Immigration, Refugees and Citizenship
Contributor: MIGRATION LAW PROGRAM, ANU COLLEGE OF LAW Currency of information: November 2010- Immigration, Refugees and Citizenship
- Overview
- Visas
- Refugees and Humanitarian Entrants
- Compliance
- Review of Decisions
- Overview
- Review by the Migration Review Tribunal
- Review by the Refugee Review Tribunal
- Review by the Administrative Appeals Tribunal
- Asking the Minister to Intervene
- Asking the Courts to Intervene - Judicial Review
- Other forms of review
- Contacts, Links and Resources
Overview
Immigration has been a topic of popular concern in Australia since before federation. Indeed, the development of modern Australia began in earnest with colonial emigration programs designed to foster the movement of British convicts to Australia in the 18th and 19th centuries. By 1901, however, the federal Parliament had become more concerned with restricting migration to Australia than encouraging it. The first major piece of legislation passed by the Parliament was the Immigration Restriction Act 1901 (Cth) (IRA). Without using blatantly racist language, the IRA had the effect of prohibiting most non-white, non-English speaking migrants from entering or remaining in Australia. In reality, it provided a means of implementing the 'White Australia' policy which had developed over the preceding decades. After World War II, the White Australia policy gradually became less acceptable and less viable. The Australian Government saw the need to boost Australia's population and enhance its workforce. The Government introduced mass migration schemes which assisted non-English speaking Europeans to come to Australia. In 1958, the Parliament passed the Migration Act 1958 (Cth) ('the Act') which abolished the prohibitive measures contained in the Immigration Restriction Act 1901. At the same time, the need for strong relationships with Australia's Asia-pacific partners became increasingly important and resulted in a gradual relaxation of restrictions on non-European migration. The Whitlam Government formally abandoned the White Australia policy in 1973. Since then, Australia has become increasingly multicultural and its body of migration law ever more complex. The 1970s saw the first significant movement of non-European migrants to Australia with the arrival of Vietnamese refugees. In 1989, the Hawke Government introduced major amendments to the Act to enhance business and skilled migration. In 1999, the Australian Multicultural Advisory Council (AMAC) recommended the adoption of the term 'Australian Multiculturalism'. Today, Australia's Migration Program allows people from any country to apply to migrate, regardless of their ethnicity, culture, religion or language, provided that they meet the criteria set out in law. From July 2008 to June 2009, 158,021 people arrived from over 200 countries to settle in Australia. Nevertheless, the subject of immigration and in particular, asylum-seekers and refugees still generates a significant amount of public debate and media interest. Australia's migration law is constantly changing to reflect the policies of the incumbent government and these, in turn, are influenced by the concerns of Australia's evolving multicultural populace, the business community and other groups.Migration Law and Policy
The Australian Constitution provides the Federal government with power to legislate with respect to 'Naturalization and aliens' (s 51(xix)) and 'Immigration and emigration' (s 51(xxvii)). Currently, the government uses the 'Naturalization and aliens' power to make migration laws. The core pieces of legislation governing migration law in Australia today are the Migration Act 1958 (Cth) ('the Act') and the Migration Regulations 1994 (Cth) ('the Regulations'). The Act governs diverse aspects of Australia's immigration system including 'Control of Arrival and Presence of Non-Citizens' (Part 2), 'Migration Agents and Immigration Assistance' (Part 3) and 'Review of Decisions' (Part 5). The Regulations dictate how the powers provided by the Act are administered and decisions are made. 'Instruments in writing' or Gazette Notices made under the Act and Regulations add to the body of migration law. They are often used as a quick way to change the law to keep visa criteria relevant. It is also important to be aware of the various 'Ministerial Directions' made by the Minister of Immigration (the Minister). Section 499 of the Act authorizes the Minister to issue directions about the exercise of powers or functions under the Act. Generally, these directions are written to clarify procedures for determining a visa application. Unless they are inconsistent with the law contained in the Act, Ministerial Directions are binding on any person or body who has powers or functions under the Act, including the Migration Review Tribunal, Refugee Review Tribunal and Administrative Appeals Tribunal. Policy plays an important role in influencing how the law is interpreted and applied by decision-makers. Policy documents from the Department of Immigration and Citizenship (the Department) include the Procedures Advice Manual ('PAM') and Migration Series Instructions ('MSI'). The PAM assists decision makers by providing a departmental interpretation of the Migration Regulations 1994. MSIs comment on specific immigration issues arising from the interpretation of the Migration Act 1958 (Cth) and update various policies and procedures in the PAM.Other migration-related legislation
Other pieces of legislation which are relevant to Australian migration law include the following: Australian Citizenship Act 2007 (Cth); Australian Passports Act 2005 (Cth); Migration Agents Regulations 1998 (Cth); Migration Agents Registration Application Charge Act 1997 (Cth); Migration (Health Services) Charge Act 1991 (Cth); Migration (Sponsorship Fees) Act 2007 (Cth); Migration (Visa Application) Charge Act 1997 (Cth); Education Services for Overseas Student Act 2000 (Cth) - this Act regulates education providers who offer courses to overseas students and provides financial and tuition assurances to overseas students; Immigration (Guardianship of Children) Act 1946 (Cth) - this Act deals with the guardianship of non-citizen children who are not under the care of a parent or relative; Aliens Act Repeal Act 1984 (Cth); Australian Citizenship Act (Transitionals and Consequentials) Act 2007 (Cth); Immigration (Education) Act 1971 (Cth); and Immigration (Education) Charge Act 1992 (Cth).Australia's Visa System
Australia regulates its borders by requiring all non-citizens who wish to travel to or remain in Australia to have a valid visa (s 13(1)). If a non-citizen in Australia does not have a valid visa, they are 'unlawful' (s 14(1)) and subject to mandatory detention (s 189) (see The Consequences of being an Unlawful Non-Citizen). Essentially, a visa is a permission to travel to, enter and/or remain in Australia (s 29). Visas indicate how long a person is entitled to stay and whether they can leave and come back into the country again. Visas also identify the conditions under which a person is permitted to remain, such as whether the visa holder is allowed to work in paid employment or access social security benefits. In many cases, evidence that a person holds a visa is provided by a label affixed to their passport. However, the Regulations may list other ways to evidence a particular visa or specify that no evidence of a visa needs to be provided at all. A visa label is evidence of the existence of the visa, not the visa itself. There are two main types of visa: permanent and temporary visas. Permanent visas allow holders to remain in Australia indefinitely (s 30(1)). They also give the holder permission to travel to and from Australia on an unlimited number of occasions for a certain period of time (usually five years). However, after this time has expired, permanent visa holders must obtain a resident return visa if they wish to leave and return to Australia (see Migration Law and Policy). Permanent visa holders are also known as permanent residents. According to ss 30(2)(a) - (c) of the Act, temporary visas allow holders to remain in Australia "during a specified period", "until a specified event happens", or "while the holder has a specified status". Whether or not a temporary visa holder can travel to and from Australia for the duration of their visa depends on the particular type of temporary visa they hold.Australia's Migration Program
Australia's migration program is broadly divided into two major components: non-humanitarian and humanitarian migration. A mixture of permanent and temporary visas is available in both sections of the program. In this chapter, non-humanitarian visas are discussed under the following headings:- Visitor Visas;
- Family Visas;
- Student Visas;
- Skilled Visas;
- Business Visas; and
- Bridging Visas.
Basic Terminology
Visa Class: There are different categories of visa called visa classes. Under the Act, it is not sufficient for a non-citizen who enters Australia to simply apply for a visa. A non-citizen must apply for a visa of a particular class (s 45). Schedule 1 of the Regulations sets out the 'prescribed' (see below) classes of visas. Other classes of visa are described in the Act itself. Visa Subclass: Each class of visa is divided into subclasses. Every subclass of visa has different criteria. The criteria are established to meet Australia's national interests and can be based on a range of considerations such as relationship to an Australian permanent resident or citizen, skills, age, qualifications, capital and business acumen. Schedule 2 of the Regulations sets out the subclasses of visas and the criteria that must be met to qualify for them. Substantive Visa: All visas apart from Criminal Justice visas, Enforcement visas and Bridging visas are substantive visas (s 5). In order for a person who is already in Australia to obtain a second visa, it is often a requirement that they hold or initially held a substantive visa. Primary applicant: the main applicant for a visa. Primary applicants must fulfil the 'primary criteria' for the relevant visa subclass found in Schedule 2 of the Regulations. Secondary applicant: a family member of the primary applicant. Secondary applicants are included on the visa application form of the primary applicant and must fulfil 'secondary criteria' for the visa found in Schedule 2 of the Regulations. prescribed: means as prescribed or set out in the Regulations. Immigration cleared: All non-citizens must be immigration cleared. This means they must provide a completed passenger card, evidence of identity (such as a passport) and a visa to an immigration clearance officer (s 166). A clearance officer is usually an official at an airport or seaport who checks travel documents. Eligible New Zealand (ENZ) Citizen: A New Zealand citizen who satisfied certain health and good character criteria at the date of their last entry to Australia. The person must have been:- In Australia on 26 February 2001 as the holder of a subclass 444 visa; or
- In Australia as the holder of a subclass 444 visa for not less than a cumulative total of 1 year from the period 26 February 1999 - 26 February 2001; or
See Migration Regulations 1994 reg 1.03 for more detail.
settled: A 'settled' Australian citizen, permanent resident or eligible New Zealand citizen is someone who has been lawfully resident in Australia for a reasonable period. Under policy, DIAC has interpreted a 'reasonable period' to mean approximately two years. However, there are exceptions to this rule: see MSI 378: Form 40 - Sponsors and sponsorship.The Department of Immigration and Citizenship
The immigration portfolio and the Department of Immigration were created in 1945 directly after World War II. Over the years, the name of the department has changed to reflect its responsibilities which, at different times, have included Local Government, Ethnic Affairs, Multicultural Affairs and Indigenous Affairs. Currently, the department is known as the Department of Immigration and Citizenship (the Department). Its five key objectives as outlined in The DIAC Strategic Plan 2009-12 are as follows: 1. Contribute to Australia's future through managed migration. 2. Protect refugees and contribute to humanitarian policy internationally. 3. Contribute to Australia's security through border management and traveller facilitation. 4. Make fair and reasonable decisions for people entering and leaving Australia - ensuring compliance with Australia's immigration laws and integrity in decision making. 5. Support migrants and refugees to settle in the community and participate in Australian society (this includes citizenship services). The Minister for Immigration and Citizenship (the Minister) is the Hon Chris Bowen, MP. Minister Bowen has responsibility for the Immigration portfolio which comprises the work of the Department, the Office of the Migration Agents Registration Authority, the National Accreditation Authority for Translator and Interpreters (NAATI) Limited, the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT). The Department's website, www.immi.gov.au, provides a wealth of information on the Department itself as well as processes and procedures for immigration related matters. The Department's central office is located at 6 Chan St, Belconnen, ACT. It also has numerous State and Territory offices, overseas offices, processing centres (responsible for processing particular types of visa applications) and Centres of Excellence (responsible for processing Subclass 457, 422 and 459 applications - see Employer Sponsored visas and Visitor visas for workers). For contact details, see www.immi.gov.au/contacts/offices.htm. National phone numbers include:- General enquiries: 131 881 (available from inside Australia). Hours of operation: Monday to Friday 9 am to 4 pm
- General Skilled Migration enquiries: 1300 364 613. Hours of operation: Monday to Friday 9 am to 4 pm
- Australian citizenship enquiries: 131 880. Hours of operation: Monday to Friday 8.30 am to 4.30 pm
- Translating and Interpreting Service: 131 450. Hours of operation: 24 hours a day / 7 days a week
- Employers' Immigration Hotline: 1800 040 070. Hours of operation: Monday to Friday 8.30 am to 4.30 pm
Freedom of Information
The Freedom of Information Act 1982 (Cth) ('the FOI Act') provides every person with a right to access documents held by the Department (and other Commonwealth Government agencies) (s 11 of the FOI Act). People are able to obtain documents as long as the documents do not fall within any of the exempt categories outlined in the FOI Act. The rights provided by the FOI Act are particularly useful in the immigration context. Individuals can obtain access to the PAM and MSI (see Migration Law and Policy) and gain information on how the Department is likely to apply the law to make a particular decision. People who have had a visa application refused or cancelled can access their files to get a better idea of the information held by the Department, the reasons for the decision and the prospects of success should they apply for review (see Review of Decisions). For more information on freedom of information generally, see Chapter 41 Freedom of Information.Making an FOI request
For privacy reasons, documents that contain personal information about an individual can generally only be accessed by that individual (s 41(2) of the FOI Act). Visa applicants or other parties wishing to obtain information from the Department should fill out Form 424A Request for access to documents or information www.immi.gov.au/allforms/pdf/424a.pdf. Where someone wishes to access documents that were provided by another person or that contain information about another person, then the other person's consent must be obtained or their name and details erased from the document. If possible, the other person should sign the Form 424A to indicate that they consent to the release of information. People wanting to access information from the Department should send their request forms to one of the addresses listed on the Department's FOI webpage www.immi.gov.au/about/dept-info/foi/contacts.htm. If the Department refuses to release all or part of a file under an FOI request, applicants have the right to ask the Department to review its decision not to provide the documents. A request for internal review must be in writing and the current application fee is $40.00 (although from 1 November 2010 internal review applications will be free of charge). If the internal review fails to yield results, applicants may be able to apply to the Administrative Appeals Tribunal (AAT) for review. Applicants for review before the Migration Review Tribunal (MRT) or Refugee Review Tribunal (RRT) can make an FOI request through those tribunals (go to www.mrt-rrt.gov.au/Forms-and-Brochures/default.asp to access the relevant form). Applicants to the MRT may also fill out the form entitled "Consent to Release of Personal Information" to obtain relevant documents. Applying to the tribunals directly is often much quicker and easier than contacting the Department to obtain the same documents. The tribunals do not usually require payment but reserve the right to charge a $30 fee in certain circumstances.Privacy
The Department must deal with the personal information of individuals in accordance with the Privacy Act 1988 (Privacy Act). The Privacy Act contains 11 Information Privacy Principles (IPP) governing the way in which Commonwealth agencies, such as the Department, should deal with personal information. IPP 6 states that an individual is entitled to access to their own personal information. It also allows a department to refer a request for a document to the FOI process. Individuals should use the same method to request information under the Privacy Act as for Freedom of Information requests (Form 424A - see Making an FOI request). For more information on the law of privacy generally, see Chapter 43 Privacy Law.Providing Migration Advice
Given the complexity of migration law and the potential vulnerability of migration clients, the migration advice industry has become more regulated. With very few exceptions, only registered migration agents are allowed to provide immigration assistance (s 280). Anyone who receives payment in return for immigration assistance without being registered may be imprisoned for up to 10 years (s 281). Immigration assistance is defined in s 276 of the Act and includes:- Assisting someone to prepare or advising someone about either a visa application or application for review of a visa cancellation (ss 276(a) - (b)).
- Preparing for or representing an applicant in Court proceedings in relation to a visa application or an application for review of a visa cancellation (ss 276 (c) - (d)).
The Migration Agents Registration Authority
The Migration Agents Registration Authority (MARA) is responsible for dealing with migration agent registration, monitoring the conduct of agents, investigating complaints against agents and taking disciplinary action where appropriate (s 316). The Migration Institute of Australia (MIA) is the peak industry or representative body of the migration advice profession. From 1998 until June 2009, the MIA was also appointed to carry out the functions of the MARA (under s 315). The tensions and conflicts of interest between the MIA's role as representative body and regulator of the profession were discussed in the government's formal review: 2007-08 Review of Statutory Self-Regulation of the Migration Advice Profession (December 2008) www.immi.gov.au/gateways/agents/pdf/2007-08-migration-advice-profession-review-report.pdf. Following the review the Minister revoked the MIA's appointment as the MARA and established the Office of the Migration Agents Registration Authority. The Office of the Migration Agents Registration Authority (Office of the MARA) is a discrete office attached to the Department. The Office of the MARA has published its own Probity Statement that sets out a range of strategies put in place to ensure independence from the Department, see https://www.mara.gov.au/About-Us/Office-of-the-MARA-Documentation/default.aspx.Visas
General Requirements for Visas
Applicants for all types of visas must ensure they lodge a valid visa application (see Lodging a valid visa application). Likewise, almost all visa applicants must satisfy certain character and health requirements known as Public Interest Criteria (see Public Interest Criteria). Members of the family unit of the visa applicant must fulfil 'secondary criteria' even if, in some instances, they are not included in the application (see Members of a visa applicant's family). Finally, many visa applicants also require a sponsor (see Sponsorship) and / or an Assurance of Support (see Assurances of Support). They may also be affected by the Minister's decision to limit the number of visas granted each year and to prioritise the processing of certain visa applications (see Cap and queue and priority processing).Lodging a valid visa application
Before the Department considers whether a person meets the criteria for a certain visa class, they must lodge a valid visa application (s 46). Schedule 1 of the Migration Regulations sets out the requirements for lodging a valid application. Schedule 1 stipulates:- which form the applicant must lodge;
- the fee or visa application charge (VAC) to be paid;
- other relevant conditions such as:
- where the application must be made;
- where the applicant must be when the application is made;
- how the application may be made (electronically, orally, or in writing);
- other miscellaneous criteria, for example, the age of the applicant; and
- whether family unit members can make a combined application.
- whether the visa that the person holds is a substantive visa or a non-substantive visa (see Basic Terminology);
- whether the person has had another visa application refused or a visa cancelled; (see Compliance); and
- whether the person's previous visa had a 'no further stay' condition (see Limitations on applying for other visas in Australia, at A. No Further Stay).
Public Interest Criteria
Certain Public Interest Criteria (PIC) must be satisfied for the grant of each visa. The PIC are outlined in Schedule 4 of the Migration Regulations and fall into eight principal categories:- Good character (see A. Character);
- Security risk;
- Outstanding debts to the Commonwealth;
- Health (see B. Health);
- Settlement prospects;
- Immigration risk;
- Criteria relating to children under 18 years old; and
- Values Statement.
