Entry to migrants

Contributed by Michael Clothier and Mary-Anne Kenny and current to 1 September 2005

Australia’s immigration policy is stated to be selective but non-discriminatory in terms of race, nationality, creed or sex and to be guided by principles of humanity, equity and compassion.

The guiding principles upon which immigration policy is based are published in the Department’s Procedures Advice Manual.

CRITERIA FOR ENTRY

Generally, applicants seeking entry for the purpose of residence must satisfy the following criteria.

(1) They must attend an interview with an Australian migration officer overseas and receive a satisfactory evaluation of various economic and personal factors relevant to satisfactory settlement in Australia.
(2) They must be of good character (this involves a police and security check).
(3) They must be of good health and undergo a medical examination by a medical practitioner approved by the Australian government.
(4) They must have the intention to reside permanently in Australia.
(5) They must satisfy the specific criteria under the Regulations for their class of permanent visa.

MIGRATION CATEGORIES

The Migration Regulations provide more than 30 classes of permanent entry visa, which can be conveniently divided into three major groups, the first two of which only are dealt with in the following sections:

• family migration visas;
• economic migration visas; and
• humanitarian/refugee visas: see REFUGEES .

FAMILY MIGRATION

Only certain family members resident overseas can be sponsored to enter by relatives who have permanent residence or citizenship in Australia.

Relatives are divided into nine visa categories and different tests apply to each category. A tenth category (called a “prospective marriage” visa, see Subclass 300 in Sch. 2) allows for temporary entry of fiancés/ées, who must marry within nine months of arrival in Australia.

The main permanent visa categories of family migration are given in Schedule 2 as:

• spouse visa (includes de facto spouses): see Subclasses 309 & 100 (note that such spouses must now wait two years after arrival before getting permanent residence, unless they have a “long-term marriage” – see “Subclass 801: Partner (Residence) visa”, above);
• child visa: see Subclass 101;
• orphan relative visa: see Subclass 117;
• skilled – regional sponsored visa: see Subclass 139 (included here because the sponsor is not the (“Gazetted”) Region but a relative – including a grandparent or first cousin – who has lived in the Region for 12 months before the visa application);
• other family visa – includes aged dependent relatives, remaining relatives and carers: see Subclasses 835, 836, 837 and 838;
• adoption visa: see Subclass 102;
• parent visa: see Subclass 103;
• skilled – Australian sponsored visa: see Subclass 138.

Note that the broad definition of an inter-dependent relationship in the Regulations may include applicants for both permanent and temporary visas in a same sex relationship; the requisite criteria being a “joint commitment to a shared life to the exclusion of others” (see reg. 1.09A).

What is required of sponsors?

You must be either an Australian citizen or a permanent resident and must be aged 18 years or over. However, if you are under 18 years and sponsoring a spouse, parent or fiancé/ée, your parent or close relative, guardian and in some cases even a community organization may sponsor. In many cases (but never spouse cases) you must also have been resident here for a reasonable period. You must ensure that your relative will have accommodation and sufficient money to look after him or herself for at least 12 months after arrival, and provide general information and advice to help your relative settle.

If you are sponsoring parents or any relatives in the other family visa category (or relatives outside these categories who are unable to support themselves), you will be required to sign an assurance of support and you will be responsible for their financial support for the first two years after entry.

Assurance of support

All visa applications that require an assurance of support (AoS) are now subject to the following rules:

• The validity of the AoS is two years, rather than five years as previously.
• Liability will cover any payments of Special Benefit, Job Search or Newstart Allowances made by Centrelink to the migrating relatives (parents, preferential and concessional classes) during those two years.
• The AoS consists of a refundable bond of $3,500 per principal applicant and $1,500 per other adult. The bond will be returned (with interest) two years after the migrant’s entry into Australia, provided that the DSS makes no claim on the money.
• The AoS also requires the payment of a non-refundable health levy of $1,050 per visa applicant, for both adults and children. The sponsor does not necessarily have to be the person who supplies the AoS, nor even a relative. The assurer must just be someone with sufficient assets or income to be acceptable to the Department. However, it will be fairly rare for a friend of the family to be willing to sign such a document and pay up-front the large sum of money involved. Accordingly, assurers need to consider their obligations carefully, as even the refundable bond may not be the limit of liability if a greater amount is paid by Centrelink to the migrating relative during the first two years. From 1 July 2004, all AoS applications not finalised by the Immigration Minister before 1 July 2004, and all new AoS applications, must be assessed and approved by the Secretary of the Department of Family and Community Services.

