Migration law regulates who has a right to enter and remain in Australia. It is Commonwealth law, so the law is therefore the same across Australia.
Some brief information about major visa categories is provided in this chapter. The law in this area changes frequently, and people considering making a visa application will often need to seek the advice of a migration agent.
Relevant legislation and resources
This visa category may be relevant where a person wishes to apply for a visa based on their relationship with an Australian citizen or permanent resident. The person must satisfy all the requirements for a visa, and does not have an automatic right to come to or remain in Australia because of the relationship.
The criteria for some visa types will be easier to satisfy than others. For some visa types, such as parent visas, the waiting periods are extremely lengthy. A wide range of relationships are covered under the family visa class, including:
- Partners - this includes spouses and de facto partners (including same sex relationships)
- Prospective marriage visas (fianc(e)s)
- Dependent children
- Adopted children
- Orphan relatives
Information about family migration options is available at the Department of Home Affairs.
This visa class is intended to allow people with particular skills to come to Australia. There are four major categories in the skilled stream:
- General skilled migration
- Employer nominations
- Distinguished talent
- Business skills
Information about skilled visas (including employer sponsored migration, general skilled migration, business skills entry and special migration) can be found at the Department of Home Affairs.
This visa class is designed to offer protection to people who are persecuted or discriminated against in their country of origin and who do not have the protection of that country. They may also be granted to the immediate family of permanent refugee or humanitarian visa holders in Australia.
A refugee is someone who is subject to persecution in his/her home country for reasons of race, religion, nationality, political opinion or membership in a particular social group. Visas in the humanitarian category may be available to people who are subject to substantial discrimination amounting to gross violation of human rights in their country of origin. To be eligible for either of these visa types, the person usually must not have the protection of another country.
The visa options available to a person will depend in part on whether they are applying from within Australia or outside Australia, and advice should be sought. Strict quotas apply to people applying from outside Australia, and priority is given to the immediate family (parents of minors, spouses and dependent children) of permanent refugee or humanitarian visa holders in Australia.
Recent High Court decision
Information for proposers who arrived in Australia as minors
On the 14th December 2011, in the case of Shahi, the High Court of Australia held that a Global Special Humanitarian visa should be granted to the mother of a refugee. The proposer had been under the age of 18 when the application for his mother was lodged but, by the time of the decision, had turned 18 and the application was refused because of this. Humanitarian applications by children under 18 are given priority under Australian migration law so they can be reunited with their parents, but it was not clear whether this priority still existed if they became adults before a decision was made on their parent(s)’ application.
Anyone who has had an humanitarian visa application for a parent refused for the reason that their parent was no longer deemed to be a member of their immediate family may now have grounds to appeal that decision, subject to relevant time limits.
Such persons are urged to seek legal advice as soon as possible about whether this decision may have an effect on their family’s chances of migration under the Humanitarian Programme.
Changes to the Special Humanitarian Programme
On 28 September 2012 significant changes were made to the Migration Regulations. These changes affect Irregular Maritime Arrivals and their ability to propose family members under the Special Humanitarian Programme.
- Irregular Maritime Arrivals (IMAs) arriving after 13 August 2012 cannot propose family under the Special Humanitarian Programme unless invited to do so (this affects both adult and child proposers alike).
- Irregular Maritime Arrivals (IMAs) who arrived prior to 13 August 2012 can still propose family under the Special Humanitarian Programme but they will be assessed against additional criteria if the proposer was aged 18 or over at the time they were granted their visa.
Applications will no longer be approved solely on the basis of the applicant’s relationship to the proposer.
The following criteria will now be assessed for these applications:
- the degree of persecution the applicants are facing in their home country;
- availability of alternative resettlement options;
- Australia’s capacity to provide settlement; and
- the extent of the applicant’s connection to Australia.
As of 22 March 2014, the additional criteria above also applies to applications lodged by Irregular Maritime Arrivals (IMAs) who arrived prior to 13 August 2012 and who were aged under 18 at the time they were granted their visas. These applications will also no longer be approved solely on the basis of the applicant's relationship to the proposer.
This visa category may be an option for people who wish to study in Australia. The study must be undertaken through accredited and registered institutions.
To be eligible, students will need to meet certain assessment levels, demonstrate English language ability and meet financial requirements. They must also demonstrate that their genuine reason for coming to Australia is to undertake a course of study.
The Department of Home Affairs provides information about visa classes, how to apply and the required application forms.
Visitors’ visas are temporary visas for people who wish to come to Australia as tourists, travelers, holiday makers, to visit relatives or friends, or to have medical treatment. Applicants must show that they are genuine visitors who intend to return to their home country after their temporary stay in Australia. They must also show that they have adequate funds for support during the visit.