A. Character
All visa applicants must satisfy character requirements to be granted a visa. It is a Schedule 2 criterion (see the Visa Subclass heading at Basic Terminology) for most visas that applicants satisfy PIC 4001. Indeed, some visas stipulate that the applicant's family members also meet PIC 4001. PIC 4001 requires that the applicant meet the character test, however, it also provides the Minister with discretion to waive the character requirement. Even where a visa does not require an applicant to meet PIC 4001, the Minister has a general power under s 501(1) of the Act to refuse to grant a visa if an applicant does not satisfy the character test. Again, this power is discretionary and applicants may apply to the Minister to waive the character requirement. The Minister's Direction 41 outlines the considerations decision-makers are to take into account when considering whether or not to exercise their discretion to cancel or refuse a visa on character grounds. The character test is outlined in s 501(6) of the Act. A person does not pass the character test if:- the person has a substantial criminal record; or
- the person has been associated with an individual, group, or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
- based on the person's general or criminal conduct the person is not of good character; or
- there is a significant risk that the person would:
- engage in criminal conduct;
- harass, molest, intimidate or stalk another person;
- vilify a segment of the Australian community;
- incite discord in the Australian community; or
- represent a danger to the Australian community (s 501(6)(a) - (e)).
B. Health
Almost all visa applicants must satisfy health criteria. The different health criteria are found in PIC 4005 - 4007 of Schedule 4 of the Migration Regulations. Applicants should check Schedule 2 visa criteria to ascertain which of the health clauses is applicable to the grant of their visa. Section 65(1) of the Act specifies that the Minister cannot grant a visa if the health criteria are not satisfied. Importantly, health requirements are often imposed on both the primary applicant and members of their family whether those family members intend to enter Australia or not. In such cases, the 'one fails, all fail' rule applies - if a member of the applicant's family does not satisfy the health criteria then the visa application will be refused. The 'one fails, all fail' rule is set out in Schedule 2 under the subclasses to which it applies. The rule does not apply to most temporary visas. However, it is important to check the particular temporary visa in question. Essentially, the health requirements in PIC 4005 - 4007 provide that applicants must not have a medical condition:- that is considered a public health risk (such as tuberculosis);
- that is likely to require health care or community services; or
- that is likely to result in significant cost to the Australian community and prejudice the access of Australians to treatment.
Members of a visa applicant's family
In many cases, visa holders are able to bring their family with them to Australia. The person who applied for the visa is known as the 'primary applicant' and members of the visa applicant's family are 'secondary applicants'. If both a primary and secondary applicant(s) apply for a visa, they are said to make a 'combined' application. Schedule 1 of the Regulations stipulates whether or not applicants for a particular visa class can make a combined application. Schedules 1 and 2 stipulate which members of the primary applicant's family can apply as secondary applicants. This varies according to the visa class and subclass for which the applicant is applying. For most visas, a person who is a 'member of the family unit' (MOFU) of the primary applicant is able to apply as a secondary applicant. For the purposes of the majority of visas, a person is considered to be a MOFU of the primary applicant if they are:- their spouse or de facto partner;
- a dependent child of the primary applicant and/or their spouse/partner (see reg 1.03 for definition of dependent child);
- the child of the dependent child; or
- a relative of the primary applicant or of their spouse/partner, who is resident in the primary applicant's household, and who does not have a spouse or partner and is dependent on the primary applicant (reg 1.12(1)). (See s 5(1) of the Act for the meaning of 'dependent').
Sponsorship
Some visas require the visa applicant to have an Australian sponsor. Usually a sponsor will be an individual but, for some visas, the sponsor could be an organisation (for example, the company employing the visa applicant). If the sponsorship is approved and a visa granted, the sponsor takes on certain obligations for a specified period of time. In the case of family visas, the sponsor will have an obligation to assist the visa holder financially and/or with accommodation. If employer / corporate sponsors do not fulfil their obligations, the Minister can impose a variety of penalties. They may be prevented from sponsoring another applicant in the future, forfeit any security they have offered as part of the sponsorship or be fined (s 140K).Assurances of Support
Many permanent visas that require a sponsor in Australia also demand that an Assurance of Support (AOS) be provided. An AOS is a legal commitment by one or more Australian residents (the assurer) to repay to the Government certain welfare payments made to a new resident (the assuree) while the AOS is in effect. The assurer does not have to be the sponsor. Anyone who meets the residency and income requirements can be the assurer (for a discussion of these requirements see Kamand, 2008, pp143 -144)). An AOS usually lasts for two years but in the case of Contributory Parent visas lasts for 10 years (reg 2.36). An AOS can be mandatory (also known as a 'required assurance') or discretionary. This depends on the visa requirements set out in Schedule 2 of the Migration Regulations. If an AOS is mandatory a monetary bond must be paid before the visa can be granted (s 1061ZZGD(3) of the Social Security Act 1991 (Cth)). This requirement cannot be waived. The Department may impose a discretionary AOS if it believes the visa applicant is at risk of becoming a burden on Australia's welfare system. Centrelink is responsible for administering the AOS Scheme and will assesses whether the proposed assurer has the capacity to repay welfare payments. Acceptance of an AOS by Centrelink does not guarantee a visa will be granted. For more information about how the AOS scheme works and the procedures for lodging an AOS and recovering welfare payments, see www.centrelink.gov.au/internet/internet.nsf/factors/assurance_support.htm#factsheets. For the monetary value of the security bonds payable in relation to particular visas see Commonwealth of Australia Gazette, Special, No. S241 (30 June 2004) at www.ag.gov.au/portal/govgazonline.nsf/7942C189816F70D0CA256EC300229C99/$file/S241.pdfCap and queue and priority processing
The Minister for Immigration has a number of legal powers available for managing the flow of migration to Australia according to government policy. The Minister may 'cap' the number of visas of a particular visa class that can be granted in a specified financial year (s 85). Once the cap is reached, no further visas in that class can be granted in that year (s 86). Applicants then wait in a queue for their visa application to be considered in the following year, subject to places becoming available. This capping power cannot be used to limit the grant of visas to applicants on the basis of being a spouse, partner or dependent child of an Australian. For further information on current caps see Fact Sheet 21: Managing the Migration Program www.immi.gov.au/media/fact-sheets/21managing.htm. The Minister can consider applications in any order of priority he / she thinks appropriate (s 51). This ensures that where there is very high demand for places under the Migration Program, processing priority is given to applicants who have the most compelling claims in terms of the Government's policy priorities. For information on the Department's processing priorities for Skilled Migration Visas at September 2010, see the Department's Updated Priority Processing Arrangements, www.immi.gov.au/skilled/general-skilled-migration/pdf/priority-processing-14-july-2010.pdf. Note that after Employer Nominated and Regional sponsored visas, priority is given to people applying for jobs on the Skilled Occupation List. For information on the Department's processing priorities for family stream migration, see Family Visas.Visa conditions
When granting a visa, the Minister has the power to attach particular conditions to it. (s 41(1)) The types of conditions the Minister can or must attach to a visa are listed under the relevant visa subclass in Schedule 2 of the Regulations below the heading 'Conditions'. In general, the conditions appear as four digit numbers beginning with '8' and refer to items in Schedule 8 of the Regulations. For example, Item 8101 in Schedule 8 stipulates that "the holder must not engage in work in Australia." Once the visa is granted and if the holder has been provided with a visa label, the conditions attached to the visa can usually be found on the label. Visa holders whose visa is subject to condition 8503 should pay particular attention to the fact that this may prevent them from applying for any other substantive visa while in Australia (see Limitations on applying for other visas in Australia). All visa holders need to know that a breach of visa conditions could lead to cancellation of their visa (see Visa cancellation).Visitor Visas
Visitor visas are temporary visas catering for people who wish to come to Australia for short-term purposes. There are three broad categories of visitor visa:- 'tourist visas' for people who want to have a holiday or visit family (see Tourist Visas);
- 'visitor visas for workers' for people on business trips, working holidays or undertaking training or professional development (see Visitor Visas for Workers xx]); and
- 'medical treatment visitor visas' for those who are arranging to have medical treatment in Australia (see Medical Treatment Visitor Visas).
Tourist visas
The Tourist (Subclass 676) Visa enables holders to visit Australia for the purpose of:- holidays and recreational activities;
- visiting people;
- studying for less than three months; or
- other short-term (non-work and non-medical) purposes.
A. Lodging applications online
Applicants outside Australia may lodge applications online, with approved agents or at an Australian immigration office overseas. Unfortunately, Taiwanese nationals and holders of UK British Nationals Overseas passports are unable to apply online. As noted above. offshore applicants from certain countries can apply for a Subclass 676 visa online. Once the visa is granted it is stored electronically; a passport label is not provided.Visitor visas for workers
A. Business visitors
The Business (Short Stay) (Subclass 456) Visa is for people who wish to visit Australia for up to three months at a time for business purposes. The visa is valid for the life of the holder's passport or for ten years, whichever is shorter. Applicants must be outside Australia. The Sponsored Business Visitor (Short stay) (Subclass 459) Visa also allows holders to visit Australia for up to three months at a time. However, applicants must be sponsored by a settled Australian citizen or resident (see Basic Terminology) who is a member of the Commonwealth, State or Territory governments or parliaments. Certain organisations may also sponsor applicants. Both Subclass 456 and Subclass 459 applicants must:- demonstrate a genuine intention to visit Australia for business purposes;
- have personal attributes and business background consistent with the nature of the applicant's proposed business in Australia (for example, this could include education, qualification and company position);
- have adequate funds to support themselves during their stay; and
- not intend to engage in activities that will have adverse consequences for employment conditions or opportunities for Australian citizens or residents.
B. Working holidays
The Working Holiday (Subclass 417) Visa (WHV) is available to applicants from certain countries whose principal purpose is to holiday in Australia. WHV holders must enter Australia within 12 months of the date of visa grant. They are entitled to remain in Australia for 12 months from the date they entered. Applicants for the WHV and the Work and Holiday Visa (below) must:- be outside Australia;
- be aged between 18 and 30 years (inclusive);
- not be accompanied by dependent children during their intended stay;
- have adequate funds to support themselves during their stay (taking into account the fact they will be working in Australia); and
- have adequate funds to pay for a return airfare.
C. Trainees
The Occupational Trainee (Subclass 442) Visa (OTV)allows people to come to Australia for work-place based training programs designed to increase their level of skill in their occupation or area of expertise. Applicants may be inside or outside Australia and should be at least 18 years old unless exceptional circumstances exist. Applicants inside Australia must have substantially complied with the conditions of any visas they previously held. Onshore applicants who hold or last held the following visas will not qualify for an OTV:- Subclass 560 (Student) visa;
- Subclass 562 (Iranian Postgraduate Student) visa;
- Subclass 563 (Iranian Postgraduate Student Dependant) visa;
- Subclass 571 (Schools Sector) visa;
- Subclass 576 (AusAID or Defence Sector) visa;
- Subclass 771 (Transit) visa; and
- Special purpose visa.
- to become registered or licensed;
- to enhance their skills; or
- to build capacity overseas on return to their home country. (Criteria for approval of nominations can be found in Div 2.17 of the Migration Regulations).
Medical Treatment Visitor visas
Medical Treatment Visitor visas are for people who wish to visit Australia for medical consultation, medical treatment or other related purposes. They are also available to people who wish to provide emotional or other support to a medical visa applicant. In general, applicants need to satisfy the 'genuine visitor requirement' (see Genuine visitor requirement), have adequate funds to support themselves for the duration of their stay (see Adequate funds), show that their access to medical treatment in Australia does not have the effect of disadvantaging any Australian citizens or permanent residents: see PAM3:Sch2Visa685 for more detail. Applicants who are coming to Australia in connection with an organ transplant must fulfil extra requirements. The Medical Treatment (Short Stay) (Subclass 675) Visa enables holders to visit Australia for medical purposes for up to three months. Prospective applicants can apply for this visa from both inside and outside of Australia. The Medical Treatment (Long Stay) (Subclass 685) Visa allows holders to visit Australia for medical purposes, usually for up to 12 months. As for the short stay visa, applicants can apply from inside or outside of Australia.Genuine visitor requirement
It is a requirement for all visitor visas that applicants genuinely intend to visit Australia temporarily for the purpose of their visa. The length an applicant must go to in order to convince the Department they are a genuine applicant depends on the type of visa for which they are applying. All ETA, eVisitor, Working Holiday and Work and Holiday visa applicants must make a declaration stating that their intention to visit Australia temporarily is genuine. The Department will generally accept a declaration at face value. However, where there is evidence that contradicts the declaration, such as information showing the applicant has previously overstayed or been refused a visa, the Department may request further evidence and may decide the applicant does not meet the 'genuine visitor' requirement (see PAM3: GenGuide H). Applicants for the following visas face a more difficult task persuading the Department they are genuine visitors:- Tourist (Subclass 676) Visa;
- Sponsored Family Visitor (Subclass 679) Visa;
- Business (Short Stay) (Subclass 456) Visa; and
- Sponsored Business Visitor (Short stay) (Subclass 459) Visa.
- personal circumstances that may encourage the applicant to leave Australia at the end of the proposed visit (for example, on-going employment in an applicant's home country);
- the applicant's immigration history (for example, if an applicant has previously overstayed a visa then the Department may request extra evidence which proves that they intend to stay only for the duration of the visa);
- personal circumstances in the applicant's home country that may encourage them to remain in Australia (for example, military service commitments, economic situation, civil disruption);
- the credibility of the applicant in terms of character and conduct (for example, false and misleading information provided with visa application); and
- whether the purpose and proposed duration of the applicant's visit, and proposed activities in Australia are reasonable and consistent (for example, period of stay consistent with tourism).
- explore existing or future business opportunities in Australia;
- attend a conference or meeting relevant to applicant's occupation or business activities; and
- undertake training relevant to the applicant's occupation or business activities (not including work placements).
Adequate funds
Applicants for Tourist (Subclass 676) and Sponsored Family Visitor (Subclass 679) visas must demonstrate that have access to adequate funds for personal support during their stay in Australia. Applicants for the Business (Short Stay) (Subclass 456) Visa must have adequate funds for each occasion they come to Australia. The main applicant for the Sponsored Business Visitor (Short stay) (Subclass 459) Visa must have adequate funds for personal support as well as for their accompanying partner/dependent children. The funds do not need to belong to the applicant (they may, for example, be provided by a relative). The amount required will depend on the applicant's purpose in visiting Australia and accommodation arrangements. Evidence may include bank statements, access to credit, return airline tickets and travel insurance. Travellers cheques and cash are generally not considered acceptable. Where a person other than the applicant is providing funds, they can assist by writing to the Department and attaching proof of their ability to provide funds. Importantly, people applying in Australia for a Tourist (Subclass 676) Visa with work rights on the basis of financial hardship or compelling reasons do not have to show they have adequate funds.Family Visas
Family Visas provide a way for family members of Australian citizens, permanent residents, or eligible New Zealand citizens to migrate to Australia. There are specific categories of visa for partners, children and parents. In addition there are visas for which other relatives (such as siblings, aunts and uncles, nieces and nephews, grandparents and grandchildren) may be eligible (see Other Family visas). The basic eligibility criteria for each type of visa is outlined below. On 18 July 2009, the Department adopted a new policy for considering and disposing of Family Stream Visa applications. The Department's highest priority is to provide for the reunion in Australia of immediate family members, such as partners, fiancées, dependent and adopted children, and orphan relatives. After considering applications from immediate family members, decision-makers will process carer visa applications and finally, other visa applications such as parent, remaining relative and aged dependent relative applications. Apart from parent visa applications, the Department may give special consideration to applicants who can demonstrate compelling circumstances. (See Direction 43, Order for considering and disposing of Family stream visa applications).Partner visas
Partner visas are available to applicants whose partners are Australian Citizens, Australian permanent residents or Eligible New Zealand Citizens. Applicants must be sponsored by their Australian partner and the sponsorship must be approved by the Department (see Sponsorship). The legislation has a rule limiting 'serial sponsorship' of partners (including fiancé(e)s). According to subreg 1.20(J)(1), the Minister must not approve sponsorship where the Australian partner:- has already sponsored more than one other person for a partner visa;
- has previously sponsored another person for a partner visa and at least five years has not passed since the date of that visa application;
- has engaged in family violence against a previously sponsored party; or
- was themselves sponsored to come to Australia on a partner visa and at least five years has not passed since the date of that visa application.
A. Fiancà ©e
Prospective Marriage (Subclass 300) Visas also known as 'Fiance visas' are for people outside Australia who wish to come to Australia to marry their Australian partner (see Partner visas). The visa is valid for nine months and the applicant must marry within that time. Both parties must have met (as adults) and be known to each other personally. They must show they intend to live together as spouses once they are married. The applicant needs to provide evidence of the parties' intention to marry within the visa period. As a matter of policy, the Department requires applicants to provide a letter which has been signed and dated by the authorised marriage celebrant who will conduct the ceremony.B. Partner
Partner visas enable people who are already married or in a de facto relationship to move to (or remain in) Australia to live with their Australian partner (see [42.3.1]). Both spouses and de facto couples are eligible for this visa.Spouses
Section 5F of the Act stipulates that to be spouses, partners must:- be legally married to each other;
- have a mutual commitment as husband and wife (in other words, be of the opposite sex) to the exclusion of all others;
- have a genuine and continuing relationship; and
- live together or not live separately on a permanent basis.
De facto couples
According to s 5CB of the Act, two people (whether of the same sex or of the opposite sex) are in a de facto relationship where:- they have a mutual commitment to a shared life to the exclusion of all others;
- the relationship between them is genuine and continuing;
- they live together or do not live separately on a permanent basis; and
- they are not related by family (either as a child or descendant of the other, or have a parent in common).
