Sunday, 17th of December, 2017

Immigration and Citizenship

Introduction to Immigration

Immigration is a huge area of law. The purpose of the Immigration Department is not to prevent people from immigrating to or visiting Australia, it is intended to regulate the movement of people in and out of Australia. Regulation of migration is an important part of the nation state system.

The Department of Immigration and Border Protection (DIPB) regulates immigration because it is important to manage Australian resources, to know the population demographics for management of resources, to prevent the spread of contagious diseases, such as tuberculosis, and to ensure that people entering Australia can be identified.

Immigration law in Australia is the responsibility of the Commonwealth government. Immigration law is created by federal, not state, legislation. This means that immigration law is the same across Australia – from Tasmania to the Northern Territory the same laws apply.

This section deals with procedural issues and problems migrants may have with the immigration law system. It also addresses some queries Australian citizens heading abroad may have before departing Australia.

In Australia, immigration is regulated by the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). The Act provides the framework of laws, and the  Regulations provide the procedures around all aspects of migration, including visa applications, entry, stay, removal and exclusion of non-citizens.

The government department in charge of migration is the Department of Immigration and Border Protection (DIPB). The name of the department has changed several times in the last twenty years, and will continue to change as each government attempts to put their stamp on the meaning of Australia's attitude toward immigration. Every government has a different emphasis, or policy outlook.

Reference to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) and the Department of Immigration and Multicultural Affairs (DIMA) are out of date, as is Department of Immigration and Citizenship (DIAC), but in the context of immigration, reference to any of these refer to powers now exercised by DIPB.

Travel document requirements for ALL travellers, who are entering Australia, are available at the DIPB website.

WARNING

For current information on ALL immigration and visa information, please refer to the Department of Immigration and Border Protection website. Immigration law changes may not be reflected in the information contained here. This information is of a general nature and not intended to be legal advice. It may not reflect current law.

Australian and New Zealand Citizens

Australian Citizens

Heading overseas - holidaying

Australia has reciprocal arrangements with many countries for entry and temporary visits. All of these agreements exclude the right to work, except the agreement with New Zealand. For advice on specific countries, travellers should consult www.smartraveller.gov.au and the relevant embassy website.

Europe: UK

Australians can enter the United Kingdom for up to six months as a tourist if they have sufficient funds and do not intend to work. A stamp in the passport given by immigration officers in the airport is evidence of permission to enter. Gaining a work permit is relatively simple for Australian citizens who wish to work in the UK. They must apply to the British High Commission in Canberra.

Europe: The Schengen Convention

The Schengen Convention permits Australian tourists planning to spend less than a total of 90 days within a 180 day period in the Schengen area without a visa. Countries in the Schengen area are: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, The Netherlands, Norway, Poland, Portugal, Slovenia, Slovakia, Spain, Sweden, and Switzerland. There is a separate arrangement with the United Kingdom. The United Kingdom, Ireland, Albania, Belarus, Bosnia & Herzegovina, Bulgaria, Croatia, Cyprus, Former Yugoslav Republic of Macedonia, Moldova, Montenegro, Romania, Russia, Serbia and Ukraine are not part of the Schengen area.

Asia

Requirements for entry into countries in Asia differ. Popular destinations, such as Thailand and Vietnam have very different requirements. Before entering Vietnam, Australian citizens must obtain a valid visa. Thailand requires that travellers have at least six months validity remaining on their passports. When Australians enter through an international airport on an Australian passport they may enter for up to 30 days without obtaining a visa. This period is 15 days if the travellers enters overland. Visas are required for longer stays, or for purposes other than tourism. Consulting the relevant embassy page is always important before making departure plans.

Emigrating or working overseas

Applying for permanent residence or a working permit, or emigrating to another country with a spouse or with family can be complicated. For information on permanent immigration, or work permits it would be best to consult the embassy website of the country to which you are intending to go. Often, if employment has been secured beforehand, the employer will help to organise visas and sponsorship.

Working holidays

The DIAC website provides a list of embassies and other official government bodies that process working holiday visa applications. There are numerous countries with who Australia has arrangements so that Australian citizens can work and holiday abroad, these are as diverse as Bangladesh, the Republic of Korea and Malta.

New Zealand Citizens

General

Since the 1920s, various legal arrangements have provided New Zealand and Australian citizens with the right to enter each other’s country to visit, live, and work, without the need to apply for a visa. In 1994, changes to the Migration Act 1958 meant that while this basic right is unchanged, the Special Category Visa (SCV) was created for New Zealand citizens. When New Zealand citizens enter Australia on a valid New Zealand passport they are considered to have applied for the SCV. A stamp in their passport is evidence that a New Zealand citizen is holding a SCV.

Exceptions: Social Security Payments and Permanent Residence

While New Zealand citizens can enter Australia without applying for a visa, if they intend to stay and access certain social security payments, obtain Australian citizenship, or sponsor family members for permanent residence, they must first apply for and obtain a permanent residence visa.

There are also exceptions based on character and health considerations, such as possessing a criminal record. For more detailed information on New Zealand citizens in Australia see the DIAC website. 

Citizenship

Becoming a citizen

There are ten steps in the process to become an Australian citizen. While permanent residents share the rights and duties or citizens, there are some rights and duties unique to citizens. Becoming a citizen entitles a person to:

  • An Australian passport
  • The right to stand for public office and election for Parliament
  • The right to vote in federal, state, and local electrons
  • Serve on juries
  • Claim diplomatic protection while overseas
  • Serve in the Australian defence force

Citizenship is governed by the Australian Citizenship Act 2007 (Cth). Citizenship can be obtained in several ways:

  • Birth - in Australia to Australian citizens, or in Australia to non-Australian citizens if the child is ordinarily resident in Australia for their first ten years, 
  • Descent – through the citizenship of one’s parents
  • Adoption
  • Permanent residence and application for citizenship
  • Resuming Australian citizenship
  • Children born in Australia automatically receive Australian citizenship once their birth is registered with the Registry of Births, Deaths and Marriages in the State in which they are born.
  • Children adopted overseas

The process of applying for citizenship as an adopted child is available online. There are several requirements, including compliance with the Hague Convention on Inter-country Adoption, and compliance with domestic Australian law.

Children born overseas to Australian citizen parents

The requirements are fairly straightforward – if born after January 26, 1949, to an Australian citizen parent, a person is eligible to apply for citizenship. This category also applies to individuals whose responsible parent was an Australian citizen by descent and spent periods of two years during their lifetime in Australia.

Permanent residents

This category includes: spouse or partner of an Australian resident; New Zealand citizen living in Australia; child of a former Australian citizen, refugee or humanitarian entrant, Commonwealth Child Migrant Scheme arrival, or a person born in Papua before Independence in 1975. Detailed information is available online.

Loss of Citizenship

Citizenship can be lost if a citizen renounces their citizenship; serves in the armed forces of a country at war with Australia; is a child of a person who loses citizenship; or who acquired citizenship on a fraudulent basis, and it is against public interest to allow them to retain their citizenship.

