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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 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 Review Tribunal to review the decision. This is called "making an appeal".

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 Refugee Review Tribunal 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?

The information sheet Visa cancellation on character grounds explains what this means and what you can do. You can download a copy here or get one from any Legal Aid WA office.

The Department of Immigration and Border Protection (“DIBP”) may cancel your visa if you do not pass the “character test”. Your visa will not be automatically cancelled if you do not pass the character test, the DIBP must consider other reasons why your visa should not be cancelled before making a decision. For more information contact the DIBP on 131 861 or visit its website at www.immi.gov.au.

Which body hears appeals for refusal or cancellation on character grounds?

The Commonwealth Administrative Appeals Tribunal hears appeals about decisions by the DIBP to refuse or cancel a visa on "character" grounds. For example, if you have a history of criminal convictions. These decisions cannot be reviewed by the Migration Review Tribunal or the Refugee Review Tribunal. You must appeal to the Commonwealth Administrative Appeals Tribunal. Time limits apply. 

Is it possible to review tribunal decisions in this case?

If you appeal to a tribunal and you lose, you may be able to appeal to the Federal Court. The grounds for appeal are limited. Time limits apply. Get legal advice before you apply.

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 CASE for Refugees on (08) 9227 7311. It offers a generalist legal service to people from refugee and culturally and linguistically diverse (CaLD) backgrounds as well as a migration service. It can assist offshore asylum seekers, including those on Christmas Island, who are seeking judicial review in the Federal Circuit Court of negative decisions at Independent Merits Review or Independent Protection Assessment. It can also accept referrals for clients from a CaLD or refugee background who need assistance with:

    • family law matters including divorce, children’s matters, property matters, and protection and care matters, and 
    • civil matters including restraining orders, criminal injuries compensation, discrimination, wills, tenancy, and credit and debt matters.  
  • Contact Centrecare on (08) 9325 6644. It has a migration advice service and provides assistance to newly arrived migrants and refugees to settle in WA.
  • On services that assist recently arrived humanitarian entrants contact the Metropolitan Migrant Resource Centre on (08) 9345 5755 Mirrabooka Office or (08) 9200 6284 Clarkson Office or the Youth and Family Centre on (08) 9344 6788.
  • On merits review of some administrative decisions visit the Administrative Appeals Tribunal (Commonwealth) website.
  • For information on visas, immigration, refugees and citizenship contact Department of Immigration and Border Protection on 131 881.
  • On final merits reviews of decisions made in relation to visas contact Migration Review Tribunal/Refugee Review Tribunal on 1300 361 969  TIS 131 450 (if you need an interpreter). 
  • The Federal Circuit Court of Australia (FCC) website has a factsheet on the Review of migration decisions by the FCC. 
  • The Federal Court on (08) 9268 7100 for the forms for review of an AAT decision.
  • The Office of the Migration Agents Registration Authority website contains further information about migration agents and how to find an agent.

Last reviewed: 13/12/2013

Last Modified: 13/12/2013

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.