A visa is required for a temporary or permanent stay in Australia by any non-citizen. Residents who leave the country need permission to return and must get a re-entry visa before they leave Australia. Carriers (boats, aircraft) commit an offence if they allow someone to travel to Australia without a visa. Visas can be issued with conditions attached. There are more than 110 different classes of visa.
Non-citizens entering Australia are required to have visas, which are permits that can allow either temporary or permanent stay. Visas are issued by the DIBP (s 29 Migration Act). Since the abolition of the “entry permit” system in 1994 this is the only document required for travelling to and entering Australia.
The Migration Act (s 29(1)) defines a visa as meaning permission for a non-citizen to travel to, enter, or remain in Australia.
Possession of a visa indicates to carriers, such as airlines, and to Australian immigration officials that an examination has been carried out overseas, and that the person has satisfied the requirements for the type of entry specified in the visa. Generally, the possession of a visa at the border (called “immigration clearance”) gives the holder a right to enter the country for the period stated in the visa.
This does not mean that all persons granted visas will be cleared by DIBP: the department has the power to cancel the visa either before or after entry to Australia (ss 109, 116, 128, 134, 140, 501). The holders of valid visas, however, are entitled to be granted entry unless a serious problem (e.g. involving health, character, or fraud in obtaining the visa) becomes evident.
Usually, an airline would not allow a passenger to travel to Australia without a visa, and a person so travelling would probably not be granted a visa on arrival (although a “border visa” is available in some circumstances to genuine visitors etc., who may simply have forgotten to obtain a visa before flying to Australia).
A non-citizen who enters Australia without a visa and who is not immigration-cleared, or who overstays a visa, becomes “unlawful” (s 14(1)) and is therefore liable to detention and removal (see “Removal and deportation”).
A temporary visa may be granted subject to a condition imposing restrictions on the work that may be performed by the holder in Australia, including restrictions on performing any work, or work other than that specified (s 41(2)).
A person overseas (who is not already an Australian citizen or an Australian permanent resident) who needs a visa and wishes to live in Australia must have a permanent entry visa, which will be issued by an authorised overseas post when it has been established that the person concerned can meet Australian immigration requirements, as set out in the Migration Regulations.
A person who is granted a permanent visa and has then been through immigration clearance becomes a permanent resident of Australia. Such a person will have most of the rights of an Australian citizen, except for the right to vote (there are some exceptions for certain British subjects) and to hold public office. Social security payments are generally not available within the first two years of entry (except special benefits).
An authorised officer may grant a visa to a person for a single journey, a specific number of journeys, or for any number of journeys to or from Australia while the visa remains in force.
A person who enters Australia as the spouse of a person with a visa, and whose name is included in the passport or other document of identity, is deemed to be included in the visa if that visa is so endorsed (s 83(1)).
A child who enters Australia with a parent, and whose name is included in the passport or other document of identity of the parent, is deemed to be included in any visa granted to that parent (s 83(2)). A child born in Australia to such parents is taken to have been granted at birth a visa of the same kind as its parents (s 78).
If a person resident in Australia leaves the country even temporarily, the original visa ceases to be in effect, (unless the visa specifically authorises re-entry or “multiple travel”. There are approximately a million permanent residents in Australia who are subject to this rule, i.e. if they leave the country they have no automatic right to return. Australian residents going abroad must therefore ensure that they possess a resident return visa prior to departure. When permanent residence is granted, it currently includes a five-year multiple return visa, but older residents must specifically obtain one at DIBP or, after leaving Australia, at any overseas Australian consulate or embassy (s 79).
A resident return visa may be granted to an Australian permanent resident who is residing or has resided in Australia and wishes to return. A resident return visa will not be granted to the holder of a temporary visa. However, holders of temporary visas often have permission to travel to and from Australia on any number of occasions. This was previously endorsed on the visa label in their passports, but as the DIBP has now moved to “electronic” visas, labels are rarely put in passports. If you want a visa label in your passport, DIBP charges $80 to do this. To determine your visa status, without paying $80, you need to enter a Visa Entitlement Verification Online request (see www.border.gov.au/vevo).
