Immigration


 

With currently about 100 visa subclasses, Australian Immigration Law is a complex system.

For instance,

  • the Migration Act 1958 consists of over 1,000 pages spread over 2 volumes,
  • the Migration Regulations 1994 consists of over 2,200 pages spread over 7 volumes,
  • there are over 130 migration related legislative instruments; and
  • countless of pages of policies (commonly known as the Procedural Advice Manual 3 or PAM3) published by the Department of Immigration and Border Protection (DIBP).

The ever-changing migration legislations, regulations and policies can make your visa journey a stressful and confusing process.

ProActive Legal is a specialist immigration law firm that focuses on providing practical, effective and tailored solutions to achieving your migration goals. The Solicitor Director of ProActive Legal is one of only 36 Accredited Specialists in Immigration Law in New South Wales.

We have expertise in providing advice and representing clients in the full array of immigration and Australian citizenship situations. It includes:

  • Visiting Australia: Visitor visas for tourism or business purposes and Working Holiday visas.
  • Studying in Australia: Students visas whether to study English courses, primary or secondary school, university or vocational courses
  • Working in Australia: Skilled migration visas, employer sponsored temporary visas, employer nominated permanent residence (ENS) visas, regional sponsored migration scheme (RSMS), State/Territory nominated skilled migration visas.
  • Specialised work activity in Australia: Short stay and long stay business visas, training and research visas, entertainment visas, etc.
  • Investing or establishing a business in Australia: Business and innovation visas, business talent visas, investor and significant investor visas.
  • Family visas: partner visas, parent visas including prospective marriage visas, child visas, carer visas, orphan relatives visa, remaining relative visas, aged-dependant visas, and New Zealand family relationship visas.
  • Other temporary visas such as investor retirement visas, medical treatment visas
  • Refugee, humanitarian and protections visas.

Our expertise don’t just stop at visa applications, assisting clients to resolve and achieve the best outcome in challenging matters such as the following are what makes as different.

  • Challenging legality of DIBP policy or interpretation of legislative provision in appropriate situation.
  • Administrative Appeals Tribunal (AAT) Migration and Refugee Division (formally the Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT)) merits review of DIBP decision to refuse the grant of a visa or to cancel a visa.
  • AAT merits review of DIBP decision to refuse to the grant of a visa or to cancel a visa on character grounds, or refusal of Australian Citizenship.
  • Representing client in appals to the Federal Circuit Court, Federal Court of Australia and the High Court of Australia of decisions to refuse or cancel a visa including airport visa cancellation.
  • Making ministerial intervention requests
  • Assisting with seeking for wavier of health requirements
  • Assisting corporates in sponsorship business monitoring in relation to compliance of sponsorship obligations.
  • Family violence, waiver of sponsorship limitation, etc. in Partner visa application
  • Complicated Australian citizenship application involving seeking residence exemptions, character concerns, and children that lived in Australia the first 10 years of their life but without a valid visa)
  • Bridging E visa refusals
  • Application for waiver of No Further Stay visa condition

 

Individuals

Partner Migration

A person who is the fiancé, spouse or de facto partner of an Australian citizen or permanent resident is generally eligible to apply for a Partner migration visa.

Generally, to be granted a Partner visa the applicant must be sponsored by their Australian citizen or permanent resident partner, be able to prove that their relationship is exclusive, genuine and continuing and meet certain health and character requirements. Complicating factors can arise in Partner visa applications, such as sponsorship limitations, relationship breakdowns, family violence and character and health issues.

Visa subclasses in this category include:

  • Subclass 300
  • Subclass 309
  • Subclass 100
  • Subclass 820
  • Subclass 801

Parent Migration

A person who has at least half or more of their children settled in Australia as Australian citizens or permanent residents is generally eligible to apply for a Parent migration visa.

The Parent migration visa is divided into two categories: contributory parent migration and non-contributory parent migration. Contributory parent migration requires a payment of a significant fee to cover the provision of health costs in return for a faster processing time. Non-contributory parent migration does not require a payment of a significant fee, however visa processing time is significantly longer.

Those who have financial constraints but do not wish to wait for the non-contributory parent migration visa may consider a two-stage parent migration process (subclass 173 then subclass 143) whereby the health costs are paid in two instalments with a gap of at least 2 years between payments.

Parents who are in Australia and have attained a particular age may be eligible to apply for an Aged Parent or Contributory Aged Parent visa. The benefit of these visas is that they allow the parents to remain in Australia on a Bridging visa while the application is being processed.

Complications in the Parent Migration visa category can arise, such as doubt as to whether the children are ‘settled residents’ of Australia. The health and character requirements pose a particular complication as the rule for permanent resident visas is that if any one applicant fails the requirements, then all will fail (commonly known as the “one fail all fail” rule).

