Julie T Heller Immigration Planning Consultants

Australian Immigration Law

What is Australian Immigration Law?

dashingly Immigration law in Australia is extensively legislated and revised constantly. The principal sources of law are the Migration Act and Migration Regulations, a number of other Acts, and schedules and gazette instruments to them; all amounting to several thousand pages of law. The Department of Immigration and Citizenship is legally responsible for managing the immigration system in Australia, and it has its own policies in relation to how it interprets the law, and consequently how it regulates the arrival and departure in Australia of non-Australian citizens.

The most important element of immigration law is the requirement that all non-Australians hold a visa to enter and remain in Australia. There are presently over 130 different kinds of visas and each has its own specific criteria required for grant and prescribes varying lengths and conditions of stay. As immigration law is fast-changing it is vital that applicants are aware of the current requirements prior to lodging a visa application as, for example, applying with the wrong form or paying the old fee can alone cause an application to be rejected.

Immigration advice

Only those registered with the Migration Agents Registration Authority (MARA) may provide immigration advice in Australia. Our consultants are all qualified lawyers who are registered migration agents and are bound by the MARA Code of Conduct. Only migration agents who are lawyers can assist with court appeals. Lawyers also have a greater understanding of the constitutional and administrative law framework within which migration law operates, which may make them better equipped to deal with complex migration matters.

Visas

There are over 130 different kinds of visas to Australia. We can advise you on all of these. A brief overview of some of the visas is set out below. Please note this is general information only and should not be relied upon in any way as legal advice. Please contact us if you require more information.

• Tourist & Other Visitor Visas
  The following visas are available to genuine tourists.

  • Tourist visa:
  • Allows either a single or multiple entry into Australia for a stay period of up to three (3), six (6) or 12 months.
  • The period of stay and number of entries granted will depend on the purpose of the visit and your personal circumstances.
  • E-Visitor Visa*;
  • European passport holders who are outside Australia can apply online free of charge for an E-Visitor Visa;
  • Permits stays of up to 3 months on each visit to Australia within the 12 month period from the date the visa is granted.
  • Electronic Travel Authority (business or normal)*:
  • Available to passport holders from certain countries only.
  • Permits stays of up to 3 months on each visit to Australia within the 12 month period from the date on which you first enter Australia on the ETA.
  • Business visitor visa
  • Allows stays in Australia of up to 3 months for genuine business visits for things such as conferences, and which generally does not permit you to work.
  • Sponsored family visitor visas;
    • available to applicants who wish to visit Australia and are sponsored by a family member or other eligible individual who is a citizen or permanent resident of Australia;
    • often requires that the Australian family member (or other sponsor) pay a bond to the Department of Immigration.
  • Working holiday visas:
    • Available to holders of certain passports for a holiday in Australia of up to 12 months;
    • Work is permitted, but one cannot work for the same employer for more than 6 months;
    • WHVs can be renewed for a second stay of 12 months only if you have completed 3 months seasonal harvest work during your first stay as a working holidaymaker. The second year runs from the end of your first stay.
    • Unless exceptional circumstances exist a working holidaymaker cannot apply for a tourist visa in Australia at the end of their stay.
• Student Visas
  A range of visas exist for those wishing to study, teach or conduct research in Australia and include:

  • Exchange
  • Schools Sector
  • Higher Education Sector
  • Independent ELICOS (English language courses)
  • Postgraduate Research Sector
  • Professional Development
  • Vocational Education and Training Sector
  • Visiting Academic
  • Educational
  • Student Guardian (for guardians who need to accompany minor students)

  Application requirements vary between visa types and evidence you must submit depends on what your nationality is. You may be asked to provide evidence of your English ability, your financial capacity to support yourself during your studies and for information about your educational background. Student visas are granted for the duration of study, including vacations. They are subject to strict visa conditions that limit the hours of work you can do while a student Australia and which require you to attend and achieve acceptable marks in your course/s.
• Skilled Migration
  Skilled individuals can apply independently or with family or state or territory government sponsorship for a variety of visas into Australia. These visas are generally permanent, but there are some temporary visas that allow you to gain the relevant experience and skills required for a permanent visa application (such as where a practical year of work experience is required in your profession). Individuals must generally be under 45 years of age when they apply, have a high level of English language ability and must normally score a minimum number of points. Points are based on things such as your occupation, work history, English language ability and your age. Skilled visas take some time to be processed, generally 6 months to a year. However, priority processing is available in some instances. Skilled migration requirements change regularly: please contact us for a thorough assessment of your case in view of the current law. We are particularly experienced in advising applicants whose skills fit imperfectly into the categories listed on the Skilled Occupations List and in developing strategies that take into account processing times. For an assessment of your eligibility for skilled migration, and an overview of other visa options open to you, please complete our Assessment Form and return the form by fax on (+613) 9600 3527 or email: info@jtimmigration.com.au. LINK TO ASSESSMENT FORM
• Employer Sponsored & Employer Nominated Visas
  Julie T Heller Immigration Planning Consultants are highly experienced in preparing employer sponsored/nominated visa applications. These visas are either temporary (up to 4 years) or permanent. In all cases the visa applicant must have the experience and qualifications necessary for the position, be paid at or above a minimum salary level and speak a minimum level of English. Although some skilled individuals might apply independently under the skilled migration program, visa processing times under the employer sponsored/nominated schemes are much faster as they are given priority treatment. Also, with a reduced quota of skilled migration visas available in 2009, the employer sponsored/nominated visas will become increasingly important visa options for skilled workers. Temporary Visas (Subclass 457)