C. Recent changes
On 1 July 2009, changes to the Act and Regulations came into effect. The changes extended the Department's recognition of same-sex couples and their children for migration and citizenship purposes, resulting in same-sex de facto partners having the same rights and responsibilities as opposite-sex de facto partners. As outlined above, same-sex partners are now able to apply for Partner visas along with opposite sex de facto couples. Prior to these changes, opposite-sex applicants and their sponsors applied for the following visas: Applicants inside Australia applied for the Spouse (temporary) (Subclass 820) Visa and Spouse (permanent) (Subclass 801) Visa. Applicants outside Australia applied for Spouse (temporary) (Subclass 309) Visa and Spouse (permanent) (Subclass 100) Visa. Meanwhile, same-sex applicants and their sponsors were eligible to apply for the following: Applicants inside Australia applied for the Interdependency (temporary) (Subclass 826) Visa and Interdependency (permanent) (Subclass 814) Visa; Applicants outside Australia applied for the Interdependency (temporary) (Subclass 310) Visa and Interdependency (permanent) (Subclass 110) Visa. If applicants lodged an application for a Spouse or Interdependency visa or were granted a temporary Spouse or Interdependency visa before 1 July 2009, they will be granted a Spouse or Interdependency visa at both the temporary and permanent stages of the application after 1 July 2009.D. What if the relationship breaks down?
If the relationship does not last for the two year period required for an applicant to acquire a permanent visa, the applicant may still be given permanent residency where:- the Australian partner has died;
- the applicant or dependent child has suffered family violence committed by the Australian partner; or
- a child is involved and a Court has made an order granting the Australian partner custody or contact with a child to whom the applicant also has custody or access, or where the Australian partner has a child maintenance obligation.
E. Family violence
The family violence provisions, set out in Division 1.5 of the Regulations are designed to prevent a partner from having to remain in an abusive relationship in order to obtain permanent residence in Australia. If the holder of a temporary partner visa can prove to the Department that family violence has occurred, they may be granted permanent residency regardless of the fact their relationship has broken down. Family violence is defined in reg 1.21 as "conduct, whether actual or threatened, towards"that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety." Three important requirements must be met in order to benefit from the family violence provisions:- the violence must have been committed by the Australian partner (sponsor);
- the victim must be:
- the spouse or de facto partner of the perpetrator;
- the dependent child of the perpetrator and/or their partner; or
- a member of the family unit of the perpetrator and/or of the applicant(reg 1.23(9)(b)) (see discussion of 'member of the family unit at Members of a visa applicant's family); and
- there must be sufficient evidence to prove the violence occurred.
| Definitive evidence of family violence |
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| *Evidence which is NOT definitive* |
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- Established Business in Australia (Subclass 845) (seeBusiness Visas);
- State / Territory Sponsored Regional Established Business in Australia (Subclass 846) (see Business Visas);
- Resolution of Status (Subclass 851);
- Labour Agreement (Subclass 855);
- Employer Nomination Scheme (Subclass 856);
- Regional Sponsored Migration Scheme (Subclass 857); and
- Distinguished Talent (Subclass 858) Visa (see Distinguished Talent visas).
Children's visas
There are three types of permanent visa specifically for children:- the Child visa (see A. Child below);
- the Adoption visa (see B. Adoption below); and
- the Orphan relative visa (see C. Orphan relative below).
A. Child
Child visas enable dependent children of Australian Citizens, permanent residents or Eligible New Zealand Citizens to migrate to Australia. Regulation 1.03 defines 'dependent child' as the child or step-child of [a] person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who: (a) has not turned 18; or (b) has turned 18 and: (i) is dependent on that person; or (ii) is incapacitated for work due to the total or partial loss of the child's bodily or mental functions. Child visas are generally also available to step-children. However, where the child's natural or adoptive parent is no longer married to, or in a de facto relationship with, the Australian step-parent, extra criteria apply. The applicant must be under 18 and the Australian step-parent must have legal responsibilities towards them (via court order, for example). Child visas are only available to adopted children if the child was adopted overseas before the parent became an Australian citizen, permanent resident or ENZ citizen. Applicants inside Australia should apply for a Child (Subclass 802) Visa. Applicants outside Australia should apply for a Child (Subclass 101) Visa. The Dependant Child (Subclass 445) Visa is a temporary visa for the dependent children of the holder of a provisional partner visa when the child was not included in their parent's partner visa application - for instance because the child was overseas. It enables the child to be reunited with their parent in Australia. Once in Australia, the child should then be added to the parent's permanent partner visa application. Applicants can apply from both inside and outside Australia and must be sponsored by their parent's Australian sponsor.B. Adopted Child
The Adoption (Subclass 102) Visa is available to children under 18 years of age who have been adopted or are going to be adopted by an Australian Citizen, permanent resident or Eligible New Zealand Citizen. In order to be eligible for a visa, the applicant must be subject to:- an adoption arranged with the involvement of a Australian State / Territory government adoption authority; or
- an expatriate (private) adoption by Australians resident overseas for more than 12 months.
C. Orphan Relative
Orphan Relative visas are available to children whose parents cannot care for them because each is either dead, permanently incapacitated or of unknown whereabouts and who have a relative who is an Australian Citizen, permanent resident or Eligible New Zealand Citizen. Applicants must be under 18 years old and must not be married or have a de facto partner. They must be sponsored by their Australian relative or their relative's spouse and the sponsor must be at least 18 and be 'settled' in Australia (see Basic Terminology). The relative must be:- a close relative (that is, either the spouse de-facto, brother, sister, child, parent, step-child or step-parent); or
- grandparent, grandchild, aunt, uncle, niece or nephew, step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew
Parent Visas
Parent visas enable an applicant with a child who is a settled Australian citizen, Australian permanent resident or eligible New Zealand citizen (ENZ) (see Basic Terminology) to migrate to Australia. Applicants for parent visas must be sponsored by their child or child's partner. Sponsors must be at least 18 years old and must be 'settled' in Australia (see Basic Terminology). Where the applicant's child is a minor (under 18) it is possible to have a substitute sponsor: the child's spouse / partner, relative or guardian (who is aged at least 18) or a community organisation. Applicants for all parent visas must pass the 'balance of family test'. In order to pass the balance of family test, the number of children of the applicant parent who are lawfully and permanently resident in Australia (or eligible New Zealand citizens who are usually resident in Australia) must be: a) at least equal to the total number of children who are resident overseas; or b) greater than the highest number of children resident in any single overseas country (reg 1.05). For example, where an applicant parent has four children, two who are permanently resident in Australia and two who are both resident in the same overseas country, the parent will not pass the test. For the purposes of the balance of family test, a 'child' is a child or step-child of: the applicant parent; the parent's spouse or de-facto partner or; a previous spouse or de-facto partner of the parent (if the child was not born or adopted after the partner relationship ceased) (reg 1.05). Regulation 1.05 also sets out circumstances when a particular child of the parent will not be taken into account when assessing whether the parent has passed the balance of family test.A. Contributory Parent visas
There are two types of visa, namely, Parent Visas and Contributory Parent Visas. Contributory Parent Visas are significantly more expensive than Parent Visas. The Department's policy is to give priority to Contributory Parent Visa applications (see Family Visas). There a four types of Contributory Parent visas:Offshore
- Contributory Parent (Subclass 143) Visa: applicants can be of any age and must be outside Australia at the time of grant. They are therefore ineligible for a bridging visa during processing. Applicants must have an assurance of support.
- Contributory Parent (Temporary) (Subclass 173) Visa: applicants can be of any age and must be outside Australia at the time of grant. This visa is valid for two years and applicants can apply for a permanent visa (Subclass 143) within that time. An assurance of support is not required.
Onshore
- Contributory Aged Parent (Subclass 864) Visa: Applicants must be in Australia and be old enough to be eligible for the aged pension in Australia.
- Contributory Aged Parent (Temporary) (Subclass 884) Visa: Applicants must be in Australia and old enough to qualify for the pension. The visa is valid for two years and applicants can apply for a permanent visa (Subclass 864) any time during this period.
B. Parent visas
There are two subclasses of Parent Visas:- Parent (Subclass 103): applicants may be inside or outside Australia at the time of application but must be outside Australia at the time of grant;
- Aged Parent (Subclass 804): applicants must be old enough to be granted the pension in Australia. They must apply from within Australia and be in Australia at the time of grant. Most applicants are entitled to a bridging visa while their application is being processed.
Other Family visas
There are three other important paths to family reunification, namely the carer, remaining relative and aged dependent relative visas. For all three subclasses of visa, applicants must be the relative of an Australian citizen, Australian permanent resident or eligible New Zealand citizen (known as an 'Australian relative'). They must be sponsored by the Australian relative or the relative's cohabiting spouse or de facto partner. Either way, the sponsor must be over 18 and must be 'settled' in Australia (see Basic Terminology). Carer visas enable people to migrate to Australia to care for an Australian relative (or a member of the relative's family unit) with a medical condition: (see reg 1.03 for the meaning of 'relative'). The medical condition must be such that they need direct assistance in attending to practical aspects of daily life for at least two years. Prescribed medical or health service advisors must issue a certificate stating that this is the case. Visa grant is dependent on there being no Australian or ENZ relative, or welfare, community or health service in Australia that can reasonably provide the assistance needed (reg 1.15AA).- Onshore applicants should apply for a Carer (subclass 116) Visa.
- Offshore applicants can apply for a Carer (subclass 836) Visa.
- Onshore applicants can apply for a Remaining relative (subclass 115) Visa.
- Offshore applicants can apply for a Remaining relative (subclass 835) Visa.
- Onshore applicants can apply for an Aged Dependent Relative (subclass 114) Visa.
- Offshore applicants can apply for an Aged Dependent Relative (subclass 838) Visa.
Student Visas
The student visa program enables overseas students to come to Australia to undertake full-time study in registered courses. Student visas are temporary visas. Once a student has successfully completed an award in Australia there may be a pathway to permanent residence (see for example General Skilled Migration under C. Graduate Skilled temporary visas). There is one class of student visa, Student (Temporary) (Class TU). Within that visa class there are eight student visa subclasses - six specific to educational sectors, plus the AusAID / Defence sector visa and the Student Guardian Visa. All student visa applicants must satisfy the Department they are genuine students and some student visa applicants may be eligible to bring members of their family to Australia as 'student dependents'.Student visa subclasses
The six student visas specific to education sectors are:- Independent English Language Intensive Course for Overseas Students (ELICOS) (Subclass 570) Visa: for students who wish to study a stand alone English language course that is not a prerequisite for another course;
- Schools Sector (Subclass 571) Visa: for students undertaking primary or secondary school level courses including registered exchange programs;
- Vocational Education and Training Sector (Subclass 572) Visa: for students studying a course leading to the award of a Certificate I, II, III, and IV, Diploma, Advanced diploma, or Advanced certificate;
- Higher Education Sector (Subclass 573) Visa: for students who wish to undertake an Associate or Bachelors degree, Graduate certificate or diploma or Masters by coursework;
- Postgraduate Research Sector (Subclass 574) Visa: for students studying a Masters by research or a doctoral degree; and
- Non-Award Sector (Subclass 575) Visa: for students who want to study a stand alone course (not an ELICOS course) which does not lead to a formal award.
A. Genuine student requirement
All student visa applicants must satisfy the Department they are genuine students. The amount of evidence required to prove genuineness depends on the visa subclass and the nationality of the applicant. The 'Assessment Levels' (ALs) relevant to particular subclasses and nationalities are instituted by Gazette Notice and outlined in the Department's information sheet: Overseas Student Program Assessment Levels. Once applicants determine which AL applies, they should consult Schedule 5A of the Regulations to see the exact evidence they must provide. The evidence sought for each assessment level relates to:- the applicant's financial capacity to meet the costs of their tuition and day to day support during the period of study;
- the applicant's English proficiency to be able to undertake the course of study; and
- any other relevant matters (such as age and academic history).
B. Family members of students
Most student visa applicants can bring members of their family to Australia as 'student dependents' for the duration of their visa. A student dependent must be either:- the de facto partner (whether of the opposite or same sex) or spouse of the student visa holder; or
- an unmarried dependent child of the student visa holder who is under 18 years old (reg 1.12)
- they are undertaking a course that takes over 12 months to complete;
- they have been in Australia for 12 months;
- they are applying for an AusAID or Defence Sector (Subclass 576) visa (see Student visa subclasses); or
- they are receiving government or multilateral agency support for their study.
Skilled Visas
The Skilled Migration Stream accommodates people who wish to travel to or remain in Australia to work. It comprises both temporary and permanent visas and can be divided into four categories:- general skilled migration (see General Skilled Migration);
- distinguished talent (see Distinguished Talent visas);
- employer sponsored (see Employer Sponsored visas); and
- business skills (see Business Skills visas).
General Skilled Migration
The General Skilled Migration (GSM)program is for people who are not sponsored by an employer but who have skills in particular occupations required in Australia. The GSM program includes permanent, temporary and provisional visas for offshore and onshore visa applicants. In February 2010, the Government revised the GSM program substantially. The main changes were the introduction of a new Skilled Occupation List (SOL) and the withdrawal of the Migration Occupation in Demand List (MODL). The new SOL greatly reduced the number of skilled occupations under which applicants could qualify for a GSM visa. The new SOL also now includes a list of occupations only available to applicants who are also sponsored by a State or Territory agency under a State Migration Plan. These changes to the GSM program are not retrospective. Any applications for a GSM visa lodged prior to the changes being announced will be assessed on the basis of the old SOL. Other changes to the GSM program include transitional arrangements for current and former student visa holders. These transitional provisions are in place until the end of 2012. Essentially, they allow anyone who held or had applied for a Temporary Skilled Graduate Visa (Subclass 485) visa on 8 February 2010 to apply for a permanent GSM visa on the basis of the old SOL. The transitional arrangements also allow anyone who held a 'qualifying student visa' when the changes were announced to apply for a GSM visa based on the old SOL. Qualifying student visas are Subclass 572, 573 and 574 visas (see Student visa subclasses). All applicants for a GSM visa must:- nominate a skilled occupation and be assessed by a relevant assessing authority;
- meet age requirements and in general, be under 45 years old;
- have an adequate level of English; and
- have recent work experience in a skilled occupation or have completed two years of study in Australia within six months of applying for the visa.
Nominated occupation and skills assessment
Applicants for GSM visas may nominate any of the occupations found in the Department's SOL (formerly known as form 1121i). The SOL is defined in reg 1.15I and set out in an Instrument made under that regulation. The SOL is set out in four schedules and applicants must nominate an occupation from a schedule of the SOL that is applicable to their circumstances. The relevant schedule of the SOL will indicate the number of points allocated to each occupation (see A. The Points Test below) and show which assessing authority the applicant must apply to in order to have their skills verified. The pre 1 July 2010 GSM program provided an Australian Standard Classification of Occupation (ASCO) code for each occupation. The current SOL now provides the Australian and New Zealand Standard Classification of Occupations (ANZSCO). By referring to the ANZSCO code, or ASCO code if applicable, applicants can find out the level of qualification and experience they need to qualify for their chosen occupation. The four schedules to the SOL include schedules that are applicable to the transitional arrangements for current and former student visa holders as well as a separate schedule for GSM visa applicants who are seeking to have their application sponsored by a State or Territory agency under a State Migration Plan. Applicants must have a nominated occupation which is on the SOL applicable to their circumstances at the time they apply:- Schedule 1 of the SOL reflects the SOL in existence prior to 1 July 2010 and links occupations with an ASCO code. This schedule applies only to GSM applicants who lodged their application prior to 1 July 2010;
- Schedule 2 of the SOL links occupations with an ANZSCO code. It applies to certain GSM applicants who are eligible for transitional arrangements (such as skilled graduate and student visa holders) and who lodge their application before 1 January 2013;
- Schedule 4 of the SOL, otherwise known as the State and Territory SOL, is for GSM applicants who are nominated by a State or Territory government agency under a State Migration Plan.
Level of English
In order to obtain a GSM visa most applicants must show they have competent English. Citizens of Canada, New Zealand, Ireland, United Kingdom and United States who also hold passports from those countries are taken to have met a competent level of English. Applicants for a provisional Skilled Regional Sponsored (Subclass 475) Visa need only show concessional competent English. The requirements for demonstrating competent English are set out in reg 1.15C and the requirements for demonstrating concessional competent English are set out in reg 1.15F. Briefly, in order to satisfy the Minister that an applicant has competent English, they must undertake an International English Language Testing System (IELTS) test or Occupation English Test (OET) - or have already undertaken one less than two years before the visa application is decided. Applicants for Subclass 485 and 487 visas need to provide evidence of their English ability or have arranged an English test before they apply for their visas. For competent English, a person must achieve a score of at least 6 for speaking, reading, writing and listening. A person will have concessional competent English where they achieve an average score of 6 across the various categories. Achieving an average score of 6 across the various IELTS test bands does meet the requirement for concessional competent English set out in reg 1.15F. However, subclass 475 visa applicants who wish to apply to a State or Territory agency for sponsorship may be required to fulfil extra requirements. The relevant State Migration Plan may stipulate that the applicant achieve a score no lower than a particular level in any of the IELTS test's four components.Work experience
Unless applicants for offshore GSM visas meet the two years study requirement, they must show they have worked in a skilled occupation for 12 out of the 24 months prior to applying for their visa. The work experience relied upon need not be related to the applicant's nominated occupation. However, the applicant can obtain more points under the points test (see A. The Points Test below) where they have nominated a skilled occupation worth 60 skill points and they can show that for at least 36 out of the preceding 48 months their employment experience was closely or specifically related to their nominated occupation. The extra points to be gained under the points test of the GSM program are set out in Item 6B41 of Part 6B.4 of Sch 6B of the Regulations.A. The Points Test
The Minister sets pass marks and pool marks for particular classes of skilled visa (s 96). Most applicants must obtain either a pass mark or pool mark to receive a qualifying score for a visa (s 94). Once the Minister has established that a person meets the pass mark, the Department will proceed to process their application. Where an applicant meets the pool mark (but does not reach the pass mark), the Minister will place the application in the pool (s 95). After a period of two years in the pool, the Minister will refuse the application unless:- the pass mark is lowered in the two years after the applicant's score is assessed; (ss 95 and 95A)
- the quota for GSM visas is not reached; or
- a State or Territory government nominates the applicant from the Department's Skills Matching Database.