Regaining Australian Citizenship

If you surrendered your citizenship in order to become a citizen of another state, it is possible to regain Australian citizenship, as Australia now recognises dual citizenship. Regaining Australian citizenship is governed by several rules. Details are available online. The process is also available online.

Australian Visas

An Overview of Visas

Visas and passports are a means of identifying and regulating people within a country. Immigration is part of the greater workings of the State system, upon which the global economy, and global politics is dependent. States have a responsibility to ensure they know who is leaving and entering their borders. The questions that must be asked are: who is seeking to enter Australia? Why are they coming here? How long will they stay? How will they support themselves? What will they do here? Visas address these questions.

An important thing to keep in mind with immigration is that in Australia there are approximately 350 different visa types. This means that if an applicant’s migration requirements are complicated, they may need to consult an immigration lawyer.

Example

If an applicant is the Lithuanian partner of an eligible New Zealand citizen, resident in Australia, who seeks a long term working visa to work in Australia for over a year, what visa do they apply for? What visa does the New Zealand citizen have? Is there more than one option? What if they are in New Zealand and not Lithuania? What if they are in Australia on a tourist visa already?

To make things much easier on everyone, the Department of Immigration and Citizenship (DIAC) provides the Visa Wizard – an online questionnaire that helps to determine which visa or visas an applicant may be eligible for.

Granting a visa

Whether or not a visa will be granted will depend on only one issue: does the applicant satisfy the criteria set out in the visa? There is no variability based on whether the decision maker is having a bad day, or doesn’t like the applicant’s spelling. The decision maker makes their decision on whether the applicant has satisfactorily addressed all the criteria necessary for a successful visa application. If the applicant has done so, then the visa will be granted. The only situation in which this is not true is where there are a limited number of visas in that particular subclass, and then it is whether the applicant has satisfied all the requirements of the visa, and the number of visas hasn’t been exceeded.

Understanding visa language

Language around immigration and citizenship include: ‘subclass’, which refers to the type of visa, for example a tourist visa could be Subclass 976 ETA (Visitor). ‘Decision maker’ is the term used to refer to the employee of DIAC who processes a visa application.

Citizens and Non-citizens

Other language includes ‘citizen’, ‘non-citizen’, ‘permanent resident’, ‘unlawful non-citizen’. A basic identifier of a citizen of Australia is whether they are eligible for an Australian passport. A permanent resident is a person who has the right to reside in Australia on a permanent basis, and can usually apply for citizenship. A non-citizen is not eligible for an Australian passport but when they are present in Australia they are present on the authority of a visa. An unlawful non-citizen is a non-citizen who is present in Australia without a valid visa – be it whether they entered without a visa, or have remained when a visa has expired.

DIAC provides its contact details for those who can’t find their visa on Visa Wizard or who have questions or problems that need attention. They also provide a call back service if the lines are busy.

In Australian law there is a basic distinction between citizens and non-citizens. Citizens are not directly affected by immigration laws. Non-citizens of Australia fall under immigration regulation. An example of when a citizen and non-citizen will both be involved with immigration law is when a citizen acts as a sponsor for a spouse visa for a non-citizen spouse. There are a set of procedures and rules that non-citizens must follow in order to obtain visas, whether temporary or permanent. If a non-citizen enters Australia without a visa they are classed as unlawful non-citizens.

Applying for a Visa to Enter Australia

Applying for a visa

It must be remembered by visa applicants that every aspect of the application is as important as the next. Fulfilling the criteria of a particular visa application will be just as important as lodging the application at the correct address, or using the correct application form. The Migration Regulations consist of seven volumes; they are lengthy and complicated. It is best to seek legal advice on visa applications before proceeding.

There is a Reader’s Guide to the Migration Regulations included in earlier versions of the Migration Regulations. It is still a useful beginner’s introduction to visa and other information.

Common Visa Requirements

There are several requirements that are common to all visas – these are the requirements of health and good character. Health requirements may differ where an applicant is applying for a medical visa to seek treatment in Australia. See Medical Visa below. There is a website that provides information on all visa charges associated with the application process for each visa type,

Health

The health requirement is part of protecting the high standards of health and health care available to Australian citizens and permanent residents. The process involved in meeting the health standard will vary according to the applicant’s personal circumstances and the visa applied for. For example, tourist visa applicants no longer a re required to pass a chest x-ray examination. A more rigorous health examination may be attached to permanent rather than temporary visas, depending on the country of origin of the applicant, and other factors – such as whether they already have been residing in Australia for a period of time.

A major focus of the health requirement is to prevent tuberculosis spreading into Australia. The tuberculosis risk rating will bear on the health examinations required of an applicant. The requirements for temporary entry are available on the DIBP website. The requirements for permanent entry include a medical examination, a chest x-ray (for signs of tuberculosis) and an HIV test.

Good Character

Good character requirements are usually in the form of providing police certificates for each country you have lived in for 12 months or more over the last ten years since turning 16. Applicants outside Australia do not have to provide this information when applying, but will be advised if they are required to provide it at a later date. People applying from within Australia will have to provide this information with their application.

There are several information pamphlets on establishing good character: See the general information about character and police checks, as well as Fact Sheet 79 – The Character Requirement on the Department of Immigration website.

Exclusion periods and re-entry bans

Exclusion periods and re-entry bans are sometimes attached to visas. For example, an exclusion period can mean that a person can not apply for an extension to a visa, such as a tourist visa, and will have to depart the country. If a person has overstayed their visa they will often be subject to an exclusion period for return, or a total ban: a re-entry ban. Sometimes, an exclusion period is a regular condition of a visa, such as a tourist visa with a ‘No further stay’ condition attached. This will mean that a tourist visa holder will have to depart Australia.

Visa Conditions

Each visa has its own conditions. A tourist visa is just this: a tourist visa. The conditions attached are that you cannot work while in Australia, and must not study for more than three months. A student visa allows the student to work 20 hours a week whilst their course is in session – they cannot exceed this, or they will be breaching the conditions of their visa.

Student visas and minor offences or convictions

The Hobart Community Legal Service is often asked about the effect of minor convictions, such as a speeding fine, or driving over the limit, and how these will affect the validity of a student visa. Generally, minor offences are not going to affect a visa. DIAC looks at criminal offences involving violence, trafficking or distribution of drugs, injury to or corruption of young people, and sex offences against children as the most serious offences warranting deportation. However, any offence that results in a conviction of 12 months imprisonment or more can lead to deportation.

Under the Migration Act 1958 (Cth) section 201 a person who is not an Australian citizen but has been a permanent resident for less than 10 years, and who is convicted for an offence for which they are imprisoned for one year or more may be deported by DIAC. Section 501 of the Act provides much broader discretionary grounds and allows the Minister of DIAC to cancel a temporary or permanent visa on character grounds. Character grounds includes terms of imprisonment of 12 months or more as a substantial criminal record (s501(7)).