  • Long stay temporary business visas allow Australian businesses to employ overseas specialists and professionals for a period of up to 4 years.
  • The process for sponsoring a person from overseas on this type of visa is a 3 step process:
    1. Your company applies for approval as a business sponsor;
    2. Your company nominates a position to be filled; and
    3. Your intended foreign employee (Nominee) applies for a Subclass 457 visa
  • Each step must be in order. However, in practice all 3 steps can be lodged together.
  • These visas can lead to permanent residency if your company is happy with the Nominee.
  • The sponsorship remains valid until the number of nominations specified is approved, or 2 years has elapsed, whichever occurs first. The Business Sponsorship in most cases can be used by a company to sponsor future temporary residents and not just the foreign applicant you are currently considering employing.
  • 457 visas are quick to process, which is why many companies start employees on a 457 and then apply for a permanent visa for them once they are in Australia and started work.

  Please note: we offer corporate discount rates for our ongoing business sponsor clients.

  Permanent Visas (ENS Scheme)

  ENS visas do not involve the company becoming a business sponsor, but merely requires them to nominate a position they wish to fill. However, as the application is permanent, the information which needs to be provided about the role and the applicant's suitability for it is increased, and the applicant and his or her family are required to complete more stringent health and character checks. Unless the applicant is paid at or above a specified high salary, or has worked in the role in Australia for at least 2 years, a skills assessment by the relevant skills assessment authority is required.

  Please note: Important changes frequently occur for employer sponsored visas. Please contact us for information on recent changes and to find out how they may affect you or your business.

• Citizenship
  visa description
• Business Skills Visas

  Business people with significant business and/or investment experience and significant assets may be eligible for business skills visas into Australia to establish a business or to invest.

  State or territory sponsorship may enable those who have cannot apply independently as they are over 45, speak less fluent English or have fewer net assets.

  Business skills applications are involved and you should seek professional assistance (link to contact us). Information pertaining to your business background, financial and legal information about any of your businesses, your personal finances and a business plan for your proposed activities in Australia are required.

• Partner Visas

  If you are the fiancé, spouse or same-sex partner of an eligible Australian resident (Australian citizen, permanent resident or eligible New Zealand citizen), you may be able to apply for a partner visa.

  With partner visas, it is very important that you submit relevant and strong evidence the relationship is genuine and continuing. Our consultants can assist you with information about what information is necessary and prepare and lodge a solid partner visa application on your behalf. Please contact us for more information.

• Family and Child Visas
  Settled Australian residents can sponsor relatives living overseas into Australia in limited circumstances. Relevant visas include:

  • Parent Visas

    Including Parent, Aged Parent and Contributory Parent visas

    Note that waiting periods for non-contributory parent visas are considerable - more than 10 years.

  • Child Visas
  • Remaining Relative Visa

    Allows you to sponsor a relative where he/she has no other close living relatives that do not live in Australia.

  • Carer Visa

    Available only in limited circumstances so that Australians who have a serious impairment (assessed as a 30% impairment) can be cared for by a relative from overseas.

• Refugee & Humanitarian Visas

  Our consultants have experience advising on humanitarian and refugee matters and regularly provide pro-bono advice to asylum seekers at the Asylum Seeker Resource Centre. It is important to fully explain the situation and provide appropriate backing evidence to the Department of Immigration or the Tribunal at the earliest stage possible.

• Returning Residents and Citizenship

  Although once you become a permanent resident you can live and work in Australia indefinitely, if you leave the country for long periods of time you can lose your permanent residency. After 5 years as a permanent resident you will also need to apply for a Residents Return visa if you wish to travel outside Australia and re-enter the country. We have experience assisting permanent residents with applications for Resident Return visas, including where they have allowed their residency to lapse after being absent from Australia for long periods of time.

  Many permanent residents wish to become Australian Citizens. Citizens are able to obtain an Australian passport and benefit from consular services. Citizenship is also more secure than permanent residency insofar as citizenship cannot be cancelled or revoked, even if you travel outside Australia for long periods of time. To become a citizen you need to submit an application to the Department of Immigration in accordance with the Citizenship Act 2007. The law changed on 1 July 2007 and applicants must now pass a multiple choice citizenship test, and attend a citizenship ceremony. Unless exceptional circumstances apply you must have been a permanent resident living in Australia for a minimum period before you are eligible to become a citizen. Please contact us for further information or to assist you in preparing an application for citizenship on your behalf.

• Visa Refusal or Cancellation

  If you have had a visa application refused or your visa has been visa cancelled you may be entitled to a review of that decision by the Migration Review Tribunal or the Refugee Review Tribunal.

  Similarly, if you have already applied to a Tribunal and they have upheld the initial unfavourable decision, you may be able to appeal to a Court about the decision.

  Strict timeframes apply. You must seek legal advice (link to contact us in new window) promptly after receiving notice of an unfavourable decision or you may lose your right to review. Our consultants are knowledgeable in these matters and will carefully assess your situation and advise you as to whether we believe your case should be appealed.

Copyright 2008-2009 Julie T Heller Immigration Planning Consultants

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