Temporary Visas

Based on the contribution of Michael Clothier, Accredited Immigration Law Specialist, as amended by Er-kai Wang, registered migration agent and Associate Lecturer at the ANU College of Law and current to 19 July 2018

NOTE: The Immigration and Refugees chapter is under substantial revision. The information in the following section may not be accurate. Readers should be aware that the Migration Regulations change rapidly. Before using the information listed here, we recommend that you check if the law is still current by seeking advice from a migration agent or visiting the Department of Home Affairs' website.

Visitors' Visas

Eligibility for a Visitor Visa

Visitors’ visas are available at overseas Australian posts and on the internet to applicants seeking to visit Australia for a short period for such purposes as tourism (sightseeing), business (negotiations, discussions, inspections, etc.), sponsored family (seeing relatives or friends), or pre-arranged medical treatment.

Visitors’ visas may be refused where applicants do not meet the genuine stay requirements. If there are doubts, authorities issuing visas are required to make whatever inquiries they consider necessary, including personal interviews, to resolve the doubts before taking any decision. Applicants for visitors’ visas are sometimes required to sign a declaration that on arrival in Australia they will be in possession of a return or onward passage ticket and sufficient funds to maintain themselves in Australia for the length of the proposed visit, and that they will not engage in employment or formal studies (i.e. studies leading to a qualification) in Australia and will not apply to become a permanent resident. Sometimes a special condition is put on their visa (condition 8503 – “No further stay”). This last undertaking or visa condition (which is mandatory for sponsored family visitor stream) means it is very difficult, but not impossible, to apply for, and be granted, permanent residence after entry for a temporary stay (see “Changing status”, below).

Possession of a visitor visa generally ensures that immigration clearance is granted on arrival (e.g. business visitor, tourist). It is still possible to arrive and obtain a “border visa” (subclass 773) if it can be shown that the person would have been granted a visitor visa in any case, had they applied overseas, or in a narrow range of other circumstances. However, approximately 1,500 people per year are “turned around” at Australian airports, because they are not considered genuine visitors. They are refused immigration clearance, their visas (if they have one) are cancelled, and if they do not apply for refugee status they are placed back on the same aircraft (usually) that just brought them to Australia.

Visitor Visa Options (subclass 600)

On 23 March 2013, a single visitor (subclass 600) visa was introduced to replace a number of previous tourist visas. It has four streams:

1. Tourist stream: The Tourist stream is for people travelling to Australia for a holiday, recreation or to visit family and friends. If you apply for this visa in Australia, you must be in Australia when the visa is decided. If you apply for this visa outside Australia, you must be outside Australia when the visa is decided.
2. Business visitor stream: The business visitor stream is for business people travelling to Australia for a short business visit. This includes making a general business or employment enquiry, negotiations or participating in a conference. You must be outside Australia when you apply and when the visa is decided.
3. Sponsored family stream: The sponsored family stream is for people travelling to Australia to visit their family. You must have a sponsor (usually close family) who might be asked to provide a bond of up to $15,000, which is usually forfeited if the visitor does not leave. You must be outside Australia when you apply and when the visa is decided. You cannot apply for another visa after you have arrived in Australia because condition 8503 is applied to the visa.
4. Approved destination status stream: The approved destination status stream is for people from China who are travelling in an organised tour group. You must be outside Australia when you apply and when the visa is decided.
5. Frequent traveller: for people who hold a passport from the People's Repulic of China and are applying from within China.

Electronic Travel Authority (subclass 601)

As well as the tourist stream subclass 600 visa above, travellers from certain countries have access to the electronic travel authority (ETA) (subclass 601) visa. This lets you enter Australia as many times as you want for up to 12 months if you are a tourist or travelling for business purposes, and you can stay in Australia for up to three months on each visit.

The ETA is an electronically stored authority for travel to Australia. You must be outside Australia when you apply and when the ETA is granted.

An ETA is linked electronically to your passport. It can be seen by staff at airlines, travel agencies and Australian border agencies. To apply, you must be a citizen and hold a passport issued by one of these countries: Andorra, Austria, Belgium, Brunei, Canada, Denmark, Finland, France, Germany, Greece, Hong Kong (SAR of China), Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Malaysia, Malta, Monaco, Norway, Portugal, Republic of San Marino, Singapore, South Korea, Spain, Sweden, Switzerland, Taiwan, The Netherlands, United Kingdom - British Citizen, United Kingdom - British National (Overseas), United States, Vatican City. See www.homeaffairs.gov.au.