A bridging visa is a temporary visa that gives a person permission to remain in Australia for a specified time. Bridging visas may be granted where a person has applied for another visa type and is waiting for a decision about the application, or for the outcome of an appeal, or for a decision to be made by the Minister of Home Affairs. A bridging visa may also be granted to give a person time to make arrangements to leave Australia.
- providing incorrect information [s 109]
- non-compliance with a condition of the visa [s 116]
- character grounds – i.e. failure to pass the character test [s 501]
There are also cancellation powers specific to particular categories of visas (e.g. s 137J which allows for automatic cancellation of a student visa where the visa holder is not complying with their study requirements).
What is the character test?
The character test is defined under section 501(6) and a person will fail it if they:
- have a substantial criminal record;
- have been convicted of escaping from immigration detention;
- have committed offences whilst in immigration detention;
- have been a member of, or had associations with, an organisation involved in criminal conduct;
- is reasonably suspected of being involved with people smuggling, people trafficking, genocide, war crimes or crimes against humanity;
- have convictions for one or more sexually based offences involving a child;
- are the subject of an adverse assessment by ASIO;
- an Interpol notice has been issued from which it would be reasonable to conclude that they present a risk to the Australian community.
The most common cause of failure of the character test is having a substantial criminal record.
What is a ‘substantial criminal record’?
Under section 501(7) a person has a substantial criminal record if they have been:
- sentenced to death
- sentenced to life imprisonment
- sentenced to a term of imprisonment for 12 months or more
- acquitted of an offence on the grounds of mental illness and, as a result, detained in a facility or institution
- found by a court not fit to plead and the court has nonetheless made a finding of guilt on the evidence available and they have been detained in a facility or institution
Most non-citizens who fail the character test will do so as a result of having been sentenced to a term of imprisonment for 12 months or more.
As a result of legislative changes in December 2014, the way that a person’s criminal record is determined has changed significantly. Previously there had to be at least one single term of imprisonment of 12 months or more but now, regardless of the length of each individual term of imprisonment, if the total is 12 months or more then this will count as a substantial criminal record.
For example, prior to December 2014, a sentence of 9 months and a subsequent sentence of 3 months for another offence would not constitute as a substantial criminal record as there was no single term of 12 months or more.
Now both sentences would be counted with the result that there has been a total term of imprisonment of 12 months.
Concurrent sentences are now also included when determining the total sentence served.
For example, if a person is serving concurrent sentences the whole of each term is counted towards the total i.e.
Concurrent sentences of 3 months and 9 months = 12 months
The effect of these changes is that many non-citizens who were previously not caught by the character test now are. If you are a non-citizen who has a substantial criminal record (or who is affected by one of the other provisions of the character test) you should seek legal advice about how the new laws may effect you.
Most people who give migration advice in Australia are required to be registered migration agents. This system was introduced to protect people from unscrupulous migration advisers.
Agents must be registered with the Office of the Migration Agents Registration Authority (MARA). Via the MARA website a person can search for a registered migration agent, make a complaint about a registered agent, and locate other relevant information. Complaints about unlawful operators who provide migration assistance are beyond the remit of MARA and should be reported to the Department of Home Affairs- Border Watch website.
It is an offence to provide advice about visa applications or sponsorship or assist in the preparation of visa applications without being a registered migration agent or falling under one of the exceptional categories.
The Legal Services Commission offers free advice about some visa types and migration issues, with the exception of student visas and work visas.
The Australian Refugee Association provides assistance to refugees in the community. They may be able to assist with a broad range of visa applications, for which a fee is usually charged.
The Refugee Advocacy Service of South Australia (RASSA) is a community legal service that provides pro bono migration legal assistance to asylum seekers who are eligible to apply for a Temporary Protection Visa or a Safe Haven Enterprise Visa.
All these services have limited funding and criteria about who they can assist. People seeking assistance should contact the organisation directly to find out whether they satisfy the criteria for assistance.
Advice about student visas and skilled visas must usually be obtained from a private migration agent. Contact details for migration agents in South Australia can be obtained from the Migration Agents Registration Authority.
The Legal Services Commission (SA)
159 Gawler Place
Adelaide SA 5000
Tel: 1300 366 424
The Australian Refugee Association
304 Henley Beach Road
Underdale SA 5032
Tel: (08) 8354 2951
Migration Agents Registration Authority
(for referral to private, registered migration agents)
Tel: (02) 9299 5446
Refugee Advocacy Service of South Australia (RASSA)
(for legal assistance for asylum seekers)
182 Victoria Square
Tel: 0401 247 224
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.