Temporary Visas

Visitor visa

There are several classes of visa available for people seeking to enter Australia for tourism or family/friend visiting purposes. Broadly speaking, tourist visas allow visitors to come to Australia to visit friends or family, or to travel and visit Australia. The four visa options are ETA(Visitor) visa, eVisitors, Tourist visa, or Sponsored Family Visitor visa. For information on each of these, visit the DIBP website section on tourist visa options.

The requirements to qualify for a tourist visa include having health/travel insurance, financial means to support yourself whilst in Australia, and meet the health and character requirements. The DIBP website provides a total overview of the requirements of a tourist visa.

There are options for some tourists to lodge an online application. For example, the eVisitor visa is available as an online application, and the application process costs nothing. There are restrictions on this visa – it is not for repeat visits, or for stays longer than 3 months.

A traditional Tourist Visa (subclass 676) has now been replaced by Visitor Visas, Sublasses 600, 601, 651. These have many of the same conditions as the subclass 676 and can authorise a stay of up to 12 months for both business and tourist purposes. There are costs associated with applying for these visa. The 600 visa has a base charge of between $135 and $335, the 601 is an electronic travel authority and has a $20 service charge while the 651 e-Visitor visa also carries a service charge of $20 but is only available to passport holders of certain countries.

Working holiday visas

Working holiday visas fall into two categories – Working Holiday Visa (Subclass 417), and Work and Holiday Visa (Subclass 462). There are a limited number of countries with which Australia has working holiday visa agreements. Some countries fall within the 417 visa, and others within 462.

Both visas are for young people aged between 18 and 30. The fee at time of writing for a working holiday/work and holiday visa application was $270. The eligible countries under the 462 visa are: Argentina, Bangladesh, Chile, Indonesia, Iran, Malaysia, Thailand, Turkey, and the USA. The 417 visa is for people from Belgium, Canada, Republic of Cyprus, Denmark, Estonia, Finland, France, Germany, Hong Kong, Republic of Ireland, Italy, Japan, Republic of Korea, Malta, Netherlands, Norway, Sweden, Taiwan, and the United Kingdom.

The 417 visa has consistent requirements. It is for a period of up to 12 months, where the primary purpose is a holiday, and employment is for supplementing the holiday income. There is a non-refundable charge associated with the visa application. Under this visa, a visa holder can leave and re-enter Australia any number of times and study for up to four months while the visa is valid.

The 462 visa has different application requirements for each of the different countries. There are a limited number of visas available to most countries in this Subclass. The purpose of the visa is the same as the 417 in that it was for a period of 12 months, there is a non-refundable visa application fee, and the visa holder can study for up to four months, and leave and re-enter Australia any number of times while the visa is valid.

Student visas

Eligibility for a student visa depends on the an applicant’s passport country and the courses of study. These determine the Assessment level under which the student’s eligibility for a visa will be assessed. There are eight subclasses of Student (temporary) visa, under which courses of study are classified. Whether an applicant is undertaking a course of undergraduate or postgraduate study will also influence the type and duration of their visa, as well as the rights that are granted under that visa. The Department of Immigration and Border Protection provides a comprehensive advice booklet online at: http://www.immi.gov.au/allforms/pdf/applying-student.pdf It is possible to apply for a student visa electronically, as well as manually. Student visas allow multiple entry into the country. The cost of student visas is generally over $500 (AU), but see the DIBP website for exact costs.

Medical Treatment Visa

The medical treatment visa allows a person to visit for treatment once until the treatment is completed, or as many times as the visa permits, or to visit for study for a period of up to three months. 

Transit visas

Transit visas are applicable for people transiting through Australia for 72 hours or less. Any period over 72 hours (3 days) will require a different visa, such as a tourist visa. Some non-citizens do no require a visa in transit. Non-citizens who require a Transit visa can apply for one free of charge.

Event Organisers and Participants

People who are coming to attend, speak at, perform in, or compete in an international event, conference of meeting in Australia will need to apply for a Business Visit visa. Participants can go to the DIBP website for comprehensive information on the process.

For organisers of international events, the International Event Coordinator Network (IECN) Service is available to provide free advice on visas. Enquiries can be made on the DIBP website.

Family Visas

Overview

The Department of Immigration and Citizenship classifies options for fiancés, partners, children, parents and other family members of Australian citizens, permanent residents or eligible New Zealand citizens under the category of Family Members as an information class. The visa options section provides a useful short quiz to guide you to the information you are looking for.

Australian immigration does recognise gay and lesbian relationships when applying for a de facto relationship visa. The two questions are whether the family migrant is a partner, parent, child, or other family member, and whether the visa applicant will be in Australia or outside Australia.

Family Violence and Permanent Visa Applications

The following information was provided by the Department of Immigration and Citizenship, from their Factsheet 38. The information was produced by the National Communications Branch, Department of Immigration and Citizenship, Canberra.

Introduction

The Family Violence Provisions allow certain people applying for permanent residence in Australia to continue with their application after the breakdown of their married or de facto relationship, if they or a member of their family unit have experienced family violence by their partner.

The provisions were introduced in response to concerns that some partners might remain in an abusive relationship because they believe they may be forced to leave Australia if they end their relationship.

Recent amendments to the Family Violence Provisions

The provisions were amended on 24 November 2012 to streamline the evidence that applicants need to provide when making a non-judicial claim of family violence.

Eligibility

The Family Violence Provisions apply to the following visa subclasses:

Family stream

Primary applicants for:

  • Partner (permanent) (subclass 100) visa
  • Spouse (permanent) (subclass 100) visa*
  • Interdependency (permanent) (subclass 110)*
  • Partner (temporary and permanent) (subclasses 820/801) visas
  • Spouse (temporary and permanent) (subclasses 820/801) visas*
  • Interdependency (temporary and permanent) (subclasses 826/814)*.

*These visas have been closed to new applicants from 1 July 2009, existing applicants are covered by family violence provisions.

Skilled stream (business):

Partners of primary applicants for:

  • Established Business in Australia (subclass 845)*
  • State/Territory Sponsored Regional Established Business in Australia (subclass 846)*
  • Labour Agreement (subclass 855)*
  • Employer Nomination Scheme (subclass 856)*
  • Regional Sponsored Migration Scheme (subclass 857)*
  • Distinguished Talent (subclass 858).

* These visas have been closed to new applicants from 1 July 2012, existing applicants are covered by family violence provisions.

Resolution of Status visa

Partners of primary applicants for Resolution of Status (subclass 851) visas only, who lodged their application before 9 August 2008. All applicants must also satisfy all other relevant legal requirements, including health and character requirements.

How the family violence provision works

Partner visa applicants

Partners of Australian citizens, Australian permanent residents and eligible New Zealand citizens who apply to live permanently in Australia undergo a two-stage visa application process.

If the applicant's relationship breaks down after they have applied for permanent residence, the applicant can still be considered for permanent residence if they provide acceptable evidence that they or their dependants have been the victim of family violence committed by their Australian partner.

The applicant will also have to satisfy the delegate that their relationship was genuine until it ceased and that the family violence took place during the relationship. There are some variations within the Partner category visas regarding eligibility to access the Family Violence Provisions. The provisions can only be accessed by Partner visa applicants who are already in Australia and by Prospective Marriage visa holders who are already in Australia and have married their sponsor.

