Entry to Australia

Contributed by Michael Clothier and Mary-Anne Kenny and current to 1 September 2005

VISAS

Non-citizens entering Australia are required to have visas, which are permits that can allow either temporary or permanent stay. Visas are issued by officers of the Immigration Department (s.29 Migration Act 1958 (Cth)). Entry permits are no longer required.

The Migration Act (s.29(1)) defines visa as meaning permission for a non-citizen to travel to, enter, or remain in Australia. Possession of a visa indicates to carriers, such as airlines, and to Australian immigration officials that an examination has been carried out overseas, and that the person has been able to satisfy the requirements for the type of entry specified in the visa. Generally, the possession of a visa at the border (called “immigration clearance”) gives the holder a right to enter the country for the period stated in the visa.

The Department of Immigration Multicultural and Indigenous Affairs has the power to cancel a visa either before or after entry to Australia (ss.109, 116, 128, 134, 140, 501). However, holders of valid visas are entitled to be granted entry unless a serious problem (for example, involving health, character, or fraud in obtaining the visa) becomes evident.

Usually, an airline would not allow a passenger to travel to Australia without a visa, and a person so travelling would probably not be granted a visa upon arrival (although a “border visa” is available in some circumstances to genuine visitors etc., who may simply have forgotten to obtain a visa before stepping onto the aircraft to fly to Australia).

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

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

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

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

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

A person who enters Australia as the spouse of a person with a visa, and whose name is included in the passport or other document of identity, is included in the visa if that visa states so (s.83(1)). This does not include same sex partners.

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

If a person resident in Australia leaves the country even temporarily, the original visa ceases to be in effect (unless it specifically authorises re-entry or “multiple travel”). There are approximately one million permanent residents in Australia who are subject to this rule, that is, if they leave the country they have no automatic right to return. Australian residents going abroad should try to ensure that they possess a resident return visa prior to departure (although, if they forget, it is still possible to get one overseas from an Australian immigration post). When permanent residence is granted, it currently includes a five-year multiple return visa, but older residents must specifically obtain one at the Department of Immigration Multicultural and Indigenous Affairs or, after leaving Australia, at any overseas Australian consulate or embassy (s.79).

A resident return visa may be granted to an Australian permanent resident who is residing or has resided in Australia and wishes to return. A resident return visa will not be granted to the holder of a temporary visa. However, holders of temporary visas often have permission to travel to and from Australia on any number of occasions, and this is endorsed on the visa label in their passports.

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

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

There are more than 30 different classes of permanent visa under the Migration Regulations 1994. There are also more than 30 different classes of temporary visa. The criteria are set out in the Regulations, and explained in the Procedures Advice Manual (PAM), a manual developed by the Department. The main classes of visa are as follows:

TEMPORARY VISAS

Visitors’ visa

These are available at overseas Australian posts to applicants seeking to visit Australia for a short period for such purposes as tourism (sightseeing), business (negotiations, discussions, inspections, etc.), seeing relatives or friends, or pre-arranged medical treatment. Subject to certain criteria being satisfied (again set out in the Regulations) visitors’ visas may be extended in certain circumstances up to 12 months except for students or for other “exceptional” reasons.

Temporary residence

Temporary residence is the entry for specified short- or long-term periods to engage in employment or other pursuits in Australia (other than business discussion, negotiations, inspections, etc., which come within the visitors’ entry category). It does not matter whether the employment is for payment or not and, in the case of payment, this visa category applies irrespective of the source of the funds.

There are about 25 classes of temporary residence visas in the regulations, all with different criteria to be met. They include visa classes for:

• Temporary business entrants, such as people being sponsored by an “approved” Australian overseas business, in connection with a business activity in Australia; or those wishing to develop a business in Australia who are sponsored by a State or Territory and who have assets of at least $250,000 to conduct or establish the business ;
• overseas students and student guardians;
• entertainers;
• sportspeople;
• domestic servants;
• religious workers, that is those who are authorised by their organisation to undertake work in Australia directly serving the organisation’s religious objectives (see Subclass 428 in Sch. 2); and
• young people on working holidays.
• Other categories: Applicants are considered for temporary residence for diverse purposes such as limited staff appointments to universities, representatives of news media, staff of travel agencies and service personnel for training. The Migration Regulations also provide that overseas firms who are successful tenderers may send their own technicians to Australia to install and service machinery, computers, etc.

Changing status

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

PERMANENT VISAS

Permanent classes of visas include:

• Subclass 804: Aged Parent visa
• Subclass 864: Contributory Aged Parent visa
• Subclass 802: Child visa
• Other Family (Residence) visa
• Skilled – New Zealand Citizen (Residence) visa
• Subclass 832: Close Ties visa
• Subclass 808: Confirmatory (Residence) visa
• Subclass 814: Partner (Residence) visa
• Subclass 866: Protection (Residence) visa
• Subclass 856: Employer Nomination Scheme visa
• Subclass 858: Distinguished Talent visa
• Overseas Student (Residence) visa
• Subclass 801: Partner (Residence) visa
• Subclass 800: Territorial asylum visa
• other Special visas eg, the Humanitarian Stay (temporary) visa (Subclass 449) The Subclass 785 and 786 visas have also been created to allow three year temporary stay for certain asylum-seekers who arrive by boat and certain holders of Temporary Safe Haven visas.

Permanent residence is extremely difficult to obtain once a person’s temporary visa has expired. Applicants in this position should get legal advice about their situation.