Last updated 20 May2020
The Migration Regulations 1994 (Cth) (Migration Regulations) provide many types of permanent entry visas, which can be divided into four major groups:
- family migration visas
- skilled migration visas
- employer-sponsored and business visas
- humanitarian and refugee visas (separate section).
Visitors and temporary residents wishing to change status to another temporary or permanent visa must meet the criteria of that visa set out in sch 2 of the Migration Regulations as well as other applicable criteria. All people who migrate permanently to Australia must, before their entry is approved, pass a full medical examination, and a police and security check. In some circumstances, these requirements may be waived.
Permanent residence is difficult to apply for once a person’s temporary visa has expired. Applicants who are in this position (i.e. unlawful non-citizens) should get legal advice about their situation.
Family migration visas
Only certain family members resident overseas can be sponsored to enter Australia by relatives who have permanent residence or citizenship in Australia. Relatives are divided into distinct visa categories, and different tests apply to each category.
Requirement of sponsors of family migration visa
A sponsor must be either an Australian citizen, permanent resident or eligible New Zealand citizen and must usually be aged 18 years or over. In some cases, the sponsor must also have been resident in Australia for a reasonable period. Current Department of Home Affairs (DHA) policy states that, generally, two years of residence is required in these circumstances. The sponsor must ensure that their relative will have accommodation and sufficient money to look after themselves for two years after arrival (regs 1.20(2)(a), 1.20(2)(c) Migration Regulations). A form must be signed by the sponsor committing to these obligations including the provision of information and advice to help the migrating relative to settle in Australia.
Assurance of support
For some family migration visas, an assurance of support is mandatory (e.g. aged dependent relative, contributory parent, parent, aged parent, remaining relative). For others it is discretionary (e.g. orphan relative and child, adopted or orphaned relative under 18 at the time of application). An assurance of support is no longer required for a Partner Visa.
An assurance of support means that a person will pay the Commonwealth the amount of any social security payments paid to a visa holder during a specified period (ss 1061ZZGA, 1061ZZGG Social Security Act 1991 (Cth) (Social Security Act)). The assurance of support is valid for up to 10 years (more often up to four years) from the date of grant of the visa or, if the applicant is outside Australia, from the date that the visa applicant arrives in Australia (s 1061ZZGF Social Security Act). A refundable bond may be required to be paid.
The sponsor does not necessarily have to be the person who supplies the assurance of support for a relative. The assurer must just be someone with sufficient assets or income to be acceptable to the Department of Human Services. However, given the large sums of money involved in sponsoring relatives, it will be fairly rare that a friend of the family will want to sign such a document and pay the money involved up front. Accordingly, assurers need to consider their obligations carefully, as even the refundable bond may not be the limit of liability if a greater amount is paid by the Department of Human Services to the migrating relative during the assurance of support period (one, two, four or ten years depending on the type of visa).
The main permanent visa categories of family migration are:
- Partner Visa (includes de facto and same-sex spouses) (subclasses 300, 309, 100, 801 and 820)
- Child Visa (subclasses 101 and 802) including Orphan Relative Visa (subclasses 117 and 837) and Adoption Visa (subclass 102) (not discussed in detail here)
- other family visas including aged dependent relatives, remaining relatives and carers (subclasses 114, 115, 116, 835, 836 and 838)
- Parent Visa (subclasses 103, 143, 804 and 864).
An applicant for a Partner Visa (subclasses 801 and 820 in Australia, subclasses 309 and 100 outside Australia) must be the spouse or de facto partner of the sponsor. Spouses (including same-sex partners) must be married, in a genuine and continuing relationship, live together (or not live permanently separate and apart) and have a mutual commitment to a shared life as a married couple to the exclusion of all others. De facto partners (including same-sex partners) must be in a genuine and continuing relationship, live together (or not live permanently separate and apart) and have a mutual commitment to a shared life to the exclusion of all others.