Assessing whether the applicant meets the “genuine visitor” requirement

Immigration policy about visitors theoretically applies to all visitors, but in practice it is mainly applied to people visiting from developing countries: generally, any country where an applicant cannot obtain an eVisitor visa or an electronic travel authority.

The policy states that considerations in assessing whether an applicant is a “genuine visitor” must include three matters:

• whether the applicant has complied substantially with the conditions to whichh the last substantive visa, or any subsequent bridging visa, held by the applicant was subject
• whether the applicant intends to comply with the conditions to whichh the visitor visa would be subject and
• any other relevant matter which include personal circumstances, credibility, purpose and period of stay, previous immigration/travel history or Intel reports and profile

Personal circumstances include factors that may encourage the applicant to leave Australia at the end of the proposed visit, such as:.

• personal circumstances in the applicant‘s home country that may encourage them to remain in Australia (e.g. military service commitments, eco­nomic situation, civil disruption);
• conditions that may encourage the applicant to remain in Australia;
• the credibility of the applicant in terms of character and conduct (e.g. false and misleading information provided with visa application);
• whether the purpose and proposed duration of the applicant‘s visit, and proposed activities in Australia are reasonable and consistent (e.g. the period of stay is consistent with tourism); and
• information contained in statistical, intelligence and analysis reports on migration fraud and immigration compliance developed by the Department about nationals from the applicant‘s home country. Such information, compiled as a “profile” may assist assessing officers in determining whether closer examination of an application is required to ensure the integrity of the visitor visa program.

Personal circumstances that may encourage the applicant to return to their home country (home country being country of usual residence), include:

• ongoing employment;
• the presence of immediate family members in their home country (Does the applicant have more close family members living in their home country than in Australia?);
• property, or other significant assets, owned in their home country;
• the applicant’s economic situation, including unemployment or employment that, based on knowledge of local employment conditions, such as salary rates, would not constitute a strong incentive for the applicant to leave Australia; and
• currently residing in a country whose nationals represent a low risk of immigration non-compliance, even though the applicant is originally from a country whose nationals represent a statistically higher risk of non-compliance.

The applicant‘s immigration history includes the applicant's previous travel, compliance with immigration laws of Australia or other countries, previous visa appli­cations/compliance action.

Consideration of the applicant’s immigration history may include, but is not limited to:

• previous travels to Australia (Has the applicant previously travelled to Australia? Did they comply with the conditions of their visa? If not, were the circumstances beyond their control? Did they depart prior to the expiry of their visa?);
• previous visa applications for Australia (Has the applicant previously applied for a permanent Australian visa?); and
• previous travels overseas (Has the applicant travelled to countries other than Australia? Has the applicant travelled to a country where there would be significant incentives for them to remain, and complied with the immigration laws of that country?).

Officers may give weight to applicants who had travelled to and complied with the immigration laws of countries that have significant incentives for the applicant to remain in that country, either for economic or personal reasons, when assessing this factor. However, officers may have to use judicious discretion where there is a lack of travel history.

Conditions that may encourage the applicant to remain in Australia, include:

• the applicant’s personal ties to Australia (Does the applicant have more close family members living in Australia than in their home country? Is the applicant subject of adoption proceedings that have not been resolved in their home country?);
• military service commitments;
• civil disruption, including war, lawlessness or pol­itical upheaval in the applicant’s home country;
• economic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant’s home country.

Where consideration of the factors above raise doubts about the applicant’s ability to meet the 'genuine stay requirement', such as where the applicant’s circumstances may suggest the need for greater scrutiny, officers may consider/request additional evidence to demonstrate that the applicant intends a genuine visit.

Officers may request further evidence from the applicant where considered appropriate, if departmental statistical or intelligence reports on migration fraud, or profiles based on such reports, indicate that there is a significantly greater likelihood of nationals from the applicant’s home country:

• staying in Australia beyond the expiry of their visa;
• having their visa cancelled;
• being refused entry to Australia; or
• lodging protection visa applications.

