Australia regulates its borders by requiring all non-citizens who wish to travel to or remain in Australia to have a valid visa. Anyone who is not an Australian citizen needs a visa that is in effect to
lawfully enter or remain in Australia. In other words, the Australian migration law governs and regulates the international movement of people to this country.
Australia operates a universal visa system. In effect, this means that non-citizens travelling to Australia temporarily or permanently require a valid visa or authority to enter and remain in Australia. The
operation of the visa system is governed by the Migration Act 1958 (the Act), related Regulations, policy and case law.
The Australian visa system comprises around 90 different visas subclasses, all of which are unique and many of which are specifically created for a very narrow or even a single purpose. DIBP has
been working to reduce the number of visa subclasses under what is known as the Visa Simplification Program. These visas work together to create the Australian visa system.
A visa is permission to travel to, enter or remain in Australia. Visas control when and how a non-citizen can travel to, enter or remain in Australia. A visa will either be permanent or temporary.
Under the Migration Act 1958, a non-citizen who wishes to travel to, enter and remain in Australia must apply for a visa of a particular ‘class’.
A visa label is not a visa. It is only evidence of the permission ‘to be known as a visa’. From 1 September 2015, Australia ceased issuing visa labels to holders of almost all Australian visas. As visas are
electronic, there will now in most cases, be no physical evidence of the visa, other than an email confirmation on grant and the record in Visa Entitlement Verification Online (VEVO).
Anyone in Australia who is not an Australian citizen and who does not hold a visa is an unlawful non-citizen. An unlawful non-citizen must be detained and removed from Australia. Removal from
Australia, and deportation from Australia (in the case of lawful non-citizens), are the ultimate administrative sanctions. Other breaches of immigration law can result in visa cancellation and/or in
exclusion periods and bans from re-entering Australia. In certain circumstances criminal sanctions may be applied.
Unlawful non-citizens in Australia are subject to the same laws as Australian citizens. If they commit crimes they can be imprisoned and fined for those offences as well.
There are two different uses of the terms ‘onshore’ and ‘offshore’ in migration law. It has a dual connotation. One refers to where an applicant is, that is, inside or outside Australia. The other refers to the
class of visa. Permanent visas may belong to either a Migrant visa or Residence visa or Permanent visa class. They have similar requirements, but are different classes of visa. For example, there is a
Partner(Migrant) (Class BC subclass 100) ‘offshore’ visa, and an ‘onshore’ equivalent, the Partner (Residence) (Class BS subclass 801).
It is normally referred to a Migrant visa as an offshore visa and a Residence visa as an onshore visa, although, depending on the class, the applicant might not have to be offshore at the time a Migrant
visa is applied for or when it is granted. However, even if a Migrant visa can be validly made by an applicant in Australia, that applicant will not be entitled to a bridging visa.
For the Permanent visa classes introduced on 1 July 2012, the applicant can be offshore (outside Australia) or onshore (in Australia) when the visa is applied for and granted. Many temporary visas can
be applied for and granted while the applicant is either onshore or offshore.
If an applicant is in Australia at the time of application, there are extra requirements for them to meet. The legislation restricts applicants who are onshore in the following circumstances:
1. When the applicant does not hold a substantive visa
2. When the applicant does not hold a qualifying visa
3. When the applicant is specifically barred by a ‘no further stay’ condition placed on their present or last held visa (Condition 8503 for example)
4. When they have already had an onshore application refused, or have had a visa cancelled
Offshore applications may be similarly restricted where the applicant remains in Australia, while making an offshore application.
It is very important to lodge an ‘assessment ready’ application. This means all required forms, documents and required information are submitted together at the time of making the visa application.
By doing that, an applicant won’t need to keep going back to ‘patch up’ gaps in the application and the DIBP delegate can assess the application more efficiently.
While any information provided before a decision is made must be taken into account, it is important to keep in mind that the Minister is under no obligation to delay making that decision to wait for
further information to be provided. This means that even if you have advised DIBP that you intend to give further information, the Case Officer does not have to wait for it.
Section 13 (1): Lawful non-citizens
A non-citizen in the migration zone who holds a visa that is in effect is
a lawful non-citizen.
Section 14 (1): Unlawful non-citizens
A non-citizen in the migration zone who is not a lawful non-citizen is
an unlawful non-citizen.
General Skilled Migration (GSM) visa is defined as a Subclass 175, 176, 189, 190, 475, 476, 485, 487,
489, 885, 886 or 887 visa, granted at any time. Some of these visas are points based, and others
are not.
The Points Based Skilled Migration scheme, Skill Select, incorporates three GSM visas:
- The subclass 189 (Skilled – Independent) visa
- The subclass 190 (Skilled – Nominated) visa
- The subclass 489 (Skilled – Regional Provisional) visa
The GSM visas that are not points based are:
- The subclass 476 Recognised Graduate Visa
- The subclass 485 Skilled Graduate
- The subclass 887 Skilled-Regional visa
Waiver Of No Further Stay Conditions
There are special provisions allowing the ‘no further stay’ conditions 8503 and 8534 to be waived
if the person has a ‘genuine intention’ to apply for General Skilled Migration visa, a Business
Talent visa or a provisional Business Innovation and Investment visa, or under the Employer
Nomination Scheme or the Regional Sponsored Migration Scheme visa:
The waiver request does not have to be made in writing and applying via SkillSelect is accepted
as a sufficiently compelling reason for the condition to be waived in all cases where the applicant
or dependent family member applies for one of the visas listed. SkillSelect automatically waives .
the 8503 or 8534 condition when the application is made:
Points Based GSM Visas And Skillselect
Non-Points Based GSM Visas
Anyone who wish to apply for a GSM visa cannot do so directly, instead they have to lodge an
Expression of Interest (‘EOI’) online and wait to be invited by the Minister to apply for a visa. As the
EOI is not a visa application, potential applicants can only stay in Australia after submitting an EOI
if they have a valid visa (there are no bridging visas associated with the EOI). Also there is no cost
for submitting an EOI.