- the applicant's nominated skilled occupation (generally, specialist occupations are awarded 60 points, degree level occupations receive 50 points and diploma level qualifications or trades attract 40 points);
- age;
- English language ability (It is a requirement for most GSM visas that the applicant gain an IELTS score of at least 6 in all categories (see Level of English above) - however, an applicant can gain extra points for achieving a higher score);
- work experience in a nominated occupation or closely related occupation;
- Australian employment experience in a nominated occupation or closely related occupation;
- Australian qualifications;
- the skills of the applicant's partner and whether they are also applying for a skilled visa;
- sponsorship by a State or Territory government (see Business Visas for a list of State / Territory sponsored visas) or by a relative;
- proficiency in a designated community language which is demonstrated by either holding a qualification which is the equivalent to an Australian bachelor degree and the language of tuition was in that designated language or by holding accreditation as an interpreter in that designated language; and
- study in a regional area.
The old MODL and the points test - transitional arrangements
Until recently, applicants could also gain points if their nominated occupation was on the Migration Occupations in Demand List (MODL). The MODL was designed as a tool to address labour shortages in the Australian job market. It identified which occupations needed more skilled workers, allocated extra points to applicants who sought to work in those occupations and therefore facilitated their entry into Australia. On 8 February 2010, the MODL was revoked. As part of the transitional arrangements, that revocation applied to all GSM applicants except to people who:- hold a Temporary Skilled Graduate (Subclass 485) visa;
- had a pending Subclass 485 visa application and had not yet lodged an application for a provisional or permanent GSM visa but who lodge their application by 31 December 2012; or
- had lodged a GSM visa application prior to 8 February 2010.
New skilled migration priority processing arrangements
On 14 July 2010, new priority processing arrangements for certain skilled migration visas were announced by the Minister. The Minister's powers to set these priorities are set out in s 51 of the Act. Section 51 of the Act gives the Minister the power to consider and finalise visa applications in an order of priority that the Minister considers appropriate. These priority arrangements take account of the changes to the SOL that came into effect on 1 July 2010, as well as the revocation of the MODL. These priority processing arrangements apply to applications already lodged with the Department, as well as to future applications. The new priority processing arrangements apply to the following visas:- Employer Nomination Scheme (ENS) visas
- Regional Sponsored Migration Scheme (RSMS) visas
- General Skilled Migration (GSM) visas.
- Applications from people who are employer sponsored under the ENS and the RSMS.
- Applications from people who are nominated by a State or Territory agency with a nominated occupation that is specified on that State or Territory's State Migration Plan.
- Applications from people who have nominated an occupation on the new SOL (Schedule 3 of the SOL) in effect from 1 July 2010.
- All other applications in the order in which they are received.
B. Points tested skilled visas
The offshore Skilled Independent (Subclass 175) Visa is a permanent visa for people under 45 years of age who have worked in their nominated occupation or have completed two years of study in Australia before applying. Applicants must have their skills assessed by the relevant assessing body, have an acceptable level of English and obtain a pass mark of 120 or pool mark of 100. They must be offshore at the time of grant. The onshore Skilled Independent (Subclass 885) Visa is available to overseas students who have studied in Australia. While applicants must be under 45 and nominate a skilled occupation, they need not have prior work experience. Applicants need to nominate an occupation that is closely or specifically related to the qualification they gained during their two years of study in Australia. They must have:- completed two years of study in Australia before applying; or
- hold a Skilled Graduate (Subclass 475 or 476) Visa; or
- hold a Trade Skills Training (Subclass 471) Visa.
- an Australian citizen, permanent resident or ENZ citizen (see Basic Terminology]) who is a relative (parent, sibling, uncle, aunt, niece, nephew or non-dependent child); or
- a State or Territory agency under a State Migration Plan.
The Skilled-Regional (Subclass 887) Visa is a permanent visa available to holders of:
- Subclass 487 and 475 visas; and
- Skilled Independent Regional (subclass 495) and Skilled Designated Area-sponsored (subclass 496) visas both of which have not been open to new applicants from 1 September 2007.
C. Graduate Skilled temporary visas
There are two subclasses of Skilled Graduate visas. Both are valid for 18 months and do not require applicants to pass a points test. They are a pathway to permanent residence because holders of these visas may be eligible to apply for the following onshore skilled visas:- Skilled Independent (Subclass 885) Visa;
- Skilled Sponsored (Subclass 886) Visa; and
- Regional Sponsored (Subclass 487) Visa.
Distinguished Talent visas
Distinguished talent visas are permanent visas for people who are internationally recognised for exceptional and outstanding achievement in a profession, the arts, sport, research or academia. Applicants must be active in their area of expertise and provide evidence of prominence in that area. They should be between 18 and 55 years old unless exceptional circumstances exist. An Australian nominator, who is a citizen, permanent resident, or ENZ citizen (see Basic Terminology) with a national reputation must sponsor the applicant. In addition, the applicant must prove they can obtain employment in Australia and be considered an asset to the Australian community.- The Distinguished Talent (Subclass 124) Visa is for applicants outside Australia.
- The Distinguished Talent (Subclass 858) Visa is for applicants inside Australia.
Employer Sponsored visas
Employer sponsored visas include both temporary and permanent visa options. The permanent employer sponsored visas constitute the second major component of the Skilled Stream of Australia's migration program. Employer sponsored visas have the highest processing priority of the skilled stream (see Cap and queue and priority processing and the heading 'New skilled migration priority processing arrangements' under General Skilled Migration at A. The Points Test). This group of visas is designed to respond to the needs of Australia's employers by enabling them to recruit and nominate skilled people to fill positions that they have not been able to fill from the local labour market or through their own staff training. The employer sponsored migration program has four categories: (a) Business (Long Stay) - subclass 457 (b) Employer Nomination Scheme (ENS) -subclasses 121 and 856 (c) Regional Sponsored Migration Scheme (RSMS) - subclasses 119 and 857 (d) Labour Agreements (LA) - see subclasses 120 and 855 Employers wishing to sponsor employees from outside the Australian labour market must satisfy stringent requirements and give certain undertakings. The Department monitors compliance with business sponsorship undertakings.A. Business (Long Stay) (Subclass 457) visa
Of the temporary employer sponsored visas, the most commonly used is the Business (Long Stay) (Subclass 457) Visa. This is the major temporary working visa under which Australian employers can recruit professional and other skilled workers for a period of up to four years (extendable). Applying for the Subclass 457 is a three-stage process:- The employer applies for approval as a sponsor.
- The proposed position is nominated and approved by DIAC.
- The visa applicant lodges their visa application.
- be actively and lawfully operating a business in Australia;
- show that employment of a Subclass 457 visa holder will benefit Australia (for example, create employment opportunities for Australians or improve competitiveness of the business); and
- show they can comply with sponsorship obligations.
- identify the visa applicant and the position to be filled. The nominated position must be one listed in what is known as Temporary Resident Skilled Occupation List (TRSOL);
- certify that the qualifications and employment history of the applicant are appropriate for the position; and
- outline the duties of the position; and ensure the duties of the position include a majority of the duties listed for that position in the ANZSCO code (see General Skilled Migration).
B. Employer Nomination Scheme (ENS) visas
The Employer Nomination Scheme (subclass 121) visa is available to applicants outside Australia. The Employer Nomination Scheme (subclass 856) visa is available to applicants in Australia. There are two main stages to obtaining these ENS visas. First the business wishing to employ the applicant must lodge an application to have the 'nominated' position approved. Second, the visa applicant must lodge their own visa application form. The requirements for approval of a nomination are as follows:- the business is actively and lawfully operating in Australia;
- no adverse information is known to Immigration about the business;
- the business has a record of compliance with Immigration laws (generally unless there is information known to Immigration, this condition is considered met);
- the business has a record of compliance with workplace relations laws (generally unless there is information known to Immigration, this condition is considered met);
- the employer has made adequate provision for the training of existing employees (unlike the requirements for approval of a business as an Standard Business Sponsor for a subclass 457 visa, this criterion does not have legislated levels of training, though some evidence must be submitted to meet this requirement);
- the nominated position is full time and available for at least three years;
- the employment conditions will be no less favourable than conditions provided for under relevant Australian legislation and awards;
- the tasks to be performed correspond to the tasks of an occupation on the Employer Nomination Skills Occupation List (ENSOL) - specified in reg 5.19(2)(h) and Gazette Notice F2010L01327, 28 June 2010;
- the employee will be paid a salary that is at least equivalent to the salary specified in the Gazette Notice: reg 5.19(2).
- be under 45 years of age unless the appointment is exceptional; and
- have vocational English: see reg 1.15B.
- to have a positive skills assessment and provide evidence of three years related work experience; or
- to be paid a base salary of more than $165,000 pa (see F2010L01327, 28 June 2010)
C. Regional Skilled Migration Scheme (RSMS) visas
The Regional Skilled Migration Scheme (subclass 119) visa is available to applicants outside Australia. The Regional Skilled Migration Scheme (subclass 857) visa is available to applicants in Australia. As with ENS visas, the process for obtaining an RSMS visa is two fold. The employer first needs to obtain approval of the nominated position. The applicant then needs to apply for the visa if they have not done so already. They have six months within which to lodge the visa application after the nominated position has been approved. The requirements for approval of an RSMS nomination are slightly different from that of an ENS nomination:- the business is actively and lawfully operating in Australia;
- no adverse information is known to Immigration about the business;
- the business has a record of compliance with Immigration laws;
- the business has a record of compliance with workplace relations laws;
- the employment being nominated is full time, available for at least two years and is located in regional Australia (Regional Australia is defined in reg 5.19(5) and in an Instrument made under that regulation). Note that a subclass 119 or 857 visa can be cancelled if the holder does not stay employed with the nominating regional employer for at least two years;
- the employment conditions will be no less favourable than conditions provided for under relevant Australian legislation and awards;
- unless the position is exceptional, the occupation requires a person with a Diploma or higher qualification. PAM3 on this topic states that under policy, occupations with an ANZSCO skill level of 1 or 2 require a Diploma or higher qualification;
- A body specified in the relevant Instrument certifies that the nomination meets the requirement of actively and lawfully operating in Australia, is available in regional Australia for at least two years and refers to an occupation requiring a Diploma or higher qualification. Note that these certifying bodies often have their own requirements and may charge a fee. Check the certifying bodies' websites for more information: reg 5.19(4).
- Be under 45 years of age;
Have functional (see reg 5.17) or vocational English unless the position is exceptional; and
- Hold a relevant diploma unless the position is exceptional.
- The visa holder does not commence employment in the nominated position within six months of arriving in Australia (in the case of a subclass 119 visa) or of being granted the visa (in the case of a subclass 857 visa); or
- The visa holder's employment terminated within two years of their first day of employment and the Minister is not satisfied the holder made a genuine effort to remain in that employment: s 137Q and reg 2.50AA.
Business Visas
Business skills visas are a group of visas that facilitate the entry into Australia of high quality business migrants. For most business migration applicants a two-stage application process is usual. At the first stage business migrants apply for a provisional visa. The provisional visas are either State / Territory sponsored or non-sponsored. The provisional subclasses are:- Business Owner (Provisional) (Subclass 160) Visa: the applicant must be less than 45 and prove ownership (or part-ownership) of an offshore business with an annual turnover of $500,000;
- State/Territory Sponsored Business Owner (Provisional) (Subclass 163) Visa: the applicant must be less than 55, a senior manager or prove ownership (or part-ownership) of an offshore business with an annual turnover of $300,000;
- Senior Executive (Provisional) (Subclass 161) Visa: the applicant must be less than 45, have been a senior executive of a major overseas business and along with their spouse or partner have assets of $500,000 to conduct business in Australia;
- State/Territory Sponsored Senior Executive (Provisional) (Subclass 164) Visa: the applicant must be less than 55, have been a senior executive of a major overseas business and along with their spouse or partner have assets of $250,000 to conduct business in Australia;
- Investor (Provisional) (Subclass 162) Visa: the applicant must be less than 45, managed a qualifying business or eligible investments and make an investment of at least $1,500,000; and
- State/Territory Sponsored Investor (Provisional) (Subclass 165) Visa: the applicant must be less than 55, managed a qualifying business or investments and make an investment of at least $750,000.
- Business Owner (Subclass 890) Visa: the applicant must have maintained an ownership interest in an Australian business with a turnover of at least $300,000 for at least 2 years immediately before applying;
- State/Territory Sponsored Business Owner (Subclass 892) Visa: the applicant must have maintained an ownership interest in an Australian business with a turnover of at least $250,000 (unless exceptional circumstances exist) for at least two years immediately before applying;
- Investor (Subclass 891) Visa: the applicant must have maintained their initial investment for at least four years; and
- State/Territory Sponsored Investor (Subclass 893) Visa: the applicant must have maintained their initial investment for at least four years and been resident in the sponsoring State or Territory for two out of the four years immediately preceding the application
Bridging Visas
Bridging visas are temporary visas which allow non-citizens to remain in Australia for a specified period (s 73). People who are unlawful non-citizens (that is, who do not have a visa, see Unlawful Non-Citizens) are liable to be put into immigration detention and / or removed from Australia. Bridging visas are a means of 'regularising' the status of such people and making sure they remain lawful. Bridging visas are not substantive visas (s 5 and see Basic Terminology]). Non-citizens are not entitled to apply for other temporary or permanent visas just because they hold a bridging visa (s 76). There are seven classes of bridging visa and an applicant may hold more than one bridging visa at a time. Where this is the case, the visa that is most beneficial to the applicant is deemed to be in effect (s 68(4)). Some bridging visas are only available to people who have applied for a substantive visa while in Australia. Generally, these applicants do not need to lodge a separate form to apply for a bridging visa: the visa application is also considered to be an application for a bridging visa. The types of bridging visa and the circumstances that must exist for an applicant to be eligible are listed below. Broadly speaking, to be eligible for a BVA or BVB visa (see Bridging Visas A and B), applicants must be lawful non-citizens. Unlawful non-citizens may be eligible for BVC (see Bridging Visa C), D (see Bridging Visa D),E (see Bridging Visa E), F or R (see Bridging Visas F and R).Bridging Visas A and B
Bridging Visa A (BVA) (Subclass 010) and Bridging Visa B (Subclass 020) are the most beneficial bridging visas (reg 2.21). They are generally granted to people who apply for a substantive visa while their previous visa is still valid. The subsequent visa must be available to applicants who are in Australia at the time of grant and applications must be lodged in Australia. BVA and BVB holders can gain permission to work if:- their last visa enabled them to work;
- they can demonstrate a compelling need to work (see reg 1.08 for the definition of 'compelling need to work'); or
- they applied for a Protection Visa (see Refugees and Humanitarian Entrants) when they held another substantive visa and the Protection Visa application has not been finally determined (see s 5(9)).
Bridging Visa C
The Bridging Visa C (BVC) (Subclass 030) is for people who make an application for a substantive visa while unlawful but before they come to the attention of the Department. Applicants must not be in detention and not hold or have held a BVE. There is a mandatory no work condition attached to this visa in most cases. However once someone has been granted a BVC, they may then be able to apply for a further BVC which allows them to work: cl 030.212(3). In such cases, the applicant would need to show a compelling need to work: see reg 1.08 for the meaning of this term.Bridging Visa D
Bridging Visa D (Class WD) contains two subclasses of bridging visa which are valid for five days at the most, and designed to keep non-citizens lawful until a BVE can be granted. Bridging Visa D (Subclass 040) is for people who are unlawful, or will become unlawful within three days, and who:- have attempted to make a valid application in Australia for a substantive visa that can be granted while in Australia, but were unable to do so, and
- will make a valid application for a substantive visa within the next 5 working days
- unlawful; and
- unable or unwilling to apply for a substantive visa; and
- cannot be interviewed because a compliance officer is not available.
Bridging Visa E
A delegate of the Department may grant a Bridging Visa E (BVE) orally or in writing. Whether the delegate decides to grant a BVE largely depends upon them being satisfied that the applicant will abide by the conditions of the visa. BVE holders may be required to comply with the following conditions:- no work rights (unless the applicant can demonstrate special circumstances);
- no study for more than three months;
- report to DIAC at specific times;
- live at the same address or notify DIAC of change two days in advance;
- produce passport at a specific time;
- leave Australia by a specified date; and
- provide security bond.
- be making arrangements to leave Australia (they will need to show the compliance officer plane tickets or booking and a valid passport);
- be applying for a visa that can be granted in Australia;
- have applied for or be about to apply for merits review of a decision to cancel a visa;
- have applied for or be about to apply for a revocation of an automatic cancellation of a student visa under s 137K;
- have applied for or be about to apply for merits review of a decision not to revoke a cancellation of a student visa under s 137L;
- be involved in court proceedings;
- have sought a declaration that the Act does not apply to them;
- have requested Ministerial discretion for the first time;
- be granted conditional release from serving a sentence in prison for a criminal conviction;
- be a family member of someone whose visa has been cancelled and who has applied for review of this decision; or
- be a family member of and have made a combined application with someone involved in court proceedings.
Bridging Visas F and R
The Bridging Visa F (Subclass 060)is for unlawful non-citizens who have been identified by the Australian Federal Police as persons of interest in relation to people trafficking, sexual servitude or deceptive recruiting. The visa is available by invitation only and allows a maximum stay of 30 days. During this time the law enforcement agency can assess the person's ability and willingness to assist in their investigations. Holders of this bridging visa have access to a welfare and support package during the period of the visa's validity. Immediate family members can also be granted the visa. The Bridging Visa R (Removal Pending) (Subclass 070) (BVR) is for people in detention whose removal from Australia is not reasonably practical (they may be stateless, for example). This visa allows applicants to live in the community until they can be removed rather than subjecting them to long periods in detention. The BVR comes with permission to work and access to Medicare, and limited income support. In order to access the visa, the applicant must agree that they will be available for removal if the circumstances arise.Refugees and Humanitarian Entrants
Content for this section is currently under construction.Compliance
Unlawful Non-Citizens
Anyone who is not an Australian citizen and enters or remains in Australia without a valid visa is an 'unlawful non-citizen' (ss 13(1) and 14(1)). The Department locates unlawful non-citizens through information provided by people in the community ("dob-ins"), by raiding places of employment, through data matching (checking names against records held by other government agencies) and by other means. Unlawful non-citizens have no work or study rights and cannot access Medicare or other welfare benefits. If detected, unlawful non-citizens are subject to mandatory detention (see The Consequences of being an Unlawful Non-Citizen). Unless they are granted another visa, they will eventually be removed or deported from Australia (see Removal and deportation). Once they have left Australia, they may be prevented from re-entering Australia for a certain period (see Re-entry bans and exclusion periods).How People become Unlawful Non-Citizens
A person can become unlawful in a number of ways, including by:- entering Australia without authority (for example, by-passing immigration clearance);
- overstaying their visa;
- having their visa application refused; or
- having their visa cancelled.
