Immigration Law

Considering moving to Australia? Here’s what you need to know about immigration law

Australia has recently been voted one of the world’s most liveable countries. People come here to attend school, for a job, to start businesses, because they’ve entered a relationship with an Australian citizen and for many other reasons. 

But Australia has also historically had quite a strict immigration policy, and that can mean there are a few hoops to jump through if you’re considering moving to Australia. 

Here’s what you need to know about Australian immigration law.

What laws govern immigration in Australia?

Australian immigration law is the body of law that deals with the entry, stay and removal of non-citizens, and the deportation of non-citizens from Australia. It forms part of Australia’s administrative law framework, which deals with the review of decisions by government decision-makers. 

Immigration law in Australia is governed by the Migration Act 1958 and the Migration Regulations 1994 (Cth). Together, these pieces of legislation give the Minister and other decision makers broad powers to govern visas, migration status, detention, removals, citizenship, and review rights of decisions made about these matters. 

What does immigration law regulate?

In practice, immigration law touches almost every stage of a person’s journey to and from Australia. It sets out what people must do to come here lawfully, to remain here, and what can happen if those rules are broken.

Immigration law includes:

• The regulation of visas

Every person who comes into Australia and is not an Australian citizen must hold a valid visa must have a valid visa. 

• The administration of immigration detention centres

The law sets out when a person can be taken into immigration detention and requires unlawful non-citizens to be held in detention until they are granted a visa, removed from Australia or deported.

• Visa cancellations

Visas can be cancelled for a range of reasons, including where a person does not meet visa conditions or fails what is called the ‘character test’.
Under section 501(3A) of the Migration Act 1958, the Minister must cancel a non-citizen’s visa if they are in prison serving a full-time sentence and either:

• • have been sentenced to 12 months or more in prison (including several sentences that add up to 12 months or more), or
  • have been convicted of, or found guilty of, a sexually based offence involving a child.

• Deportation and removal

The law also regulates how people without a valid visa are removed from Australia and, in some cases, formally deported from the country.

Applying for a visa

For most people, the journey to Australia begins with a visa application. Whether you’re planning to study, work, join family members or build a new life here, you’ll generally need a valid visa before you can enter and remain in Australia.

The type of visa you need will depend on your circumstances, including why you’re coming to Australia, how long you intend to stay and whether you’re hoping to live here permanently or temporarily.

Most visa applications are lodged online through the Department of Home Affairs’ ImmiAccount system. Depending on the visa category, you might be asked to provide identity documents, evidence of employment or study, relationship documents and other information to support your application.

For many visas, you might also have other requirements. These can include health and character checks, English language requirements, police clearances and medical examinations. 

The Department’s website sets out the specific criteria for each visa subclass and provides step-by-step guidance on how to apply. Because every visa subclass has its own eligibility requirements, it’s important to check the criteria that apply to your situation before lodging an application.

Different types of visas

There are many different classes of visas which will allow you to live, work and/or study in Australia. The Department of Home Affairs groups these into broad categories such as visitor visas, studying and training visas, family and partner visas, working and skilled visas, and refugee and humanitarian visas. 

Some include:

• Visitor visa – for short-term stays such as holidays, visiting family and friends, or some types of short-term business trips.
• Family and partner visa – for people who have an Australian citizen or permanent resident partner or close family member, including partner visas, prospective marriage (fiancé) visas, parent visas and child visas. These are the main pathways for families and couples who want to live together in Australia.
• Child visa – allows certain children of Australian citizens, permanent residents or eligible New Zealand citizens to live in Australia as permanent residents.
• Working and skilled visas – for people with job offers or skills in demand, including temporary skilled visas sponsored by employers and some permanent skilled migration visas.
• Studying and training visas – for people who want to study, do workplace-based training or participate in certain professional development programs in Australia.
• Refugee and humanitarian visa – for people who need protection because they fear persecution, significant harm or serious human rights abuses in their home country. 
• Temporary Skills Shortage visa – for skilled workers sponsored by an approved employer to fill particular jobs in Australia when no suitably qualified local worker is available.
• Other specialist visas – for example, visas for some New Zealand citizens, working holiday makers, investors and business owners and a small number of other specific categories.

You can find the full list of current Australian visa types, with detailed eligibility criteria, on the Department of Home Affairs’ website. 

Applying for permanent residency

For many people, permanent residency is the ultimate goal of their migration journey. It gives you the ability to live, work and study in Australia indefinitely and can create a clear path to Australian citizenship in the future.

Permanent residents have a lot of the same rights as Australian citizens, with some differences. Primarily, permanent residents can’t vote in federal elections and might not be eligible for certain government positions that require Australian citizenship. 

There are different pathways to become eligible to apply for permanent residency, and each has its own requirements. If you’re keen to apply for permanent residency, get in touch with our team. We can help you find the path that best suits your circumstances before making an application. 

Applying for citizenship

For many permanent residents, becoming an Australian citizen is the final step in their migration journey. There are several ways to get citizenship, and each has its own eligibility requirements. Depending on your circumstances, you may need to meet residency and character requirements, pass a citizenship test and attend a citizenship ceremony before your application is approved.

Because the application process can vary depending on your situation, we’ve covered it in more detail in our guide to applying for Australian citizenship, where you’ll find information about eligibility, the application process and what to expect after you apply.

What recourse do you have if you are denied a visa or had your visa revoked?

Not every visa, permanent residency or citizenship application is successful. Sometimes an application is refused because the eligibility requirements haven’t been met. Or an existing visa may be cancelled, including if a person doesn’t comply with the conditions of their visa or fails the character test. 

Depending on the type of decision that’s been made, you may have the right to have it independently reviewed. Many migration decisions made by the Department of Home Affairs can be reviewed by ART. However, not every migration decision can be reviewed by the ART, and strict time limits often apply for lodging an application.

If you’re still dissatisfied after the ART has made its decision, it may be possible to seek judicial review through the court system. 

If your visa application has been refused or your visa has been cancelled, it’s important to obtain legal advice as early as possible. Understanding your review rights and acting within the applicable time limits can make a significant difference to the outcome of your matter.

Deportation

In some circumstances, a person who isn’t an Australian citizen may be required to leave Australia. This can happen if they no longer hold a valid visa, their visa has been cancelled, or they become an unlawful non-citizen under the Migration Act 1958. Depending on the circumstances, they may be removed from Australia or, in some cases, deported under the migration laws.

If you’re concerned about your right to remain in Australia or you’re facing deportation or removal, it’s important to seek legal advice as soon as possible.

For more information, see our articles on visa cancellation, immigration detention and challenging migration decisions.

We’re here to help

If you are considering immigrating to Australia, or you have concerns about your visa or immigration status, get in touch with our team. Our experienced immigration lawyers can help you understand your options, explain the legal process and find the pathway that’s right for your circumstances. 

Whether you’re applying for a visa, seeking permanent residency or citizenship, responding to a visa refusal or cancellation, or challenging an immigration decision, we can provide practical advice and represent you throughout the process. Contact Armstrong Legal today to discuss your situation with one of our immigration lawyers.