least two years. Prescribed medical or health service advisors must issue a certificate stating that this is the case. Visa grant is dependent on there being no Australian or ENZ relative, or welfare, community or health service in Australia that can reasonably provide the assistance needed (reg 1.15AA).

• Onshore applicants should apply for a Carer (subclass 116) Visa.
• Offshore applicants can apply for a Carer (subclass 836) Visa.

Remaining Relative visas allow parents, brothers, sisters, step-sisters or step-brothers of Australian citizens, permanent residents or ENZCs to come to Australia if they have no other near relatives overseas: reg 1.15. The meaning of 'near relative' is set out in reg 1.15(2).

• Onshore applicants can apply for a Remaining relative (subclass 115) Visa.
• Offshore applicants can apply for a Remaining relative (subclass 835) Visa.

Aged Dependent Relative visas are for people who have an Australian relative and who: are old enough to be granted the age pension; do not have a spouse or de facto partner; and are and have previously been dependent on their Australian relative: see reg 1.03. Regulation 1.05 provides the meaning of the term 'dependent'. Essentially, it means that the applicant must be wholly or substantially reliant upon the Australian relative for financial support to meet their needs.

• Onshore applicants can apply for an Aged Dependent Relative (subclass 114) Visa.
• Offshore applicants can apply for an Aged Dependent Relative (subclass 838) Visa.

Student Visas

The student visa program enables overseas students to come to Australia to undertake full-time study in registered courses. Student visas are temporary visas. Once a student has successfully completed an award in Australia there may be a pathway to permanent residence (see for example General Skilled Migration under C. Graduate Skilled temporary visas).

There is one class of student visa, Student (Temporary) (Class TU). Within that visa class there are eight student visa subclasses - six specific to educational sectors, plus the AusAID / Defence sector visa and the Student Guardian Visa.

All student visa applicants must satisfy the Department they are genuine students and some student visa applicants may be eligible to bring members of their family to Australia as 'student dependents'.

Student visa subclasses

The six student visas specific to education sectors are:

• Independent English Language Intensive Course for Overseas Students (ELICOS) (Subclass 570) Visa: for students who wish to study a stand alone English language course that is not a prerequisite for another course;
• Schools Sector (Subclass 571) Visa: for students undertaking primary or secondary school level courses including registered exchange programs;
• Vocational Education and Training Sector (Subclass 572) Visa: for students studying a course leading to the award of a Certificate I, II, III, and IV, Diploma, Advanced diploma, or Advanced certificate;
• Higher Education Sector (Subclass 573) Visa: for students who wish to undertake an Associate or Bachelors degree, Graduate certificate or diploma or Masters by coursework;
• Postgraduate Research Sector (Subclass 574) Visa: for students studying a Masters by research or a doctoral degree; and
• Non-Award Sector (Subclass 575) Visa: for students who want to study a stand alone course (not an ELICOS course) which does not lead to a formal award.

A list of registered courses can be found in the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).

The AusAID or Defence Sector (Subclass 576) Visa is for students who wish to undertake a full-time course sponsored by AusAID or the Department of Defence. The student should have written approval from the Minister for Defence of AusAID. Applicants are expected to return to their home country to use the skills they gain during the course and will ordinarily be ineligible for another Australian visa for at least two years after their Subclass 576 visa expires.

The Student Guardian (Subclass 580) Visa enables a parent or relative of a school-aged child on a student visa to come to Australia to provide for the student's welfare. In exceptional circumstances, Student Guardian Visas may be granted to accompany students over 18 years old. It is Departmental policy to require that the student visa application and Student Guardian visa application to be lodged at the same time.

A. Genuine student requirement

All student visa applicants must satisfy the Department they are genuine students. The amount of evidence required to prove genuineness depends on the visa subclass and the nationality of the applicant. The 'Assessment Levels' (ALs) relevant to particular subclasses and nationalities are instituted by Gazette Notice and outlined in the Department's information sheet: Overseas Student Program Assessment Levels.

Once applicants determine which AL applies, they should consult Schedule 5A of the Regulations to see the exact evidence they must provide. The evidence sought for each assessment level relates to:

• the applicant's financial capacity to meet the costs of their tuition and day to day support during the period of study;
• the applicant's English proficiency to be able to undertake the course of study; and
• any other relevant matters (such as age and academic history).

AL1 is the easiest level to satisfy and applies to applicants who are deemed to be of low immigration risk and therefore likely to abide by the conditions of their visa. On the other hand, AL5 applies to high risk applicants unlikely to comply with their visa conditions. Currently no eligible passports for any student visa subclass are given an AL5.

B. Family members of students

Most student visa applicants can bring members of their family to Australia as 'student dependents' for the duration of their visa. A student dependent must be either:

• the de facto partner (whether of the opposite or same sex) or spouse of the student visa holder; or
• an unmarried dependent child of the student visa holder who is under 18 years old (reg 1.12)

All AL1 and AL2 student visa applicants (see A. Genuine student requirement above) can bring family members to Australia as student dependents. However, AL3, 4 and 5 applicants only qualify where:

• they are undertaking a course that takes over 12 months to complete;
• they have been in Australia for 12 months;
• they are applying for an AusAID or Defence Sector (Subclass 576) visa (see Student visa subclasses); or
• they are receiving government or multilateral agency support for their study.