A permanent visa may also be granted if your relationship breaks down and you and your partner have custodial rights under the Family Law Act 1975 for any children aged under 18 years that you and your partner may have.

Prospective Marriage visa holders

Some Prospective Marriage visa holders may be eligible to apply for permanent residency under the Family Violence Provisions. If the visa holder married their sponsor before their Prospective Marriage visa ceased and the marriage breaks down, they can still lodge a Partner visa application and seek access to the provisions if they or their dependants have been the victim of family violence committed by the sponsoring partner.

Skilled stream (business) visa classes

The partners of primary applicants for certain business visa classes may be considered for permanent residence if both of the following apply:

  • the married or de facto relationship broke down after the application for the business or skilled visa had been lodged
  • they provide acceptable evidence that they or their dependants have been the victim of family violence committed by the primary applicant.

If the primary applicant is granted permanent residence then the partner may be granted permanent residence at the same time under the Family Violence Provisions.

Definition of relevant family violence

Relevant family violence is defined as:
' conduct, whether actual or threatened, towards:

  • the alleged victim, or
  • a member of the family unit of the alleged victim, or
  • a member of the family unit of the alleged perpetrator, or
  • the property of the alleged victim, or
  • the property of a member of the family unit of the alleged victim, or
  • the property of a member of the family unit of the alleged perpetrator,

that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety'.

Relevant family violence is not limited to physical harm. It may also include other forms of abuse such as psychological and/or financial abuse, which is consistent with the above definition.

Forms of acceptable evidence

For the purposes of the Family Violence Provisions, acceptable evidence may be judicially or non-judicially determined.

Acceptable judicially determined evidence

Any one of the following is acceptable judicially determined evidence:

  • certain court injunctions under the Family Law Act 1975
  • certain court orders against the partner made under an Australian state or territory law
  • evidence that the partner has been convicted (or has recorded a finding of guilt) of an act of violence against the visa applicant or their dependants.

Acceptable non-judicially determined evidence

The requirements to provide non-judicially determined evidence for family violence claims have been streamlined and the new requirements are effective from 24 November 2012.

The minimum evidence required from an applicant who is making their first written claim of family violence on or after 24 November 2012 are the following:

  • a statutory declaration using Form 1410 — Statutory declaration for family violence claim or a generic statutory declaration completed by the alleged family violence victim, which sets out the allegation of family violence and names the person alleged to have committed it
  • at least two documents from the list of evidence specified in the legislative instrument.

Alternatively, evidence of a family violence claim can be in the form of a joint undertaking by the visa applicant and their partner, related to an allegation that is before the court that the partner has committed an act of violence against the visa applicant or their dependants.

Any other evidence, in addition to the minimum requirements outlined above may be provided to the department for consideration. This additional evidence cannot be in place of the minimum evidence that is required.

Instrument IMMI12/116 lists the acceptable forms of evidence that can be provided in support of a non-judicial family violence claim.

Form 1410 — Statutory declaration for family violence claim

For family violence claims first made on or after 24 November 2012, applicants who have suffered family violence may use Form 1410 for the purpose of providing a statutory declaration under the family violence provisions.

Other generic statutory declarations are acceptable as long as the following information is provided:

  • details of the allegation of the relevant family violence
  • name of the person who allegedly committed the relevant family violence

if the relevant family violence was not committed towards the applicant the statutory declaration must also

  • provide the name of the alleged victim
  • identify the relationship between the maker of the statutory declaration and the alleged victim
  • identify the effect the alleged family violence has had on visa applicant.
Agencies, services, professionals and other bodies
 

If evidence (such as a statutory declaration or official letter) is being provided by a professional or other agency as required under the legislative instrument it is expected that such a statement will include detailed information about the family violence claim.

The statement should include the following information:

  • details of the allegation of the relevant family violence
  • the name of the person who allegedly committed the relevant family violence
  • the name of the alleged victim
  • evidence or reasons that have informed this opinion or assessment
  • details about their professional relationship with the alleged victim or their family members and information about any services or support they have offered in relation to the alleged family violence.

Note: There are penalties under both the Statutory Declaration Act 1959 and the Migration Act 1958 for providing false information. 

Persons who first made a family violence claim prior to 24 November 2012.

Where the first family violence claim was made before 24 November 2012, the relevant version of Form 1040, Statutory Declaration relating to family/domestic violence, should be used for the purpose of providing a statutory declaration under the Family Violence Provisions.

See: Form 1040 (07/07) Statutory declaration relating to domestic violence (for partner category visa applications lodged before 15 October 2007); or Form 1040 Statutory declaration relating to family violence (for applications lodged on or after 15 October 2007).

Referral for independent assessment

Where there are reasonable doubts regarding the strength of a non-judicially determined claim of family violence, the department may refer the evidence supporting the claim to an independent expert for assessment. The independent expert will provide an opinion to the department either that family violence has or has not occurred. An independent expert's opinion must be accepted by the department.

The referral of evidence to an independent expert only applies to non–judicially determined claims of family violence. Acceptable judicially determined claims are not referred.

Information regarding a claim of family violence is provided to the independent expert on the understanding it will be treated in confidence.

Help and support for family violence victims

The Beginning a Life in Australia booklet contains useful information for new migrants in Australia, including services and support for people suffering family violence. It is available in a number of languages.

The department is not in a position to provide emergency assistance or social support to victims of family violence. However, family violence victims are encouraged to seek professional assistance.

For general visa-related enquiries

The department's national general enquiries line.

Telephone: 131 881

Hours of operation: Monday to Friday from 8.30 am to 4.30 pm. Recorded information is available outside these hours.

Fiancé, spouse or de facto partners

The three types of relationship to which these visas apply are:

  • people intending to get married (fiancés)
  • married (de jure) partners
  • de facto partners (including those in a same sex relationship)

The charges associated with these visas range between $300+ and $3000+. A tool to calculate all visa charges is available online.

Applying Outside Australia

For applicants applying from outside of Australia there are three visa possibilities: Partner Visa: Offshore Temporary and Permanent (Subclasses 309 and 100); Prospective Marriage Visa (Subclass 300); and the Humanitarian Program – Split Family Provisions.

  • The Prospective Marriage Visa (Subclass 300) permits entry into Australia for nine months for the purpose of marrying your intended fiancé. It is only for applicants who apply from outside of Australia. The visa holder can work and study in Australia, and apply for a Partner visa once they have married their fiancé.
  • The Partner Visa: Offshore Temporary and Permanent (Subclasses 309 and 100) is for married and de facto couples. It requires first a two year waiting period to see if the spousal relationship is still intact, and then a permanent visa can be applied for. An applicant who has entered under a prospective marriage visa and wishes to apply from within Australia for a Partner Temporary Visa can apply for a Subclass 309 or a Subclass 820 Partner Temporary Visa.
  • The Special Humanitarian Program – Split Family Provisions are for immediate family members of the holder of any permanent humanitarian visa (including Permanent Protection visas). These visas apply to partners, dependent children and parents of sponsors within Australia. For partners, the spouse or de factor partner and the proposer must be in a relationship recognised as valid for the purposes of the Migration Act 1958. This would exclude bigamous relationships, and relationships of temporary duration. If the visa is granted it will usually be the same visa as the sponsor’s visa.