Unauthorised entry
Generally, non-citizens must enter Australia at a port or on a pre-cleared flight and obtain 'immigration clearance' to be lawful (ss 43, 173 and 174). In order to be immigration cleared, a non-citizen must present their passport/identification documents and visa to a clearance officer (ss 166 and 172). If they enter in any unauthorised way, they have two days to obtain immigration clearance. Even where a person has a valid visa, if they enter Australia without being immigration cleared, their visa ceases to be in effect (s 173).Overstay
Any non-citizen who remains in Australia after their temporary visa expires is an unlawful non-citizen (ss 13(1) and 14(1)). If they have not applied for another visa by midnight on the day the visa expires, they become unlawful (s 82(7)).Visa refusal
Generally, the consequences of a visa refusal vary according to the location of the visa applicant and their visa status. Non-citizens in Australia who apply for a substantive visa are most often granted a bridging visa on application (see The role of bridging visas and Bridging Visas). If their original substantive visa expires while they are waiting for a decision, the bridging visa comes into effect. The bridging visa is valid until they are granted their next visa or up to 28 days after they are notified of refusal. If applicants do not or cannot apply for review of the refusal decision and do not leave Australia within 28 days, they will be without a valid visa and become unlawful non-citizens (ss 13(1) and 14(1)).Visa cancellation
Non-citizens who have their visa cancelled and do not hold another valid visa automatically become unlawful (s 15). The Act contains a number of provisions which give the Minister power to cancel visas in various different circumstances. The more common circumstances leading to cancellation include situations where:- the visa holder has breached a condition attached to their visa; or
- the grounds for holding the visa no longer exist (for example, the holder of a prospective marriage visa informs the Department they no longer intend to marry); or
- the Department discovers that the visa holder provided incorrect information or bogus documents in order to obtain their visa.
The Consequences of being an Unlawful Non-Citizen
Unless unlawful non-citizens are granted a visa they are subject to detention (see Immigration detention). People who are detained must then be removed from Australia as soon as reasonably practicable. Alternatively, they may face deportation (see Removal and deportation). Depending on the way they became unlawful, unlawful non-citizens (whether they are detained or not) may also be affected by re-entry bans or exclusion periods from Australia (see Re-entry bans and exclusion periods). They are almost always limited in the types of visas for which they can apply.Immigration detention
Where an officer 'knows or reasonably suspects' a person is an unlawful non-citizen they must detain that person (s 189). Such people must remain in detention until they are granted a visa, or they are removed or deported from Australia (s 196(1)). In certain circumstances, officers may also detain a person whom they know or reasonably suspect should have their visa cancelled (s 192). These people are then required to provide evidence to the officers (s 192(2A)). Once the person has provided evidence to identify themselves, the officers have four hours to establish that the person's visa should be cancelled. If they cannot do this, they must release the suspect (s 192(5)). Finally, officers are permitted to detain non-citizens whom they reasonably suspect of engaging in criminal activities such as illegal fishing in Australia's territorial waters (s 250). Suspects can be detained for the length of time it takes to prosecute them in an Australian Court and after this must be quickly removed from Australia.A. Powers of officers
Officers have a number of powers they can exercise in relation to locating and questioning unlawful non-citizens. The definition of an "officer" is outlined in s 5 of the Act and includes officers of the Department, Federal, State and Territory policemen and customs officers among others. Once an officer has located someone whom they suspect is unlawful or whose visa is about to be cancelled, they have the right to ask them to provide evidence that they are lawful (s 188). A person must provide this evidence (usually a passport or other identification document) within five minutes if they are asked orally and within 48 hours if requested in writing (reg 3.19). The Minister and his/her delegates can also issue a written notice to anyone they believe may have information or documents about an unlawful non-citizen (s 18). Officers may also obtain search warrants to enter and search any building, premises, vessel (including an aeroplane), vehicle or place where they reasonably believe they can find an unlawful non-citizen or document relating to them (s 251(6)). The document must relate to the entry of a person who would become an unlawful non-citizen or to the departure from Australia of an unlawful non-citizen, removee or deportee. The Act also provides authority to chase, board, search and detain ships and aircrafts and their passengers (all without a warrant) (Div 12A). Alternatively, officers can, with the authority of a warrant issued by the Secretary (s 251(4)), enter, search and seize goods and question people on board whom they reasonably believe may become prohibited immigrants, prohibited non citizens or illegal entrants under the Act (s 251). Section 252 of the Act enables officers to search, without a warrant, a person who:- has been detained; or
- has not been immigration cleared and the officer has reasonable grounds to suspect their visa should be cancelled.
- whether the person is hiding a weapon capable of inflicting bodily injury or helping the person escape detention (s 252(2)(a)); or
- whether the person is hiding evidence that would provide grounds for cancelling their visa (s 252(2)(b)).
B. Rights and obligations of detainees
If a person is detained after they have been immigration cleared (such as when they have overstayed their visa), the Department must tell them as soon as possible about their right to apply for a visa (s 194). (For exceptions to this general rule see s 193). Detainees have two working days in which to apply for the visa running from the date they are informed they can make an application (s 195). They can obtain an extension of five days if, within the two working days, they inform a Departmental officer in writing of their intention to apply for a visa. If detainees fail to apply for a visa within the time limits, they can only apply for a protection visa or bridging visa (s 195(2)). People who are detained because they have been refused or bypassed immigration clearance (in other words, entered Australia illegally) can only apply for bridging visas and protection visas. The Department has no obligation to inform them of their right to apply for the specific visas or to allow them access to legal advice in relation to making a visa application (s 193). Detainees who have had their visas cancelled or refused on character grounds (under s 501 of the Act) face even more stringent limitations and, under s 501E, may only apply for protection visas or - if invited to apply - a Bridging Visa R (BVR) (see Bridging Visas F and R). They must therefore remain in immigration detention until they are granted a protection visa or BVR or are deported. As with detainees who have by-passed immigration clearance, the Department has no obligation to inform them that they can apply for a visa or to provide access to legal representation (s 193).C. Alternatives to detention
In most circumstances, unlawful non-citizens are detained in Immigration Detention Centres (IDCs) (see s 5 of the Act). However, s 197AB of the Act gives the Minister the power to decide that a person reside in a particular place rather than be detained in an IDC. The Minister must specifically name any person covered by this type of decision (known as a "residence determination") and outline the conditions with which the person must comply. In addition, the Minister must exercise his / her power personally and cannot be forced to make this sort of decision. In July 2008, the Minister announced seven "key immigration detention values" designed to guide the Government's detention policy, see www.immi.gov.au/managing-australias-borders/detention/about/key-values.htm. Key value number three stipulates that "Children, including juvenile foreign fishers and, where possible, their families, will not be detained in an immigration detention centre." Values four and five are as follows: 4. Detention that is indefinite or otherwise arbitrary is not acceptable and the length and conditions of detention, including the appropriateness of both the accommodation and the services provided, would be subject to regular review. 5. Detention in immigration detention centres is only to be used as a last resort and for the shortest practicable time. In keeping with the key detention values, the Minister has used his authority under s 197AB to designate alternative places of detention for specific groups.Immigration Residential Housing
Immigration Residential Housing (IRH) provides families and low-flight risk singles with the option of residing in housing or family-style accommodation within a community setting. The houses are located near the Sydney and Perth IDCs (see Contacts, Links and Resources for details of these IDCs) and detainees are able to cook their own food, take trips to town for recreation and shopping (under supervision of a detention officer) and visit other detainees at the nearby IDC.Immigration Transit Accommodation
Immigration Transit Accommodation (ITA) provides hostel-style accommodation, with central dining areas and semi-independent living for short-stay low flight and security risk detainees. ITA is available in both Brisbane and Melbourne. The Government plans to open further facilities in Adelaide.Community detention
Community detention enables unlawful non-citizens to reside and move about freely in the community without needing to be accompanied or restrained by a detention officer. People detained in the community are still unlawful non-citizens and for administrative purposes are regarded as being in "immigration detention". While there are occasions when children are accommodated in low security facilities such as IRH and ITA, the Government's priority is to promptly accommodate children and their families in community detention. Minors in community detention have access to primary and secondary schooling as well as access to English language classes. It is also the Department's policy that adults are encouraged to undertake informal community based education. The Department supports community detention arrangements by funding non-government organisations to source appropriate housing, provide payment of living expenses and ensure access to relevant health and community services and social support networks.Other alternative forms of detention
The Minister can make detention arrangements to accommodate the needs of individuals where detention in IDCs or other forms of alternative detention are inappropriate. Alternative options include detention with a designated person in private houses, detention in correctional facilities, watch houses, hotels, apartments, hospitals or in foster care.D. External scrutiny of immigration detention
Services provided for immigration detention centres are subject to parliamentary scrutiny and accountability. The operations of immigration detention are continually subject to scrutiny from external agencies:- the Australian Human Rights Commission (AHRC)
- the Commonwealth Ombudsman
- the United Nations High Commissioner for Refugees
- the Council for Immigration Services and Status Resolution (CISSR)
Removal and deportation
The two words 'removal' and 'deportation' are sometimes used interchangeably - particularly in media reporting on immigration matters. However there is an important legal difference between them. In general terms:- removal applies to unlawful non-citizens - in other words, individuals who do not have a valid visa;
- deportation applies to visa holders who are expelled from Australia - generally for reasons connected with law enforcement or national security.
A. Removal
Detainees must be removed from Australia as soon as reasonably practicable where:- they have failed to make a valid application for a visa within the time limits; or
- they have made a valid application for a substantive visa and have had the application refused and exhausted all avenues of merits review; or
- they have failed to apply to the Minister to revoke the cancellation of their student visa (if entitled to do so); or
- they have failed to apply to the Minister to revoke the decision to refuse or cancel their visa on character grounds; or
- they have applied to the Minister to revoke a decision to refuse or cancel their visa on character grounds and the Minister has decided not to revoke the decision (s 198).
B. Deportation
Australian permanent residents and exempt New Zealand citizens or special category visa holders, may be deported where:- they have committed an offence and been sentenced to at least 12 months imprisonment within 10 years of becoming a resident (s 201); or
- they have been resident in Australia for less than 10 years and constitute a threat to security (s 202); or
- they have been convicted in Australia of a serious offence (s 203).
C. Leaving Australia on removal or deportation
Normally removees and deportees are returned to their country of citizenship, although arrangements can be made for them to be removed to an acceptable third country. Where people have lost or allowed their passports to expire, the Department generally contacts the appropriate embassy or high commission to issue a travel document so that they can exit Australia. Spouses or de facto partners of non-citizens who are removed or deported from Australia may request that they and any dependent children of the couple also be removed (ss 199 and 205). Where the removee or deportee does not have a partner but does have a dependent child, they may request that the child be removed from Australia with them. People who are removed or deported are liable for the costs associated with their removal/deportation (s 210). If a spouse or de facto partner requests that they also be removed, they will have to pay the costs of their own removal. If the partner requests that a dependant child is removed, both the unlawful non-citizen and their spouse must pay the costs. If the unlawful non-citizen has a child but no partner, they must pay for their child's removal (s 212).Re-entry bans and exclusion periods
Re-entry bans and periods of exclusion may apply to people who have had a visa cancelled, who have overstayed their visa in certain circumstances (even if they have left voluntarily), or who have been removed or deported from Australia. Different exclusion periods or bans apply depending on the circumstances under which the person left Australia and the type of visa the person wishes to apply for to re-enter Australia. Most visas have special return or exclusion criteria that must be met at the time the visa is granted (these are found in Schedules 4 and 5 of the Regulations). If a person has previously become an unlawful non-citizen then they may not be able to meet the criteria for a particular visa and subsequently come back to Australia. The following table shows when and for how long a person will be prevented from qualifying for a particular type of visa.| Circumstances under which the person left Australia | Applicable Special return and Exclusion Criteria | Length of time person is excluded from qualifying for certain visas | Visas person can qualify for within the exclusion period |
| Persons deported for criminal or security reasons under s 200 of the Act Visa cancelled on character grounds under ss 501, 501A and 501B of the Act because of substantial criminal record (s 501(6)(a)) or past or present criminal or general conduct (s 501(6)(c)(i) and (ii)). | 5001 | Forever | Protection Visa (Subclass 866) (Applicants must be onshore to qualify for this visa) |
| Persons removed under ss 189,199 or 205 of the Act. | 5002 | 12 months from the date of removal | Refugee and humanitarian visas (see Refugees and Humanitarian Entrants) |
| Visa cancelled under ss 109, 116(1)(d) and 128 because person provided incorrect information or bogus documents to the Department. Visa otherwise cancelled under ss 116 or 128. | 4013 | 3 years from the date the previous visa was cancelled | Generally, permanent visas or provisional visas leading to permanent residence (person cannot qualify for temporary visas) |
| Person left Australia as an unlawful non-citizen or holder of Bridging Visa C, D or E (this does not apply to people who left within 28 days of their substantive visa expiring or if they were granted a bridging visa in that 28 days). | 4014 | 3 years from the date the previous visa was cancelled | Generally, permanent visas or provisional visas leading to permanent residence (person cannot qualify for temporary visas) |
A. AusAID and foreign government funded students
AusAID students and other students who have been granted visas on the basis of having financial support from a foreign government are generally precluded from qualifying for another visa for two years after their course has finished. (See Schedule 5, Item 5010) If they come back to Australia within that time frame, they may be liable to repay their course fees.B. Waiver of exclusion period
Applicants may apply for a waiver of exclusion periods unless they are subject to a permanent ban under criterion 5001 (outlined in the table above). In order to be successful, they need to show compelling circumstances affecting the interests of Australia or compassionate and compelling circumstances affecting the interests of an Australian citizen, permanent resident or ENZ citizen.Limitations on applying for other visas in Australia
Non-citizens who are in Australia without a substantive visa face restrictions on the types of visas for which they can apply. The restrictions are imposed either by 'no further stay' conditions attached to visas or by way of s 48 of the Act. These two mechanisms, combined with the re-entry bans and exclusion periods (see Re-entry bans and exclusion periods), operate to prevent applicants who are considered a high immigration risk from remaining in or entering Australia.A. No Further Stay
Former visa holders who had a 'no further stay' condition attached to their visa may be ineligible to apply for another substantive visa (see Visa conditions, and also see Basic Terminology for a definition of 'substantive visa'). 'No further stay' conditions continue to operate even when a visa has expired or been cancelled. The conditions are found in Schedule 8 of the Regulations and are attached to a visa when it is granted. If a visa holder finds conditions 8503, 8534, 8535 or 8540 on their visa label, they should seek advice or look up the condition in the Regulations and see which visas they can apply for once their current visa becomes invalid. Generally, people subject to 'no further stay' conditions are only able to apply for protection visas and some types of student visas. Applicants with a 'no further stay' condition attached to their visa may apply to the Minister to have the condition waived (s 41(2A)). Applicants may convince the Minister to waive the condition if they can show there are compelling and compassionate circumstances to do so. See reg 2.05 for further information on the circumstances required for waiver.B. Section 48 Bar
Non-citizens who have had a visa refused or cancelled and who are in Australia also face restrictions on the types of visas for which they can apply. Section 48 of the Act operates so that people who no longer hold a substantive visa and who have had a visa refused or cancelled under ss 109, 116, 134, 137J or 137Q of the Act, will generally find it exceptionally difficult to remain in Australia. The only classes of visa for which they can make a valid application are:- Partner (Temporary) (Class UK) and Partner (Residence) (Class BS);
- Protection (Class XA);
- Medical Treatment (Visitor) (Class UB);
- Territorial Asylum (Residence) (Class BE);
- Border (Temporary) (Class TA);
- Special Category (Temporary) (Class TY);
- Bridging Classes WA - WF (that is, Bridging Visas A - F);
- Resolution of Status (Temporary) (Class UH) and Resolution of Status (Class CD); and
- Child (Residence) (Class BT).
