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Immigration - migration and visas

Immigration - migration and visas

What are the main ways people can migrate to Australia?

People who want to move to live in Australia must apply to migrate.

The four main ways of applying to migrate to Australia are:

  • family migration
  • economic (business) migration
  • through the Humanitarian Program as a refugee
  • through special eligibility.

What is family migration?

Family migration allows people who have already settled in Australia and have become permanent residents or citizens, to ask the government to let their family members join them. For the application to succeed, the relatives and their sponsor must meet all of the criteria in one of the set migration categories. Even spouses and dependent children must meet all criteria before they can come to Australia.

What is economic migration?

Economic migration is for people who have skills or talents, which will benefit the Australian economy. It covers business and skilled migrants in a range of categories, as well as people who pass the "points test" for skilled migrants.

These visa applications are expensive and complicated. You may need help from a registered migration agent or a lawyer specialising in this area.

What is the Humanitarian Program?

Australia is a signatory to the United Nations (UN) 1951 Geneva Convention Relating to the Status of Refugees and the 1967 Protocol Relating to Refugees. This means that Australia is required to give protection to people who arrive at Australia's borders (or are already in the country), if they fit the UN definition of a refugee.

Even if you are recognised as a refugee by the UN High Commission for Refugees (UNHCR) or any other official body, this doesn't mean you will automatically be allowed to migrate to Australia. You must also meet all the criteria set down by Australia for the relevant visa category.

You may be a refugee if you:

  • face persecution in your home country because of your race, religion, nationality, political opinion or membership of a particular social group, or 
  • are a person who has good reason to feel at risk of serious harm in your own country.  

You should get advice before making an application under this program.

What is special eligibility?

There are a number of very specific classes of visa for certain groups of people who do not fall within the family, economic or refugee migration categories.

These groups are:

  • former citizens
  • former residents
  • New Zealand citizens
  • family of New Zealand citizens
  • permanent residents of Norfolk Island.

People who fall within these groups should seek specific advice about the most appropriate visa category.

What is a visa?

A visa is a document that allows a person to enter Australia. There are strict rules about visas. An application must meet all the criteria before it may be granted. Get legal advice if you have questions about the criteria for a particular visa.

What is a protection visa and how can I get one?

Protection visas are for refugees who are already in Australia and want to stay.

To apply for a protection visa you must fill in an application form and explain why you cannot go back to your home country. Family members who are with you can usually be included on your application.

The Department of Immigration and Border Protection (DIBP) will decide if you meet the rules about who is a refugee. It will also look at your health and character before it makes a decision.

If the government agrees that you are a refugee it will then provide you with a "protection visa". A protection visa means you have permission to stay and live in Australia.

Consideration will also be given as to whether applicants for protection visas are eligible for complementary protection provisions. A fact sheet on these provisions is available from the DIBP website.

Can a decision to refuse a visa be reviewed or appealed?

Where you apply to appeal depends on what type of decision you are appealing.

If the DIBP refuses your application for a visa (except in relation to a protection visa), you can ask the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT) to review the decision. This is called "making an appeal" to review the decision.

You should get legal advice before starting an appeal.

Do time limits apply to appeals?

Yes, there are strict time limits for making an appeal. Time limits depend on the type of decision and whether you are in immigration detention. The time limit cannot be extended.

Which body reviews decisions to refuse protection visas?

The  Migration and Refugee Division of the AAT hears appeals about decisions made by the DIBP to refuse protection visas unless refusal is on character grounds.

Do time limits apply?

For appeals against the DIBP decisions to refuse protection visas, you have seven working days to appeal if you are in immigration detention; 28 days if you are not in detention.

What can I do if I have received a notice of visa cancellation on character grounds?

See Visa cancellation on character grounds.

I have applied for a visa and I am the victim of family violence. What can I do?

For information on this see Immigration status and family violence.

Where can I find out about becoming an Australian citizen?

Contact the Department of Immigration and Border Protection.

What are the consequences of a entering into a fake marriage or relationship to obtain a visa?

If either an applicant or a sponsor has lodged documentation in support of an application to DIBP that contains false  information or false or misleading statements it may result in a criminal prosecution. For example, if at the time of the application the applicant did not intend to live permanently with the other person in a married relationship or de facto relationship.

A visa based on incorrect information may be cancelled and the visa holder deported.

Divorce may be needed to end the relationship as there may not be grounds for a decree of nullity of the marriage. A decree of nullity is a formal declaration from the Family Court of WA that the marriage never legally existed. The grounds for nullity are set out in the Marriage Act 1961 (Cth). They include the ground that there was not real consent to the marriage because the marriage was obtained through fraud or duress. This may not apply in this situation if you have knowingly been part of the arrangement. Fore more information on the requirements for divorce see Divorce. For more information on the grounds for nullity see the factsheet Applying for a decree of nullity on the Family Law Courts website (note the forms referred to are different for applications in WA).

Where can I get more information?

  • On legal services provided by Legal Aid WA see Legal Aid Services - Immigration services or contact Legal Aid WA's Infoline on 1300 650 579.
  • The Refugee and Immigration Legal Centre (RILC) offers free telephone advice Wed 10am-4pm and Fri 2pm-4pm (both EST). Call (03) 9413 0100 and ask for the duty solicitor. Information is also available on the RILC website.
  • Contact The Humanitarian Group on (08) 9227 7311. It provides professional and accessible migration assistance, legal advice and education to people new to WA from culturally and linguistically diverse (CaLD) backgrounds including humanitarian visa holders, asylum seekers, refugees and people who are otherwise disadvantaged in their access to legal services.  Services provided include in relation to:

    • Protection visas: These are visas are issued to people outside of their home country who cannot return home because they are at risk of persecution or serious human rights violations.

    • Temporary protection visas (TPVs) Project: This project has been set up to provide assistance for the approximately 2,000 asylum seekers currently living in WA who arrived by boat between August 2012 and December 2013 who are subject to a fast track assessment process to determine their eligibility for TPVs.

    • Family reunion: When people are forced to leave their home country due to a fear of persecution or serious human rights violations, they are often separated from their family who may still be in serious danger. The Humanitarian Group works with these people to help reunite them with their families.

    • General legal help: working closely with people from CaLD backgrounds seeking general legal advice. It helps them understand the law and exercise their rights as well as referring them to other organisations for further help in settling in Australia.

    • Administrative review assistance: providing various levels of information, advice and help for administrative review for people who have received negative migration decisions.  

Last reviewed: 13/12/2013

Last modified: 16/09/2016 11:41 AM

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.