Onshore and Offshore applications for all classes of Australian visas are handled. Some of the main categories of visas are briefly described below.
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Member of the Migration Institute of Australia Australian Migration Agent No: 76316
B.A. (Melbourne) Immigration Law (UNSW) Grad.Dip.Ed. (UnivSAust) Grad.Dip.Lib.(UnivSAust)
Barrister of the Supreme Court of South Australia Spent three years as a member of a Commonwealth Tribunal hearing appeals against Government decisions under the Migration Act and the Refugee Convention.
J.A. Gibbons LL.B (Adelaide) M.Ed (Manchester)
Disclaimer: The information contained here does not constitute legal advice and is merely a general outline. For further information and advice you can contact Sutherland & Associates by mail, by fax, by telephone or electronically. All initial advice is free, so ask away.
You can contact us at:
25 Peel StreetAdelaide South Australia 5000
Australia
Telephone: (08) 8221 6033
Mobile: 0419 280 719
Fax: (08) 8221 6044
Email: emily@emilysutherland.com
People in Ireland and the United Kingdom can also contact our representative there:
Mari Keegan tel: 01283569341 (UK)
0868180985 (Ireland)
email: mari@markama.globalnet.co.uk
Except under very rare circumstances only Australian citizens may enter Australia without a valid visa. This applies to tourists, business people, temporary and permanent immigrants.The Australian Government has a strong immigration policy which is modified and adapted to match changing economic conditions.
There are a number of categories under which a person may be granted a visa, ranging from a simple tourist visa to one granting permanent resident status. Visas may be granted outside Australia or onshore depending on the criteria required at the time of application.
The Australian Migration Act 1992 provides that only Australians registered with the Department of Immigration and Ethnic Affairs for that purpose may give advice and assistance in relation to migration matters. To be registered one must be expert in Migration Law. Lawyers may not give immigration advice and assistance unless they have been registered. Under the Act applicants who obtain assistance from a registered agent may complain to the Migration Agents Registration Board about the conduct of the registered agent. There is a strict Code of Conduct enforced on Migration Agents. However the Regulations have no effect in relation to people outside Australia giving advice and/or assistance.
In 1998 the Migration Agents Registration Authority became responsible for the admission, re-registration and conduct of migration agents.You are urged to contact registered migration agents when seeking immigration advice and assistance.
You should check the Code of Conduct governing the work of registered Migration Agents.
To be granted a visa under any category a person must satisfy certain legal and policy criteria which are set out in the Migration Act and Regulations. If these criteria are satisfied, the visa must be granted. An application can include the family unit of the principal applicant, but only the principal applicant needs to satisfy the main criteria. The family unit can include the principal applicant's husband/wife, dependent children and other dependents such as aged parents. Dependent children are usually under the age of 18, but older children may still be considered to be dependent in some circumstances. People being granted a visa which allows a stay of more than one year in Australia must also pass medical and character requirements.The classes of visas can be described as being Temporary, Permanent or Bridging.
There is the right of appeal against a refusal of a visa if the application was made onshore, or if the applicant was sponsored by an Australian citizen, permanent resident or organization in Australia. Under some conditions there is the right of appeal to the Federal Court against the refusal of a visa applied for off-shore.
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Tourist: subclass 676, 686 and 976 (ETA)
Issued either for a stay of less than 3 months or for more than 3 months. The applicant's purpose may be to be a tourist, or to visit family, an Australian citizen or family members who are permanent residents in Australia. A person on a tourist visa cannot work in Australia, has limited study rights and must have adequate means to cover living and travelling expenses.
It is possible, in some countries, to apply for an Electronic Travel Authority, which allows for visits to Australia under the same conditions..Sponsored Family Visitor: subclass 679 (short stay)
Visitors from countries which are regarded as 'high risk' countries have difficulty in obtaining visitor visas as it is suspected that they will not return home when the visa expires. It is possible to be sponsored by a close relative who signs a declaration that the sponsor will accept responsibility if the visitor does not abide by the conditions of the visa including any costs to the Commonwealth. The sponsor may be asked to place a monetary bond, up to $10,000 or a lesser amount, as further security.