How to Resolve Unlawful Status
Non-citizens who have become unlawful have limited options open to them. Ultimately they can either have their status 'regularised', that is, become lawful again, or they must leave Australia. In some cases, it may be possible to argue that a non-citizen should not have become unlawful in the first place. This can be done by challenging decisions to refuse or cancel particular visas (see Challenging a decision to refuse a visa, and Challenging a decision to cancel a visa, respectively). Part Review discusses the procedures and time limits for review of decisions by the Migration Review Tribunal (MRT), Refugee Review Tribunal (RRT), Administrative Appeals Tribunal (AAT) and the courts. In other cases, unlawful non-citizens might apply for and be granted a visa to remain in Australia. Of course, they are restricted in the types of visa for which they can apply (see Limitations on applying for other visas in Australia). However, if the Minister believes it is in the public interest, the Minister may grant a detainee a particular visa whether or not they have applied for it (s 195A). This public interest power is often used in the context of long-term detainees. If either of these alternatives are not an option, unlawful non-citizens should make arrangements to leave Australia (see Voluntary departure) and perhaps apply for a bridging visa which will enable them to leave the country without being detained (see The role of bridging visas).Challenging a decision to refuse a visa
When considering whether to grant or refuse an application for a visa, decision-makers are required to follow the "Code of Procedure" (Subdivision AB of Division 3 of Part 2 of the Act is headed "Code of Procedure for dealing fairly, efficiently and quickly with visa applications"). In particular, if decision-makers are considering refusing an application relying on information supplied by a third party (known as adverse information), they must provide the applicant with particulars of the information and invite the applicant to comment on it (s 57). However, this requirement only applies to visas that can be granted while the applicant is in Australia and if the decision to refuse to grant the visa is reviewable by the MRT or RRT. Applicants who are deciding whether to challenge the decision to refuse their visa should check that the Department has complied with the administrative processes outlined in the Code of Procedure. One way of determining whether the Department has relied on adverse information is to lodge a Freedom of Information request (see Freedom of Information). If the Department has not complied with the proper processes, applicants may be able to mount a successful application for review. Also, applicants should check that the factual grounds upon which the visa has been refused are correct. If the applicant believes they meet the criteria for grant of the visa and disputes the grounds for refusal, then evidence to this effect should be provided to the appropriate review body (see Review). Criteria must often be met at the time of application and at the time of decision so close attention must be paid to the time when actions and events occurred (applicants may find it helpful to maintain a chronology). Finally, applicants should ensure the Department has properly notified them of the decision to refuse their visa application (see A. Notice of Refusal immediately below). While failure to provide notification does not make the refusal decision invalid, time limits (including time limits for lodging a review application) do not begin to run until the applicant has been properly notified of the refusal (again, see A. Notice of Refusal immediately below).A. Notice of Refusal
Once the Department decides to refuse a visa, it must send the applicant a notice of refusal outlining:- the criterion which the applicant failed to satisfy;
- the provision in the Act or the Regulations that prevented the grant of the visa;
- written reasons why the criterion was not satisfied (except in the case of applicants outside Australia without merits review rights); and
- details of where, when and by whom a review application can be made (if any) (s 66).
Challenging a decision to cancel a visa
The Department may need to follow specific procedures in order to effectively cancel a visa. The circumstances that lead the Department to consider cancelling the visa and the provision of the Act they use to follow through on the cancellation decision will determine which procedures must be followed. When deciding whether or not to challenge a decision to cancel a visa, applicants should first ensure that the Department has followed the administrative processes required for cancellation (see A. Notice of Intention to Consider Cancellation and B. Notice of Cancellation below). If the requisite administrative processes have not been complied with, the applicant may be able to successfully challenge the decision. Secondly, applicants should carefully consider the reasons given for their visa cancellation and decide whether they believe these are correct. Applicants may provide evidence disputing the facts underlying the cancellation to the Department or relevant tribunal on review (if eligible). Finally, some visa holders may have a right to apply to the Minister to revoke the decision to cancel their visa. Non-citizens who have had their visa cancelled before arriving in Australia or being immigration cleared (s 131); student visa holders who have had their visa cancelled for breaching their visa conditions (s 137J); and non-citizens whose visas have been cancelled by the Minister personally on character grounds (s 501(c)) may all apply to have the decision to cancel their visa revoked. Additionally, applicants should check whether the Department is required to notify them of the decision to cancel their visa and if so, confirm that the correct procedures for notification have been followed. Although a visa is cancelled from the date of the decision to cancel, time limits for applying for review of a decision to cancel run from the date the person is properly notified of the decision. However, applicants must be aware than any bridging visa they hold at the time their substantive visa is cancelled will also be cancelled and they will become unlawful.A. Notice of Intention to Consider Cancellation
In most cases, the Department must provide a Notice of Intention to Consider Cancellation (NOIC) to the visa holder before cancelling the visa. The Department must take into account the visa holder's response to the notice when considering whether to cancel the visa. Generally, the NOIC should:- be in writing - unless the visa holder is in immigration detention or they have been 'detected' by the Department's compliance section; and
- provide particulars of the grounds for cancellation (in other words, specify both the provision in the Act used to cancel the visa and the facts leading to cancellation); and
- invite the visa holder to respond and to show either that the grounds do not exist or that there is a reason why the visa should not be cancelled; and
- specify how the response can be made; and
- specify the time limits for a response.
B. Notice of Cancellation
If the decision-maker decides to cancel a visa after considering the visa holder's response to a NOIC, they must notify the visa holder of the decision. While each cancellation power has its own notice provisions, as a general rule, the Notice of Cancellation (NOC) must:- be in writing;
- specify the ground or reasons for the cancellation;
- state whether the decision is reviewable; and
- if reviewable, state the procedure and time limit for the review (see for example s 127).
Applying for other visas
In circumstances where a former visa holder is unable to successfully challenge a decision to cancel or refuse their visa, it may be possible to apply for another substantive visa so that they can remain in Australia. Unlawful non-citizens face limitations on the types of visas for which they can apply (see Limitations on applying for other visas in Australia).Voluntary departure
A person may decide to leave voluntarily when they realise they have no realistic option of remaining lawfully in Australia. If a non-citizen chooses to leave voluntarily before becoming unlawful, re-entry bans and exclusion periods will not apply (see Re-entry bans and exclusion periods). Even where a person has already become unlawful, voluntary departure may increase their chances of returning to Australia on a valid visa. Unlawful non-citizens should make sure their passport is valid, buy a ticket and meet with a compliance officer a week before leaving, if possible. They will then normally be granted a Bridging Visa E which will allow them to remain in Australia until their departure (see The role of bridging visas ). If an unlawful non-citizen attempts to leave without a bridging visa, they risk being detained and questioned by officers from the Department.The role of bridging visas
Bridging visas are an important means of regularising the status of unlawful non citizens: non-citizens who would otherwise be unlawful can attain lawful status if granted a bridging visa. Bridging visas also provide a way for people who would otherwise be detained, to stay out of immigration detention. By obtaining a bridging visa, non-citizens can also avoid the operation of certain re-entry bans and exclusion periods (see Re-entry bans and exclusion periods) and therefore increase their chances of lawfully returning to Australia. However, non-citizens should remember that they are not automatically entitled to apply for other temporary or permanent visas just because they hold a bridging visa. Unlawful non-citizens may apply for Bridging Visas C, D, E, F and R depending on their circumstances (see generally Bridging Visas).Review of Decisions
Overview
Migration law deals with decisions and actions taken by government decision-makers. As such it is part of the body of law known as administrative law. Administrative law governs a person's ability to challenge a decision made by the Department and provides two formal mechanisms for review: merits review, and judicial review (see generally AdministrativeLaw). Where the Department makes a decision that is unfavourable to a visa applicant or visa holder, in many cases the applicant or their sponsor can seek a review of that decision.Merits review
Merits review of migration decisions is undertaken by three tribunals: the Migration Review Tribunal (MRT) (see Review by the Migration Review Tribunal), Refugee Review Tribunal (RRT) (see Review by the Refugee Review Tribunal) and Administrative Appeals Tribunal (AAT) (see Review by the Administrative Appeals Tribunal). These tribunals review the original decisions (also known as primary decisions) made by the Department by standing in the shoes of the original decision-maker and considering all the relevant facts and the application of the law. The tribunals do more than look for errors in the original decision, they make an entirely new or "de novo" decision. The principal objective of merits review is to ensure that reviewed administrative decisions are legally correct and preferable. This in turn aims to secure fair and equitable treatment of all people affected by government decisions and improve the quality and consistency of primary decisions. The merits review tribunals have the power to uphold the original decision, vary the decision, substitute a new decision or transfer the matter back to the Department for reconsideration.Judicial review
Judicial review of migration decisions generally becomes available after an applicant has exhausted their right to merits review (see Asking the Courts to Intervene - Judicial Review). In these circumstances, depending on the type of decision to be reviewed, the Federal Court, the Federal Magistrates Court or the High Court of Australia may review the decision. The types of decisions the Courts are able to review are limited due to the operation of what are known as privative clauses recently introduced into the Act by Parliament. Unlike merits review, judicial review is restricted to examining the legality of a decision. The Courts will not re-consider the facts, evidence or merits of the case in order to determine whether the decision taken was the most appropriate decision. Rather, they will examine whether the decision maker acted within the law and applied the law properly. If a Court finds that there has been an error of law, they will usually refer the matter back to the decision-maker for further consideration.Other mechanisms
In addition to merits and judicial review, there are other mechanisms available for challenging the practices and decisions of the Department. Aggrieved parties can apply to the Minister to intervene on their behalf (see Asking the Minister to Intervene). They can also complain to the Commonwealth Ombudsman or the Australian Human Rights Commission (see Other Forms of Review) and even attempt to apply pressure by raising public awareness of an issue.Review by the Migration Review Tribunal
The Migration Review Tribunal (MRT) provides merits review of visa related decisions made by the Minister and his/her delegates. The MRT was established under the Act and began operating on 1 June 1999. The Act and Regulations set out which decisions are reviewable by the MRT, who can apply for review, the time limits on applying, and the procedures that must be followed. The MRT comprises a Principal Member, a Deputy Principal Member, Senior Members and many full-time and part-time Members. All members are appointed by the Governor-General for a period of five years and cross-appointed to the Refugee Review Tribunal (RRT) (see Review by the Refugee Review Tribunal). The Registrar of the MRT looks after the general operation of the tribunal and its staff. In general, a review applicant's matter will be heard by one, two or three members of the MRT sitting at one time (s 354). Where two members review a decision and hold different opinions on what to do, the decision of the "presiding member" stands (s 357). Once the Tribunal has examined the matter, it has the power to affirm the original decision (in which case the applicant is unsuccessful), vary the decision, substitute a new decision or remit the matter back to the Department for reconsideration in certain circumstances (s 349).Which decisions are reviewable?
Section 338 of the Act and reg 4.02 of the Regulations set out the types of migration decisions reviewable by the MRT. Essentially, the MRT has jurisdiction to review most migration decisions, including the following:- a decision to refuse a visa;
- a decision to cancel a visa where the holder is in Australia (this does not include a decision to cancel a visa on character grounds);
- a decision not to revoke cancellation of a student visa under s 137J;
- a decision about an applicant's score on the points test (see Skilled Visas); and
- a decision to refuse or reject certain business sponsorships and nominations.
- a decision to impose/change/not to waive a condition on a visa;
- a decision about the validity of a visa application;
- a decision to specify the period of a temporary visa;
- a finding that a person is not the holder of an absorbed-person visa or an ex-citizen visa;
- a decision that the Minister has made personally;
- a decision relating to refugee / humanitarian visas (see Refugees and Humanitarian Entrants); and
- a decision relating to cancellation / deportation on character grounds (see Public Interest Criteria at A. Character; also Visa cancellation and Removal and deportation).
Who can apply for review?
In different circumstances, the Act provides visa applicants, former visa holders, sponsors, nominators and relatives with "standing" to apply for review at the MRT. Whether or not someone is able to apply for review depends on the nature of the decision being appealed and the location of the review applicant. Section 347 of the Act stipulates that the following people have standing to bring an application for review of a decision before the MRT:- Non-citizens who are in Australia and who have had a visa application refused, a visa cancelled, or have had their request to revoke cancellation of their student visa refused;
- Non-citizens who are in immigration detention because they have had a bridging visa refused or cancelled;
- Sponsors and nominators of visa applicants who have applied for a visa from outside Australia (in this case the sponsor / nominator is called the review applicant and the person who applied for the visa offshore is called the visa applicant); and
- Relatives of people who have applied for a visa from outside Australia. The relatives must be Australian citizens or permanent residents. The visa applied for must have a requirement either that the applicant was a former Australian resident or intended to visit their Australian relative.
Time limits for lodging applications
The Act and Regulations provide strict time limits for applying for review of a migration decision. The length of time allowed to apply for review depends on the type of decision being challenged, where the review applicant is located and where the application for review is lodged. Refer to reg 4.10 to ascertain how long an applicant has to lodge an application for review. Time limits run from the date the review applicant is notified of the decision. Therefore, it is extremely important to work out whether an applicant was properly notified and exactly when they received notification. For information on notification dates for visa refusals and cancellations, see Challenging a decision to refuse a visa and [42.4.4.2], and Challenging a decision to cancel a visa, respectively. The Department's letter of notification sent to the applicant should also provide information on how long they have to apply for review of the decision.Lodging an application for review
Once an applicant has verified they have a right to review (see Who can apply for review?) and ensured they are within the time limits (see Time limits for lodging applications), they need to consider the reasons for the Department's decision and their prospects of success should they apply for review. To this end, it may be helpful to lodge a Freedom of Information request with the Department or MRT (see FreedomOfInformation). If they decide they wish to challenge the decision, they should complete and lodge one of the following forms with the MRT:- Application Form for applicants not in immigration detention
- Application Form for applicants in immigration detention
MRT procedures
When reviewing the decision, the MRT should be fair just, economical and quick. It is not bound by technicalities, legal forms or rules of evidence and should act according to substantial justice and the merits of the case (s 353). In doing so, it must make its decisions according to the law set out in the Act, Regulations and Ministerial Directions. The MRT must apply the law as it stood at the time the original decision was made by the Department. Unlike the Courts, the MRT plays an 'inquisitorial' role when conducting a review. Tribunal members may request any information they believe is relevant or invite any person to provide additional information. They are not restricted to considering the evidence that is presented to them by the review applicant or the Department. The procedures the MRT must follow when reviewing a decision are set out in the Act and Regulations. In particular, Part 5, Division 5 of the Act entitled "Conduct of Review" is considered to be an exhaustive statement of the natural justice rule that would otherwise apply to administrative law matters. If the MRT can reach a favourable decision for the applicant on the basis of the applicant's written application, it need not invite the applicant to appear or give evidence (s 360). However, if a favourable decision cannot be reached "on the papers" then the MRT must provide the applicant with the "adverse information" it possesses in relation to the applicant's case (unless the information is not about the applicant personally, was already provided by the applicant or is privileged). The MRT can either invite the applicant to comment on or respond to that information at a hearing (s 359AA) or in writing (s 359A). If the MRT has chosen to conduct a hearing, the applicant can lose their right to attend. This will occur where:- they advise the Tribunal they do not intend to come to the hearing or otherwise agree that the tribunal should make a final decision without an oral hearing (s 360);
- they fail to attend the scheduled oral hearing (s 362B);
- they fail to provide a response to the Tribunal's written request for information within the specified time frame (s 359C(1)); or
- they fail to respond to the Tribunal's letter advising them of adverse information (see above) within the specified time frame (s 359C(2)).
A. The review hearing
As explained in MRT procedures, the MRT is not obliged to conduct a hearing to review a migration decision. However, where the MRT decides to put adverse information to the applicant orally at a hearing, then its members must ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant and the consequences of the information being relied upon. The MRT must invite the applicant to respond and advise them that they can seek an adjournment to obtain additional time to comment (s 359AA). Dissimilar to appearing before a Court, review applicants before the MRT have no right to legal representation unless exceptional circumstances exist (for example, the applicant is unable to speak or understand English) (ss 366A and 363A). Someone may be present to assist the applicant at the hearing but they are not entitled to address the members or present arguments on behalf of the applicant. However, in practice, the MRT commonly offers migration agents assisting clients at a hearing the opportunity to address its members. Moreover, applicants have a right to obtain advice or assistance with preparation and written submissions. Neither the Minister nor Departmental officers are entitled to appear at the hearing, unless they are invited by the Tribunal for the purposes of obtaining evidence (ss 360 and 363A). If they are invited, the Department has no right to assistance or representation while appearing (s 366B). In order to support their application, review applicants may request that the Tribunal call certain witnesses or obtain evidence from third parties (s 361). However, the Tribunal is not obliged to obtain such evidence orally or otherwise. If the Tribunal does call witnesses, then the applicant is not entitled to examine or cross-examine them (s 366D). For further information on hearings at the MRT, see the Tribunal's publication, ' Information about Tribunal Hearings' and visit the MRT website.Review by the Refugee Review Tribunal
The Refugee Review Tribunal (RRT) provides merits review of protection visa decisions made by the Minister for Immigration or his/her delegates. The RRT was established in 1993 under Part 7 of the Act and replaced the Refugee Status Review Committee. The Act and Regulations set out which decisions are reviewable by the RRT, who can apply for review, the time limits on applying and the procedures that must be followed. The RRT comprises a Principal Member, a Deputy Principal Member, Senior Members and many full-time and part-time members. All members are appointed by the Governor-General for a period of five years and cross-appointed to the Migration Review Tribunal (MRT) (see Review by the Migration Review Tribunal). The Registrar of the RRT looks after the day to day operation of the Tribunal and its staff. The RRT is constituted by a single member. This means that each application for review is heard and decided by one member of the RRT. Once the member has examined the matter, they have the power to affirm the original decision (in which case the applicant is unsuccessful), vary the decision, substitute a new decision or remit the matter back to the Department for reconsideration in certain circumstances (s 415).Which decisions are reviewable
The RRT has the power to review decisions to refuse or cancel protection visas, as long as the following criteria are met:- the protection visa applicant/holder must have been in Australia at the time the Department made the decision to refuse or cancel the visa (s 411(2)(a));
- the Minister must not have issued a conclusive certificate stating that he/she believes it would be contrary to the national interest to change or review the decision (s 411(2)(b)); and
- the decision to refuse or cancel the visa was not made on character grounds (the AAT undertakes review of these decisions) (s 500(4)(c)).
Who can apply for review?
