Migration/Immigration FAQs

Q. Why do I need the services of an Immigration lawyer?

A. The answer is simple.  When most people entrust themselves to the system they are doing so without obtaining proper advice from which serious consequences may flow including deportation.

Q. What are the options for employer sponsored workers who are applying for visa to Australia?

A. The employees can apply for a temporary worker visa which can be for up to 4 years and is tied to a particular employer which is required to sponsor the temporary worker.

There is a permanent employer nominated scheme visa which is also tied to the sponsor during the sponsorship and the visa processing stage but once the employee arrives in Australia the employee is independent to seek employment elsewhere subject to fulfilling the obligations the employee has under any employment contract between the employer sponsoring the employee and the employee and the employer fulfilling its obligations.

Q. What is skill matching database?

A. The Department of Immigration maintains a database containing the educational, employment and work details of skilled individuals who are interested in living and working in Australia.  Employers can access the skill matching database and choose to sponsor a particular individual under a skill matching visa subclass 134.

Q. What are the types of visitor visas that a non citizen can obtain for Australia?

A. There are some countries which have an arrangement with the Australian Government permitting the citizens of those countries to obtain an electronic visitor visa.  There are also a sponsored and a non sponsored visitor visa for which a hard copy of an application has to be lodged at an office of the Department of Immigration either overseas or in the case of renewal or a new visitor visa in Australia at an office of the Department of Immigration in Australia.

Q. Do visitors to Australia need a medical examination before being granted a visitor visa?

A. Generally a medical examination is needed for any visas with a validity of 12 months or more.  For persons under the age of 70 years old, as a policy if the individual is generally healthy, no medical examination is required if the visa is for a period shorter than 12 months.  However for individuals over 70 years of age, it is a policy of the Department of Immigration that the visa applicant have a medical examination and also pay medical insurance before the grant of a visitor visa regardless of the length of stay permitted. 

Q.  What are the main steps in applying for a skilled permanent resident visa?

A. The application is a 2-stage process consisting of lodgement of an application for assessment of qualifications and work experience with a nominated assessing body in the particular occupation and secondly after a successful assessment into an appropriate job classification code according to the ASCO Dictionary, lodgement of a visa application.  The Department of Immigration requires all of the documents lodged for assessment of the qualifications and work experience with the assessing body to be again lodged with the visa application as the Department of Immigration carried out a fresh assessment of the qualification and work experience of the visa applicant.

Q.  How are applications for visa lodged?

A. Some visa applications can be lodged electronically such as visitor visas for citizens of some countries, student visa applications for citizens of some countries and short stay business visas for citizens of some countries.  Other visa applications need to be lodged as a hard copy with an appropriate office of Department of Immigration.

Q. Can employers check a particular foreign employee's eligibility to work in Australia?

A. Employers can check the work rights of potential employees by calling the work rights information line on 1800 040 070.  Employers can also request an authority from the employee on a form titled "Authority to Obtain Details of Work Rights Status from DIMA" and sending the form by facsimile to the Department of Immigration.  Employer organisations can also register to carry out checks on line and there is a programme called "Entitlement Verification On Line (EVO).

Q.  What are labour agreements?

A. Labour agreements are designed so that temporary or permanent visas can be granted to foreign workers under the agreement which are generally valid for 2 to 3 years.  Under this scheme an employer can take advantage of an industry association agreement for a supply of needed skills, an employer can sponsor employees who are not on the list of approved occupations for temporary business subclass 457 visas or permanent employer nominated scheme visas but a skill shortage is experienced or the occupation is not covered under the Australian Standard Classifications of Occupations and where a large number of overseas workers are required.

Q.  Can a parent or guardian of an overseas  student apply for a visitor visa?

A. Parents or guardians of overseas students under 18 years of age studying in Australia may apply for a visa to stay in Australia but they are not allowed to be in paid employment.

Q. What are visa residency requirements for the application for Australian citizenship?

A. Currently the requirement is that a person has been permanently resident in Australia for 2 years out of the last 5 years and has lived permanently in Australia for at least 12 months.

This law is currently under review and a bill has already passed the House of Representatives and due to be considered in the autumn sitting 2007 of the Senate.  The proposed residency requirements published on the citizenship website is that an applicant would need to be lawfully resident in Australia for 4 years immediately prior to making an application for Australian citizenship out of which at least 12 months is as a permanent resident and that the applicant's absence from Australia in the 4 years is no more than 12 months including no more than 3 months in the 12 month permanent residency period prior to the application.

Q.  Is there a visa applicable to business development?

A. The business development visa application is a 2-stage process where an applicant applies for a temporary business development visa and then after 2 years applies for a permanent residency based  on a successful business.

Q. Does the Department of Immigration check temporary business development visa holder's performance in Australia before granting permanent residency?

A. The Department of Immigration has a monitoring process for business development visa applicants and the visa applicants are required to adhere to a monitoring programme.