Where a non-Australian citizen who does not have a visa is transported to Australia, the master, owner, agent, charterer and operator of the vessel (which includes an aircraft) is guilty of an offence and liable to a fine of up to $10,000 (s 229).
An offence is not committed if the master, owner, etc. of the vessel satisfies the court that the person possessed a current visa when boarding the vessel, or that the vessel entered Australia because of the illness of a person on board, stress of weather or other circumstances beyond the master‘s control (s 229(5)).
There are more than 40 different classes of permanent visa under the Migration Regulations. There are also more than 70 different classes of temporary visa. The main classes of visa are set out below, together with the general criteria needed to meet them.
Visitors’ visas are available at overseas Australian posts and on the internet to applicants seeking to visit Australia for a short period for such purposes as tourism (sightseeing), business (negotiations, discussions, inspections, etc.), seeing relatives or friends, or pre-arranged medical treatment.
Visitors’ visas are refused where applicants clearly do not intend bona fide (i.e. in good faith) visits in accordance with their type of visa. If there are doubts, authorities issuing visas are required to make whatever inquiries they consider necessary, including personal interviews, to resolve the doubts before taking any decision. Applicants for visitors’ visas are sometimes required to sign a declaration that on arrival in Australia they will be in possession of a return or onward passage ticket and sufficient funds to maintain themselves in Australia for the length of the proposed visit, and that they will not engage in employment or formal studies (i.e. studies leading to a qualification) in Australia and will not apply to become a permanent resident. Sometimes a special condition is put on their visa (Condition 8503 – “No further stay”). This last undertaking or visa condition (which is mandatory for sponsored family visitor stream) means it is very difficult, but not impossible, to apply for, and be granted, permanent residence after entry for a temporary stay (see “Changing status”).
Possession of a visitor visa generally ensures that immigration clearance is granted on arrival (e.g. business visitor, tourist). It is still possible to arrive and obtain a “border visa” (subclass 773) if it can be shown that the person would have been granted a visitor visa in any case, had they applied overseas, or in a narrow range of other circumstances. However, approximately 1,500 people per year are “turned around” at Australian airports, because they are not considered genuine visitors. They are refused immigration clearance, their visas (if they have one) are cancelled, and if they do not apply for refugee status they are placed back on the same aircraft (usually) that just brought them to Australia.
On 23 March 2013, a new visitor (subclass 600) visa was introduced to replace a number of previous tourist visas. It has four “streams”:
•tourist stream: for people travelling to Australia for a holiday, recreation or to visit family and friends. If you apply for this visa in Australia, you must be in Australia when the visa is decided. If you apply for this visa outside Australia, you must be outside Australia when the visa is decided.
•business visitor stream: for business people travelling to Australia for a short business visit. This includes making a general business or employment enquiry, negotiations or participating in a conference. You must be outside Australia when you apply and when the visa is decided.
•sponsored family stream: for people travelling to Australia to visit their family. You must have a sponsor (usually close family) who might be asked to provide a bond of up to $15,000, which is usually forfeited if the visitor does not leave. You must be outside Australia when you apply and when the visa is decided. You cannot apply for another visa after you have arrived in Australia because condition 8503 is applied to the visa.
•approved destination status stream: for people from the People’s Republic of China who are travelling in an organised tour group. You must be outside Australia when you apply and when the visa is decided.
People from certain countries can apply online (i.e. make an electronic application) for this visa. To apply online for the visitor (subclass 600) visa, you must hold a passport from the following countries:
Andorra, Argentina, Austria, Bahrain, Belgium, Brazil, Brunei, Bulgaria, Canada, Chile, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, Former Yugoslav Republic of Macedonia (FYROM), France, Germany, Greece, Hong Kong (SAR), Hungary, Iceland, Ireland, Italy, Japan, Kuwait, Latvia, Liechtenstein, Lithuania, Luxembourg, Malaysia, Maldives, Malta, Federated States of Micronesia, Monaco, Montenegro, The Netherlands, Norway, Oman, Papua New Guinea, Poland, Portugal, Qatar, Romania, Kingdom of Saudi Arabia, San Marino, Serbia, Singapore, Slovak Republic, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, Turkey, United Arab Emirates, United Kingdom – British Citizen, United States of America, Vatican City.