Migrant English fees

Migrants who apply to migrate and have been issued with a visa after 1 March 1993, and who do not have functional English, will pay a sliding charge based on their migration visa class. This can range from zero fees for spouse visas to $2,485 for skilled-Australian linked (family) and $4,980 for skilled entry classes.

Who are “Other Family” relatives?

To receive a visa in the other family visa class, you must be one of the following:

(1) an aged dependent relative (Subclass 114), that is, you have never married or are widowed, divorced or formally separated, you have been dependent on the sponsor for a reasonable period and are old enough to be granted an age pension under the Social Security Act (see reg. 1.03);
(2) a remaining relative (Subclass 115), that is, you must be the last remaining brother, sister, parent, or the step-relative within one of these degrees of relationship, not living in Australia; or you do have these kinds of relatives but they are living in a third country (not Australia or your own country of residence), there are no more than three of them and you have had no contact with them for a reasonable period before applying to come to Australia (see reg. 1.15); or
(3) a carer (Subclass 116), that is, a person willing and able to give substantial continuing assistance to an Australian relative who has a medical condition which impairs their ability to attend to the practical aspects of daily life. The Australian relative’s impairment must be rated in an examination by a Commonwealth Medical Officer to be at least 30 per cent as shown under the Social Security Impairment Ratings Tables. The need for assistance must be likely to continue for at least two years. Also, it must be proved that no other relative, community or welfare organization in Australia is reasonably able to provide the Australian relative with the necessary assistance (see reg. 1.15AA).

Who are Child Migrants?

To receive a visa in the Child (Migrant) class you must:

(1) be a natural or step-child (under 18 years, or between 18 and 25 years if still “dependent”) of an Australian citizen or permanent resident (certain adopted children also qualify) – Subclass 101; or
(2) have been adopted overseas by an Australian citizen or permanent resident who has been residing overseas for more than 12 months (at the time of the visa application) – Subclass 102; or
(3) be an orphan relative, that is, an unmarried orphan under 18 years and a relative of an Australian citizen or resident. An applicant can still be an “orphan” even if both parents are alive but their whereabouts are “unknown” or they are “permanently incapacitated” (by physical, legal or other factual reasons) and thereby unable to care for the child (see reg. 1.14).

Who are “Skilled – Australian Sponsored” Relatives?

To receive a skilled – Australian sponsored visa (Subclass 138), you must be one of the following:

(1) a non-dependent child of an Australian citizen or resident;
(2) a brother or sister of an Australian citizen or resident;
(3) a niece or nephew of an Australian citizen or resident; or
(4) a working-age parent under 45 years of an Australian citizen or resident.

Also, you must pass the “points test” (see below).

The balance of family test

If you are sponsoring your parents, they can only be considered in the parent visa category if they meet the balance of family test.

To pass this test, your parents must have:

• at least an equal number of their children lawfully and permanently resident in Australia as overseas; or
• more of their children lawfully and permanently resident in Australia than in any other single country.

The test is applied on the following basis:

• all children of both parents are counted, including any children of a de facto spouse;
• all children of both parents are counted, regardless of whether the children are dependent or self-supporting, married, single or divorced;
• all children of either of your parents from a previous marriage or relationship are counted, as well as any children adopted by either parent and any children in institutions (except for children born or adopted after the relationship or marriage ceased); and
• children whose whereabouts are unknown or cannot be verified are counted as being in your parents’ country of usual residence, unless their death can be presumed by their absence.

Children who are not counted in the test are:

(1) children removed by court order, by adoption or by operation of law (other than marriage) from the exclusive custody of the parent;
(2) children resident in a country where they suffer persecution or abuse of human rights in a situation such that it is not possible to reunite the children and the parent in another country; and
(3) children resident in a refugee camp.

Other than in the exceptions noted above, the social and cultural values of your family, or the economic circumstances of the children, are not taken into account in applying the test (see reg.1.05).

The Points Test

From 31 December 1989 a points test has existed for Skilled – Australian sponsored and Independent migrants. The latest version of the points test is available from the website of the Immigration Department: www.immi.gov.au.

In 2001 the Minister also created the Skilled – New Zealand Citizen (Residence) visas, two of which are subject to the points test, and Overseas Student (Residence) visas, two of which are also subject to the points test. Business migrants are subject to a different points test, which is not discussed in this chapter. Both Independent and Business migrants come within “Economic migration” (see below).

