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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 valid visa application.

The following information is general only. Australia’s migration laws and policies are constantly evolving, and it is important to take into consideration the current pandemic and how it impacts these laws. We recommend obtaining professional advice that is timely and relevant to your current circumstances for all your migration queries. Getting the right information and advice from the outset can avoid costly mistakes and delays.

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.

The TSS visa stream is designed to assist employers address genuine skills shortages in the Australian labour market. It enables employers to bring skilled workers into Australia (by sponsorship) where they are unable to source the workers they need locally. There are currently three streams:

  • The short-term stream permits employers to fill temporary skills gaps identified from a list of occupations on the Short-Term Skilled Occupations List (STSOL) for a maximum two-year duration (or 4 years under International Trade Obligations) with a once-only onshore renewal capacity.

This visa does not provide an opportunity for permanent residency and applicants must demonstrate that they genuinely do not intend to remain permanently in Australia.

  • The medium-term stream targets long-term skills gaps and is designed to fill more narrowly defined and highly skilled occupation categories appearing on the Long-Term Strategic Skills List (MLTSSL).

Applicants may apply for up to four years with an opportunity to renew indefinitely whilst the occupation remains on the list. The medium-term stream provides a pathway for permanent residency after three years provided the visa holder meets relevant eligibility requirements and has complied with any visa conditions.

A Regional Occupation List (ROL) includes various occupations that are specifically available in regional areas and forms part of both the STSOL and MLTSSL.

  • The labour agreement stream applies to employers who have entered into a labour agreement with the Department of Home Affairs. A labour agreement allows businesses who can demonstrate a specific need that cannot be met by the Australian labour market, to sponsor workers.

Like the medium-term stream visa, applicants may apply for up to four years, apply to renew the visa, and seek permanent residency, subject to eligibility, after three years.

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.

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.

We provide expert advice and representation in migration law, having guided numerous clients throughout Australia’s complex immigration system and conducted cases before various Australian courts and tribunals.

If you need any assistance, contact one of our lawyers at [email protected] or call 1300 658 788 for a no-obligation discussion and for expert legal advice.