Officers are advised, however, that when applicants match the characteristics of a “profile”, this is not grounds in itself to refuse to grant a visa. Profiles are meant to provide an alert that closer scrutiny of the applicant’s circumstances may be required. All applications must be considered on their own merits, taking into account all the information and supporting documentation provided by the applicant.

Additional evidence that officers may wish to consider to determine whether or not the applicant is a genuine visitor include:

• evidence that the applicant has been employed for at least the previous 12 months, has approved leave for the period of stay sought, and will continue to be employed on their return home; or
• if self-employed, evidence they have owned their own business for the previous 12 months; or
• if retired/non-working, have other financial com­mitments and/or family/social ties that would provide sufficient inducement for them to return to their home country at the end of their visit; or
• good immigration history.

Generally, where an applicant is from a developing country, offers of support or guarantees given by family and friends in Australia are not, by themselves, sufficient evidence of a genuine visit. The onus is on the applicant to satisfy the decision-maker that they intend to only visit Australia. If they pass that hurdle, then financial guarantees from connections in Australia can be important in assessing whether an applicant has, or has access to, adequate funds.

People who have had a visa cancelled while previously in Australia, or who overstayed their previous visa by more than 28 days, are (with narrow exceptions) subject to a three-year ban on re-entry (cls 4013–4014, sch 4).

Where a person wishes to visit a close relative in Australia but fits a profile of an over stayer (usually any citizen from a developing country), it is often better to apply for a sponsored family stream in the subclass 600 visa, as this is more likely to be granted, given that the Australian relative/sponsor usually has to pay a bond to ensure that the visa holder leaves the country (see Eligibility for a visitor visa).

Extending a visit

Once a visa is granted and a visitor enters Australia, they may wish to apply for extensions of stay. The maximum length of time is not generally set out in the regulations governing such extensions, but the criteria to be satisfied in the visitor classes for another visa are as follows.

General criteria

1. The applicant has complied substantially with any conditions subject to which the visa was granted;
2. The applicant satisfies character and health criteria;
3. The applicant intends to comply with any conditions subject to which the visa is to be granted; and
4. The applicant must also establish that:
   a. the visit is a genuine visit and that they have adequate financial support for the proposed period of stay; or
   b. because of financial hardship as a result of a change in circumstances since entering Australia, the applicant is likely to become a charge on public funds, and cannot leave Australia for reasons beyond their control, and has compelling personal reasons to work in Australia; or
   c. if a student, has completed their studies and wishes to remain in Australia as a visitor; or
   d. if the holder of a working holiday visa, there are exceptional reasons for the grant of a visitor visa to extend the stay.

Criteria for extensions of visitor visas with condition "8503 – no further stay”

It is not possible to apply for a further visitor visa in Australia if the former visitor visa has, or had, a condition 8503 on it, unless that condition is removed. It can only be removed if events of a “compassionate and compelling” nature have occurred since the visa was granted that are beyond the control of the visa holder and that necessitate a further stay in Australia.

Length of stay

The Department’s policy is to not grant visitor visas that would extend a total stay beyond 12 months, except for students or for other “exceptional” reasons.

Temporary Residence

Eligibility

Temporary residence is the entry for specified short- or long-term periods to engage in employment or other pursuits in Australia (not business discussion, negotiations, inspections, etc., which come within the visitors’ entry category). It covers:

Temporary Skill Shortage visa (subclass 482) was introduced on 31 March 2018 replacing the Temporary work (skilled) visa subclass 457,referred to as the TSS visa, it enables employers to address labour shortages by bringing in genuinely skilled workers where they cannot source an appropriately skilled Australian. It facilitates targeted use of overseas workers to address temporary skill shortages. TSS visa holders can work in Australia in their nominated occupation for their approved sponsor under one of three streams:

• The short-term stream
• The medium-term stream
• The Labour Agreement stream

The temporary activity visa (subclass 408) is for people who want to come to Australia on a temporary basis under one of the 10 streams described in this visa:

