Chapters

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.

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