Applying from within Australia

If applying from within Australia, the partner of an Australia citizen, permanent resident, or eligible New Zealand citizen can look at the Partner Visa: Onshore Temporary and Permanent - Partner Temporary Visa (subclass 820) and Permanent Visa (subclass 801). The first visa authorises a stay of two years. After that period if the spousal relationship is ongoing, a permanent visa may be granted.

Parents and Children

Parents

Charges for parent visas can run over $30,000. Presumably this is indicative of the costs associated with caring for an ageing population. There is also a significant waiting list for the determination of parent visas. For a comprehensive list of charges see the DIBP website.

Applying Outside Australia

There are several categories of visa options open to parents applying for a parent visa from outside of Australia who wish to reside in Australia either permanently or temporarily. These are listed below. All visas require that a child or eligible sponsor in Australia sponsor the applicant. ‘Child’ includes a stepchild. A partner and dependent family members can be included on all applications. Permanent and temporary visa applications that include a partner or other dependent family members attract a second visa application charge per person on the application if successful, after the initial visa application charge.

  • Parent (Permanent) Visa (Subclass 103): This is for parents seeking permanent migration to Australia. It entails numerous rights, including to work and study, receive subsidised healthcare through Medicare and the pharmaceutical benefits scheme (PBS), and be eligible to apply for citizenship. There are waiting periods for certain social security payments, and the ability to sponsor others for permanent residence into Australia. 
  • Contributory Parent (Migrant) Visa (Subclass 143)This is a permanent migration visa. It includes partners and dependent family members. In most circumstances, the child must have been lawfully resident in Australia for two years. The same rights as Visa 103 apply.
  • Contributory Parent (Temporary) Visa (Subclass 173)This allows for a residence of two years, access to the Australian health care system, and the right to work and study. After entry, the visa holder can apply for a 143 visa, a protection visa (permanent) or a medical treatment (temporary) visa. The visa holder can work, and study, and has access to Medicare. They are not eligible for social security.
  • Aged Parent (Residence) Visa (Subclass 804)Only elderly parents of a child or stepchild are eligible to apply for this visa. The rights associated with this visa are the same as listed above at Visa 103.
  • Contributory Aged Parent (Temporary) Visa (Subclass 884): This is a two year temporary visa for elderly parents, but visa holders can apply from within Australia for an 864 Visa – a permanent visa, a Protection (permanent) visa, or a Medical Treatment (temporary) visa. The rights associated with this visa are the same as those under Visa 173.
  • Contributory Aged Parent (Residence) Visa (Subclass 864): This visa is for elderly parents. At least half of your children must be Australian citizens, Australian permanent residents or eligible New Zealand citizens who are usually resident in Australia. More of these children have to live in Australia than in any other country. The permanent visa rights are the same as those under Visa 103.
  • Humanitarian Split Family Provisions: Only children under the age of 18 who have been granted permanent residence can apply to bring their parents or step-parents to Australia. There is a three way division:
    • Africa:
    • The Middle East and parts of South West Asia:
    • All Other Countries:

Applicants from Africa need to look at the ‘Lodging Certain Humanitarian Applications in Australia from applicants in Africa’ information. Applicants from the Middle East and parts of South West Asia need to look to ‘Lodging Certain Humanitarian Applications in Australia from applicants in the Middle East and parts of South West Asia’ information. All other countries must seek further information from immigration offices outside Australia.

Applying from within Australia

Parents applying from within Australia, as noted above with several of the temporary visas, have the opportunity to apply for permanent residency whilst their temporary visas are still valid.

Children

Generally, a child visa application charge covers all applicants in the same application. A summary of the application charges can be found online.

Applying Outside Australia

Children applying from outside Australia have five options:

  • Child (Permanent) (Subclass 101): this is for children under the age of 25. The parent acts as a sponsor for the child and can lodge a visa application on the child’s behalf. The child can live permanently in Australia and travel to and from Australia for five years from the date the visa was granted.
  • Orphan Relative (Permanent) (Subclass 117): This is for children under the age of 18, who are overseas and whose parents are unable to care for them. The child must be going to an Australian relative. The rights associated with this visa are the same as those in Visa 101. 
  • Adoption (Permanent) (Subclass 102): This is for children under the age of 18 years who have been or are about to be adopted from outside Australia by an Australian citizen, permanent resident or eligible New Zealand citizen. The adoptive parent acts as a sponsor and usually lodges the application. The rights are the same as above. The Department of Immigration can not assist with the adoption procedure, only the migration application. 
  • Dependent Child Visa (Subclass 445): This is a temporary visa for a child or stepchild of a parent holding a temporary partner/spouse visa and is applying for a permanent partner/spouse visa. The visa will either be a temporary Partner visa, a temporary Spouse visa, or a temporary Interdependency visa. The sponsor of the visa applicant will be the same person sponsoring the parent with the temporary visa. The child can only remain in Australia as long as the parent on the temporary visa. The child must also lodge a separate application for a permanent visa to their parent’s application. The visa is valid as long as their parent’s temporary visa, or until the parent’s permanent visa application is finalised. This finalisation depends on the child’s separate application being decided first.

Applying from within Australia

Applying from within Australia there are three options:

  • Dependent Child Visa (subclass 445): Dependent children are able to be sponsored by their visa-holding parent for this temporary visa. See above.
  • Child (Permanent) (Subclass 802): This visa allows a child to remain in Australia with their parent. The child must be under 25 years of age. The parent must be an Australian citizen, a permanent resident, or eligible New Zealand citizen. Such a situation might arise where a child who was born overseas to an Australian citizen, but has not acquired citizenship has come to Australia from a parent in another country and now wishes to stay with the Australian parent. 
  • Orphan Relative (Permanent – Onshore) (Subclass 837): This is similar to the Orphan Relative Visa (Subclass 117). The requirements are the same – there must be a relative in Australia with who they can remain, and their parents are unable to care for them. 

Other Family

Other family members – meaning anyone except a spouse or partner, or parent. Other family members generally means brothers, sisters, and parents. The applicant would be a non-dependent child of the parent, i.e. over the age of 18. The charges associated with applications range between approximately $4,000 and $5,000, depending on whether it is an offshore or onshore application. For a full list of charges see the DIAC website. 

