Last updated 23 January 2017
There are many different classes of temporary and permanent visas under the Migration Regulations 1994 (Cth) (Migration Regulations). Each visa belongs to a class and a subclass.
Temporary and permanent visas are called ‘substantive visas’. These are visas other than a bridging visa; criminal justice visa or enforcement visa (s 5 Migration Act 1958 (Cth) (Migration Act)).
Both temporary and permanent visas, once granted, may be subject to certain conditions specified with the specific visa subclasses. A full list of all such visa conditions is contained in sch 8 of the Migration Regulations.
A temporary visa is issued for a finite period of time or until a specified event occurs (e.g. the Department of Immigration and Border Protection (DIBP) making a decision on an application for a permanent visa).
A person who is not an Australian citizen must have a permanent visa if they wish to live here permanently. A permanent visa will be issued when it has been established that the person concerned can meet the criteria and if annual quotas (if applicable) permit the visa grant.
A person who is granted a permanent visa and has then been through immigration clearance becomes a permanent resident of Australia. Such a person will have most of the rights of an Australian citizen, except for the right to vote (there are some exceptions for certain British subjects) and to hold public office. Social security payments are generally not available within the first two years of entry (except for special benefits).
If a non-citizen leaves the country, even temporarily, their current visa ceases to be in effect (i.e. they have no automatic right to return) unless the visa specifically authorises re-entry or multiple travel (s 79 Migration Act). Australian permanent residents going abroad must therefore ensure that they possess a Resident Return Visa prior to departure. If the visa expires while out of the country, they may apply for a Resident Return Visa at any Australian consulate or embassy. This can be a taxing process and is best avoided.
The criteria that must be satisfied before a visa can be granted are set out in the Migration Act and Migration Regulations. Schedule 1 of the Migration Regulations stipulates criteria that apply to all visas in a particular class of visas, and sch 2 sets out the criteria that apply to a specific subclass of visa. Schedule 2 includes primary and secondary criteria. The main applicant must satisfy the primary criteria. Secondary criteria allow for other people to be included in the visa application of the main applicant in certain circumstances (e.g. an applicant for a partner visa may be able to include their child as a secondary applicant on their own application).
Schedule 2 of the Migration Regulations also distinguishes between criteria that must be met at the time an application is made and criteria that must be met at the time that a decision is made. In addition, sch 2 includes the public interest and other criteria that must be satisfied for that particular visa. Public interest criteria (see sch 4 Migration Regulations) can include requirements that an applicant hold a valid passport or meet specific health and character requirements.
Policy providing guidance on how visa criteria should be applied is set out in the Department of Immigration and Border Protection’s Procedures Advice Manual. Written directions by the Minister for Immigration and Border Protection, made under s 499 of the Migration Act, also have the force of law and provide further guidance.