A Prospective Marriage Visa (subclass 300) allows for temporary entry of fiancées, who must marry within nine months of arrival in Australia, and then apply for an onshore partner visa (subclasses 820, 801). Partners are initially granted temporary residence (subclasses 801 or 309), which they must maintain for two years before a Permanent Spouse Visa will be granted, unless they have a long-term partner relationship or, for an offshore partner visa, are sponsored by the holder of a Permanent Humanitarian Visa. The relationship must be genuine and continuing until the date of decision whether to grant the permanent visa, unless:
- the Australian partner has died and the widow or widower would have continued with the relationship if the partner had not died
- the relationship has ceased during the two-year period, but the applicant has custody or joint custody of at least one child, in respect of whom a court has granted joint custody or access, or a residence order or contact order to the Australian party, or the Australian party is subject to a formal maintenance obligation under the Family Law Act 1975 (Cth)
- the relationship has ceased during the minimum two-year period of temporary residence, and there was family violence by the Australian partner during that relationship (the family violence provisions).
In order to satisfy the family violence provision, the delegate must be satisfied that:
- both the applicant and sponsor had a genuine commitment to a long-term relationship and
- family violence (as defined in reg 1.21 Migration Regulations) occurred in the course of the relationship. Family violence can be demonstrated through either judicial evidence (most commonly a final Domestic Violence Protection Order from a Magistrates Court) or non-judicial evidence (reg 1.23 Migration Regulations). A Ministerial Instrument mandates the types of non-judicial evidence required from an applicant to demonstrate family violence (reg 1.24 Migration Regulations; IMMI 12/116, 22 November 2012). If the non-judicial evidence does not satisfy the delegate that relevant family violence has occurred, the delegate must seek the opinion of an independent expert and are then bound by that expert’s opinion.
There are a number of onshore and offshore visa options that relate to the children of Australian citizens and permanent residents. These are set out in class BT (onshore) and AH (offshore). An applicant for a visa in this class must:
- be a dependent biological child or stepchild of an Australian citizen or permanent resident (certain adopted children also qualify) (subclasses 101 and 802)
- have been adopted overseas by an Australian citizen or permanent resident who had been residing overseas for more than 12 months at the time of the visa application (subclass 102 for further requirements)
- be an orphan relative (i.e. an orphan under 18 years who does not have a spouse or de facto partner and is a relative of an Australian citizen or resident). Relative has a specific definition, which includes the siblings, nieces and nephews of the Australian citizen or relative (reg 1.03 Migration Regulations). An applicant can still be an orphan even if both parents are alive but their whereabouts are unknown, or they are permanently incapacitated and thereby unable to care for the child (subclasses 117 and 837, reg 1.14 Migration Regulations).
Applicants for a Dependent Child Visa or Orphan Relative Visa must not have a spouse or de facto partner (regs 1.03–1.14 Migration Regulations). A dependent child must also not be engaged to be married (reg 1.03 Migration Regulations).
In some circumstances, the applicant must be under 18 years of age at the time of the application. This is the case for all applications for an Orphan Relative Visa, for applications by stepchildren applying for a Child Visa and for all adopted children applying for an Adoption Visa.
An applicant for a Dependent Child Visa who is 18 years or older must be dependent or be incapacitated for work because of a physical or mental impairment (reg 1.03 Migration Regulations). ‘Dependent’ is defined in reg 1.05A to mean someone who is ‘… wholly or substantially dependent on another person for financial support, for food, clothing and shelter’ (except for certain refugee visas, which allow for psychological and physical dependence).
Further criteria apply and are set out in the relevant subclasses.
