Migration law regulates who has a right to enter and remain in Australia. It is Commonwealth law, so the law is the same across Australia.
This chapter provides some brief information about major visa categories. The law in this area changes frequently. People thinking of applying for a visa may 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 broad range of relationships are covered under the family visa class, including:
Information about family migration is available on the Department of Home Affairs website.
(Subclass 820/801, 309/100 and 300)
Summary
Overview
If your relationship with your sponsor has broken down due to family violence, you may still be able to continue your visa application.
For most partner visas, applicants must be in a genuine and continuing relationship with their sponsor at the time a decision is made. However, an exception applies where the relationship has ended because of family violence.
Advising the Department
If your relationship has ended, the Department of Home Affairs should be notified. This is generally done through your ImmiAccount.
Seek legal advice before notifying the Department, particularly if you intend to rely on the family violence provisions.
When notifying the Department, you may be asked to provide:
The timing and content of any notification can be important and may affect how your application is assessed.
What are the family violence provisions?
The family violence provisions in the Migration Regulations allow certain visa applicants to continue their application even after their relationship has ended due to family violence.
These provisions are intended to ensure that a person is not required to remain in an abusive relationship to maintain their visa status.
You may still be eligible for a permanent visa if:
This means that even if your sponsor withdraws their support, you may still be able to proceed with your application.
Further information is available on the Department of Home Affairs' family violence provisions webpage.
Important warning about AI and online information
Information obtained from artificial intelligence (AI) tools such as ChatGPT or general online sources is no substitute for legal advice and may be inaccurate, incomplete, or not applicable to your circumstances.
Migration law is complex and highly dependent on individual circumstances and evidence. Relying on this type of information may negatively impact your visa application.
You should not make decisions about your visa based solely on AI-generated or general online information.
Seek legal advice
You should seek independent legal advice as soon as possible.
Advice should be:
A qualified migration lawyer or registered migration agent can guide you through the process and help you understand your options.
This visa class is intended to allow people with particular skills to come to Australia. There are four major categories in the skilled stream:
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.
Resolution of Status visa
People in Australia who held a Temporary Protection visas (TPV) or Safe Haven Enterprise visas (SHV) or who had an application for a TPV or SHV pending before 14 February 2023 may be eligible to apply for transition to permanent subclass 851 Resolution of Status visa (RoS). A limited group of visa holders will be eligible immediately, with all remaining eligible persons able to apply from late March 2023.
More information is available on the the Legal Services' Migration Advice page, or at the Department of Home Affairs' Resolution of Status and Applying for a subsequent TPV or SHEV.
Global Special Humanitarian Program
Immediate family
Your family members may be eligible for a visa under immediate or ‘split’ family provisions of the Global Special Humanitarian Program if:
As a proposer* you must be either an Australian permanent resident or citizen.
An immediate family member is either your spouse or partner or your dependant minor child or children (under the age of 18).
For a child under the age of 18, their immediate family is their parent or parents.
Your relationship must have been declared to Immigration before your visa was granted and the application lodged within 5 years of the date of your visa grant.
*Visa holders who arrived in Australia as unauthorised maritime arrivals on or after 13 August 2012 cannot propose family members under the Special Global Humanitarian Program.
Non-immediate family members
You can apply for other family members under the Global Special Humanitarian Program. To be eligible, the family member must be:
*Visa holders who arrived in Australia as unauthorised maritime arrivals on or after 13 August 2012 cannot propose family members under the Special Global Humanitarian Program.
These applications will not have the same priority as immediate family applications. Compelling reasons must also exist for them to be granted the visa. This means an assessment of:
Lodging an application
Applications can be lodged from an ImmiAccount. The Department of Home Affairs' website includes instructions on how to create an ImmiAccount and manage your application.
For more information and step-by-step instructions on how to apply, see the Department of Home Affairs’ Global Special Humanitarian visa webpage.
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 for Home Affairs. A bridging visa may also be granted to give a person time to make arrangements to leave Australia.
