Immigration Law

The Migration Act 1958 and Migration Regulations 1994 provide pathways allowing eligible people to migrate to Australia. Identifying the most appropriate pathway and visa type is the first step in preparing a visa application.

Applying for a visa requires consideration of the most suitable type for your circumstances and meeting the eligibility criteria. This varies between the different visa categories but generally includes assessment of your qualifications, skills and English literacy and consideration of your personal circumstances such as your age, health, family and criminal record.

Student visas may be available allowing eligible students to stay in Australia while studying fulltime at a recognised educational institution.

Employer sponsored visas such as the Temporary Skill Shortage Visa assists employers to address genuine skills shortages in the Australian labour market. Eligible employers may bring skilled workers into Australia, through sponsorship, if they are unable to source the workers they need locally.

The visa type has three streams – a short-term, medium-term, and labour agreement stream. Each stream has unique features, eligibility requirements and conditions, and all allow the inclusion of eligible applicants in the application. An eligible applicant is a partner (married or de facto and same or opposite sex), dependent child or certain children up to 23 years of age.

Occupations for which skills gaps are identified are recorded on specific lists for each stream, which are reviewed regularly to show various occupation shortages at a given time and can change without notice.

Family visas enable Australian citizens to bring eligible family members to live in Australia through the family migration stream. Eligible applicants include spouses, a fiancé, de facto partners, children, parents and sometimes other relatives.

Partner visas allow eligible applicants who are sponsored and meet health and character requirements to live in Australia.

  • A prospective marriage visa may be available for those intending to marry allowing entry into Australia by the sponsored fiancé. If granted, the visa is valid for nine months during which time the marriage must take place. A prospective marriage visa may only be applied for and granted outside of Australia.
  • A partner visa may be granted for those already married or in a de facto relationship. A successful applicant will be granted a temporary visa. After two years, provided a long-standing relationship exists and other criteria are met, a permanent visa is usually granted.

Under Australia’s new marriage laws, applicants in a recognised same-sex marriage may now apply for a visa as a partner’s spouse, rather than as a de facto partner.

Other family visa types in the family migration stream may enable certain other family members to live in Australia. The carer visa applies where a person can provide substantial and continuing assistance to an applicant who is a relative with a medical condition, an aged dependent relative visa applies to single, widowed, divorced or separated applicants who are dependent on an Australian relative, and a remaining relative visa allows entry to a person who is a sibling, child or step child of the sponsor and who has no close relatives outside of Australia.

The Administrative Appeals Tribunal Migration and Refugee Division is the first point of contact for reviewing decisions made by the Department of Immigration and Border Protection or Department of Home Affairs. Reviewable decisions include the refusal to grant a visa, the cancellation of a visa, and determinations regarding skilled migration, business sponsorship and nominations.

The Tribunal takes an informal, inquisitorial approach to its investigations and the appointed member will decide whether the decision was correctly made. Strict time limits apply to have a decision reviewed by the Tribunal.

Australia’s migration laws and policies are constantly evolving and getting the right information and advice from the outset can avoid costly mistakes and delays in processing your visa application.

Our services are regulated by the Legal Profession Uniform Law Act 2014 and by the Office of Migration Agents Registration Authority Code of Conduct.

If you need any assistance contact one of our lawyers at info@tklegal.com or call +61 2 9212 2422 for a no-obligation discussion and for expert legal advice.