Only non-citizens who are the subject of a protection visa refusal or cancellation can make a valid application for review. They must be in Australia at the time they lodge their review application (s 412). One of the essential criteria for the grant of a protection visa is that the applicant is a person to whom Australia has protection obligations under the 1951 United Nations (UN) Convention Relating to the Status of Refugees, as amended by the 1967 UN Protocol Relating to the Status of Refugees. In practice, much of the RRT's time is spent reviewing whether an applicant meets this criterion (see generally Refugees and Humanitarian Entrants).Time limits on applying for review
The Act and Regulations provide strict time limits for applying for review of protection visa decisions. The RRT has no power to extend these time limits. Therefore, if a potential applicant fails to lodge their review application within the time specified by the legislation, they forfeit their right to review. Applicants who are in immigration detention have seven days after the day they are notified of the decision to refuse or cancel their protection visa to apply for review (reg 4.31(2)(a)). They must notify the custody review officer at the detention centre on the day they lodge their review application. Applicants who are not in immigration detention have 28 days after the date of notification to apply for review (reg 4.31(2)(b)). The date on which the applicant is deemed to have been notified varies according to how the Department informed them of the refusal/cancellation. For people who are informed of the decision by post, the date of notification is seven days from the date on the letter if the letter is sent to an address in Australia (s 494C(4)(a)). For people notified by fax, email, other electronic means or even by hand, the date of notification is the day the decision was communicated to them (s 494C). The Department's letter of notification should also provide information on how long they have to apply for review of the decision. For more information on notification dates for visa refusals and cancellations, see Challenging a decision to refuse a visa and Challenging a decision to cancel a visa, respectively.Lodging an application for review
Once an applicant has verified they have a right to review (see Who can apply for review?) and ensured they are within the time limits (see Time limits on applying for review), they need to consider the reasons for the Department's decision and their prospects of success should they apply for review. To this end, it may be helpful to lodge a Freedom of Information request with the Department or MRT (see Freedom of Information). If they decide they wish to challenge the decision, they should complete and lodge one of the following forms with the RRT:- Application Form for applicants not in immigration detention
- Application Form for applicants in immigration detention
RRT procedures
Generally, the same principles and procedures which apply to the MRT (see MRT procedures) also apply to the RRT. When conducting a review, the RRT should act according to substantial justice and the merits of the case. It is not bound by technicalities, legal forms or rules of evidence and should aim to be fair, just, economical, informal and quick (s 420). The RRT should make its decisions according to the law as laid out in the Act, Regulations and Ministerial Directions. It must apply the law as it stood at the time the original decision was made by the Department. The RRT is required to provide a clearly understandable written statement outlining each of its decisions and the reasons behind them (s 430). The procedures for RRT review are outlined in Part 7, Division 4 of the Act entitled 'Conduct of Review'. These procedures are broadly similar to those of the MRT: see MRT procedures for more detailed information. There are a few differences between MRT and RRT procedures. Procedural requirements unique to the RRT are as follows:- the RRT must conduct the review within 90 days of receiving the review application; (s 414A)
- the RRT must conduct hearings in private; (s 429)
- if a review applicant fails to attend a hearing the RRT may proceed to make a decision, however, the member has discretion to re-schedule the hearing (the MRT is unable to re-schedule in these circumstances and will proceed to a decision regardless); (s 426A(2)) and
- if a review applicant requests an interpreter at the hearing, the RRT's policy is to arrange and pay for a qualified interpreter.
Review by the Administrative Appeals Tribunal
The Administrative Appeals Tribunal (AAT) began operating on 1 July 1976 and was established under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Migration Act has been amended to provide the AAT with power to review a specific set of immigration and citizenship related decisions (see Which decisions are reviewable ?). However, the AAT's jurisdiction extends well beyond the review of migration decisions. There are now over 400 pieces of legislation which give the AAT power to review decisions on topics as diverse as social security, taxation, veterans' affairs, workers' compensation, civil aviation, corporations law, customs and freedom of information. For a more detailed discussion of the powers and procedures of the AAT, see Administrative Appeals Tribunal. The AAT has a President, other Presidential Members, Senior Members and Members. Once the Tribunal has reviewed the decision, it has the power to affirm the original decision (in which case the applicant is unsuccessful), vary the decision, substitute a new decision or remit the matter back to the Department for reconsideration in certain circumstances (s43(1) of the AAT Act).Which decisions are reviewable ?
The AAT has jurisdiction to review the following migration and citizenship decisions:- decisions of a departmental officer to refuse or cancel a visa on character grounds under s 501 (jurisdiction only exists if the applicant would have a right to review at the MRT if the refusal was made on other grounds) (s 500);
- decisions to refuse or cancel a protection visa under Articles 1F, 32 or 33(2) of the 1951 United Nations (UN) Convention Relating to the Status of Refugees which deal with serious criminal offences, war crimes and crimes against humanity respectively (s 500);
- decisions to cancel a business visa on the basis that the business was not established or the investment has been withdrawn prematurely (s 136);
- decisions made under s 200 of the Act to deport a permanent resident convicted of a serious offence (s 500);
- decisions made by the Migration Agents Registration Authority (MARA) to caution a migration agent or to suspend or cancel a migration agent's registration; and to bar a former registered migration agent from being a registered migration agent for a period of up to five years (ss 306 and 311F); and
- decisions referred to the AAT by the MRT or RRT pursuant to ss 381(1) and 443(1) of the Act (these decisions must involve important principles or issues of general application and be referred by the Principal Member).
- decisions to cancel of refuse visas on character grounds are not reviewable if they are made by the Minister personally (s 500(1)(b));
- decisions to cancel a visa on character grounds are not reviewable if they were made when the visa holder was outside Australia;
- decisions made to deport a permanent resident for criminal conviction under s 200 and decisions made to cancel or refuse a protection visa on character grounds (see above) are not reviewable if the Minister personally decides to issue a conclusive certificate stating that it is in the national interest to exclude the person from review (s 500(1)(c)).
Who can apply for review?
Generally, the person affected by the decision taken by the Department or Minister must apply for review personally. However, if an applicant has applied for a visa from outside Australia and had the application refused on character grounds, then their sponsor, nominator, or relative who is in Australia may apply for review. This is similar to the requirements for standing before the MRT (see Who can apply for review?).Time limits on applying for review
The time limits for lodging a review application at the AAT vary according to the type of decision to be reviewed. In general, a review application must be lodged within 28 days after the applicant is notified of the Department's decision (see s 29 of the Administrative Appeals Tribunal Act 1975 (Cth)). The AAT has the power to extend the time allowed if it is satisfied that it is 'reasonable in all the circumstances to do so'. (s 29(7)) Applicants must lodge a written request for extension of time and should use the form from the AAT's website, Application for Extension of Time for Lodging Application for Review of Decision. In contrast to the general 28 day period, the Act imposes a specific time limit on people who are inside Australia and wish to apply for review of a decision to refuse or cancel their visa on character grounds (under s 501). In these circumstances, applicants must lodge their application with the AAT within nine days after the day they were notified of the decision (s 500(6B)). The AAT cannot extend this time limit. Therefore, if an applicant in this situation fails to lodge the application for review within nine days, they forfeit their right to challenge the decision. Similarly, the Act provides particular time limits for the review of a decision of the Minister to refer an agent to the MARA for disciplinary action under ss 306AC(1) or 306AGAA(8). Migration agents may only seek review of the Minister's decision to refer them to MARA if the Authority decides to caution the agent or to suspend or cancel an agent's registration as a result of the referral.A. Notification
Time limits begin to run on the date an applicant is notified of the decision by the Department. Ascertaining exactly if or when a person is properly notified is therefore extremely important. Section 501G of the Act, stipulates that the Minister must provide a person whose visa has been refused or cancelled on character grounds with a written notice explaining:- what decision has been made;
- what provision of the Act provides authority for the decision and the effect of the provision; and
- the facts or reasons behind the decision.
- that the AAT can review the decision;
- the time limits for lodging a review application;
- who can apply for review; and
- where the review application can be made.
Lodging a review application
Once an applicant has verified they have a right to review at the AAT (see Who can apply for review?) and ensured they are within the time limits or have applied for an extension (see Time limits on applying for review), they need to consider the reasons for the Department's decision and their prospects of success should they apply for review. To this end, it may be helpful to lodge a Freedom of Information request with the Department or MRT (see FreedomOfInformation). If they decide to challenge the decision, they should complete and lodge the Application for Review of Decision obtained from the AAT website. Applicants who are in Australia and who seek review of a decision to cancel or refuse a visa on character grounds under s 501 of the Act, should attach to the application form a copy of the Department's letter of notification along with one set of the documents relied upon by the Department. Applicants must pay the application fee of $682 for their matter to proceed. This fee is refunded at the end of the matter if the application is successful. Alternatively, applicants can apply for a waiver of the fee on the grounds that paying the fee would cause them severe financial hardship. For more information, see the AAT website.Procedures
The procedures of the AAT differ from the MRT and RRT in many ways. Broadly speaking, the AAT still aims to provide a quick, informal, fair and economical mechanism for the resolution of disputes. Neither is it bound by the usual rules of evidence which apply to judicial review (see Asking the Courts to Intervene - Judicial Review). However, the following significant differences in procedure should be kept in mind:- After the applicant has applied for review, the decision-maker (usually the Minister or a delegate) must provide the AAT, review applicant and any other parties with a statement of reasons for the decision and all documents considered relevant to the review of the decision (these are known as 'T Documents'). Applicants before the MRT and RRT usually need to make a Freedom of Information Request to obtain this type of information (s 37 of the AAT Act);
- Review applicants at the AAT are entitled to representation by a lawyer or other person of their choice at the hearing (s 32 of the AAT Act); and
- Both the review applicant and the Department (or their representatives) have the right to address the members of the AAT, to call witnesses and to examine and cross-examine them.
Asking the Minister to Intervene
The Minister for Immigration has the power to substitute a more favourable decision for the applicant than that reached by a review tribunal. Generally, the Minister must wait until the MRT, RRT or AAT have informed the review applicant that their application was unsuccessful before he/she has the power to intervene. If the MRT or RRT chooses to refer the applicant's matter to the AAT, then the Minister must wait until the AAT has decided the matter. Once the Minister has intervened using an intervention or 'public interest' power, he or she can grant the non-citizen a visa whether or not they meet the visa criteria set out in the Act. The Act provides that the Minister may substitute a more favourable decision for a decision of:- the MRT (s 351);
- the RRT (s 417);
- the AAT (in relation to an MRT or RRT reviewable decision (ss 391 and 454) or a protection visa decision (s 501J)).
When will the Minister decide to intervene?
The Minister's discretionary powers to intervene were intended to act as a safety net for difficult cases that fall outside the strictly codified visa criteria. However, the numbers of requests for intervention made to the Minister has burgeoned from just a handful each year to over 4,000 requests in 2006-2007. In an effort to manage the number of requests for intervention, the Minister has released guidelines about the types of unique or exceptional circumstances that should generally exist before he will consider exercising his powers to intervene. These new guidelines are located in PAM III entitled "Minister's guidelines on ministerial powers (s 345, s 351, s 391, s 417, s 454 and s 501J)." The Minister has also invited the tribunals to recommend his intervention in cases which they believe fall within these guidelines. As such, the Principal Member of the MRT/RRT has issued a Guideline for Members entitled "Referrals for Ministerial intervention consideration." The MRT/RRT guidelines with the Minister's guidelines attached are available at: www.mrt-rrt.gov.au/Conduct-of-reviews/Guidelines/Guidelines/default.aspx. The current Minister's guidelines apply to requests for intervention lodged on or after 14 September 2009. People who lodged requests for ministerial intervention before this date will have their requests assessed against the policy instruction that was current at the time they lodged their request. Applicants should note that the Minister's guidelines are policy only and therefore not legally binding. The sole legislative criterion is that the Minister considers that it is in the 'public interest' to intervene.A. Public interest
The "Minister's guidelines on ministerial powers (s 345, s 351, s 391, s 417, s 454 and s 501J)" (for background, see When will the Minister decide to intervene?) state the policy on 'public interest' as follows: The public interest may be served through the Australian Government responding with care and compassion where an individual's situation involves unique or exceptional circumstances. I may only exercise my public interest powers if it is in the public interest to do so in each case. What is and what is not in the public interest is a matter for me to determine. This will depend on various factors, which must be assessed by reference to the circumstances of the particular case. I will generally only consider the exercise of my public interest powers in cases which are referred to the department for my consideration by a review tribunal or which exhibit one or more unique or exceptional circumstances. Where a person is in the community (i.e. is not in immigration detention), however, I generally do not wish to consider their case unless they hold a bridging or other visa, or have an application for a bridging visa before the department. The Courts have noted that "public interest" and "national interest" are not the same. National interest "directs attention to the interests of Australia as a whole" and can "include a consideration of Australia's position as a nation in relation to other nations." Meanwhile, public interest may refer to local, regional and municipal concerns. See Wong v MIMIA (2002) at [33 - 34].Applying for Ministerial intervention
There are two principal methods of accessing Ministerial intervention. The first is through the review tribunals and the second is by direct application to the Minister (see immediately below at A. Accessing Ministerial intervention through the tribunals and B. Making a direct request, respectively). Both methods are discussed in the Minister's guidelines (see When will the Minister decide to intervene?). Despite the methods for accessing ministerial intervention explained in this chapter, the Minister's intervention power is not limited to cases brought to his attention in any particular manner. In practice, matters referred or requests made to the Minister are initially handled by the Ministerial Intervention Unit (MIU) within the Department. Case officers in the MIU 'vet' requests and provide submissions to the Minister. If a particular matter does not fit within the Minister's guidelines it is highly unlikely that it will be brought to the Minister's attention. There is no limit on the number of requests that an applicant can make. However, case officers will only refer a repeat request to the Minister if they are satisfied there has been a significant change in the applicant's circumstances since the last request. The change in circumstances must raise new issues that the Minister has not previously considered and must mean that the application falls within the Minister's guidelines (see When will the Minister decide to intervene?). The process of seeking Ministerial Discretion is lengthy and applicants can be left without income for over a year. A person requesting ministerial intervention for the first time may be eligible for a Bridging Visa E (cl 050.212(6) of Sch 2 to the Regulations) (see Bridging Visa E). However, if the person was unlawful for any period between the decision of the tribunal and lodging their request for ministerial intervention, they cannot obtain work rights (cl 050.612A). If they remained lawful throughout this period and they were able to work on their last visa, they may be granted work rights (cl 050.615). Someone who lodges a repeat request for intervention only becomes eligible for a Bridging Visa E after the Minister has decided to intervene in their case but because of a cap set on the number of visas granted each year cannot grant them a visa immediately (cl 050.212(6AA)). Such a person can only get work rights if they can show a compelling need to work (cl 050.212(6AA)). Work rights may only be granted in compelling circumstances when the request has moved from the MIU to the Minister's desk and he is then said to be 'actively considering it' (cl 050.612A). A person only has a 'right' to a Bridging E visa for a repeat Ministerial request when the Minister has already decided to intervene in the matter and is waiting for administrative issues to be satisfied such as health examinations and police certificates (cls 050.212(6AA) and (6A)).A. Accessing Ministerial intervention through the tribunals
The Ministerial guidelines allow the review tribunals to refer matters to the Department for the Minister to consider. In this vein, the Presiding member of the MRT/RRT has issued a Guideline for referrals for ministerial intervention (see When will the Minister decide to intervene?). The AAT currently has no formal process for referral. Members of the MRT/RRT may refer matters to the Department on their own initiative. Alternatively, review applicants can request a member to refer their matter to the Department. If a member thinks a case should be considered for intervention, they must set out the circumstances they believe warrant the Minister's attention in their statement of decision. If the member decides not to agree to an applicant's request to refer a matter, they should refer to the request in their statement of decisions and notify the applicant that they can apply for ministerial intervention directly (see immediately below, at B. Making a direct request) Once a member decides that a particular matter deserves the Minister's attention, a referral letter is sent to the Department. A case officer in the Department then assesses the matter against the Minister's guidelines (see When will the Minister decide to intervene?) and provides a submission to the Minister for his or her consideration. In addition to this, the Department is automatically notified when a tribunal upholds a departmental decision. In this situation (where there is no referral from a tribunal member) case officers have the option to assess the visa applicant's circumstances against the Minister's guidelines although there is no obligation for them to do so. If they believe the case falls within the guidelines they will bring it to the Minister's attention in the form of a submission. In very limited circumstances, where the visa applicant's circumstances fall outside of the guidelines, case officers may also decide to bring the case to the Minister's attention.B. Making a direct request
The Ministerial Guidelines allow individuals to make a direct request to the Minister to intervene in their case. The request must be made by the person who is the subject of the request or their authorised representative such as their migration agent. While supporters or organisations cannot make a request on behalf of an applicant, they can provide information along with the request for the Minister to take into account. Applicants (or their authorised representatives) must make their request in writing or via electronic transmission such as email. A request can take any format from a one-page letter to a complete submission. However the Minister's guidelines stipulate that all requests must be accompanied by supporting documentation unless the person can show compelling reasons for their inability to provide the documentation. Requests can be lodged at the Minister's office. As at June 2010, the address for lodging a request for Ministerial Intervention is as follows: Senator Chris Evans, Minister for Immigration and Citizenship Parliament House Canberra ACT 2600Asking the Courts to Intervene - Judicial Review
Applicants affected by an adverse migration decision may be able to apply to the Courts for judicial review of the decision. Unless applicants apply directly to the High Court, judicial review of migration decisions only becomes available after an applicant has exhausted their right (if any) to merits review (see Merits review). Applying to the courts for judicial review is not the same as appealing to a merits review body such as the MRT. Judicial review is restricted to examining the legality of a decision (see What is judicial review?). Even where courts find there has been a legal error, they will not substitute their own decision for that of the original decision maker. In most cases, they will remit the matter back to the tribunal or primary decision maker for reconsideration (see Remedies provided by the courts). Parliament has attempted to regulate judicial review by enacting legislation to limit which courts can review migration decisions (see Which courts can review migration decisions?). These amendments to the Act also impose time limits on applying for review (see Time limits for review) and restrict the types of migration decisions the courts can consider (see Which migration decisions can the courts review?).What is judicial review?