Skilled Visas

The Skilled Migration Stream accommodates people who wish to travel to or remain in Australia to work. It comprises both temporary and permanent visas and can be divided into four categories:

• general skilled migration (see General Skilled Migration);
• distinguished talent (see Distinguished Talent visas);
• employer sponsored (see Employer Sponsored visas); and
• business skills (see Business Skills visas).

Each of these categories and their respective visas is discussed below. To find out more about the Department's new policy on the processing of skilled visas, see General Skilled Migration (under A. The Points Test, at the heading 'New skilled migration priority processing arrangements').

General Skilled Migration

The General Skilled Migration (GSM)program is for people who are not sponsored by an employer but who have skills in particular occupations required in Australia. The GSM program includes permanent, temporary and provisional visas for offshore and onshore visa applicants.

In February 2010, the Government revised the GSM program substantially. The main changes were the introduction of a new Skilled Occupation List (SOL) and the withdrawal of the Migration Occupation in Demand List (MODL). The new SOL greatly reduced the number of skilled occupations under which applicants could qualify for a GSM visa. The new SOL also now includes a list of occupations only available to applicants who are also sponsored by a State or Territory agency under a State Migration Plan.

These changes to the GSM program are not retrospective. Any applications for a GSM visa lodged prior to the changes being announced will be assessed on the basis of the old SOL.

Other changes to the GSM program include transitional arrangements for current and former student visa holders. These transitional provisions are in place until the end of 2012. Essentially, they allow anyone who held or had applied for a Temporary Skilled Graduate Visa (Subclass 485) visa on 8 February 2010 to apply for a permanent GSM visa on the basis of the old SOL. The transitional arrangements also allow anyone who held a 'qualifying student visa' when the changes were announced to apply for a GSM visa based on the old SOL. Qualifying student visas are Subclass 572, 573 and 574 visas (see Student visa subclasses).

All applicants for a GSM visa must:

• nominate a skilled occupation and be assessed by a relevant assessing authority;
• meet age requirements and in general, be under 45 years old;
• have an adequate level of English; and
• have recent work experience in a skilled occupation or have completed two years of study in Australia within six months of applying for the visa.

Nominated occupation and skills assessment

Applicants for GSM visas may nominate any of the occupations found in the Department's SOL (formerly known as form 1121i). The SOL is defined in reg 1.15I and set out in an Instrument made under that regulation.

The SOL is set out in four schedules and applicants must nominate an occupation from a schedule of the SOL that is applicable to their circumstances. The relevant schedule of the SOL will indicate the number of points allocated to each occupation (see A. The Points Test below) and show which assessing authority the applicant must apply to in order to have their skills verified.

The pre 1 July 2010 GSM program provided an Australian Standard Classification of Occupation (ASCO) code for each occupation. The current SOL now provides the Australian and New Zealand Standard Classification of Occupations (ANZSCO). By referring to the ANZSCO code, or ASCO code if applicable, applicants can find out the level of qualification and experience they need to qualify for their chosen occupation.

The four schedules to the SOL include schedules that are applicable to the transitional arrangements for current and former student visa holders as well as a separate schedule for GSM visa applicants who are seeking to have their application sponsored by a State or Territory agency under a State Migration Plan. Applicants must have a nominated occupation which is on the SOL applicable to their circumstances at the time they apply:

• Schedule 1 of the SOL reflects the SOL in existence prior to 1 July 2010 and links occupations with an ASCO code. This schedule applies only to GSM applicants who lodged their application prior to 1 July 2010;
• Schedule 2 of the SOL links occupations with an ANZSCO code. It applies to certain GSM applicants who are eligible for transitional arrangements (such as skilled graduate and student visa holders) and who lodge their application before 1 January 2013;

Schedule 3 of the SOL is the current SOL and applies to all new GSM applications, including applicants eligible for transitional arrangements if they prefer to use it;

• Schedule 4 of the SOL, otherwise known as the State and Territory SOL, is for GSM applicants who are nominated by a State or Territory government agency under a State Migration Plan.

The criteria each applicant must meet to obtain a skills assessment is determined by the relevant assessing authority. Usually, authorities require evidence of qualifications and relevant work experience. Most applicants for GSM visas must provide a positive skills assessment at the time of lodging their application.

Level of English

In order to obtain a GSM visa most applicants must show they have competent English. Citizens of Canada, New Zealand, Ireland, United Kingdom and United States who also hold passports from those countries are taken to have met a competent level of English. Applicants for a provisional Skilled Regional Sponsored (Subclass 475) Visa need only show concessional competent English.

The requirements for demonstrating competent English are set out in reg 1.15C and the requirements for demonstrating concessional competent English are set out in reg 1.15F. Briefly, in order to satisfy the Minister that an applicant has competent English, they must undertake an International English Language Testing System (IELTS) test or Occupation English Test (OET) - or have already undertaken one less than two years before the visa application is decided. Applicants for Subclass 485 and 487 visas need to provide evidence of their English ability or have arranged an English test before they apply for their visas.