Applying Outside Australia

There are several categories for relatives applying from outside Australia:

  • Remaining Relative Visa (Offshore) (Subclass 115): This visa requires sponsorship from within Australia by a resident Australian citizen, a permanent resident or eligible New Zealand citizen. The two requirements for this visa are: a brother, sister, parent or step-equivalent who is eligible, and the applicant has no other brothers, sisters, non-dependent children, parents (or step-equivalents) other than those in Australia. Partners and other family members may be included in the application, depending on circumstances.
  • Aged Dependent Relative (Subclass 114): for relatives for rely on a relative in Australia for all or most of their living costs, this visa category is available. The three requirements are: being aged (old enough to receive an Australian pension – ages range between 60 and 67, depending on birth date.); financial dependency (see ‘dependent’); and being single – either never coupled, or widowed, separated or divorced. There are a range of benefits associated with this visa, and a range of responsibilities also.
  • Carer Visa (Offshore) (Subclass 116): where an Australian relative needs the care of the applicant for a medical condition. The applicant must be sponsored by the relative or the relative’s partner. If this visa is granted it means the applicant can live in Australia as a permanent resident. This visa class can include a partner or other family members in the application.
  • New Zealand Citizen Family Relationship Visa (Subclass 461) (Temporary): this visa is specifically for non-New Zealand citizens seeking to travel to and live in Australia with a New Zealand citizen who holds a Special Category (444) visa, which is a temporary visa. Applicants are family members who are not New Zealand citizens and are therefore not eligible for the Subclass 444 visa. This visa is valid for up to five years.

Applying from within Australia

The categories for onshore applications are:

Work Visas

General

This section doesn’t cover the categories ‘Air and Sea Crew’ or ‘Specialist Entry’. Specialist Entry is covered under Temporary visas. This section is a general overview of the visa categories open to people seeking work in Australia. Almost invariably there is a requirement that the applicant be skilled, that these skills be in shortage, or their work be of a specific nature, such as with the Seasonal Workers Scheme. The visa categories include:

  • Employer sponsored workers – Temporary
  • SkillSelect - Skilled Migrant Selection Register
  • Doctors and Nurses
  • Regional Employment
  • Skills Australia Needs Events
  • Seasonal Workers Scheme

Recent changes have seen the introduction of ‘SkillSelect’, which is a new management scheme for skilled migration. This program began on 1 July 2012. Applications that were submitted before this date will be assessed according to the previous rules.

DIBP provides a number of useful internet tools for people looking to work in Australia, such as the Visa Options Comparison Charts.

Employer sponsored workers: Temporary

DIBP provides a comprehensive website for temporary skilled workers.

SkillSelect – Skilled Migrant Selection Register

DIBP has introduced a new skilled migration management scheme called ‘SkillSelect’, a points based assessment system for skilled migrants. This affects independent and family sponsored skilled migrants, state and territory sponsored visas, business innovation and investment visas, and employer sponsored visa programs.

SkillSelect has closed many previous categories of the general Skilled Migration (GSM) stream and introduced a system that utilises Expression of Interests (EOI) to generate a points based assessment of potential migrants who, if selected, can apply for a visa. It is a more restrictive process than the GSM system, and gives more control to the government over who can apply for a visa.

Offshore visa applications in previous categories closed from 1 July 2012, and all new potential applicants will be assessed via SkillSelect. Onshore visa applications close from 1 January 2013 to give time for onshore applicants holding current working visas to apply under the SkillSelect system for reassessment. Transitional arrangements are available for certain subclasses.

For people in Australia who do not have eligibility under the transitional arrangements, while they can submit an EOI from within Australia, the EOI will not grant a bridging visa as the EOI is not a visa application. An invitation to lodge a visa application and meeting the requirements of that visa application will lead to a bridging visa. Bridging visas preserve your rights under the previous visa while your new visa application is processed.

An Expression of Interest (EOI) by an interested person is not a visa application, nor does it cost anything to lodge an EOI. Skilled workers who would like to be considered for a visa record their details for consideration for an invitation to apply for a skilled visa. From there it is a matter of either being invited to apply for a visa by a state or territory government, or being nominated by an approved Australian employer.

Details required for an EOI are:

  • Basic personal information (name, country of origin, age, sex, etc)
  • Qualifications
  • Relevant work experience
  • English language test results
  • Skills Assessment outcome – assessing authorities’ details are available from DIAC

Points are awarded on the basis of this information and DIBP will periodically invite the highest point scoring applicants in each Skilled Occupation to lodge a visa application. There is a fee attached to making a visa application. Skilled Occupation Lists are provided by DIBP. These determine what categories of skilled people can lodge an EOI. DIBP provides some relevant information in the Reports section of SkillSelect on ‘Occupation Ceilings’. Occupation ceilings are quotas for each occupation group, and once a quota is met, no new applications will be considered for that program year. For example, in the 2012-2013 year, engineering managers have an occupation ceiling of 960, middle school teachers have an occupation ceiling of 60, and structural steel and welding trades workers have an occupation ceiling of 4860.

SkillSelect has introduced two notable changed – the first is an age limit. Only persons under the age of 50 years can be invited to lodge a visa. The second is a significant change concerning review rights. As an EOI is not a visa application there is no right to a review of your EOI before the Migration Review Tribunal. A person who has moved beyond the EOI process and been invited to apply for a visa may access review rights as visa applications attract those rights.

Professionals and other skilled migrants as a visa class is now governed by SkillSelect. This does not include doctors and nurses or the Seasonal Workers Scheme. From 1 July 2012 the following visas are closed to new applications:

  • Skilled – Independent (Migrant) Visa (Subclass 175)
  • Skilled – Sponsored (Migrant) Visa (Subclass 176)
  • Skilled – Regional Sponsored (Provisional) Visa (Subclass 475)

Further visas – subclasses 886, 885 and 487 will be closed to new applications from 1 January 2013, as these are the onshore visa categories.

The new visa categories introduced by SkillSelect are:

  • Skilled Independent (subclass 189) visa
  • Skilled – Nominated (subclass 190) visa
  • Skilled – Nominated or Sponsored (Provisional) (subclass 489) visa
  • Subclass 475 visa
  • Employer Nomination Scheme (subclass 186)
  • Regional Sponsored Migration Scheme (subclass 187)
  • Business Talent (Migrant) (subclass 132)
  • Business Innovation and Investment (Provisional) (subclass 188) visa
  • Business Innovation and Investment (Residence) (subclass 888) visa

Please see the SkillSelect information page for more detail.

Doctors and Nurses

Visa options for doctors are either temporary or permanent. They require sponsorship from a hospital or practice, or settlement in a regional area. Temporary visa options are either long stay or shorter stay. 

For registered nurses, there is requirement to be registered by State or Territory nurse regulatory bodies. Visa options are plentiful, as currently nurses are in high demand in Australia.

Nurses require sponsorship to come to Australia, or to settle in a regional area. It is also possible to come on a working holiday. See the DIAC website for visa categories open to registered nurses  There are also places for nurses undertaking supervised, workplace-based training in Australia under the Occupational Trainee Visa.

Regional Employment

There are several opportunities for regional employment under the regional initiative. These include: employer sponsored workers, family sponsored workers, state or territory nominated skilled workers, government approved skilled workers establishing businesses in regional or rural areas, and general skilled migration. Information on all these areas can be found on the DIBP website. This is a brief summary of the available visas.