Q.  What types of visas are available for family members?

A. Overseas family members of citizens and permanent residents and eligible New Zealand citizens can apply as a partner (spouse or prospective marriage), parent, child, remaining relative and as a carer if the carer visa applicant is a relative and fulfils the regulatory requirements.

Q.  Are there priorities in processing visa applications?

A. As a policy visa applicants sponsored by Australian citizens are given priority followed by visa applicants sponsored by Australian permanent residents and then visa applicants sponsored by eligible New Zealand citizens.

Q.  What is an eligible New Zealand citizen?

A.  An eligible New Zealand citizen is defined in the Migration Regulations as follows:

• Eligible New Zealand citizen means a New Zealand citizen who:
  • at the time of his or her last entry to Australia, would have satisfied public interest criteria 4001 to 4004 and 4007 to 4009;    and
  • either:
    • was in Australia on 26 February 2001 as a holder of a subclass 444 (Special Category) visa that was in force on that date or;
    • was in Australia as the holder of a subclass 444 visa for a period of, or periods that total, not less than 1 year in the period of 2 years immediately before 26 February 2001; or
    • has a certificate, issued under the Social Security Act 1991, that states that the citizen was, for the purposes of that Act, residing in Australia on a particular date.

Q. What is the importance of the number of children living in Australia in a parent visa application?

A. For a parent to be eligible to apply for a parent visa, the parent has to pass the balance of family test.  The balance of family test is satisfied if the parent has each of his or her children either lawfully and permanently resident in Australia or who is an eligible New Zealand citizen and usually resident in Australia: or the number of children of that parent lawfully and permanently resident in Australia or eligible New Zealand citizen usually resident in Australia is greater than or equal to the total number of children of the parent who are resident overseas or the number of children of the parent who are lawfully and permanently resident in Australia or are eligible New Zealand citizens usually resident in Australia is greater than the greatest number of children of the parent who are resident in any single overseas country.  e.g. a parent who has all children lawfully and permanently resident in Australia will pass the balance of family test.  A person who has 5 children and 3 of them are permanently and lawfully resident in Australia will also pass the balance of family test.  A person who has 5 children two of whom are permanently and lawfully living in Australia, one is living in New Zealand, one is living in Fiji and one is living in Pakistan will also pass the balance of family test.  However if a parent has 2 children lawfully and permanently resident in Australia, 2 lawfully and permanently resident in New Zealand and 1 lawfully and permanently resident in Fiji will not pass the balance of family test.  A parent who has 2 children and 1 is lawfully and permanently living in Australia and the other is living in any other country will pass the balance of family test.

Q.  What is a remaining relative?

A. A remaining relative is a person who is a near relative of a person usually resident in Australia who are Australian citizens, Australian permanent residents or eligible New Zealand citizens. Near relatives are brothers, sisters, parents, half brothers, half sisters and adopted family in the aforementioned category.  If the visa applicant is married, the spouse has no brothers, sisters, children, parents who live elsewhere other than the relatives in Australia on a permanent lawful basis.

Q. Where do you lodge a prospective marriage visa application and when do you make a spouse visa application?

A. A prospective marriage visa application is only able to be lodged offshore i.e. when the visa applicant is out of Australia and the application is made at the Australian Mission responsible for processing prospective marriage visa applications for the usual country of residence of the visa applicant.  Evidence of meeting between the prospective marriage partners and supporting documents are essential for prospective marriage visa.  A spouse visa application can be made either onshore in Australia or offshore depending on where the visa applicant is.  If the visa applicant is in Australia and there is a "no further stay condition" (8502) condition on the current visa, the application cannot be made in Australia and the visa applicant will need to go back to the usual country of residence or any other country that will let the visa applicant stay for the duration of the processing of the visa application.  The visa application then would need to be made from the usual country of residence of the visa applicant at an Australian Mission visa office responsible for that country's visa applications. 

Q.  What is the importance of documentation in the processing of a visa  application?

A. Providing adequate and correct documentation to the Department of Immigration is essential and critical to the success of a visa application.  In a business visa application, business records are essential, in a family visa application, documentation to prove the relationship, the genuineness of the relationship and the duration of the relationship are critical.  Further evidence of continued communication between the visa applicant and the sponsor are also critical.  The documents must be genuine and in most cases certified copies are accepted by the Department of Immigration except for health and character documents.  If a fake or forged document is lodged, the Department of Immigration can cancel the visa when it discovers the fake or fraud.  If that transpires future entry to Australia is seriously jeopardised. 

Q. Can the Department of Immigration officials carry out enquiries and investigations that they consider relevant?

A. The Department of Immigration officials do carry out inspections and investigations outside the documentation and evidence that have been lodged with the Department of Immigration from time to time.  The Department of Immigration officers also make occasional site visits to complete their investigations.