For competent English, a person must achieve a score of at least 6 for speaking, reading, writing and listening. A person will have concessional competent English where they achieve an average score of 6 across the various categories.

Achieving an average score of 6 across the various IELTS test bands does meet the requirement for concessional competent English set out in reg 1.15F. However, subclass 475 visa applicants who wish to apply to a State or Territory agency for sponsorship may be required to fulfil extra requirements. The relevant State Migration Plan may stipulate that the applicant achieve a score no lower than a particular level in any of the IELTS test's four components.

Work experience

Unless applicants for offshore GSM visas meet the two years study requirement, they must show they have worked in a skilled occupation for 12 out of the 24 months prior to applying for their visa. The work experience relied upon need not be related to the applicant's nominated occupation. However, the applicant can obtain more points under the points test (see A. The Points Test below) where they have nominated a skilled occupation worth 60 skill points and they can show that for at least 36 out of the preceding 48 months their employment experience was closely or specifically related to their nominated occupation. The extra points to be gained under the points test of the GSM program are set out in Item 6B41 of Part 6B.4 of Sch 6B of the Regulations.

A. The Points Test

The Minister sets pass marks and pool marks for particular classes of skilled visa (s 96). Most applicants must obtain either a pass mark or pool mark to receive a qualifying score for a visa (s 94). Once the Minister has established that a person meets the pass mark, the Department will proceed to process their application. Where an applicant meets the pool mark (but does not reach the pass mark), the Minister will place the application in the pool (s 95). After a period of two years in the pool, the Minister will refuse the application unless:

• the pass mark is lowered in the two years after the applicant's score is assessed; (ss 95 and 95A)
• the quota for GSM visas is not reached; or
• a State or Territory government nominates the applicant from the Department's Skills Matching Database.

Applicants who do not satisfy either the pass or pool mark will have their applications refused.

According to Sch 6B of the Regulations, points are awarded on the basis of:

• the applicant's nominated skilled occupation (generally, specialist occupations are awarded 60 points, degree level occupations receive 50 points and diploma level qualifications or trades attract 40 points);
• age;
• English language ability (It is a requirement for most GSM visas that the applicant gain an IELTS score of at least 6 in all categories (see Level of English above) - however, an applicant can gain extra points for achieving a higher score);
• work experience in a nominated occupation or closely related occupation;
• Australian employment experience in a nominated occupation or closely related occupation;
• Australian qualifications;
• the skills of the applicant's partner and whether they are also applying for a skilled visa;
• sponsorship by a State or Territory government (see Business Visas for a list of State / Territory sponsored visas) or by a relative;
• proficiency in a designated community language which is demonstrated by either holding a qualification which is the equivalent to an Australian bachelor degree and the language of tuition was in that designated language or by holding accreditation as an interpreter in that designated language; and
• study in a regional area.

The old MODL and the points test - transitional arrangements

Until recently, applicants could also gain points if their nominated occupation was on the Migration Occupations in Demand List (MODL). The MODL was designed as a tool to address labour shortages in the Australian job market. It identified which occupations needed more skilled workers, allocated extra points to applicants who sought to work in those occupations and therefore facilitated their entry into Australia.

On 8 February 2010, the MODL was revoked. As part of the transitional arrangements, that revocation applied to all GSM applicants except to people who:

• hold a Temporary Skilled Graduate (Subclass 485) visa;
• had a pending Subclass 485 visa application and had not yet lodged an application for a provisional or permanent GSM visa but who lodge their application by 31 December 2012; or
• had lodged a GSM visa application prior to 8 February 2010.

New skilled migration priority processing arrangements

On 14 July 2010, new priority processing arrangements for certain skilled migration visas were announced by the Minister. The Minister's powers to set these priorities are set out in s 51 of the Act. Section 51 of the Act gives the Minister the power to consider and finalise visa applications in an order of priority that the Minister considers appropriate.

These priority arrangements take account of the changes to the SOL that came into effect on 1 July 2010, as well as the revocation of the MODL. These priority processing arrangements apply to applications already lodged with the Department, as well as to future applications.

The new priority processing arrangements apply to the following visas:

• Employer Nomination Scheme (ENS) visas
• Regional Sponsored Migration Scheme (RSMS) visas
• General Skilled Migration (GSM) visas.

The processing priorities (with highest priority listed first) are now:

1. Applications from people who are employer sponsored under the ENS and the RSMS.
2. Applications from people who are nominated by a State or Territory agency with a nominated occupation that is specified on that State or Territory's State Migration Plan.
3. Applications from people who have nominated an occupation on the new SOL (Schedule 3 of the SOL) in effect from 1 July 2010.
4. All other applications in the order in which they are received.

B. Points tested skilled visas

The offshore Skilled Independent (Subclass 175) Visa is a permanent visa for people under 45 years of age who have worked in their nominated occupation or have completed two years of study in Australia before applying. Applicants must have their skills assessed by the relevant assessing body, have an acceptable level of English and obtain a pass mark of 120 or pool mark of 100. They must be offshore at the time of grant.