The visa my be only for 3 months and it is not permitted to apply for any other visa in Australia except the protection visa.Business Visitor: subclass 456 (Short Stay) 956 (ETA)
This visa is appropriate for people who are considering applying for a permanent or long term business class visa and wish to assess the potential. It enables them to travel to and enter Australia on multiple occasions for 5 years or for the life of the applicant's passport, whichever is greater, and to remain in Australia for 3 months from the date of entry. This can only be applied for and granted off-shore.Sponsored Business Visitor: subclass 459 (short stay)
A business visitor may be sponsored by an Australian citizen or a settled Australian permanent resident who is a member of Parliament or holds the office of lord mayor or is a member of a State or Territory government agency. The sponsor undertakes a guarantee that the visitor will abide by all the conditions of the visa.
Business Skills (Long Stay): subclass 457
This is a temporary visa allowing the holder to remain in Australia for a specified period of more than 3 months but not more than 4 years with multiple travel and re-entry to Australia. The applicant must be sponsored by an approved business sponsor. There are a number of categories in this visa encompassing applicants sponsored by an employer in Australia, special service sellers, executives sponsored by overseas companies who wish to set up operations in Australia and Independent Executives who wish to set up a business in Australia. The 457 visa may be applied for either on-shore or off-shore except for the Independent Executive.
The Independent Executive does not require sponsorship. Due to a recent change in regulations the Independent Executive applicants must now apply off-shore and be off-shore when they apply and they must show that their business background and attributes are relevant to the business which they propose to establish in Australia.
Applicants sponsored by employers must have listed occupations and be offered a minimum salary of $34,075. There is no longer a requirement for labour market testing.Retirement Visa: subclass 410
The applicant must be aged 55 or over. The application may include a spouse but no other dependents. The applicant and spouse ( if applicable) must have AUD650,000 of resources capable of being transferred in to Australia, or AUD250,000 cash and funds or pension rights which will return at least AUD45,000 per year. Applicants who have children living lawfully and permanently in Australia need $600,000 in assets or $180,000 and pension rights of $42,000. The applicant must also satisfy health and character requirements. This visa may be extended in Australia as long as the criteria continue to be met and can become a permanent resident visa after ten years.Educational: subclass 418
For a person appointed to a full time position with an educational institution. Labour marketing testing applies.
Special Programme: subclass 416
For the holder of a Churchill Fellowship or someone taking part in a Youth Exchange programme or who has been nominated by a community based, non-commercial organisation. There is also the schools Language Program which allows people to work within the schools, under the supervision of the registered teachers, as a language assistant.
Working Holiday: subclass 417
For one year during which one must not work for more than three months with any one employer. It is restricted to people between the ages of 18 and 30 who may be married but have no dependents. Applicants must be from designated countries. From July 1 2001 citizens of United Kingdom, the Netherlands, Canada, the republic of Ireland, Sweden and Denmark are eligible to apply for a working holiday visa in any country except Australia. Citizens of Japan, Malta, the Republic of Korea and Germany must apply in the country of their citizenship.
Student Visa: subclasses 570,571,572,573,574,575,576
People may come to Australia in order to study in accredited courses. Some people obtain a student visa in this way in order to get to Australia and investigate the business opportunities and a more permanent visa. Student visas may be applied for onshore or offshore but there is an assessment level regime. Different assessment levels within each student visa subclass determine eligibility for a student visa by establishing the threshold requirements that an applicant must need. The assessment levels are prescribed according to the country of nationality and the education sector of the study and subclass. Studednt visas cover secondary school study, tertiary and post-graduate study, trade courses and Enlish language courses.The student visa permits students to work 20 hours each week while they study. This right to work must be applied for once the student is in Australia and has established that he/she is a bona fide student. A married student can bring his/her spouse and children and the spouse may work but is restricted by the conditions of the visa. Post graduate students may apply for permission to work and this work right is not restricted to the 20 hours.
It is possible to establish a business in Australia holding a student visa.
An applicant for a student visa should enroll in a course before applying for the student visa at the Australian Embassy or Consulate office overseas. The payments made on enrollment are refundable if the student visa is not issued. Only colleges/institutes/universities accredited by the government are allowed to accept overseas students. The institution issued a special acceptance form to the student which is lodged with the student visa application overseas. In normal circumstances the visa should be obtained.
It is now possible for students from some countries to apply for a student visa in Australia.