Visa subclasses in this category includes:

  • Subclass 103
  • Subclass 143
  • Subclass 173
  • Subclass 804
  • Subclass 864

Child Migration

Child visa

A child under the age of 18 years (and in some circumstances, over the age of 18 but under the age of 25) may be eligible to apply for a Child migration (subclass 101 or 802) visa if either of the child’s biological parents are settled in Australia as an Australia citizen, permanent resident or eligible New Zealand citizen.

Adoption visa

A child who has been formally adopted overseas may be eligible to apply for an Adoption (subclass 102) visa, sponsored by their adopted parents who are Australia citizens, permanent residents or eligible New Zealand citizens. Generally, if the adoption took place when the parents were already residing in Australia, then the adoption needs to be approved by the competent authority in Australia prior to the adoption.

Orphan Relative visa

A child may be sponsored by their Australian relative if both of their biological parents are deceased, permanently incapacitated or their whereabouts are unknown. The Australian relative may be their grandparent, uncle, aunt, niece or nephew (including step-relatives).

Other Family Migration

Carer visa

A Carer visa (subclass 116 or 836) is for a person to migrate to Australia to provide care to an Australia citizen or permanent resident relative who requires on-going daily care for at least 2 years due to an illness or disability. It must be satisfied that the care required is not reasonably available to the person from another Australian relative, health care or community facility.

Remaining Relative visa

A person may be eligible to apply for a Remaining Relative (subclass 115 or 835) migration visa if all of their relatives (parents, siblings and adult children who are no longer dependent on them) are usually resident in Australia as an Australia citizen or permanent resident. Relatives include relatives of their spouse or de facto partner.

Aged Dependent Relative visa

A person who has reached a certain age (at least 65 years for males and depending on the year of birth, 60-65 years for females) and has been entirely or substantially financially dependent on an Australian relative for basic living needs may be eligible to apply for an Aged Dependent Relative visa. However, if a person is in receipt of social welfare benefits or pensions in their home country, they may not satisfy the requirement for this visa.

Student visa

Australian Student visas (subclass 500) are available to children as young as 6 who wish to undertake their primary schooling in Australia. Students wishing to obtain a vocational qualification, university degree or simply even study an English course may also be eligible for a Student visa.

For children under 18 years of age, a parent may apply for a Student Guardian visa to accompany the child to study in Australia.

As with most Australian temporary stay visas, the Department of Immigration must be satisfied that the applicant has a genuine intention to study and stay in Australia on a temporary basis only. Therefore, appropriate course selection and a study plan is of vital importance. ProActive Legal works closely with reputable international education consultancy firms to provide students with sound course advice.

Temporary Graduate Skilled visa

Most international students are eligible to apply for a Temporary Graduate Skilled (subclass 485) visa after completion of their study in Australia and are assessed as suitable for an occupation listed in the Skilled Occupation List (SOL). The length of a Temporary Graduate Skilled visa may be for 18 or 24 months depending on individual circumstances. There is no restriction as to what the visa holder does while holding this visa, but most use this opportunity to work towards securing permanent residency in Australia either through General Skilled Migration or Employer Sponsored Migration.

Temporary Recognised Graduate Skilled visa

A Temporary Recognised Graduate Skilled (subclass 476) visa is available to graduates outside Australia who have completed a degree or higher qualification in the Engineering discipline from selected tertiary institutions around the world and who apply within 2 years. It allows visa holders to work, live, holiday or study in Australia for 18 months.

General Skilled Migration

General Skilled Migration may be available to a person with particular qualifications, skills and/or experience making them suitable, as determined by a relevant assessing authority, for a particular skilled occupation deemed to be in shortage by the Australian government. A person must attain a minimum number of skilled points (currently 60) before they can submit an expression of interest (EOI) to apply for the visa. There are two broad categories of General Skilled Migration: Independent Skilled Migration and State/Territory Sponsored General Skilled Migration.

Skilled points are calculated based on a number of factors: age, English proficiency, qualification level, Australian and overseas work experience, Australian study qualification, study in regional Australia, occupational-related Australian Professional Year qualification, partner skills, state/territory nomination and points for applying through the two-step State/Territory Sponsored Regional Skilled Migration (subclass 489) visa.

Independent

An individual may submit an Expression of Interest (EOI) to apply for an Independent Skilled Migration (subclass 189) visa if they have been assessed as suitable for an occupation listed in the Skilled Occupations List (SOL), have competent English and have attained the minimum skilled points. Invitations to apply are given in the order of the highest to the lowest skilled point candidates and on a first-in-first-serve basis for candidates at the same skilled point level, subject to the maximum number of invitations allocated by the Department of Immigration for each occupation in each invitation round.