As well as the tourist stream subclass 600 visa, travellers from certain countries have access to the Electronic Travel Authority (ETA) (subclass 601) visa. This lets you enter Australia as many times as you want for up to 12 months if you are a tourist or travelling for business purposes, and you can stay in Australia for up to three months on each visit.
The ETA is an electronically stored authority for travel to Australia. You must be outside Australia when you apply and when the ETA is granted.
An ETA is linked electronically to your passport. It can be seen by staff at airlines, travel agencies and Australian border agencies. To apply, you must be a citizen and hold a passport issued by one of these countries:
Andorra, Austria, Belgium, Brunei, Canada, Denmark, Finland, France, Germany, Greece, Hong Kong (SAR), Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Malaysia, Malta, Monaco, Norway, Portugal, Republic of San Marino, Singapore, South Korea, Spain, Sweden, Switzerland, Taiwan, The Netherlands, United Kingdom – British citizen, United Kingdom – British national (overseas), United States, Vatican City. (See www.border.gov.au/Trav/Visa-1/601-.)
Immigration policy in relation to visitors theoretically applies to all visitors, but in practice it is mainly used with people visiting from developing countries: generally, any country where an applicant cannot obtain an eVisitor visa or an Electronic Travel Authority.
The policy states that considerations in assessing whether an applicant is a “genuine visitor” may include, but are not limited to:
•personal circumstances that may encourage the applicant to leave Australia at the end of the proposed visit;
•the applicant‘s immigration history (e.g. previous travel, compliance with immigration laws of Australia or other countries, previous visa applications/compliance action);
•personal circumstances in the applicant‘s home country that may encourage them to remain in Australia (e.g. military service commitments, economic situation, civil disruption);
•conditions that may encourage the applicant to remain in Australia;
•the credibility of the applicant in terms of character and conduct (e.g. false and misleading information provided with visa application);
•whether the purpose and proposed duration of the applicant‘s visit, and proposed activities in Australia are reasonable and consistent (e.g. the period of stay is consistent with tourism); and
•information contained in statistical, intelligence and analysis reports on migration fraud and immigration compliance developed by DIBP about nationals from the applicant‘s home country. Such information, compiled as a “profile” may assist assessing officers in determining whether closer examination of an application is required to ensure the integrity of the visitor visa program.
Personal circumstances that may encourage the applicant to return to their home country (home country being country of usual residence), include:
•the presence of immediate family members in their home country (Does the applicant have more close family members living in their home country than in Australia?);
•property, or other significant assets, owned in their home country;
•the applicant’s economic situation, including unemployment or employment that, based on knowledge of local employment conditions, such as salary rates, would not constitute a strong incentive for the applicant to leave Australia; and
•currently residing in a country whose nationals represent a low risk of immigration non-compliance, even though the applicant is originally from a country whose nationals represent a statistically higher risk of non-compliance.
Consideration of the applicant’s immigration history may include, but is not limited to:
•previous travels to Australia (Has the applicant previously travelled to Australia? Did they comply with the conditions of their visa? If not, were the circumstances beyond their control? Did they depart prior to the expiry of their visa?);
•previous visa applications for Australia (Has the applicant previously applied for a permanent Australian visa?); and
•previous travels overseas (Has the applicant travelled to countries other than Australia? Has the applicant travelled to a country where there would be significant incentives for them to remain, and complied with the immigration laws of that country?).
Officers may give weight to applicants who had travelled to and complied with the immigration laws of countries that have significant incentives for the applicant to remain in that countries, either for economic or personal reasons, when assessing this factor. However, officers may have to use judicious discretion where there is a lack of travel history.