Other family visas
To receive a visa in the Other Family Visa class, an applicant must be the relative of a settled Australian citizen or permanent resident who has nominated the applicant and who is usually resident in Australia. The applicant must also be one of the following:
- an aged dependent relative (subclasses 114 and 838). An aged dependent relative must not have a spouse or de facto partner, must be currently dependent on the sponsor and must have been dependent on the sponsor for a reasonable period. The relative must also be old enough to be granted an age pension under the Social Security Act (reg 1.03 Migration Regulations)
- a remaining relative (subclasses 115 and 835). A remaining relative and their spouse must have no parents, siblings or non-dependent children who are not usually resident in Australia as a permanent resident or citizen. The sponsor must be the parent or sibling (including stepsibling) of the applicant (reg 1.15 Migration Regulations)
- a carer (subclasses 116 and 836). A carer must be a person willing and able to give substantial continuing assistance to an Australian relative who has a medical condition that impairs their ability to attend to the practical aspects of daily life. The Australian relative’s impairment must be rated in an examination by a Commonwealth medical officer to be at least 30 as shown under the Social Security Impairment Ratings Tables (reg 1.15AA(1)(c) Migration Regulations). The need for assistance must be likely to continue for at least two years. Also, it must be proved that no other relative or health, community or welfare service in Australia is reasonably able to provide the Australian relative with the necessary assistance (reg 1.15AA Migration Regulations).
There are currently substantial waiting periods before visas of the above subclasses may be granted. The DHA website should be consulted for up-to-date information.
Applications for a parent of an Australian permanent resident or citizen to migrate to Australia will involve significant costs and/or substantial waiting times. Sponsors and applicants should seek immigration advice to identify whether this is a realistic option for their family.
Visas available for parents include subclasses 103 Parent Visa, 143 Contributory Parent Visa and 173 Contributory Parent (temporary) visa. Parents must be sponsored by their child, or by an eligible relative or community organisation if the child is under 18. Parents must also pass the ‘balance of family test’ (at least half of their children live permanently in Australia, or more of their children live permanently in Australia than in any one other country). Holders or former holders of an Investor Retirement Visa (subclass 405) or a Retirement Visa (subclass 410) do not have to meet the balance of family test. The applicant must not have held another substantive visa other than a subclass 405 or 410 in the intervening period.
The Sponsored Parent (temporary) Visa (subclass 870) is a three to five-year visa, allowing an Australian citizen, Australian permanent resident or eligible New Zealand citizen to sponsor a biological or adoptive parent or a stepparent who is still in a married/de facto relationship with a biological parent of the sponsor. The sponsor must meet a minimum household income threshold and pay any outstanding public health debts incurred by their parent in Australia.
Skilled migration visas
Permanent visa options are also available on the basis of an applicant’s skills.
Key skilled permanent visas include:
- Skilled Independent Visa (permanent) (subclass 189)
- Skilled Nominated Visa (permanent) (subclass 190).
Applicants for unsponsored skilled migration cannot apply for an appropriate skilled migrant visa unless they have made an online offer to the DHA.
The online offer is not a visa application, it is an indication that an applicant would like to be considered for a skilled visa. To submit an online offer, an applicant needs to include a range of information such as basic personal information, the nominated occupation, work experience, study and education, level of English, details of a skills assessment related to the nominated occupation, and business and investment experience.
Only those occupations on the Skilled Occupation List will be considered. Whether a SkillSelect offer will be made will depend upon how many applicants for each skilled occupation have already been selected in the migrant program year. If the allocated number in a particular occupation has been reached, no offer will be made.
An applicant is required to complete an online offer and receive an invitation before an application can be made.
Skilled Independent Visa (permanent)
This points-based visa is for skilled workers who are not sponsored by an employer, a state or territory, or a family member. A visa holder can live and work permanently anywhere in Australia. Certain family members can be included in the application. To be able to lodge a valid application for this visa, an applicant must first submit an expression of interest through SkillSelect. An applicant can do this onshore or offshore.
An applicant must meet the following basic requirements:
- be invited to apply
- be younger than 45 years of age at the time invited to apply
- nominate an occupation that matches their skills and qualifications and is on the Skilled Occupation List (sch 1 reg 1137 Migration Regulations)
- have their skills assessed by the relevant assessing authority as suitable for their nominated occupation
- have at least competent English
- score sufficient points on the points test (sch 6D Migration Regulations)
- meet health and character requirements.
Skilled Nominated Visa (permanent)
This points-based visa is for skilled workers who are nominated by a state or territory. The visa holder must stay in the state or territory that nominated them for at least two years. After this, a visa holder can live and work permanently anywhere in Australia. Certain family members can be included in the application. An applicant for this visa must nominate an occupation that matches their skills and qualifications and is on the Skilled Occupation List, and must be invited to apply for the visa after making an expression of interest through SkillSelect.