The onshore Skilled Independent (Subclass 885) Visa is available to overseas students who have studied in Australia. While applicants must be under 45 and nominate a skilled occupation, they need not have prior work experience. Applicants need to nominate an occupation that is closely or specifically related to the qualification they gained during their two years of study in Australia. They must have:

• completed two years of study in Australia before applying; or
• hold a Skilled Graduate (Subclass 475 or 476) Visa; or
• hold a Trade Skills Training (Subclass 471) Visa.

While the Regulations do not require that applicants have work experience in their nominated occupation, many of the assessing authorities do. As an example, the assessing authority for most of the generalist occupations listed on the SOL is Vetassess. Skills recognition by Vetassess for most general occupations requires applicants to hold a qualification which is assessed at the required educational level, in a highly relevant field of study to the nominated occupation. In addition to this, applicants should have at least one year of employment completed at an appropriate level over the last five years in a field closely related to the nominated occupation. For some occupations, if the qualification(s) of the applicant are considered lacking in relevance, Vetassess will require either one or two years of additional related employment experience.

Many international students who are recent graduates will not have sufficient employment in their nominated occupation at the required skill level for a complete positive Skills Assessment from Vetassess.

Vetassess does however offer a qualifications only assessment for applicants who indicate they are only applying for a Subclass 485 provisional GSM visa. After receiving a skills assessment for Subclass 485 visa, applicants may gain sufficient relevant employment experience to apply to Vetassess for final skills assessment (qualifications and employment) to support an application for a permanent visa under the GSM or ENS (see Employer Sponsored visas under the heading B. Employer Nomination Scheme (ENS) visas).

A final positive Vetassess skills assessment is required for applicants for Subclass 885 visas. Applicants for the Subclass 885 visa must be inside Australia at the time of application and meet the pass and pool mark for the visa which is 120 points. The Subclass 175 and 885 visas replaced Subclasses 136 and 880 from 1 September 2007.

The onshore Skilled Sponsored (Subclass 886) Visa and offshore Skilled Sponsored (Subclass 176) Visa are equivalent to their independent counterparts (above) except for sponsorship requirements. The advantage of these visas lies in the lower pass and pool marks required of applicants. Subclass 886 applicants must meet a pass and pool mark of 100 points and Subclass 176 applicants must meet a pass mark of 100 or a pool mark of 80 points.

Applicants must be sponsored by:

• an Australian citizen, permanent resident or ENZ citizen (see Basic Terminology]) who is a relative (parent, sibling, uncle, aunt, niece, nephew or non-dependent child); or
• a State or Territory agency under a State Migration Plan.

In order to qualify for nomination by a State or Territory agency under a State Migration Plan, applicants must ensure they nominate an occupation from the respective government's list of occupations in demand. They should also possess the skills and experience required by each government. Once a State or Territory agency has nominated an applicant, they will usually require the applicant to commit to staying in the same area for a certain period (about two years). To learn more about ACT government sponsorship, go to www.business.act.gov.au/skilled_and_business_migration.

The Skilled Sponsored visas replaced visa subclasses 138, 137, 862, and 881 from 1 September 2007.

The onshore Regional Sponsored (Subclass 487) Visa and offshore Regional Sponsored (Subclass 475) Visa are temporary visas valid for three years with a pass and pool mark of 100 points. They are a pathway to permanent residence in that holders are eligible to apply for Subclass 887 visas (see below). The criteria for these visas are largely the same as for the skilled sponsored visas except that where an applicant is sponsored by a relative, the relative must be from a 'designated area'.

A relative can sponsor an applicant for this visa if they are an Australian citizen, permanent resident or ENZ citizen who is a parent, sibling, uncle, aunt, niece, nephew, non-dependent child, first cousin or grand-parent of the applicant. They must be 'usually resident' in a designated area and the applicant must remain in that area as a condition of the visa.

Designated regional areas are specified by the Minister in an Instrument made under Item 6701 of Sch 6 of the Regulations.

The Skilled-Regional (Subclass 887) Visa is a permanent visa available to holders of:

• Subclass 487 and 475 visas; and
• Skilled Independent Regional (subclass 495) and Skilled Designated Area-sponsored (subclass 496) visas both of which have not been open to new applicants from 1 September 2007.

The Subclass 887 is not a points tested visa. It is the pathway for permanent residence for holders of the regional visas noted above. Applicants must have resided in the designated area for at least two years and worked in any occupation in the specified designated area for at least one year before applying for their Subclass 887 visa.

The Regional Skilled Sponsored visas replaced Subclasses 119 and 882 from 1 September 2007.

C. Graduate Skilled temporary visas

There are two subclasses of Skilled Graduate visas. Both are valid for 18 months and do not require applicants to pass a points test. They are a pathway to permanent residence because holders of these visas may be eligible to apply for the following onshore skilled visas:

• Skilled Independent (Subclass 885) Visa;
• Skilled Sponsored (Subclass 886) Visa; and
• Regional Sponsored (Subclass 487) Visa.

The Skilled Graduate (Subclass 485) Visa is for recent graduates from Australian universities who are inside Australia. Applicants must nominate an occupation worth 50 or 60 points on the Skilled Occupations List and obtain a skills assessment (see General Skilled Migration under the heading Nominated occupation and skills assessment). They must show they have completed two years of study and that their studies are closely related to the nominated occupation. They must be competent in English (see General Skilled Migration under the heading Level of English).