1. Entertainer: to work in the entertainment industry in film, television, or live productions in either a performance or behind the scenes role (e.g. directing, producing, and other production roles)
2. Invited participant: for people who are invited for stays of up to three months by an organisation operating in Australia to participate in a specific cultural or social event(s) (e.g. conferences, and sporting, religious and other community events)
3. Researcher:
   to observe or participate in an Australian research project after being invited to do so;
   to undertake a research activity at an Australian tertiary or research institution related to the visa applicant’s field of study
4. Religious worker: to be a full-time religious worker, serving the religious objectives of a religious institution in Australia
5. Special program: to participate in an approved special program that provides opportunities for youth exchange, cultural enrichment or community benefits
6. Sport:
   to play, coach, instruct or adjudicate under contract to an Australian sporting club or organisation;
   to participate in a high-level sports training program.
7. Exchange: to work in a skilled position under a reciprocal staff exchange arrangement to give participants an opportunity to experience another culture, enhance international relations or broaden participants’ experience and knowledge.
8. Superyacht crew: to be employed as a superyacht crew member on board a superyacht in Australia
9. Domestic worker (executive): to work full-time in the household of certain senior foreign executives
10. Australian Government endorsed event: to participate in a government-endorsed event.

The temporary work (international relations) visa (subclass 403) allows people to come to Australia under one of five streams:

1. Government agreement stream;
2. Foreign government agency stream;
3. Domestic worker (diplomatic and consular) stream;
4. Privileges and immunities stream;
5. Seasonal worker program stream.

The working holiday makers program includes the Working Holiday (subclass 417) and Work and Holiday (subclass 462) visas.

The procedures generally involve sponsorship by the interested party in Australia (although no sponsorship is required for working holiday makers). People entering for temporary residence for a period of more than 12 months are often required to undergo health and character checking, depending on their country of origin.

People approved for entry under temporary residence categories may generally be accompanied by their dependents (including same-sex partners). Dependents of temporary residents may usually undertake employment or studies in Australia, depending on the particular temporary residence class. There are many types of temporary residence described in the regulations, all with different criteria that must be met.

For more detailed information, visit the Department’s website at www.homeaffairs.gov.au and search for the relevant subclass number.

Category: temporary business entrants – 457 visa, business sponsored

On 18 March 2018, the Australian government abolished Temporary Work (Skilled) visa (subclass 457 visa) and was replaced with the completely new Temporary Skill Shortage (TSS) visa.

Further information on these reforms is available at www.homeaffairs.gov.au/trav/work/457-abolition-replacement see Abolition and replacement of the 457 visa – Government reforms to employer sponsored skilled migration visas.

For additional information see:

• Summary of 17 January 2018 changes to the lists of eligible skilled occupations.
• 1 July 2017 changes to skilled visa programs.

Category: working holiday visa (subclass 417)

The aim of the working holiday maker scheme is to promote international understanding by providing opportunities for young people to gain experience of other countries. The scheme makes it possible for young people who are resourceful, self-reliant and adaptable and who wish to holiday and travel in Australia to work to supplement their funds.

To be eligible for entry or stay in Australia as a working holiday maker, a person must (see subclass 417, sch 2 Migration Regulations):

• be single or married and not accompanied by dependent children;
• be aged between 18 and 31 years; and
• be a national of one of the following countries with which Australia has a working holiday maker arrangement: United Kingdom, Republic of Ireland, Italy, France, Belgium, Finland, the Netherlands, Republic of Cyprus, Canada, Germany, Malta, Norway, Sweden, Denmark, Estonia, Japan, Hong Kong, Korea and Taiwan.

In all cases, applicants must:

• lodge an online application for a working holiday visa to enter Australia and pay the visa application charge; and
• satisfy the Minister for Home Affairs ('the Minister') that:
  1. they have sufficient funds for a return fare and to support themselves in Australia for the initial part of the proposed holiday period; and
  2. the prime intention is to holiday in Australia and that any work performed will be incidental to that purpose and will not exceed six months with the same employer; and
  3. they will have reasonable prospects of obtaining temporary employment to supplement holiday funds; and
  4. formal studies, other than a short-term non-formal course, will not be undertaken while in Australia; and
  5. they will depart Australia at the end of the temporary stay.

Working holiday makers may apply for a second 12-month working holiday visa if they can show that they have worked at least three months in particular primary industries (e.g. fishing, pearling, butchering and forestry) or are doing seasonal harvest or building construction work in regional Australia. Such work must be paid; it cannot be as a volunteer.

Where to lodge applications

As of 1 July 2018, all applications for a working holiday (subclass 417) visa must be lodged online.