The Minister for Immigration and Citizenship has several powers to cancel visas held by non-citizens under the Migration Act 1958 (Cth). The most common powers of cancellation are:
There are also cancellation powers specific to particular categories of visas (for example, s 137J which allows for automatic cancellation of a student visa where the visa holder is not complying with their study requirements).
Some visa cancellations, or refusals, can be reviewed by the Administrative Review Tribunal (formerly the Administrative Appeals Tribunal).
Ministerial Intervention requests
Applicants who are unsuccessful in the Administrative Review Tribunal can apply to the Minister for Immigration and Citizenship to intervene and substitute a new decision that is more favourable to them [s 351].
However, the Minister will only exercise this power if it is in the public interest for them to do so [s 351(1)]. Not many decisions will warrant intervention by the Minister – usually an applicant must demonstrate unique or exceptional circumstances and anyone seeking Ministerial Intervention should consider whether they meet the Ministerial Intervention guidelines before lodging their request.
This power is also non-compellable which means that the Minister is not legally obligated to exercise the power and can choose not to do so.
Further information is available at the Department of Home Affairs website, in particular the Status Resolution Service webpage.
In deciding whether to intervene, the Minister must exercise this power personally and cannot delegate to another person, as was previously the case under departmental guidelines. These guidelines allowed delegated decision-makers to make decisions about whether requests were “unique and exceptional”. In the April 2023 High Court decision of Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10, the High Court ruled that this decision cannot be delegated, as only the Minister for Immigration and Citizenship can make such an assessment given it is a necessary step in determining whether a matter is in the public interest.
Under section 501 of the Migration Act 1958 (Cth) a non-citizen’s visa may be refused or cancelled if they do not pass the character test.
What is the character test?
The character test is defined under section 501(6) and a person will fail it if they:
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:
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. There can be multiple terms of imprisonment which together add up to 12 months or more [s 501(7)(d)]. The terms of imprisonment can also be served concurrently (at the same time), but still add up to 12 months for the purposes of the definition under section 501(7) [s 507(7A)]. They can also be a single sentence for multiple offences (aggregate sentences) which either alone, or together with other sentences, adds up to a term of imprisonment for at least 12 months [s 5AB].
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. Those serving a prison sentence and who are either at risk of having their visa cancelled or who have already had their visa cancelled, could also benefit from referring to our Mandatory Visa Cancellation Kit
Most people who give migration advice in Australia are required to be either a registered migration agents, or a legal practitioner with an unrestricted practising certificate. This system was introduced to protect people from unscrupulous migration advisers. Migration Agents must be registered with the Office of the Migration Agents Registration Authority (MARA).
From 22 March 2021, Legal practitioners who practice migration law or give migration legal advice in connection with legal practice are not eligible to be registered with MARA. However, they must hold an unrestricted legal practising certificate through their state legal practitioner’s board. In South Australia, legal practising certificates are issued by the Law Society of South Australia.
Migration Agents are regulated by the Office of Migration Agents Registration Authority (MARA). Complaints about the conduct of registered migration agents are made to MARA, who has authority to consider the complaint and determine if MARA is able to take disciplinary action (including cancellation of licence, suspension, barring or caution).
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.
Unlawful operators are people providing immigration advice and assistance who are not registered migration agents (or persons otherwise entitled to give advice under one of the exceptional categories under the Migration Act 1958). Complaints about unlawful operators who provide migration assistance are not able to be investigated by 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 (i.e. a legal practitioner with unrestricted practising certificate).
Legal practitioners who hold an unrestricted practising certificate will be able to provide immigration advice to clients without having to also be registered as a migration agent. This means that legal practitioners with an unrestricted practising certificate are allowed to provide migration advice and assistance in connection with legal practice. See 'Lawyers and Migration Law'.
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.
Legal Services Commission SA
Australian Refugee Association
Parabanks Shopping Centre
Shop 94, 68 John St
Migration Agents Registration Authority
Refugee Legal
(for legal assistance for asylum seekers)
Tel: (03) 9413 0100
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