Employer-sponsored and business visas
Employer-sponsored and business visas include
- Employer Nomination Scheme Visa (subclass 186)
- Regional Sponsored Migration Scheme Visa (subclass 187)
- Business Innovation and Investment Visa (provisional) (subclass 188) and (permanent) (subclass 888)
- Distinguished Talent Visa (subclass 858).
Employer Nomination Scheme Visa
This visa is for skilled workers from outside Australia or skilled temporary residents who live and work in Australia whose employer wishes to sponsor them for permanent residence. It has three streams:
- Temporary Residence Transition Stream for some subclass 482 and subclass 457 visa holders, who have usually worked full time for their employer in the same position for which they were nominated for three out of the previous four years (subclass 482), or two out of the three previous years (subclass 457) before the nomination is made
- Direct Entry Stream for people who have never, or only briefly, worked in the Australian labour market
- Labour Agreement Stream for people sponsored by an employer through a labour or regional migration agreement.
Regional Sponsored Migration Scheme Visa
This visa is for skilled workers from outside Australia or skilled temporary residents who live and work in regional Australia, whose employer wishes to sponsor them for permanent residence. At the time of application, the nominated worker must be under 45, have appropriate English language skills and meet health and character requirements. The visa has two streams:
- Temporary Residence Transition Stream for holders of subclass 482, 457 or associated bridging visas, who have worked full time for their employer in the same position for which they were nominated for three out of the previous four years (subclass 482), or two out of the three previous years (subclass 457) before the nomination is made
- Direct Entry Stream for people who have never, or only briefly, worked in the Australian labour market.
Business Innovation and Investment Visa: provisional and permanent
An applicant for this provisional visa (subclass 188) must be invited to apply after having made an expression of interest and being nominated by an eligible government organisation. The visa has seven streams:
- The Business Innovation Stream is for people with business skills who want to establish, develop and manage a new or existing business in Australia. Applicants must be nominated by the government of an Australian state or territory.
- The Investor Stream is for people who want to make a designated investment (at least AUD 1.5 million) in an Australian state or territory, and want to maintain business and investment activity in Australia after the original investment has matured. They must be nominated by a state or territory government.
- The Significant Investor Stream requires, among other things, an investment of at least AUD 5 million into complying significant investment and maintenance of business and investment activity in Australia. Applicants must be nominated by a state or territory government or Austrade.
- The Premium Investor Stream is for people who are willing to invest at least AUD 15 million into complying premium investments in Australia, and want to maintain business and investment activity in Australia. Applicants must be nominated by Austrade on behalf of the Australian government.
- The Entrepreneur Stream is for people who have a funding agreement from a third party for at least AUD 200 000 to undertake a complying entrepreneur activity that is proposed to lead to either the commercialisation of a product or service in Australia or the development of a business in Australia. Applicants must be nominated by the government of an Australian state or territory.
The permanent visa (subclass 888) can be applied for once an applicant has met specific requirements relating to the purpose of the grant of their temporary visa.
Distinguished Talent Visa
The Global Talent Independent Program is designed to attract the best talent from around the world in targeted sectors. Under this program the Distinguished Talent Visa (subclass 124 if applying offshore and 858 if applying onshore) are available to an applicant who has an internationally recognised record of exceptional and outstanding achievement in one of the following areas:
- a profession, academia and research, mainly in targeted advanced technology and manufacturing sectors
- a sport or the arts
- is still prominent in the area
- can demonstrate superior ability to others in their field
- has a record of sustained achievement that is unlikely to diminish in the future
- would be an asset to the Australian community as a whole
- has employment or can establish a viable business in Australia
- produces a nomination testifying to their achievement and standing in the area
and is nominated by an eligible person or organisation with a national reputation in their field who is either:
- an Australian citizen
- an Australian permanent resident
- an eligible New Zealand citizen
- an Australian organisation and has a national reputation in relation to the area.