Conditions that may encourage the applicant to remain in Australia, include:
•the applicant’s personal ties to Australia (Does the applicant have more close family members living in Australia than in their home country? Is the applicant subject of adoption proceedings that have not been resolved in their home country?);
•military service commitments;
•civil disruption, including war, lawlessness or political upheaval in the applicant’s home country; and
•economic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant’s home country.
Where consideration of the factors above raise doubts about the applicant’s ability to meet the “genuine visitor” criterion, such as where the applicant’s circumstances may suggest the need for greater scrutiny, officers may consider/request additional evidence to demonstrate that the applicant intends a genuine visit.
Officers may request further evidence from the applicant where considered appropriate, if departmental statistical or intelligence reports on migration fraud, or profiles based on such reports, indicate that there is a significantly greater likelihood of nationals from the applicant’s home country:
•staying in Australia beyond the expiry of their visa;
•having their visa cancelled;
•being refused entry to Australia; or
•lodging protection visa (PV) applications.
Officers should, however, be aware that when applicants match the characteristics of a “profile”, this is not grounds to refuse to grant a visa. Profiles are merely an alert that closer scrutiny of the applicant’s circumstances may be required. All applications must be considered on their own merits, taking into account all the information and supporting documentation provided by the applicant.
Additional evidence that officers may wish to consider to determine whether or not the applicant is a genuine visitor include:
•evidence that the applicant has been employed for at least the previous 12 months, has approved leave for the period of stay sought, and will continue to be employed on their return home; or
•if self-employed, evidence they have owned their own business for the previous 12 months; or
•if retired/non-working, have other financial commitments and/or family/social ties that would provide sufficient inducement for them to return to their home country at the end of their visit; or
•good immigration history.
Generally, where an applicant is from a developing country, offers of support or guarantees given by family and friends in Australia are not, by themselves, sufficient evidence of a genuine visit. The onus is on the applicant to satisfy the decision-maker that they intend to only visit Australia. If they pass that hurdle, then financial guarantees from connections in Australia can be important in assessing whether an applicant has, or has access to, adequate funds.
People who have had a visa cancelled while previously in Australia, or who overstayed their previous visa by more than 28 days, are subject to a three-year ban on re-entry (cls 4013–4014, sch 4).
Where a person wishes to visit a close relative in Australia but fits a profile of an over stayer (usually any citizen from a developing country), it is often better to apply for a “Sponsored Family” stream in the subclass 600 visa, as this is more likely to be granted, given that the Australian relative/sponsor usually has to pay a bond to ensure that the visa holder leaves the country (see “Eligibility for a visitor visa”).
Once a visa is granted and a visitor enters Australia, they may wish to apply for extensions of stay. The maximum length of time is not generally set out in the regulations governing such extensions, but the criteria to be satisfied in the visitor classes for another visa are as follows.
1 The applicant has complied substantially with any conditions subject to which the visa was granted;
2 The applicant satisfies character and health criteria;
3 The applicant intends to comply with any conditions subject to which the visa is to be granted; and
4 The applicant must also establish that:
athe visit is a genuine visit and that they have adequate financial support for the proposed period of stay; or
bbecause of financial hardship as a result of a change in circumstances since entering Australia, the applicant is likely to become a charge on public funds, and cannot leave Australia for reasons beyond their control, and has compelling personal reasons to work in Australia; or
cif a student, has completed their studies and wishes to remain in Australia as a visitor; or
dif the holder of a working holiday visa, there are exceptional reasons for the grant of a visitor visa to extend the stay.
It is not possible to apply for a further visitor visa in Australia if the former visitor visa has, or had, a condition 8503 on it, unless that condition is removed. It can only be removed if events of a “compassionate and compelling” nature have occurred since the visa was granted that are beyond the control of the visa holder and that necessitate a further stay in Australia.
DIBP’s policy is not to grant visitor visas that would extend a total stay beyond 12 months, except for students or for other “exceptional” reasons.