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There are seven sub classes for business owners, senior executives and those wishing to invest. There is a points test based on:Business SkillsBusiness attributes
Assets
Age
Language
Business visas may either be applied for off-shore or on-shore depending on the circumstances. It is required that the applicants have ample assets, a proven business background and a realistic plan to establish a business in Australia.
The subclass 845 applies to owners or part-owners of established businesses in Australia which have been established for at least 18 months.
There is State/Territory Regional Sponsorship scheme for established businesses in Australia (subclass 846) in which the points test is less stringent than in subclass 845.
These conditions include having an ownership interest in the business, employing Australian citizens or permanent residents and assets in Australia for a minimum period.
Spouse: subclass 100
A person who is either the de jure spouse or a de facto spouse of an Australian citizen, a permanent resident or a New Zealand citizen living in Australia, may apply for migration to Australia based on the relationship. Immigration must be satisfied that the relationship is genuine. Applicants will be granted a two year temporary visa which becomes a permanent visa if they still meet the criteria. Permanent residence is granted to spouses under certain circumstances.
Prospective Marriage: subclass 300
Where an Australian citizen sponsors a person to come to Australia to marry him or her. The applicant overseas is initially granted a 9 month visa. Both parties must be free to marry at the time of the application. After arrival in Australia the couple must marry within 9 months and then the spouse of the Australian citizen may apply for temporary residency which becomes permanent after 2 years if the person is still married to the sponsor. A prospective spouse applicant must be offshore at the time of lodging the application and lodge the application off shore.Independent Category: subclass 136, 137 and 134
As the name implies the applicant enters Australia as a permanent resident without being nominated or sponsored or bound to any particular employer. The applicant must pass a Points Test which gives points for age, English language capabilities, and employment skills. Those who have obtained an academic qualification in Australia may claim an extra 5 points. There is a limit to the number of visas granted in this class each year. Health and character criteria apply.Since July 1 2000 all applicants for these visas must have their qualifications assessed by the relevant Australian authorities before lodging an application.
The visa is limited to people under 45 years of age. Applicants must have an occupation which appears on the occupations List and have English language skills at least to the level of Vocational English. This is measured on the I.E.L.T.S. test unless the applicant can demonstrate that testing is not necessary.
Further points are given if the spouse of the applicant meets the basic requirements, if the applicant speaks a language other than English which is the language of one of Australia's trading partners, and if the applicant has a firm job offer in one of the Occupations in Demand.
For applicants who reach the Pool rather than the Pass mark and who have completed a Skill Matching Form there is the opportunity to be nominated by an employer or by a Regional Office from the designated low population areas. The applicants must have accepted skills in an occupation in which there is a shortage of local skilled workers. Applicants may actively seek employment once they are in the Pool but the sponsor must still meet the requirement of providing a demonstrated lack in the local employment environment. The only State with arrangements in place at present for the 137 is South Australia.
There is a new subclass (134) which allows applicants to apply on the basis that they will be in the Pool and available for Skill Matching. There is a lower application fee for this subclass, with the balance of the complete fee being paid if the applicant is offered employer sponsorship
Skilled - Australia linked: subclass 138 and 139
An Australian citizen or permanent visa holder can sponsor parents, brothers, sisters, nieces, nephews and independent children. Applicants applying as skilled people who are sponsored by a relative in Australia will be given 15 points for sponsorship. The sponsor must be prepared to lodge an Assurance of Support and the Assurer must have a minimum taxable income. The sponsor need not be the sponsor but must be an Australian citizen or permanent resident.Applicants who have sponsors from the designated low population areas and who have a recognised qualification (apart from a medical qualification), are under 45 and have good English skills do not have to meet the points test. These applicants may also be sponsored by first cousins and grandparents.
Either the principal applicant or his/her spouse may be considered for the skills/age/language points or qualification.
Skilled - onshore independent New Zealand citizen: subclasses 861 and 862
If a New Zealand citizen is in Australia and is the holder of a special category subclass 444 visa he or she may apply for permanent residency provided that he/she is under 45 years of age and has an occupation on the skilled occupation list and meets the points test.
Under subclass 862 a new Zealand citizen who meets the above criteria may be sponsor by a child, a brother or sister or nephew or niece who is an Australia citizen, permanent resident or eligible new Zealand citizen.