WHAT IS THE PASS MARK FOR THE TEST?

There is no fixed score for passing the test, but there are “floating” pass marks against which applicants are periodically tested. There are, in fact, two floating marks you need to know about.

(1) Pass mark: if your score meets or exceeds the pass mark, your application will be approved immediately, subject to meeting health and character requirements, and you don’t have to wait in the “Pool”.
(2) Pool entrance mark: if your score meets or exceeds the pool entrance mark but is less than the pass mark, your application will be put into a pool of applications to be considered later if there are any places vacant.

If, during two years following your placement in the Pool, the Minister gazettes a new pass mark, your score will be assessed against this mark and you will either remain in the Pool or achieve the pass mark. After two years, however, you will be deemed to fail the points test, as you cannot remain in the Pool for longer than this period.

Current pass marks and pool marks can be found on the website of the Immigration Department: www.immi.gov.au.

This extremely complex system is supposedly designed to choose the applicants best qualified for migration to Australia, in terms of recognized skills, and to allow more exact outcomes in numbers of migrants by means of a pool from which to choose should numbers be too low towards the end of a particular year.

HOW ARE POINTS ALLOCATED FOR SKILLS?

Points for skill level are based on:

• your nominated occupation; and
• the acceptability of your qualifications, based on what is considered necessary to follow that occupation in Australia; and
• your work experience in that occupation (certain minimum work experience is required, ranging from 12 months to two years).

Note that all occupations are now gazette and designated as occupations requiring vocational English (see reg. 1.15B).

Your nominated occupation is any occupation in which you have been employed for remuneration prior to your application to migrate. If you have never worked or if you have been unemployed for longer than six months in the past 18 months or 12 months in the past three years, you will not get any points in the skill sub-factor.

All occupations are gazetted by the Minister (the current Gazette is SGN 170 of 20 May 2004). There are currently over 300 occupations listed, and if you don’t nominate one of these occupations and have your skills assessed by a gazetted Australian assessment body you will not even be allowed to lodge your migration application (that is, it won’t be a valid application).

An occupations-in-demand list is also available (called the “MODL”: Migration Occupations in Demand List”).

HOW TO WORK OUT A POINTS TEST SCORE FOR A “SKILLED” RELATIVE OR AN INDEPENDENT “SKILLED” APPLICANT

The Points Test is found in Schedule 6A to the Migration Regulations. To work out the points test for a proposed applicant, it is best to purchase the Department of Immigration’s booklet entitled General Skilled Migration. It costs $10 and has all the gazetted occupations and assessing bodies.

ECONOMIC MIGRATION

Independent Migrants

To enter immediately (see Subclasses 136, 861 Independent New Zealander) and 880 (Overseas student) in Sch. 2), an independent migrant must gain 110 points in the points test as it applies to the independent category. Independent category applicants cannot take advantage of the bonus 15 Sponsorship points for having a designated relative living in Australia and signing a sponsorship.

Business Migrants

Applicants need to prove that they have attained a certain level of business experience and success according to specific criteria, which include a special points test. This points test grades applicants according to the size of the turnover of their business, their age, English language ability, and possession of capital available for transfer to Australia (see Subclass 132 in Sch. 2 of the Regulations).

There are also “Investor” visas for applicants who have developed management skills in relation to their own investments and invest $1.5 million in a designated investment and have personal and business assets of at least $2.25 million (Subclass 162 in Sch. 2) and onshore “Business owner” temporary and permanent visas (Subclasses 163 and 890).

Employer Nomination and Labour Agreement Migrants

To enter Australia under these visa classes requires a worker to be highly skilled and to have been formally nominated by an employer able to prove that a suitable Australian citizen or resident cannot be found to fill the vacancy. A labour agreement visa requires a written agreement between the government, the employer and the relevant trade union that a certain number of people can be allowed entry to Australia in a particular trade or profession (see Subclasses 120 & 121 in Sch. 2).

Regional Linked – Skilled Migration

If your sponsor lives in a “designated area” of Australia, significantly lower standards are required in terms of skill levels etc. (see Subclasses 134, 137 and 139, 836 Onshore regional sponsored New Zealander and 882 Onshore designated area – sponsored student).

HEALTH AND CHARACTER TESTS

All people who migrate to Australia must, before their entry is approved, pass a full medical examination and a police and security check.

MIGRATION REVIEW RIGHTS

For the review rights available where a sponsored or nominated person is refused migrant entry, see 'REVIEW RIGHTS' below.