A bridging visa can be granted if the person is invited to apply for a visa when that application is
actually made, and the person is in Australia at the time of application. The bridging visa
associated with an application for a GSM visa will have nil conditions, which means that the
applicant can work full time while waiting for a decision on the application.
As noted previously, if the applicant is in Australia, they must hold a substantive visa or a Bridging
visa A, B or C. This means that a person who is not lawfully in Australia or who holds a BVE,
he/she cannot lodge an application or be granted a further bridging visa while they remain in
Australia. (They would need to depart Australia and apply offshore).
The three non-points based GSM visa subclasses, subclass 476, 485 and 887 visas, are
processed differently to the points tested SkillSelect visas, although an application for a subclass
887 must be an internet application.
They are processed in the order in which they are received rather than in accordance with the
processing priorities set out in Ministerial Direction No. 67.
Business skills visas are part of the Skilled Stream. They are the group of visas that facilitate the entry into Australia of high quality business or investor migrants.
Most business skills visas involve a two-stage application process. At the first stage business migrants apply for a provisional visa (Class EB subclass 188) and then if they meet certain criteria, they
apply for a permanent visa (Class EC subclass 888). However, there is a permanent visa that can be applied for without first going through the provisional stage, the Business skills – Business Talent
(Permanent) (Class EA) subclass 132 visa.
Provisional Business Skills visas
Permanent Business Skills Visas
The Provisional Business Skills visas are part of SkillSelect, which means that a person is not able
to apply for a provisional visa directly but must first lodge an Expression of Interest (‘EOI’) and wait
to be invited to apply for a visa.
There is a points test – the ‘innovation points test’ – and the person must score at least 65 points
on this test and be nominated by a Austrade for the Premium Investor stream or either Austrade
or a State or Territory for other streams, to get an invitation to lodge a subclass 188 visa.
There are then additional requirements depending in which stream the person intends to apply.
A subclass 188 visa that has been approved under an extension stream is valid for 4 years and 3
months, and the person can apply for the permanent Business Innovation and Investment
(subclass 888) visa after holding the provisional visa for 12 months if in the PIV stream, 2 years if in
the Business Innovation Stream, or 4 years if in the Investor or SIV Streams. They will be required
to meet certain criteria, which differ depending on the stream in which the person applied.
While there is no requirement to lodge an EOI at the permanent stage, it is still required that the
person has Austrade nomination in the case of the Premium Investor visa stream, or in any other
case a State or Territory nomination.
It should be noted that NZ citizens in Australia holding subclass 444 visas and who own and
manage a business, can apply for a subclass 888 visa without first holding a subclass 188 visa
A permanent visa allows an indefinite stay but not an indefinite travel facility. A permanent
resident who does not become an Australian citizen will need to obtain a Resident Return visa to
be entitled to re-enter Australia once the initial travel facility expires.
To make a valid visa application a non-citizen must apply for a visa of a particular class. A valid
visa application is an application for a visa class that meets basic legislative validity requirements.
It is very important to lodge a valid visa application because an invalid visa application cannot be
considered by the Minister or his/her delegate.
Even if an applicant meets all the criteria for the grant of a visa, if their visa application is invalid, it
cannot and will not be considered.
An invalid visa application will be returned to the visa applicant (or their migration agent or
whoever is the authorized recipient) without being considered. It is deemed to have never been
lodged. If a Visa Application Charge has been paid, it will be refunded in full.
A visa application is not valid if a person is s 48 barred or a person has a visa with a condition
such as “no further stay” condition unless the Minister has waived the condition. There are a
number of no further stay conditions:
– 8503 (applies to visitor visas/temporary visas)
– 8534 and 8535 (applies to student visas)
Legally, the Minister has made a decision to refuse to ‘consider’ the application because it is not
valid. This is not the same as a decision to refuse to grant the visa.
If the visa application is validly made, the Minister must consider the visa application. A case
officer will decide whether to grant or refuse the visa.
When an applicant is in Australia, it is required that he or she must hold a ‘substantive visa’ to be
able to make a valid application for most of the visas. Options for non-citizens in Australia who do
not hold a substantive visa to make a valid application are very limited.
A temporary visa either has a set amount of time for the stay in Australia; or remains in place
until an event occurs such as DIBP making a decision on an application or as long as a person
holds a certain status such as being a New Zealand citizen with a valid New Zealand passport.
‘Visa eligibility’ is a different concept to ‘visa application validity’. While the Minister’s power to
consider an application depends on whether a valid application has been made, the Minister’s
power to grant a visa depends upon whether the applicant meets the eligibility criteria for the
visa.
Visa eligibility becomes relevant after a valid visa application is accepted for consideration and
involves satisfying the grant criteria for a particular subclass.