Unlike merits review tribunals, the Courts will not re-consider the facts of the case or weigh up the evidence to determine whether the decision taken was the 'right' decision. Rather, when conducting judicial review, the Courts examine whether the decision maker had the power to make the decision, acted within the law and applied the law properly. In general, the Courts will affirm migration decisions unless the applicant can show there was a 'jurisdictional error' on the part of the decision maker. What constitutes a 'jurisdictional error' is difficult to define and is constantly changing. However, in the case of Craig v South Australia (1995) at 179, the High Court noted that a tribunal (or decision maker) which exceeds its authority or powers because it:- identifies a wrong issue;
- asks itself a wrong question;
- ignores relevant material;
- relies on irrelevant material;
- (in some instances) makes an erroneous finding; or
- reaches a mistaken conclusion
Remedies provided by the courts
If a Court reviews a migration decision and finds that the decision maker has made a jurisdictional error (see What is judicial review?) they have the power to grant three main remedies: mandamus, prohibition and injunction (s 75(v) of the Constitution and see ss 476 and 476A of the Act). A writ of mandamus is an order forcing a Commonwealth officer or decision-maker to perform a public duty, such as re-making a migration decision. This type of remedy is often given in tandem with an order to set aside a decision (known as an order for certiorari). In this way, the Courts can order that a migration decision be set aside (certiorari) and direct the primary decision-maker to re-consider the matter according to law (mandamus). A writ of prohibition orders an officer or decision maker to refrain from doing something unlawful (such as making a certain decision) or from continuing to do something unlawful. Similarly, the Courts have the power to grant an injunction, which can among other things restrain a Commonwealth decision-maker from taking any further action based on an unlawful action they have already taken (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) at 392 - 393). In addition to the three remedies of mandamus, prohibition and injunction, the Courts may make a declaration about the law relating to a particular matter. If, for example, the Courts make a declaration about the interpretation of a particular provision of the Act, the Department is likely to apply the same interpretation when making migration decisions. Finally, the writ of habeas corpus is available to secure the release of a person from illegal detention. In practical terms, the effect of these remedies is that in most cases where the Court finds a jurisdictional error has been made (see What is judicial review?), they will highlight the mistake and refer the decision back to the primary decision maker to reconsider. This does not guarantee that the new decision will be favourable to the applicant.Which courts can review migration decisions?
The High Court of Australia, the Federal Court and the Federal Magistrates Court have jurisdiction to review migration decisions (s 484). Section 75(v) of the Constitution provides the High Court with 'original jurisdiction' to review all matters (including migration decisions) 'in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.' (see Remedies provided by the courts). The fact the High Court has 'original jurisdiction' means a review applicant can apply directly to the Court for review of the migration decision affecting them without having to apply to another court first. However, see Which migration decisions can the courts review? at E. Which migration decisions can the High Court review? for things applicants should consider before embarking upon this type of action. The High Court also possesses 'appellate' jurisdiction in relation to migration decisions. In practice, this means that if an applicant applies to the Federal Court for review of a migration decision and that court finds no legal error in the decision, the applicant may then be able to lodge an appeal with the High Court. This will only occur in extremely limited circumstances as the Federal Court does not have jurisdiction to review most migration decisions. In addition, applicants who wish to appeal to the High Court must be granted 'leave' to appeal. The High Court will only grant an applicant leave to appeal if it is convinced there are special reasons to hear the matter. Ultimately, most migration decisions are reviewed by the Federal Magistrates Court. Section 476(1) of the Act provides the Federal Magistrates Court with the same 'original jurisdiction' to review migration decisions as the High Court subject to certain restrictions (s 476(2)) (see Which migration decisions can the courts review? at D. Which migration decisions can the Federal Magistrates Court review?). The High Court also has the power to 'remit' or transfer matters back to the Federal Magistrates Court for consideration if the Federal Magistrates Court has jurisdiction to decide the matter. Unlike the High Court and Federal Magistrates Court, the Federal Court of Australia only has the power to review migration decisions in extremely limited circumstances (s 476A and see Which migration decisions can the courts review? at F. Which migration decisions can the Federal Court review?).Which migration decisions can the courts review?
Ordinarily, the High Court, Federal Court and Federal Magistrates Court have broad powers to review administrative decisions made by commonwealth decision makers (see, for example, the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Judiciary Act 1903 (Cth)). However, Parliament has sought to restrict the types of migration decisions the Courts can review by introducing amendments to the Act. In particular, the Parliament passed the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (the MLAJR Act) which introduced a 'privative clause' to the Act. Then in the case of S157 of 2002 v Commonwealth (2003) ('S157'), the High Court considered this privative clause and interpreted it in such a way as to render it meaningless. In response, the Parliament introduced more changes to the Act. These amendments have had the effect of restricting the type of migration decisions that are reviewable by the Federal Court and the Federal Magistrates Court. An understanding of what the privative clause really means and how this affects the Courts' ability to review migration decisions is essential for applicants who are deciding whether to apply for judicial review. An explanation of the meaning of the privative clause and its effect can be found immediately below at headings A. The privatitive clause, B. Interpreting the privative clause, and C. The current legislative regime.A. The privative clause
According to s 474(2) of the Act, a "privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made"under this Act." This type of decision is "final and conclusive"and must not be challenged, appealed against, reviewed, quashed or called in question in any court"" (s 474(1)). Sub-section 474(4) provides a very limited list of decisions which are not considered to be privative clause decisions. Sub-section 474(5) states that the Government may make regulations specifying other types of decisions which are not privative clause decisions. The wording of s 474 appears to preclude the Courts from reviewing almost any decision made under the Act, including decisions to refuse and cancel visas or detain and remove non-citizens. It also specifically excludes the Courts from reviewing a decision of the Minister to intervene in an applicant's case.B. Interpreting the privative clause
However, Parliament never intended the privative clause to be read literally or to exclude judicial review entirely. In his second reading speech for the MLAJR Act, Minister Ruddock noted that the privative clause would operate so that Courts could only review migration decisions if the decision maker:- made the decision in bad faith; or
- had not been given authority to make the decision; or
- made a decision that did not relate in anyway to the subject of migration; or
- made a decision they did not have the power to make according to the Constitution.
C. The current legislative regime
As a result of the High Court's decision in S157 (See immediately above at B Interpreting the privative clause), any attempt by the Government to legislate to directly oust the jurisdiction of the High Court would be futile. Parliament's response has been to shape judicial review of migration decisions by other means through the enactment of the Migration Litigation Reform Act 2005 (Cth) (the MLR Act). The MLR Act inserted the following definition into s 5(1) of the Act: ""migration decision" means: (a) a privative clause decision; or (b) a purported privative clause decision; or (c) a non privative clause decision." The newly inserted s 5E then defined a "purported privative clause decision" as "a decision"that would be a privative clause decision if there were not"a failure to exercise jurisdiction"or"an excess of jurisdiction"in the making of the decision." Section 476A(1) now prevents the Federal Court from reviewing the majority of both privative and purported privative clause decisions. Instead, the Federal Magistrates Court has the authority to review those decisions (s 476). In addition, the High Court can now only refer migration decisions to the Federal Magistrates Court for consideration (s 476B(1)) except in very limited circumstances (s 476B(3)). There are also uniform time limits on applying for judicial review in all three courts (see Time limits for review) and provisions for costs orders to be made against lawyers who encourage migration litigation that has "no reasonable prospects of success." (see Representation and cost of judicial review proceedings).D. Which migration decisions can the Federal Magistrates Court review?
Sub-section 476(1) of the Act provides the Federal Magistrates Court ('FMC') with the same "original jurisdiction" to review migration decisions as the High Court (see Which courts can review migration decisions?). Unlike the High Court, however, this jurisdiction is subject to certain restrictions (ss 476(2)(a)-(d)). In particular, the Federal Magistrates Court cannot review decisions that the MRT or RRT have jurisdiction to review unless those decisions are "non privative clause decisions." (ss 476(2)(a) and 476(4)(a)) The vast majority of migration decisions reviewable by the MRT and RRT are in fact "privative clause" decisions (such as decisions to refuse or cancel visas or remove or impose visa conditions). In practice, this means that almost all applicants who have a right of review before the MRT or RRT must apply for review before those tribunals. Only after the MRT or RRT have handed down their decisions can an applicant apply to the FMC for judicial review of the tribunal's decision (not the original decision). If an applicant could have applied to the MRT or RRT for review but failed to do so within the relevant time limits (28 days, see Time limits for lodging applications (MRT) and Time limits on applying for review (RRT)), they are unable to apply to the Federal Magistrates Court for review at all (s 476(4)(b)). In cases where the Federal Magistrates Court does not have jurisdiction to review the decision, applicants will have to apply to the High Court in its "original jurisdiction" for judicial review. However applicants should consider whether they have exceeded the time limits for review by the High Court (see Time limits for review) along with other matters (see Representation and cost of judicial review proceedings and E. Which migration decisions can the High Court review? Immediately below).E. Which migration decisions can the High Court review?
As explained in Which courts can review migration decisions?, the Constitution provides the High Court with "original jurisdiction" to review all types of migration decisions. The High Court also has appellate jurisdiction to review decisions of the Federal Court in relation to migration. However, applicants who wish to apply to the High Court in its original jurisdiction should be aware of the following matters: 1) Subject to certain exceptions the Federal Magistrates Court has the same jurisdiction as the High Court to hear migration matters. A person cannot apply to the FMC for review and, if they are unsuccessful, ask the High Court to review the decision again. Applicants for review before the High Court must reveal whether they have already commenced proceedings for judicial review of the same decision in another court (s 486D(3)). If they have commenced proceedings, they will not be allowed to re-litigate the matter in the High Court. 2) Applying to the High Court is can be both complex and costly. Applicants are often unable to obtain legal aid to support them in applying to the High Court. 3) The High Court has the power to give summary judgment where it is satisfied that the proceeding has no reasonable prospect of success (see s 25A of the Judiciary Act 1903 (Cth)). This means that, at the request of the Commonwealth, the Court can make a decision "on the papers" that the applicant has no prospect of succeeding. The Court will refuse to give the applicant a hearing and dismiss the matter. The applicant and their advisors (if they exist) can then be ordered to pay costs (see Representation and cost of judicial review proceedings). Both the Federal Magistrates Court and Federal Court also have jurisdiction to grant summary judgment. 4) The High Court has the power to decide to transfer or "remit" the matter back to the Federal Magistrates Court or Federal Court if those courts also have jurisdiction to hear the matter (s 476B).F. Which migration decisions can the Federal Court review?
The Federal Court has limited jurisdiction to review migration decisions. At present, the Court can only review the following types of decisions:- Decisions of the AAT (including decisions of the AAT made under s 500 of the Act); (see Review by the Administrative Appeals Tribunal)
- Decisions made personally by the Minister under ss 501,501A, 501B and 501C; (a subset of the provisions allowing visa refusal or cancellation on 'character' grounds); and
- Decisions transferred by the Federal Magistrates Court (s 476A(1)).
Time limits for review
In general, applicants must apply for review within 35 days of the "date of migration decision." (ss 486A, 477 and 477A) The term "date of migration decision" is defined in s 477(3) of the Act and varies according to the type of migration decision being challenged. It is important to note that the time period begins to run from the "date of migration decision" even if the decision is invalid (s 477(5)). All courts have the flexibility to extend the 35 day period if the court thinks it is in the interests of the administration of justice to do so. An applicant must file a written request for an extension showing why it is in the interests of the administration of justice to grant the extension. The current uniform time limits for review are the result of recent changes to the Act brought about by the passage of the Migration Legislation Amendment Act (No 1) 2009 (Cth). Before this, applicants had to apply for review within 28 days of the decision. For example, then s 486A provided: "(1) An application to the High Court for a remedy to be granted in exercise of the court's original jurisdiction in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision. (1A) The High Court may, by order, extend that 28 day period by up to 56 days if: (a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and (b) the High Court is satisfied that it is in the interests of the administration of justice to do so. In the case of Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) at 651, the High Court found that then s 486A of the Act was invalid because it had the effect of curtailing an applicant's ability to seek relief under s 75(v) of the Constitution.Representation and cost of judicial review proceedings
Migration agents are not able to represent their clients before the Courts. Applicants who wish to apply for judicial review should seek legal advice from a qualified legal practitioner before doing so. Legal practitioners can provide advice about whether to lodge an application and the likelihood of success. They can also represent an applicant in court. However, it is possible for someone who is 'unrepresented' to apply for review and appear in court personally. Legal advisors and other parties should understand that the Act provides the Courts with the power to make cost orders against anyone who encourages a person to commence or continue migration litigation if they have no reasonable prospect of success (s 486F(1)). Moreover, litigation does not have to be "hopeless" or "bound to fail" to have "no reasonable prospect of success" (s 486E(2)). Much has been made of the effect Part 8B of the Act will have on advocacy for migration litigants, particularly in the pro-bono sector. See generally, Stanton, M. "Removing Voices from the Voiceless: The Migration Litigation Reform Act 2005" (Mar 2006) 31:1 Alternative Law Journal 29. In addition, applicants should be aware that the cost of legal proceedings can be high. They should consider costs such as court filing fees and the price of legal representation before lodging an application.Other forms of review
Commonwealth Ombudsman
The Commonwealth Ombudsman functions as a government 'watchdog'. He or she aims to ensure that the administrative action of Commonwealth government agencies is both fair and accountable. In 2005, the Parliament amended the Ombudsman Act 1976 (Cth) ('OA') to strengthen the role of the Commonwealth Ombudsman in relation to immigration and to allow the Ombudsman to refer to him/herself as the Immigration Ombudsman when investigating immigration matters. Essentially, the Immigration Ombudsman has the power to investigate decisions made by DIAC in Australia or overseas. 2005 amendments to the Migration Act also oblige the Ombudsman to assess the appropriateness of immigration detention arrangements for people who have been in detention for over two years (s 486O). The Ombudsman's recommendations and assessment in this regard must be tabled before Parliament.A. Complaints and investigations
Individuals, groups and organisations - whether they are overseas or in Australia - can make a complaint to the Ombudsman on behalf of themselves or someone else. In the year 2008-09, the Ombudsman received 45,719 approaches and complaints and investigated 5,233 of these. See www.ombudsman.gov.au/pages/making-a-complaint/complaints-the-ombudsman-can-investigate/ for further information about making a complaint to the Ombudsman. Complainants cannot force the Ombudsman to investigate their matter. The Ombudsman has the discretion to decide whether to investigate a particular complaint. He or she may refuse to take up a matter if (among other things):- the complainant has not raised the matter directly with DIAC in an attempt to have it resolved;
- the person who is the subject of the complaint has rights to merits review (see Merits review) or judicial review (see Judicial review) which they have not exercised;
- the complaint is vexatious or frivolous or is not made in good faith;
- the complainant does not have a sufficient interest in the matter;
- an adequate solution or remedy has already been found. (s 6 of the OA).
B. The result of Ombudsman investigations
Unlike the Tribunals or Courts, the Ombudsman does not have the power to force DIAC to change its decisions. Once the Ombudsman has investigated a complaint, the Ombudsman's power is limited to making recommendations to the Department. Despite appearances, this can be very effective. The Ombudsman can make recommendations that the Department should offer a remedy to a particular client or change its procedures more broadly (see www.ombudsman.gov.au/docs/fact-sheets/FactSheet3_Remedies.pdf for more information). If the Ombudsman is not satisfied with DIAC's response to its recommendations, the Ombudsman can report to Parliament and publish their findings. The force of political and public opinion may have the effect of motivating the Department to provide the appropriate remedy or put into place recommended procedural changes. For more information on the Commonwealth Ombudsman, see Commonwealth and ACT Ombudsman.Australian Human Rights Commission
[Content for this section is currently under construction].Contacts, Links and Resources
Administrative Appeals Tribunal www.aat.gov.au Commonwealth Ombudsman www.ombudsman.gov.au Minister for Immigration The Hon Chris Bowen MP, Minister for Immigration and Citizenship, Parliament House, Canberra ACT 2600 Migration Agents Registration Authority (MARA) www.themara.com.au Migration Institute of Australia http://mia.org.au Migration Review Tribunal and Refugee Review Tribunal http://mrt-rrt.gov.au National Accreditation Authority for Translators and Interpreters (NAATI) Limited www.naati.com.au Australian Human Rights Commission (AHRC) www.hreoc.gov.au United Nations High Commissioner for Refugees (UNHCR) Australian Regional Office www.unhcr.org.au Council for Immigration Services and Status Resolution (CISSR) www.immi.gov.au/managing-australias-borders/detention/regulations/cissr/ Contact Details for Immigration Detention Centres www.immi.gov.au/managing-australias-borders/detention/visiting/contacting.htm State / Territory adoption authorities www.ag.gov.au/www/agd/agd.nsf/Page/IntercountryAdoption_AustralianandStateandTerritoryCentralAuthorities Centrelink www.centrelink.gov.au/internet/internet.nsf/contact_us/index.htm Attorney-General's Dept (Intercountry Adoption Page) www.ag.gov.au/www/agd/agd.nsf/Page/Intercountry_Adoption CRICOS (Commonwealth Register of Institutions and Courses for Overseas Students) http://cricos.deewr.gov.au/ Vetassess (Vocational Education and Training Assessment Services) www.vetassess.com.au/Glossary of immigration terms
competent English (cf concessional competent English) Defined in the Migration Regulations 1994 (Cth) reg 1.15C as a score of at least 6 for speaking, reading, writing and listening on an International English Language Testing System (IELTS) test or Occupation English Test (OET) undertaken less than two years before the relevant visa application is decided. concessional competent English (cf competent English) Defined in the Migration Regulations 1994 (Cth) reg 1.15F as an average score of 6 across the various categories of an International English Language Testing System (IELTS) test or Occupation English Test (OET) undertaken less than two years before the relevant visa application is decided. Eligible New Zealand (ENZ) Citizen A New Zealand citizen who satisfied certain health and good character criteria at the date of their last entry to Australia. The person must have been:- In Australia on 26 February 2001 as the holder of a subclass 444 visa; or
- In Australia as the holder of a subclass 444 visa for not less than a cumulative total of 1 year from the period 26 February 1999 - 26 February 2001; or
- Assisting someone to prepare or advising someone about either a visa application or application for review of a visa cancellation; and
- Preparing for or representing an applicant in Court proceedings in relation to a visa application or an application for review of a visa cancellation.
Immigration acronyms
DIAC Department of Immigration and Citizenship ENZ Eligible New Zealand Citizen. Full definition in glossary. IAAAS Immigration Advice and Application Assistance Scheme (of the Department of Immigration and Citizenship) IDC Immigration Detention Centre ITA Immigration Transit Accommodation IRH Immigration Residential Housing MSIs Migration Series Instructions (policy documents of the Department of Immigration and Citizenship) NOC Notice of Cancellation (of a visa) NOIC Notice of Intention to Consider Cancellation (of a visa) PAM Procedures Advice Manual (policy documents of the Department of Immigration and Citizenship)Sitemap
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