State/Territory Sponsored

State/Territory Sponsored General Skilled Migration is similar to the Independent Skilled Migration (subclass 189) visa except that it has a broader range of occupations available for the state/territory government to sponsor as well as bonus skilled points. Available occupations will depend upon each state/territory’s migration plan but will be listed in the Consolidated Skilled Occupations List (CSOL).

There are two pathways under State/Territory Sponsored General Skilled Migration.

The most beneficial pathway is the permanent State/Territory Sponsored Skilled Migration (subclass 190) visa. This pathway awards skilled points to the candidate.

Alternatively, a person may be eligible to apply for the two-step State/Territory Sponsored Regional Skilled Migration (subclass 489) visa. The benefit of a subclass 489 visa is that it awards 10 skilled points to the candidate. A subclass 489 visa holder will be eligible to apply for a Skilled Regional (subclass 887) visa – a permanent residence visa – after having lived in the designated regional area for at least 2 years and worked full-time in the area for at least 1 year.

Another benefit of State/Territory Sponsored General Skilled Migration is that invitations to apply for the visa are normally issued immediately upon approval of sponsorship by the relevant state/territory. This means there is less uncertainty as to when (if at all) a candidate will receive an invitation to apply, making it a more attractive option than the Independent General Skilled Migration pathway.

Business Innovation and Investment Migration

There are a number of business innovation and investment migration visa options available to a person with a successful business or investment career.

Subclass 188 and 888 Business Innovation and Investment visa

There are three streams under the subclass 188 Business Innovation and Investment visa:

  • Business Innovation Stream – This pathway is for a person to establish or invest in a business in Australia in which they will manage and operate. After operating an eligible business for at least 2 years and satisfying other requirements (such as asset and turnover requirements and employment of local employees), the person will be eligible to apply for a subclass 888 Business Innovation and Investment (Permanent) visa.
  • Investor Stream – This pathway is for a person invest AUD$1.5 million in an eligible investment in Australia. After having maintained the eligible investment for at least 4 years, the person will be eligible to apply for a subclass 188 Business Innovation and Investment (Permanent) visa.
  • Significant Investor Stream – This pathway is for a person to invest at least AUD$5 million of unencumbered and lawfully acquired funds into a complying significant investment. After maintaining the complying significant investment for at least 4 years, the person will be eligible to apply for a subclass 188 Business Innovation and Investment (Permanent) visa.

Both the provisional subclass 188 Business Innovation and Investment and the permanent subclass 888 visa needs to be sponsored by a state/territory government.

 

Corporates

Employer Sponsored Temporary Work visa

There are a number of employer sponsored temporary work visas available depending on the nature of the work activity and employment.

The various visas include:

  • Subclass 457 Temporary Work (Skilled) visa – This visa is intended for an employer in Australia to sponsor a foreign skilled worker in an eligible occupation as listed in the Consolidated Skilled Occupation List (CSOL) to fulfil a position in their business, or a position that has been agreed to in a Labour Agreement. This visa can be granted for a maximum period of 4 years and allows the foreign skilled worker to transition to a permanent Employer Nomination Scheme (subclass 186) visa after 2 years.
  • Subclass 400 Temporary Work (Short Stay Activity) visa – This visa is intended for a person wishing to enter Australia to undertake a highly specialised form of non-ongoing work, or who has been invited by an organisation in Australia to participate in a non-ongoing event. Examples include providing highly specialised training to an Australian organisation, or participating as a guest speaker in a business conference.
  • Subclass 401 Temporary Work (Long Stay Activity) visa – This visa is intended for an organisation to sponsor a foreign worker to work in Australia in an exchange program, contracted sportspersons (players and coaches), religious workers and domestic workers of foreign company executives or government agencies operating in Australia. This visa can be granted for a maximum period of 4 years.
  • Subclass 402 Training and Research visa – This visa is intended for a person who is sponsored by an Australian organisation to travel to Australia for the purposes of participating in formal occupational training, research or professional development activities.
  • Subclass 420 Temporary Work (Entertainment) visa – This visa is intended for a person working in the entertainment industry to travel to Australia to work as a performer or as support or production staff. Examples include working for concerts, circuses, opera and the film industry.

Employer Sponsored Permanent visa

There are two types of employer sponsored permanent visas: the subclass 186 Employer Nomination Scheme visa and the subclass 187 Regional Sponsored Migration Scheme visa.

Subclass 186 Employer Nomination Scheme visa

This visa is intended for an employer in Australia sponsor a foreign skilled worker in an eligible occupation as listed in the Consolidated Skilled Occupations List (CSOL) to fulfil a full-time position of at least 2 years in the business. There are two pathways under this visa:

  • Direct entry pathway – The core requirements are that an applicant must be under 50 years of age, have at least 3 years work experience in the nominated occupation, have competent English and a positive skills assessment for the nominated occupation.
  • Temporary Transitional pathway – The core requirements are that an applicant must be under 50 years of age, have vocational English and have worked in the nominated occupation for at least 2 years.