The Subclass 485 visa is granted for a period of 18 months and it is expected that within that time, the visa holder will gain further points required for an application for a permanent GSM visa, such as through 12 months of Australian work experience or by increasing their level of English to proficient (reg 1.15D) by scoring at least 7 on each test band score of an IELTS test.

Alternatively, the Subclass 485 visa holder might apply for a Subclass 487 visa by: seeking a sponsorship from a State or Territory agency under a State Migration Plan; or seeking nomination from an employer under the ENS or RSMS schemes (see Employer Sponsored visas under the headings B. Employer Nomination Scheme (ENS) visas and C. Regional Skilled Migration Scheme (RSMS) visas). They could also seek permanent residence through another pathway available to them such as in the Family Stream of Business Skills stream of the Migration Program.

The Skilled Graduate (Subclass 486) Visa is for recent graduates of certain courses at overseas universities. Currently, only graduates of engineering from a limited number of universities may apply. Applicants must be under 31 and completed their degree or higher course in the two years before applying for the visa. They should generally be outside Australia at the time of grant.

Distinguished Talent visas

Distinguished talent visas are permanent visas for people who are internationally recognised for exceptional and outstanding achievement in a profession, the arts, sport, research or academia. Applicants must be active in their area of expertise and provide evidence of prominence in that area. They should be between 18 and 55 years old unless exceptional circumstances exist.

An Australian nominator, who is a citizen, permanent resident, or ENZ citizen (see Basic Terminology) with a national reputation must sponsor the applicant. In addition, the applicant must prove they can obtain employment in Australia and be considered an asset to the Australian community.

• The Distinguished Talent (Subclass 124) Visa is for applicants outside Australia.
• The Distinguished Talent (Subclass 858) Visa is for applicants inside Australia.

Employer Sponsored visas

Employer sponsored visas include both temporary and permanent visa options. The permanent employer sponsored visas constitute the second major component of the Skilled Stream of Australia's migration program. Employer sponsored visas have the highest processing priority of the skilled stream (see Cap and queue and priority processing and the heading 'New skilled migration priority processing arrangements' under General Skilled Migration at A. The Points Test).

This group of visas is designed to respond to the needs of Australia's employers by enabling them to recruit and nominate skilled people to fill positions that they have not been able to fill from the local labour market or through their own staff training. The employer sponsored migration program has four categories:

(a) Business (Long Stay) - subclass 457

(b) Employer Nomination Scheme (ENS) -subclasses 121 and 856

(c) Regional Sponsored Migration Scheme (RSMS) - subclasses 119 and 857

(d) Labour Agreements (LA) - see subclasses 120 and 855

Employers wishing to sponsor employees from outside the Australian labour market must satisfy stringent requirements and give certain undertakings. The Department monitors compliance with business sponsorship undertakings.

A. Business (Long Stay) (Subclass 457) visa

Of the temporary employer sponsored visas, the most commonly used is the Business (Long Stay) (Subclass 457) Visa. This is the major temporary working visa under which Australian employers can recruit professional and other skilled workers for a period of up to four years (extendable).

Applying for the Subclass 457 is a three-stage process:

1. The employer applies for approval as a sponsor.
2. The proposed position is nominated and approved by DIAC.
3. The visa applicant lodges their visa application.

In order to be approved as a sponsor, an Australian or overseas sponsor must:

• be actively and lawfully operating a business in Australia;
• show that employment of a Subclass 457 visa holder will benefit Australia (for example, create employment opportunities for Australians or improve competitiveness of the business); and
• show they can comply with sponsorship obligations.

Since 14 September 2009, all sponsors of Subclass 457 visa holders (457 sponsors) have been required to adhere to a new series of sponsorship obligations. For 457 sponsors, the obligation to ensure equivalent terms and conditions of employment means that they pay market salary rates to their overseas workers.

To have their nominations accepted, sponsors must:

• identify the visa applicant and the position to be filled. The nominated position must be one listed in what is known as Temporary Resident Skilled Occupation List (TRSOL);
• certify that the qualifications and employment history of the applicant are appropriate for the position; and
• outline the duties of the position; and ensure the duties of the position include a majority of the duties listed for that position in the ANZSCO code (see General Skilled Migration).

Applicants must have the personal attributes and employment background relevant to the position and demonstrate the required skills (if necessary).

Subclass 457 visas are a common pathway to permanent residence. Many subclass 457 visa holders subsequently apply for the ENS visa Subclass 856 (see the heading B. Employer Nomination Scheme (ENS) visas below) or the RSMS visa Subclass 857 (see the heading C. Regional Skilled Migration Scheme (RSMS) visas below). However, it is important to remember that applicants who wish to apply for a temporary visa on the basis of their skills or qualifications must nominate an occupation found on the TRSOL. The Employer Nominated Skilled Occupation List (ENSOL) which lists the occupations required for ENS visas (see the heading B. Employer Nomination Scheme (ENS) visas below) does not contain all of the occupations found on the TRSOL. Therefore, even if a person has worked in Australia for two years on a subclass 457 visa, it does not necessarily mean that they will be eligible to apply for a subclass 856 visa.