Category: work and holidays (subclass 462)

This visa is for tertiary educated people aged between 18 but have not turned 31 years of age at the time of lodging their application, who are interested in a working holiday of up to 12 months in Australia from the following countries: Argentina, Austria, Chile, China, Czech Republic, Hungary, Indonesia, Israel, Luxembourg, Malaysia, Peru, Poland, Portugal, San Marino, Singapore, Slovak republic, Slovenia, Spain, Thailand, Turkey, USA, Uruguay, Vietnam.

The subclass 462 visa allows applicants to supplement the cost of their holiday through periods of temporary or casual employment.

Currently, the work and holiday visa arrangement is in place for people from Argentina, Bangladesh, Chile, China, Hungary, Indonesia, Israel, Luxembourg, Malaysia, Poland, Portugal, San Marino, the Slovak Republic, Slovenia, Spain, Thailand, Turkey, Uruguay, the USA, Uruguay and Vietnam.

Citizens of Iran who are currently in Australia on a work and holiday visa may also be eligible to apply for further work and holiday visas.

A second 12-month visa may be granted, on similar grounds to the working holiday (subclass 417) visa, to applicants who have done specified work in northern Australia. The approved industries for specified work include:

• plant and animal cultivation;
• fishing and pearling;
• tree farming and felling;
• tourism and hospitality.

As of 1 July 2018, all applications for a work and holiday (subclass 462) visa must be lodged online.

Category: Student visa (subclass 500) and Student Guardian visa (subclass 590)

The Educational Services for Overseas Students (ESOS) framework protects the interests of overseas students and Australia’s reputation for delivering quality education services. The framework sets out the standard, role and responsibilities for education institutions that teach overseas students. It also provides tuition and financial assurance for students.

There are seven streams within the subclass 500 student visa. Each stream is based on the education sector of a student’s principal course of study.

Another subclass is the student guardian visa (sub-class 590). This is a temporary visa for people who need to come to Australia to care and support a student visa holder who is younger than 18 years old, or a student visa holder over 18 years old who needs care and support due to exceptional circumstances.

The seven streams within the subclass 500 student visa are:

Independent ELICOS sector

For international students undertaking ELICOS (English language intensive courses for overseas students) as a stand-alone course, and not as a pre­requisite to commencing another course (e.g. a degree).

Schools sector

For international students undertaking a course of study at a primary or secondary school.

Vocational education and training (VET) sector

For international students undertaking a course of study at a technical or trade college, resulting in the award of a certificate I, II, III or IV, diploma or advanced diploma.

Higher education sector

For international students undertaking a course of study at university resulting in the award of a bachelor degree, graduate certificate, graduate diploma or master by course work.

Postgraduate Research sector

For international students undertaking a course of study at university resulting in the award of either a master’s degree by research, or a doctoral degree.

Non-award sector

For international students undertaking a foundation, bridging or other course that does not result in the award of a degree, diploma or other formal qualification.

Foreign Affairs or defence sector

For more information, visit www.homeaffairs.gov.au.

Visa options for overseas students who have graduated: Subclass 485: skilled – graduate (temporary)

Subclass 485 is for international students who have recently graduated from an Australian educational institution. It lets them live, study and work in Australia temporarily after they have finished their studies.

There are two streams to the 485 visa:

1. Graduate work stream: for international students with an eligible qualification who graduate with skills and qualifications that relate to an occupation on the Skilled Occupation List. A visa in this stream is granted for 18 months from the date of grant.
2. Post-study work stream: for international students who graduate with a higher education degree from an Australian education provider, regardless of their field of study. This stream is only available to students who applied for, and were granted, their first student visa to Australia on or after 5 November 2011. A visa in this stream can be granted for up to four years from the date the visa is granted, depending on the visa applicant’s qualification.

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 and computers.

Funds

Evidence of funds for some visitor and temporary visa classes should be in the form of passbooks, account statements and letters from banks or other financial institutions. Letters should be on letterhead, dated and signed. Adequate funds to cover initial period of stay could vary, depending on:

• the proposed length of stay and the extent of travel proposed; or
• the extent to which accommodation and other assistance will be available from relatives and friends in the initial period after arrival.

Depending on the period of stay, approximately AUD$5,000 (in addition to funds for a return airline ticket) could be regarded as being sufficient to cover the costs of an initial stay for an applicant who intends to stay in Australia for at least six months (for more information, visit www.homeaffairs.gov.au).