Australian immigration law is one of the most complex areas of law. Every day, foreign citizens apply for visas to visit, work, study, join family and to stay temporarily, or build a permanent life here. Behind every visa application sits a framework of legislation and policy that can change without prior warning, and getting a detail wrong can mean delay, refusal or worse.
Whether you are planning your first visa application or potentially facing a difficult decision from the Department of Home Affairs, understanding how the system works can be the first step towards a good outcome. This article provides a general overview of Australian immigration law and the situations in which sound immigration advice can make a real difference.
How the Australian visa system works
People who are not Australian citizens will need a valid visa to enter and stay in Australia. Visas are granted under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth), and they are processed and administered by the Department of Home Affairs.
Every visa has its own criteria and conditions. Broadly, applicants must satisfy requirements that relate to their circumstances (such as their skills, qualifications and work experience, their relationship, being enrolled in a course of study or having completed their studies), as well as general requirements including health and character. Some temporary visas may also have a genuine temporary entrant requirement.
Meeting the headline requirement for a visa is often only part of the picture. As the onus is on the applicant to prove that they meet the visa requirements, the supporting evidence and the way in which an application is prepared can have a significant impact on whether it is approved or not.
As visa settings and processing arrangements are updated regularly, it is important to work from current information rather than assumptions based on how the system may have operated previously.
The main categories of visa
Whilst there are many individual visa subclasses, most fall into a few broad streams.
Skilled migration is aimed at people whose occupations, qualifications and work experience meet Australia’s economic needs. These visas may involve a points test, skills assessment, English exam, and it can involve nomination by a state or territory government.
Family and partner visas allow Australian citizens, Australian permanent residents and eligible New Zealand citizens to sponsor a spouse, de facto partner, fiancé, parent, child, or other eligible relative. Partner visa applications in particular require substantial evidence of a genuine and continuing relationship. The Department will consider all circumstances of the relationship including the financial aspect, nature of the household, the social aspect, and the nature of the couple’s commitment to each other.
Employer-sponsored visas enable businesses to sponsor skilled workers on a temporary or permanent basis. Employer-sponsored visas will often impose obligations on both the employer and the visa holder.
Student visas allow international students to study in Australia and to work limited hours in most cases. Applicants will need to meet criteria including the genuine student requirement and financial capacity requirements.
Temporary graduate visas allow international students who meet all visa criteria including the 485 visa study requirement, age and English requirements to live, study and work for a temporary period after completing their studies.
Visitor and other temporary visas cover tourism, family visits, short business trips, and other temporary stays.
Nomination and visa refusals
Nomination and visa applications may be refused for a range of reasons. Common reasons for refusal of a nomination application include a failure to meet requirements such as labour market testing, market salary rate, financial capacity or caveats, the nominated role not aligning with the nominated ANZSCO occupation, the Department not being satisfied that the nominated role is a genuine position, or they are not happy with the employment contract provided.
Visa applications can be refused for not meeting a visa criterion such as English, work experience requirements, overclaiming of points (for a points-tested visa), substantial compliance with visa conditions, health or character requirements etc.
Visas that were granted can be cancelled for a range of reasons including incorrect information having been provided, a breach of visa conditions, circumstances that were relevant to grant of a visa no longer existing e.g. a secondary 482 visa holder who was granted their visa on the basis of being in a de facto relationship with the 482 primary applicant, and their relationship later ends, and on character grounds.
Australian citizenship
For many, permanent residence is a step towards Australian citizenship. Applicants for citizenship by conferral generally need to meet residence requirements, demonstrate good character, and in most cases, pass a citizenship test.
Australian citizenship provides significant benefits including the ability to apply for an Australian passport, travel overseas and re-enter the country without having to apply for a resident return visa, the right to vote, apply for certain jobs that require applicants to be Australian citizens, apply for children born overseas to become Australian citizens by descent, and to seek consular assistance from Australian officials whilst overseas. As with visa applications, citizenship applications benefit from careful preparation.
Why immigration advice matters
Immigration decisions carry consequences for individuals, families and businesses. A visa refusal can separate loved ones, disrupt careers, impact on the ability to apply for a further visa in Australia, and potentially have an impact on future visa applications. The system rewards applications that are accurate and well-evidenced, and it can be unforgiving of avoidable mistakes.
Immigration lawyers can:
- Assess your prospects for a visa, and if you are likely to meet visa requirements, to identify the most suitable visa pathway based on your circumstances;
- For applicants interested in a points-tested visa, advise on what actions you should consider to improve your prospects of being invited;
- Identify any risk factors that should be addressed for a sponsorship, nomination and visa application;
- Help you understand the relevant eligibility criteria;
- Prepare and present persuasive supporting evidence;
- Respond to requests for further information from the Department;
- For employers, advise you on sponsorship obligations and visa compliance, and on how to minimise risk from a visa perspective.
Good advice at the outset is almost always less costly and less time consuming than trying to repair a problem later.
How Owen Hodge Lawyers can help
Owen Hodge Lawyers assists individuals, families and businesses with visa and citizenship applications. Our approach is practical and personal- we take the time to understand your current situation, assess your potential visa options, put together a visa strategy for you, and guide you through each step of the process.
To seek immigration advice based on your individual circumstances, contact Owen Hodge Lawyers to arrange a consultation.
This article provides general information only and does not constitute legal advice. Australian immigration law, policy and processing arrangements change frequently, and the requirements that apply to your situation may differ. Individuals should not act on the basis of the information contained in this article without first seeking formal immigration law advice based on their individual circumstances.