Seasonal Workers Scheme

Citizens from Kiribati, Papua New Guinea, Tonga and Vanuatu can work in Australia under the Seasonal Worker Scheme. To make a visa application will cost $300+, under the Special Program visa (subclass 416) visa charge. The visa allows a 4-6 months period for work in Australia. Visa holders can enter and leave multiple times during that period. There is no right to apply for another visa whilst in Australia, however, if the visa requirements were complied with, there is the opportunity to return on the same class of visa. Other conditions of this visa include: must maintain private health insurance, can only work for Approved Employers, must pay for own living expenses and incidentals, and cannot bring dependents with them. See the Department of Employment for more information.

Humanitarian Visas

Refugees and Special Humanitarian Programs

As with other classes of visa, there are processes and fees associated with offshore and onshore applications.  The two classes are: Offshore – Resettlement, and Onshore – Protection. The visa classes of Temporary Protection Visa and Temporary Humanitarian Visa have been abolished, and there are now mechanisms for resolving the status of those people holding one of these visas. There are minimal fees associated with these visas. Onshore applicants living in the community must pay a $30 visa charge, a nominal fee.

Services provided within Australia for successful applicants include accommodation services, case management, and orientation programs. The orientation programs provide detailed information about life in Australia to help new immigrants settle into Australia. Case workers are also available to help refugees settle into Australia. See the Onshore Booklet for more detailed information.

Australia collects biometric data – meaning, physical information on certain people entering Australia. This only applies to people applying for Protection visas in Australia. A digital photograph and fingerprints will be collected.

The Refugee Convention defines who is a refugee, their rights, and the obligations of states who have signed the Convention. For information on the Refugee Convention, and the text see: http://www.unhcr.org/pages/49da0e466.html

Offshore – Resettlement

There are two categories in this visa category: Refugee and Special Humanitarian Program (SHP). Refugee is for people subject to persecution in their home country, and the SHP is for people who are outside their home country, and are proposed for an SHP visa by an Australia citizen, resident, eligible New Zealand citizen, or an organisation operating in Australia. Detailed information is available at: http://www.immi.gov.au/visas/humanitarian/offshore/

There are five categories of Offshore – Resettlement visas available under the Refugee and Humanitarian Visas heading. These are:

  • Refugee Visa (Subclass 200): the three requirements to be eligible for this visa are that the applicant be living outside their home country but not have entered Australia without a visa, be subject to persecution in their home country and have compelling reasons for resettlement to Australia. The application can include a partner/spouse, dependent children and certain dependent relatives. There is no charge for this visa. This is a permanent visa.
  • In-country Special Humanitarian Program Visa (Subclass 201): this visa has limited places. The applicant must be living in their home country (unable to leave or seek refuge elsewhere), and be subject to persecution in their home country.
  • Global Special Humanitarian Program Visa (Subclass 202): this visa class is for people who are not refugees but are subject to substantial discrimination and human rights abuses in their home country. They must be proposed for entry by an Australian citizen or permanent resident over the age of 18, and must be living outside their home country. Partners, dependent children and some dependent relatives can be included in the application. Application is free.
  • Emergency Rescue Visa (Subclass 203): this visa subclass has limited places. The cases are referred to Australia by the United Nations High Commission on Refugees (UNHCR). The applicant must be in a situation where normal processing times would put their life or freedom at risk. 
  • Women at Risk Visa (Subclass 204): this visa class is for women. Only women can apply. This visa class has an annual target of 12% of all refugee places. To qualify the applicant must be living outside her home country, subject to persecution in her home country, or registered with the UNHCR as being ‘of concern’, without the protection of a male relative, and in danger of victimisation, harassment or serious abuse because she is female. Dependent children, some relatives, and partner can be included in the application. This is a permanent visa.

Onshore – Protection

This is a highly politicised area of immigration. The controversy stems from the processes associated with the detention of people seeking asylum – including slow processing of applications, and some adverse outcomes that have seen asylum seekers returned to their countries of origin and suffering the persecution, and sometimes death, from which they had sought to escape. The conditions of the detention of asylum seekers have also raised issues as asylum seekers. Detention centres are compounds, surrounded by high, electrified fences, topped and surrounded with razor wire, often in the middle of the desert.

So-called ‘boat people’ is issue that is highly divisive, and there are two very antagonistic points of view on the subject of the processing and detention of so-called “boat people”. The facilities where asylum seekers are detained are run by private companies, not the government, which minimises accountability of staff for treatment of detainees. Detainees are often called by their number, not name, and there have been numerous allegations of abuse. The length of the process is also uncertain, meaning some people will be in detention for several years.

The Australian government does not immediately class people arriving in Australia by boat, without a visa, as refugees. Considering the need for verifying the identity of a person, their health, and the basis of their claims where there is very little paper work available to the immigration authorities, there is little doubt that processing a claim will take some time. The process is of indeterminate length, but the validity of the applications are assessed according to the administrative standards set by DIAC. That said, there have been several examples of Australia rejecting applicants who have arrived in Australia, and sending them back to their home countries, where they were subsequently persecuted afresh, and often killed.

There have been several attempts to speed up the process for applicants in immigration detention. The DIAC website provides a huge amount of information on this subject.

  • Protection Visa (Class XA) (Subclass 866): there are several requirements for eligibility for this visa. The applicant must: be a refugee as defined under the Refugees Convention, be in Australia, pass character and security checks, undergo health examinations, and sign the Australian Values Statement. There are requirements for identification also. This protection visa gives permanent residence to a successful applicant. There is a sharp divide between people in immigration detention and those who have already entered Australia and are seeking protection. The latter category will usually be given a bridging visa whilst their Protection visa is determined, allowing them to work in the community. A good summary is available online.

Bringing family to Australia – refugees

Sometimes, family will be included in the initial visa application – immediate family such as  a spouse and dependents, but there are many migration options for fiances, partners, children, parents and other family members of Australian citizens. This means that the easiest way to obtain visas for family is to become a permanent resident and then an Australian citizen. Once holding a permanent humanitarian visa (including a permanent protection visa) it is possible to apply for immediate family to join you, under the ‘split family’ provisions. Full information is available on the immigration website.

Unlawful Non-Citizens, Removal and Deportation

Who are unlawful non-citizens?

A lawful non-citizen is a person who holds a visa and is within Australia Classification of an unlawful non-citizen is simple: an unlawful non-citizen is someone who enters Australia or remains in Australia without a valid visa.

Becoming an unlawful non-citizen

Entering Australia without a visa will make you an unlawful non-citizen, but so will overstaying a visa, or breaching the conditions of a visa. It can also occur if the Department of Immigration cancels your visa. For example, if on a tourist visa and found committing an offence, you will be subject to detention and removal. There are also circumstances where a visa may be cancelled, making an individual an unlawful non-citizen.

Cancelling a visa

A visa can be cancelled if:

  • incorrect information was provided by an applicant to DIAC;
  • visa conditions were breached;
  • a business skills visa holder failed to establish the business or participate in management;
  • the person has committed a criminal offence after they became a permanent resident; or
  • the person is of bad character.