Exemptions to age, English, work experience and skills assessment requirements for the above pathways are available in limited circumstances.

Subclass 187 Regional Sponsored Migration Scheme visa

This visa is similar to the subclass 186 Employer Nomination Scheme visa, except that the eligible occupation is not confined to the Consolidated Skilled Occupations List (CSOL). All occupations at ANZSCO skill level 1, 2 or 3 are eligible. However, an employer can only sponsor a foreign skilled worker under the visa if the work is to be performed in a designated regional area of Australia and if the nomination is endorsed by a regional certifying body. There are two pathways under this visa:

  • Direct entry pathway – The core requirements are that an applicant must be under 50 years of age, have competent English and have the necessary qualification listed in ANZSCO for the nominated occupation (a positive skills assessment is required for a small number of occupations).
  • Temporary Transitional pathway – The core requirements are that an applicant must be under 50 years of age, have vocational English and have worked in the nominated occupation for at least 2 years.

Exemptions to age, English and skills assessment requirements for the above pathways are available in limited circumstances.

Employer Sponsorship and Sponsorship Obligations Audit

A business sponsoring a foreign worker for a subclass 457 Temporary Work (Skilled) visa must first apply to become an approved Standard Business Sponsor and obtain approval to nominate a particular occupation. There are many requirements to be met, which include providing training to local employees, maintaining active business operation, providing no less favourable terms and conditions of employment and having a genuine need for the position.

Further, there is a long list of obligations that each approved Standard Business Sponsor must comply with during the term of their sponsorship approval. The Department of Immigration and the Fair Work Ombudsman conduct random compliance audits. ProActive Legal can provide advice and offer mock compliance audits to assist corporate clients in ensuing they are in compliance with all sponsorship obligations.

Merits Review

Unfortunately, there are some visa applications that may initially be unsuccessful at the Department of Immigration for various reasons, or a visa may be cancelled. If that happens, an applicant will have the right to apply to the Migration and Refugee Division (MR Division) of the Administrative Appeals Tribunal (formerly the Migration Review Tribunal and the Refugee Review Tribunal) for a merits review of the refusal or cancellation decision.

The function of the MR Division of the AAT is to conduct a fresh review of the entire application. It assesses the application or cancellation process afresh and takes into consideration any new information that is presented to them to determine what the correct outcome is, or should have been, at the time the AAT made its decision. Unlike a court proceeding, the Department of Immigration is not a party to the review in the MR Division of the AAT.

In cases involving a visa refusal or a visa cancellation on character grounds under s.501 of the Migration Act, any merits review will be in the General Division of the Administrative Appeals Tribunal. The Department of Immigration will be a party to these review proceedings.

Judicial Review

A person who has had a visa refusal or visa cancellation and has subsequently received an unsuccessful outcome at merits review may make a ministerial intervention request to the Minister for Immigration if they believe their circumstances are unique and exceptional.

Any request for ministerial intervention should be made as soon as practicable after receiving a negative AAT decision. Failure to lodge before the person’s Bridging visa expires will result in them losing any work rights they may have while the request is being processed.

Australian Citizenship

There are a number of ways to acquire Australian citizenship:

  • Citizenship by descent – This is available to children born outside Australia to a parent who is an Australian citizen at the time of their birth.
  • Citizenship by birth – This is available to children born in Australia to parents who are not Australian citizens at the time of their birth. The child may acquire Australian citizenship at the age of 10 if they have been living in Australia for the first 10 years of their life.
  • Citizenship by conferral – This is the most common pathway for a permanent resident of Australia to acquire Australian citizenship. Generally, there are certain residence requirements that must be met in order to be eligible to apply for Australian citizenship by conferral. There are a number of exemptions available to a person wishing to become an Australian citizen but who fail to meet the general residence requirement. For instance, those who have a spouse or de facto partner that is an Australian citizen may be exempt.

Australian citizenship applications can be complex, particularly in circumstances where there is an issue that may cause doubt as to whether the person applying for it is of ‘good character’. These kinds of enquiries from the Department of Immigration must be handled and responded to carefully, otherwise it may result in a refusal of the application or even worse – initiate an intention to cancel a permanent residence visa. Factors that can cause character concerns include, but are not limited to, criminal convictions and an adverse immigration history.

In some extreme or unfortunate circumstances, an Australian citizenship application may be refused, an Australian citizenship may be cancelled, or approval can be revoked in the case of an Australian citizenship by conferral. If any of these happen, applying to the General Division of the AAT for a merits review of the decision will likely be the only further option.