Temporary residence is the entry for specified short- or long-term periods to engage in employment or other pursuits in Australia (not business discussion, negotiations, inspections, etc., which come within the visitors’ entry category). It covers such major groups as:
•skilled workers sponsored by overseas or Australian businesses, company staff, i.e. senior management and executive and specialist technical staff for Australian companies including branches of overseas companies, joint ventures, etc. (subclass 457);
•the Temporary Work (Long Stay Activity) visa (subclass 401) is for people who want to come to Australia on a temporary basis under one of the four “streams” described in this visa:
1 exchange stream: to work in a skilled position under a reciprocal staff exchange arrangement to:
– give participants an opportunity to experience another culture;
– enhance international relations;
– broaden participants’ experience and knowledge.
2 sport stream: to improve the quality of sport in Australia through participation in high-level competition with Australian residents to:
– participate in a specific event or series of events as an individual or as part of a team or its support staff;
– play, coach or instruct for an Australian sporting team or organisation under contractual arrangements;
– judge or adjudicate a sporting competition or show.
3 religious worker stream: to be a full-time religious worker, serving the religious objectives of a religious institution in Australia.
4 domestic worker (executive) stream: to work full time in the household of certain senior foreign executives.
•staff for tertiary and research organisations (subclass 402);
•staff for diplomatic and consular missions (subclass 403);
•service personnel for training, etc. (subclass 403).;
•entertainers (subclass 420);
•Pacific seasonal workers and participants in youth or cultural exchange programs (subclass 416); and
•working holiday makers (subclass 417).
The procedures generally involve sponsorship by the interested party in Australia (although no sponsorship is required for working holiday makers). People entering for temporary residence for a period of more than 12 months are often required to undergo health and character checking, depending on their country of origin.
People approved for entry under temporary residence categories may be accompanied by their dependants (including same-sex partners). Dependants of temporary residents may usually undertake employment or studies in Australia, depending on the particular temporary residence class. There are over 60 types of temporary residence described in the regulations, all with different criteria that must be met.
This is by far the largest group of temporary residents in Australia (currently about 100,000 primary visa holders). Applicants have to prove that they are being sponsored by an “approved” Australian business, or an overseas business in connection with a business activity in Australia: the tasks of which correspond to the tasks of an occupation specified in the consolidated sponsored occupations list (CSOL). This list includes a number (an ANZSCO Code) and an Occupation Title. A description of the qualifications and experience required for each of the eligible occupations is found in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary (see www.abs.gov.au):
•which is of benefit to Australia; and
•for which they will be paid market rates for their occupation and this cannot be less than the Temporary Skilled Migration Income Threshold (TSMIT) ($53,900 at 30 June 2015).
Subclass 457 visa applicants who are sponsored by a Standard Business Sponsor must demonstrate that they have English language proficiency that is equivalent to an International English Language Testing System (IELTS) test score of at least 4.5 in each of the four test components of speaking, reading, writing and listening, with an average score of at least five across each band. Where an applicant is being paid a base salary in excess of $96,400 English testing is not required.
Where the nominated occupation requires a higher level of English (equivalent to IELTS test score of more than five in each of the four test components) because it forms part of that occupation’s registration, licensing or membership requirement, the visa applicant must have at least the standard of English language proficiency required for the grant of that registration, licence or membership.
People in this category may be considered for temporary entry only if they are nominated by an acceptable sponsor in Australia to undertake a specific engagement or program of engagements. The sponsor must be a person or body with good professional and financial standing who has consulted with relevant Australian unions in relation to the employment of the person from overseas.
Entertainers are permitted to enter Australia only for periods sufficient to enable them to meet their approved engagements (see subclass 420, sch 2 Migration Regulations).