B. Employer Nomination Scheme (ENS) visas

The Employer Nomination Scheme (subclass 121) visa is available to applicants outside Australia.

The Employer Nomination Scheme (subclass 856) visa is available to applicants in Australia.

There are two main stages to obtaining these ENS visas. First the business wishing to employ the applicant must lodge an application to have the 'nominated' position approved. Second, the visa applicant must lodge their own visa application form.

The requirements for approval of a nomination are as follows:

• the business is actively and lawfully operating in Australia;
• no adverse information is known to Immigration about the business;
• the business has a record of compliance with Immigration laws (generally unless there is information known to Immigration, this condition is considered met);
• the business has a record of compliance with workplace relations laws (generally unless there is information known to Immigration, this condition is considered met);
• the employer has made adequate provision for the training of existing employees (unlike the requirements for approval of a business as an Standard Business Sponsor for a subclass 457 visa, this criterion does not have legislated levels of training, though some evidence must be submitted to meet this requirement);
• the nominated position is full time and available for at least three years;
• the employment conditions will be no less favourable than conditions provided for under relevant Australian legislation and awards;
• the tasks to be performed correspond to the tasks of an occupation on the Employer Nomination Skills Occupation List (ENSOL) - specified in reg 5.19(2)(h) and Gazette Notice F2010L01327, 28 June 2010;
• the employee will be paid a salary that is at least equivalent to the salary specified in the Gazette Notice: reg 5.19(2).

Visa applicants can lodge their application form at the same time as the application for the 'approved appointment'. Alternatively, they can lodge their application forms up to six months after the nomination is approved.

Applicants for both subclass 121 and 856 ENS visas must:

• be under 45 years of age unless the appointment is exceptional; and
• have vocational English: see reg 1.15B.

In addition, subclass 121 applicants will need:

• to have a positive skills assessment and provide evidence of three years related work experience; or
• to be paid a base salary of more than $165,000 pa (see F2010L01327, 28 June 2010)

Subclass 856 visa applicants can also be granted a visa if they meet these requirements. However, they have the added option of qualifying if they can show that they have been employed in the nominated occupation in Australia for at least the previous two years while holding a subclass 418, 421, 422, 428, 444, 457 or 461 visa. If they choose this option, they must also demonstrate that they have been employed in the nominated occupation for the nominating employer in the twelve months immediately prior to lodging the application.

GSM visa applicants may choose to apply for an ENS or RSMS visa while waiting for the decision on their GSM visa. These people are able to lodge a 'fee free' application for ENS or RSMS visas. For example, people who have applied for a subclass 175 GSM visa may qualify for a subclass 121 ENS visa. They are not required to pay an application fee when lodging their subclass 121 visa applications: see Item 1114(2)(a)(ii)(B) of Sch 1 and cl 121.210 of Sch 2 to the Regulations.

C. Regional Skilled Migration Scheme (RSMS) visas

The Regional Skilled Migration Scheme (subclass 119) visa is available to applicants outside Australia.

The Regional Skilled Migration Scheme (subclass 857) visa is available to applicants in Australia.

As with ENS visas, the process for obtaining an RSMS visa is two fold. The employer first needs to obtain approval of the nominated position. The applicant then needs to apply for the visa if they have not done so already. They have six months within which to lodge the visa application after the nominated position has been approved.

The requirements for approval of an RSMS nomination are slightly different from that of an ENS nomination:

• the business is actively and lawfully operating in Australia;
• no adverse information is known to Immigration about the business;
• the business has a record of compliance with Immigration laws;
• the business has a record of compliance with workplace relations laws;
• the employment being nominated is full time, available for at least two years and is located in regional Australia (Regional Australia is defined in reg 5.19(5) and in an Instrument made under that regulation). Note that a subclass 119 or 857 visa can be cancelled if the holder does not stay employed with the nominating regional employer for at least two years;
• the employment conditions will be no less favourable than conditions provided for under relevant Australian legislation and awards;
• unless the position is exceptional, the occupation requires a person with a Diploma or higher qualification. PAM3 on this topic states that under policy, occupations with an ANZSCO skill level of 1 or 2 require a Diploma or higher qualification;
• A body specified in the relevant Instrument certifies that the nomination meets the requirement of actively and lawfully operating in Australia, is available in regional Australia for at least two years and refers to an occupation requiring a Diploma or higher qualification. Note that these certifying bodies often have their own requirements and may charge a fee. Check the certifying bodies' websites for more information: reg 5.19(4).

As is common for many regional visa subclass variants, the requirements for these visas are less than that required for the subclass 856/121 visas. In order to be granted an RSMS visa, the applicant must:

• Be under 45 years of age;

Have functional (see reg 5.17) or vocational English unless the position is exceptional; and

• Hold a relevant diploma unless the position is exceptional.

Holders of RSMS visas are required to remain in their nominated position for at least two years. The Minister has the power to cancel an RSMS visa if:

• The visa holder does not commence employment in the nominated position within six months of arriving in Australia (in the case of a subclass 119 visa) or of being granted the visa (in the case of a subclass 857 visa); or
• The visa holder's employment terminated within two years of their first day of employment and the Minister is not satisfied the holder made a genuine effort to remain in that employment: s 137Q and reg 2.50AA.