Parent Visa: subclasses 103, 113
Working aged parents are not eligible to apply for a permanent residence parent visa in Australia. Subclass 113 visa applies to working age parents who have a dependent child in Australia. They can only apply offshore Parents over the age of 65 are classed as aged parents and can apply either in Australia or off shore under subclass 103. There are strict quotas on the number of visas issued to aged parents in each year.The Balance of Family test for parents applies. The balance of family test means that the applicants must have at least an equal number of children living lawfully and permanently in Australia as in countries overseas or more children living lawfully and permanently in Australia than in any one country overseas.
Preferential Category: subclass 104
This class has now been repealed. The categories are included in other visa classes.Aged Dependent Relative: subclass 114
If a person is an aged dependent relative of an Australian citizen, Australian permanent resident or settled New Zealand citizen he or she may apply for a visa off-shore under this class. An aged dependent relative is defined as one who has never been married or who is now separated, divorced or widowed and who is 65 years of age for men and 62 or more for women. The defining age for women is being increased by increments to reach 65 and be equal to that required for men. The person must have been dependent on the sponsor for a reasonable period, usually two years at least.
There is an on-shore application in this category: subclass 838
Remaining Relative: subclass 115
A remaining relative living overseas may be sponsored for permanent residence. The sponsor may be the parent, step-parent, brother, step-brother, sister, or step- sister of the applicant, and an Australian citizen, permanent resident or settled New Zealand citizen. A remaining relative is one who has no other near relatives living in the same country and, if he/she has near relatives living in any other country other than Australia has had no contact with these relatives for at least two years or longer.
If the applicant is married then the spouse's relatives are countedr as near relatives. This includes step-children from previous marriages unless they are dependent children.
The on-shore application in this category is: subclass 835
Interdependency: subclass 814
This category can be utilised by people in gay relationships. Immigration must be satisfied that the relationship is genuine. Other than gay people there might be relationships between mature people of the same or different sexes who depend on each other for emotional and financial support.Employer Nomination: subclass 121
An Australian business may sponsor a person to come to live in Australia permanently and work in that business. The application is based on an offer of employment where:1.The position offered is highly skilled 2. the employer cannot find a suitable Australian for the position 3. the employer has a satisfactory training record 4.) the nominee's background matches the position, is under 45 and has good English skills, and 5) the employer offers a three year contract for permanent employment.
All ENS applicants must satisfy Australian licensing, registration or professional membership requirements where such eligibility is mandatory for employment in the occupation.
Regional sponsorship (119 and 857) may apply in specially designated areas - generally this means areas away from Brisbane, Sydney and Melbourne. Ask us for the details as the criteria to be met are less strict than for ENS..
Graduate Skilled Temporary and Permanent Visas
From July 1 2001 graduates from Australian educational institutions who have completed one full year study in the English language, resulting in a completed degree, diploma or trade certificate and who will meet the points test may apply for permanent residence in Australia. To enable them to complete the requirements before lodging the application they may apply for a Skilled temporary visa (497) which will allow a short period of further stay for student visa holders or former visa student holders who have completed their course of study in Australia and wish to apply to remain in Australia in order to complete the skills assessment prior to lodging an application in Australia for the Skilled Independent Overseas Student (Residence) or Skilled Australian Sponsored Overseas Student. In each case the applicant must reach the required points total for skilled migration.
People who stay in Australia after their visa has expired are in Australia illegally. If they are discovered by the authorities they will be placed in detention unless they are immediately granted a Bridging visa. They may also be subject to a ban which prevents them applying to return to Australia for a certain period.There have been changes in the regulations governing overstayers and if you find yourself in this position it is advisable to consult a registered migration agent to find the best way to regularize your situation. Those married to an Australian citizen or permanent resident may be able to regularize their situation without leaving the country.
Persons in Australia who consider that they have a well founded fear of persecution in the country of their nationality or former habitual residence for the reasons set out in the Refugee Convention may apply for a protection visa. Their case is then heard by the Immigration Department. The Department may or may not recognise that they are refugees. If a person is recognised as a refugee then Australia gives them refuge. If they are not recognized as refugees then they are required to leave the country. Persons refused may ask for a review of the decision by the Refugee Review Tribunal. The leading Australian authority on the interpretation and application of the Refugee Convention is the High Court case of Chan. All Australian courts and decision makers are bound by the decision and the reasoning of Chan.