The regulations provide for the temporary entry of sportspeople to undertake specific engagements in Australia. They must be sponsored by an acceptable entrepreneur or club. People considered to be of international repute, including those accepted as participants in international tournaments, may be granted a sports visa. People who are not of international repute but who have an established reputation in the field of sport, or judges, coaches and team assistants, can also be granted a sports visa if they are sponsored by an Australian sporting organisation with a good reputation in the sporting community and have entered into a formal arrangement about the sporting activities. They must also come within the approved maximum number of visas for that particular sport (see subclass 401, sch 2 Migration Regulations).
Domestic servants may be brought to Australia for temporary stay by diplomatic and consular representatives and by persons admitted for temporary residence as the chief executives in Australia of substantial overseas firms (see subclass 401, sch 2 Migration Regulations).
Regulations provide for the entry of persons, irrespective of denomination, who are authorised by their organisation to undertake work in Australia directly serving the organisation’s religious objectives (see subclass 401, sch 2 Migration Regulations).
The aim of the working holiday maker scheme is to promote international understanding by providing opportunities for young people to gain experience of other countries. The scheme makes it possible for young people who are resourceful, self-reliant and adaptable and who wish to holiday and travel in Australia to work to supplement their funds.
To be eligible for entry or stay in Australia as a working holiday maker, a person must (see subclass 417, sch 2 Migration Regulations):
•be single or married and not accompanied by dependent children;
•be aged between 18 and 31 years; and
•be a national of one of the following countries with which Australia has a working holiday maker arrangement: United Kingdom, Republic of Ireland, Italy, France, Belgium, Finland, the Netherlands, Republic of Cyprus, Canada, Germany, Malta, Norway, Sweden, Denmark, Estonia, Japan, Hong Kong, Korea and Taiwan.
In all cases, applicants must:
•lodge an application for a visa to enter Australia for a working holiday (Form 1150) and pay the prescribed fee; and
•satisfy the Minister for Immigration and Border Protection (“the minister”) that:
athey have sufficient funds for a return fare and to support themselves in Australia for the initial part of the proposed holiday period; and
bthe prime intention is to holiday in Australia and that any work performed will be incidental to that purpose and will not exceed six months with the same employer; and
cthey will have reasonable prospects of obtaining temporary employment to supplement holiday funds; and
dformal studies, other than a short-term non-formal course, will not be undertaken while in Australia; and
ethey will depart Australia at the end of the temporary stay.
Working holiday makers may apply for a second 12-month working holiday visa if they can show that they have worked at least three months in particular primary industries such as fishing, pearling, butchering and forestry or doing seasonal harvest or building construction work in regional Australia. Such work must be paid work and can not longer be as a volunteer.
Citizens of the United Kingdom, Republic of Ireland, Italy, France, Belgium, Finland, the Netherlands, Germany, Canada, Korea, Norway, Sweden, Denmark or Estonia aged between 18 and 31 years may apply for working holiday maker visas at any Australian processing office overseas (but not in Australia). Japanese, Maltese, Hong Kong, Cyprus, Korean and Taiwan citizens must apply in their own country in accordance with Australia’s working holiday agreement with those countries.
If the applicant has entered Australia previously on a working holiday visa, then they must post their application to the Cairns Second Working Holiday Centre (PO Box 1269, Cairns, Queensland 4870).
This is a visa is for tertiary educated people aged 18 to 30 who are interested in a working holiday of up to 12 months in Australia but who do not come from one of the countries with whom Australia has a working holiday arrangement (see “Category: working holidays for young people”). The subclass 462 visa allows applicants to supplement the cost of their holiday through periods of temporary or casual employment. Currently, the Work and Holiday visa arrangement is in place for people from Argentina, Bangladesh, Chile, Indonesia, Malaysia, Thailand, Turkey, the USA and Uruguay. Citizens of Iran who are currently in Australia on a Work and Holiday visa may also be eligible to apply for further Work and Holiday visas.
Applicants are considered for temporary residence for diverse purposes such as limited staff appointments to universities, representatives of news media, staff of travel agencies and service personnel for training. The Migration Regulations also provide that overseas firms who are successful tenderers may send their own technicians to Australia to install and service machinery and computers.