Generally, the power to cancel is discretionary. In most cases the visa holder will get prior warning of DIAC's intention to cancel the visa. The visa holder is then able to give all the reasons why their visa should not be cancelled.  If DIAC decides to cancel, the former holder will usually have a right of review. If a tourist visa holder has breached Australian law, this right of review is highly unlikely.

Options

Unlawful non-citizens have three options:

  • to try and stay in Australia unlawfully and hope to avoid detection;
  • depart voluntarily; or
  • attempt to change their status and obtain a visa.

Unlawful citizens should obtain confidential advice from a registered migration agent when considering their options.

Detention and Removal

DIAC has the power to question people who they suspect are unlawful non-citizens, get information from other government departments such as Centrelink and the Australian Tax Office, raid and search homes, work-places, and other premises, and sometimes search people.

Unlawful non-citizens who have been arrested will be placed in immigration detention. An unlawful non-citizen will only be released from detention if they obtain a bridging visa. DIAC may issue bridging visas in the following circumstances:

  • when the detainee has made a valid application for another visa;
  • when the detainee has agreed to depart Australia voluntarily.

A refusal to grant a bridging visa may be reviewed by the Migration Review Tribunal. More information on the conditions of the bridging visa are available online.

Generally, a person in detention has only two days in which to make an application.  People in immigration detention are only entitled to independent legal advice if they ask for it.

Criminal Deportation

People who have been permanent residents (including New Zealand citizens resident in Australia) for less than a total of 10 years can be deported if they are convicted of an offence and sentenced to prison for at least one year.

Criminal deportation decisions may be reviewed by the AAT.

Review of Migration Decisions

Migration Review Tribunal

The Migration Review Tribunal (MRT) constitutes the second tier of the review system.  The MRT is independent of the Department of Immigration but must still apply relevant migration law. (Note: The MRT and the Refugee Review Tribunal are proposed to be amalgamated with other tribunals into the Administrative Review Tribunal. This move has currently stalled in the Senate.)

The MRT can review most decisions made by the Department of Immigration where the applicant is onshore or has an onshore sponsor/nominator and also some other decisions, including decisions relating to detention and removal of illegal entrants and cancellation of visas.  The MRT office should be telephoned to ascertain whether a decision may be reviewed by them.

Strict time limits apply to lodgement and applications for review.  Applications for review must be lodged:

  • within 21 days of the receipt of the Department of Immigration decision if the applicant is in Australia;
  • within 70 days of the receipt of the decision if the applicant is overseas.

The application fee is currently $1400. The MRT may waive the application fee if it would cause financial hardship.

Applications for review of decisions relating to detention and removal must be made within two days of the decision.

The MRT conducts a merits review of the original applications in an inquisitorial fashion and not the more usual adversarial manner.  The MRT procedure involves two steps.  The first is a consideration ‘on the papers’, at which the MRT will consider the applications and, if appropriate, grant the application.  If not, the applicant is informed of the reasons why not and invited to attend a full hearing.  The applicant then attends a full hearing before the MRT, and has the opportunity to provide verbal evidence.  Witnesses may be called at the discretion of the MRT.  Legal advisers may not address the MRT except in unusual circumstances.

Administrative Appeals Tribunal

The Administrative Appeals Tribunal (AAT) can only review the following migration decisions:

  • refusals and cancellations of visas on the grounds of ‘bad character’;
  • cancellation of business visas;
  • criminal deportation orders;
  • freedom of information decisions;
  • Australian citizenship decisions;
  • decisions forcing the repayment of income support payments made to people covered by an Assurance of Support (after these have first been reviewed by the Social Security Appeals Tribunal).

An application for review to the AAT must be made within 28 days from the time the applicant receives notice of the decision.

Refugee Review Tribunal/Migration Review Tribunal

There is no merits review available for decisions made under the overseas Refugee and Humanitarian program.  Applicants who are refused refugee status should assess the reasons for the decision and consider whether to re-apply with additional evidence to address the grounds of refusal.

The Refugee Review Tribunal (RRT) deals exclusively with refugee applications for review. It reviews refusal of on-shore refugee applicants only.  Applications for review must be lodged within 28 days of receiving the refusal.  The refusal letter is deemed to be received five working days after the date of the refusal letter.

RRT hearings follow very simple procedures and are conducted in an informal way.  After an initial explanation of what lies ahead, any outstanding procedural matters are dealt with.  The RRT then proceeds to question the applicant and any witnesses.  Opportunities are provided for witnesses to discuss matters about which they had been questioned.

The RRT will also allow applicants to submit additional written evidence after the hearing has concluded.

The Migration Review Tribunal (MRT) also assesses visa and visa-related applications. The name is less controversial than the RRT, and is concerned with all other aspects of the migration review outside the Refugee and Humanitarian Program.

Federal Court of Australia and the Federal Circuit Court

Unlike the above tribunals, the Federal Court conducts judicial review of some migration decisions.  This means that it can determine whether a decision is unlawful and, if so, order the decision maker to remake the decision.  Judicial review is very complex and normally requires the assistance of an experienced lawyer. The Federal Circuit Court also has jurisdiction over immigration and refugee matters.

High Court of Australia

The High Court of Australia is the final court of appeal in Australia. There have been several important decisions that have come down from the High Court bench concerning refugee rights and the interpretation of immigration legislation. The High Court will only consider a case if there is an important point of law to consider. For example, in one refugee case, the High Court considered the validity of indefinite detention, – being held in custody with no known release date. This was an important legal issue because it raised questions about the Constitution, and whether the indefinite detention of asylum seekers violated the Australian Constitution.

Commonwealth Ombudsman

The Commonwealth Ombudsman can review a decision made by the Immigration Department when some mal-administration has occurred.  However, the Ombudsman cannot substitute their decision for that of the Department.  They may only recommend corrective action if they believe that there has been some failing in the administration of departmental policy.  Their recommendations can include stating that the action was unreasonable or oppressive or that there was undue delay in making the decision.

The Ombudsman is precluded from reviewing action taken by the Minister but can investigate a recommendation made by the Department to the Minister.

Any person who is adversely affected by a decision has a right to complain to the Ombudsman, even if there is no right of appeal to the MRT, RRT, AAT or Federal Court. An overseas applicant affected by an adverse decision may also complain.  The overseas complainant need not be an Australian citizen or permanent resident of Australia.

Minister’s Discretion

The Minister has wide discretionary powers. However, even in cases with no automatic right of review, there must still be compelling reasons for the Minister to change a decision of the Department.  Cases that could be considered to show compelling reasons for review could be those where:

  • circumstances have materially changed since the Departmental decision was made;
  • there is evidence that the Department has not applied policy; and
  • there are special compassionate factors.

Interpreters

Interpreters are available through the Department of Immigration and Citizenship 24 hours a day, seven days a week on a telephone interpreting service: 131 450. There are facilities for a three way conference call between the English-speaker, the non-English speaker, and an interpreter. A large range of services is available, including translation of documents to aid in the settlement of migrants in Australia.

Disclaimer

This does not constitute legal advice and the Tasmanian Law Handbook should not be used as a substitute for legal advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in it or omitted from it.