Overview of the Australian visa system

Contributed by LydiaWells and current to 27 July 2018

Note: All attempts are made by the contributor to ensure that the law in this chapter is current. However, readers should be aware that migration law (including the Migration Regulations 1994 (Cth) and other sources of migration law) may change unexpectedly and rapidly. Before relying on the information given here, users should check that the law has not changed. One of the best places to find information on the current law is on the Department of Immigration’s Internet home page, at: www.homeaffairs.gov.au.

A 'universal' visa system

Australia has - what is commonly known as - a 'universal visa system'. This means that all persons who are physically present in Australia must either be a citizen or a lawful non-citizen. A lawful non-citizen must hold a visa (or other permission) to enter and remain in Australia.

The visa system is complex, with some 100+ different visa types of 'subclasses'. Overarching the subclasses of visas are visa 'classes'. All visas are either 'temporary' visas, which are generally available for periods of up to 4 years, or 'permanent' visas, which enable entry to Australia for up to 5 years and permanent residence here (see Resident Return visas for further details about how permanent visa holders may re-enter Australia once their 5 year permanent visas expire). Holders of permanent visas are known as Australian Permanent Residents (defined inreg. 1.03 of the Migration Regulations 1994 (Cth)).

Permanent residents 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 generally not available to migrants within their first two years of residence (except for special benefits), however the current situation should be checked carefully.

One way of understanding the visa system is to break it down according to the purpose and type of visa.

There are 4 main types of visas:

• Permanent visas – which enable a person to remain permanently
• Temporary visas – which authorise a temporary stay and will normally be subject to a variety of conditions
• Protection visas – permanent and some temporary visas for people who have been granted refugees status
• Bridging visas – short term / restricted visas which confer temporary lawful status on someone who would otherwise be unlawfully in Australia

All visas are “substantive visas” (under s 5(1) Migration Act 1958) except for the following:

• Bridging visas
• Criminal justice visas
• Enforcement visas

A person who does not hold a substantive visa may not be able to lodge an application for a substantive visa where it is a requirement in Schedule 1 of the Migration Regulations 1994 that they hold a substantive visa at the time of the application.

Change of status

A non-citizen who is in Australia and who wishes to apply for a different visa is 'changing their status'. In many cases, this should be possible to achieve, provided the person is lawfully present in Australia, and holds a valid, substantive visa at the time of applying for the subsequent visa. However, even if the person holds a valid, substantive visa, there may be other barriers to a successful onshore change of status. The most common barriers are:

• The person may have a condition on their current visa which prevents any further applications onshore unless certain requirements are met.
• The person may be affected by an 'application bar', which is the imposition by law of a bar under the Migration Act, preventing the person from making an onshore application for most (but not all) subclasses of visa.
• There may be a criterion for a valid application, or for the grant of the visa, in Schedules 1 or 2 of the Migration Regulations 1994 that requires an applicant to be offshore.

Condition on the current visa

Visas - especially temporary ones - often contain large numbers of conditions. These conditions may include conditions which restrict work in Australia or which require other compliance measures to be undertaken by the holder e.g. notification of changes of address or other details. An important set of conditions restricts a person from applying for another visa while they are in Australia as the holder of that particular visa. The main condition which restricts further applications is the '8503' condition. It is commonly known as a 'no further stay' or 'no further application' condition.

If the visa that a person holds contains this condition, then the holder is prevented from applying in Australia for further visas, unless she or he can prove the following under ss 45 and 46 of the Migration Act 1958:

Since the person was granted their current via:

• their circumstances have changed and
• the change in circumstances was the result of compelling and compassionate factors which
• were/are outside the person's control.

If the person's application for a waiver of the condition is approved, then the Minister will consider an onshore visa application by the person. However, it should be noted that a waiver only lifts the bar to making a valid application for a visa. It does not mean that the visa will be granted: the person must still meet all the criteria for the grant of the particular visa applied for.

Change of status for person who does not hold a valid substantive visa

This may arise in a situation where a person never held a substantive visa OR they have previously held a substantive visa and:

• it has expired (so they are now considered an “unlawful non-citizen” under s 14 of the Migration Act 1958) or
• it has been cancelled or a subsequent visa application has been refused.

Such persons may either now hold a bridging visa or they may not hold any visa at all (substantive or otherwise).

There are limited options in these circumstances; most will have to leave Australia to be eligible to apply for a visa, although some persons may be able to apply for particular kinds of visas even if they don’t hold a substantive visa. It must be noted that the application rules vary according to how long the applicant has been unlawful and how they became unlawful i.e. whether it was deliberate overstaying after the expiry of a visa or whether there were factors outside the person's control that may have contributed to them becoming unlawful.

Schedule 3 of the Migration Regulations 1994 specifies additional criteria for most visa applicants who:

• are in Australia and
• at time of application are an unlawful non-citizen or hold only a bridging visa.

Schedule 3 allows particular applicants, who have become unlawful within previous time periods (generally 28 days), and who have compelling and compassionate reasons for becoming unlawful, to apply for a visa.

The requirements in Schedule 3 are complex and so persons who are affected by unlawfulness and wish to make an application for a visa onshore must seek sound legal advice as to their options and the processes that must be followed.

Furthermore, persons who are unlawfully in Australia and are removed by the Department of Immigration, OR who leave Australia voluntarily while they are unlawful, will be affected by various re-entry restrictions if they ever wish to return to Australia. These re-entry bars are contained in Schedule 2 Migration Regulations 1994 criteria for particular visas and they refer to Schedule 5 of the Migration Regulations. The criteria in Schedule 5, which must be met by most offshore applicants for visas, are known as the 'special return criteria'. These criteria restrict the re-entry to Australia for periods of 12 months to permanently (in the case of persons who have been deported or had their visa cancelled under the character provisions of the Migration Act: see s 501 Migration Act 1958)