Business Visas

Business skills visas are a group of visas that facilitate the entry into Australia of high quality business migrants.

For most business migration applicants a two-stage application process is usual. At the first stage business migrants apply for a provisional visa. The provisional visas are either State / Territory sponsored or non-sponsored.

The provisional subclasses are:

• Business Owner (Provisional) (Subclass 160) Visa: the applicant must be less than 45 and prove ownership (or part-ownership) of an offshore business with an annual turnover of $500,000;
• State/Territory Sponsored Business Owner (Provisional) (Subclass 163) Visa: the applicant must be less than 55, a senior manager or prove ownership (or part-ownership) of an offshore business with an annual turnover of $300,000;
• Senior Executive (Provisional) (Subclass 161) Visa: the applicant must be less than 45, have been a senior executive of a major overseas business and along with their spouse or partner have assets of $500,000 to conduct business in Australia;
• State/Territory Sponsored Senior Executive (Provisional) (Subclass 164) Visa: the applicant must be less than 55, have been a senior executive of a major overseas business and along with their spouse or partner have assets of $250,000 to conduct business in Australia;
• Investor (Provisional) (Subclass 162) Visa: the applicant must be less than 45, managed a qualifying business or eligible investments and make an investment of at least $1,500,000; and
• State/Territory Sponsored Investor (Provisional) (Subclass 165) Visa: the applicant must be less than 55, managed a qualifying business or investments and make an investment of at least $750,000.

Once granted the provisional visa, business migrants have up to four years within which to satisfy all the requirements of a business skills (residence) visa and qualify for permanent residence.

The permanent residence visas that follow from the provisional visas are:

• Business Owner (Subclass 890) Visa: the applicant must have maintained an ownership interest in an Australian business with a turnover of at least $300,000 for at least 2 years immediately before applying;
• State/Territory Sponsored Business Owner (Subclass 892) Visa: the applicant must have maintained an ownership interest in an Australian business with a turnover of at least $250,000 (unless exceptional circumstances exist) for at least two years immediately before applying;
• Investor (Subclass 891) Visa: the applicant must have maintained their initial investment for at least four years; and
• State/Territory Sponsored Investor (Subclass 893) Visa: the applicant must have maintained their initial investment for at least four years and been resident in the sponsoring State or Territory for two out of the four years immediately preceding the application

Applicants applying for any of the business skills visas can apply for State / Territory government sponsorship. As can be seen from the criteria for each visa listed above, if sponsorship is obtained, the threshold requirements are significantly lower than for the un-sponsored categories.

There is only one temporary Business Skills visa that does not provide a pathway to permanent residence, namely, the Investor Retirement (Subclass 405) Visa.

Conversely, some permanent Business Skills visas do not require applicants to hold one of the provisional visas (listed above). The Established Business in Australia (Subclass 845) Visa and the State / Territory Sponsored Regional Established Business (Subclass 846) Visa are for people who have established a business in Australia and continue to have an ownership interest in the business. They are available to holders of various temporary visas including holders of Subclass 457 visas (see the heading A. Business (Long Stay) (Subclass 457) visa at Employer Sponsored visas). Applicants must achieve a pass mark in the business skills points test found in Sch 7 of the Regulations.

Applicants for the Business Talent (Subclass 132) Visa are not required to hold any temporary or provisional visa. In order to be eligible for this visa, applicants must be high calibre business people. They still need sponsorship from a State or Territory government.

Bridging Visas

Bridging visas are temporary visas which allow non-citizens to remain in Australia for a specified period (s 73). People who are unlawful non-citizens (that is, who do not have a visa, see Unlawful Non-Citizens) are liable to be put into immigration detention and / or removed from Australia. Bridging visas are a means of 'regularising' the status of such people and making sure they remain lawful.

Bridging visas are not substantive visas (s 5 and see Basic Terminology]). Non-citizens are not entitled to apply for other temporary or permanent visas just because they hold a bridging visa (s 76).

There are seven classes of bridging visa and an applicant may hold more than one bridging visa at a time. Where this is the case, the visa that is most beneficial to the applicant is deemed to be in effect (s 68(4)).

Some bridging visas are only available to people who have applied for a substantive visa while in Australia. Generally, these applicants do not need to lodge a separate form to apply for a bridging visa: the visa application is also considered to be an application for a bridging visa.

The types of bridging visa and the circumstances that must exist for an applicant to be eligible are listed below. Broadly speaking, to be eligible for a BVA or BVB visa (see Bridging Visas A and B), applicants must be lawful non-citizens. Unlawful non-citizens may be eligible for BVC (see Bridging Visa C), D (see Bridging Visa D),E (see Bridging Visa E), F or R (see Bridging Visas F and R).

Bridging Visas A and B

Bridging Visa A (BVA) (Subclass 010) and Bridging Visa B (Subclass 020) are the most beneficial bridging visas (reg 2.21). They are generally granted to people who apply for a substantive visa while their previous visa is still valid. The subsequent visa must be available to applicants who are in Australia at the time of grant and applications must be lodged in Australia. BVA and BVB holders can gain permission to work if:

• their last visa enabled them to work;
• they can demonstrate a compelling need to work (see reg 1.08 for the definition of 'compelling need to work'); or
• they applied for a Protection Visa (see Refugees and Humanitarian Entrants) when they held another substantive visa and the Protection Visa application has not been finally determined (see s 5(9)).

The BVB is the only bridging visa which enables holders to leave and re-enter Australia. BVBs are available to holders of BVAs or BVBs who are waiting for their substantive application to be determined (whether by a Departmental decision maker or Court). Applicants must demonstrate substantial reasons for leaving Australia. If the BVB expires while the holder is overseas, they will not be able to re-enter Australia.

It is important to note that while BVA and BVBs are granted at the time a person makes a substantive visa application, they do not come into effect until the previous substantive visa expires.

Bridging Visa C

The Bridging Visa C (BVC) (Subclass 030) is for people who make an application for a substantive visa while unlawful but before they come to the attention of the Department. Applicants must not be in detention and not hold or have held a BVE. There is a mandatory no work condition attached to this visa in most cases. However once someone has been granted a BVC, they may then be able to apply for a further BVC which allows them to work: cl 030.212(3). In such cases, the applicant would need to show a compelling need to work: see reg 1.08 for the meaning of this term.

Bridging Visa D

Bridging Visa D (Class WD) contains two subclasses of bridging visa which are valid for five days at the most, and designed to keep non-citizens lawful until a BVE can be granted.

Bridging Visa D (Subclass 040) is for people who are unlawful, or will become unlawful within three days, and who:

• have attempted to make a valid application in Australia for a substantive visa that can be granted while in Australia, but were unable to do so, and
• will make a valid application for a substantive visa within the next 5 working days

Bridging Visa D (Subclass 041) is for people who are:

• unlawful; and
• unable or unwilling to apply for a substantive visa; and
• cannot be interviewed because a compliance officer is not available.

Bridging Visa E

A delegate of the Department may grant a Bridging Visa E (BVE) orally or in writing. Whether the delegate decides to grant a BVE largely depends upon them being satisfied that the applicant will abide by the conditions of the visa.

BVE holders may be required to comply with the following conditions:

• no work rights (unless the applicant can demonstrate special circumstances);
• no study for more than three months;
• report to DIAC at specific times;
• live at the same address or notify DIAC of change two days in advance;
• produce passport at a specific time;
• leave Australia by a specified date; and
• provide security bond.

In order to be granted a BVE, an applicant must be an 'eligible non-citizen' as defined by s 72 of the Act. Essentially, this means the person must be immigration cleared, in a class of persons described by reg 2.20 or declared by the Minister to be an eligible non-citizen.

The Bridging Visa E (Subclass 050) is one of the most common types of bridging visa. Applicants must be unlawful or already holding a BVE and:

• be making arrangements to leave Australia (they will need to show the compliance officer plane tickets or booking and a valid passport);
• be applying for a visa that can be granted in Australia;
• have applied for or be about to apply for merits review of a decision to cancel a visa;
• have applied for or be about to apply for a revocation of an automatic cancellation of a student visa under s 137K;
• have applied for or be about to apply for merits review of a decision not to revoke a cancellation of a student visa under s 137L;
• be involved in court proceedings;
• have sought a declaration that the Act does not apply to them;

have applied for merits review or judicial review of a decision in relation to the person under the Australian Citizenship Act 2007 (Cth);

• have requested Ministerial discretion for the first time;
• be granted conditional release from serving a sentence in prison for a criminal conviction;
• be a family member of someone whose visa has been cancelled and who has applied for review of this decision; or
• be a family member of and have made a combined application with someone involved in court proceedings.

When a person in immigration detention applies for a BVE, they must notify the Detention Review Officer (DRO) of their application in writing (Schedule 1, Item 1305(c)). Generally a decision has to be made within two working days after the DRO is notified. If no decision is made within that time, unless an extension of time was requested by the visa applicant, a bridging visa is deemed to have been granted. (s 75 and reg 2.24) If an application for a BVE is refused and the applicant is in immigration detention, the applicant may not apply for another BVE 050 for at least another 30 days (s 74(2)).

The Bridging (Protection Visa Applicant) (Subclass 051) Visa is the second most common bridging visa granted in Australia. It is available to people under 18 or over 75 who have been refused or bypassed immigration clearance and who have lodged a protection visa application.

Bridging Visas F and R

The Bridging Visa F (Subclass 060)is for unlawful non-citizens who have been identified by the Australian Federal Police as persons of interest in relation to people trafficking, sexual servitude or deceptive recruiting. The visa is available by invitation only and allows a maximum stay of 30 days.

During this time the law enforcement agency can assess the person's ability and willingness to assist in their investigations. Holders of this bridging visa have access to a welfare and support package during the period of the visa's validity. Immediate family members can also be granted the visa.

The Bridging Visa R (Removal Pending) (Subclass 070) (BVR) is for people in detention whose removal from Australia is not reasonably practical (they may be stateless, for example). This visa allows applicants to live in the community until they can be removed rather than subjecting them to long periods in detention. The BVR comes with permission to work and access to Medicare, and limited income support. In order to access the visa, the applicant must agree that they will be available for removal if the circumstances arise.