Specific Visa and Other Issues

Important Definitions

In researching Australian Immigration, you will come across many terms and definitions, the meanings of which are important. The following particular issues regularly cause confusion.

Residency

The word is used for both taxation and immigration purposes. Depending on the set of circumstances, the meaning can be different. For the purposes of information contained in this website ‘residency’ should be taken to mean residency for Immigration purposes.

Holders of temporary resident visas often assume that they are also non-residents for tax purposes. This may or may not be the case depending on other circumstances, including the length of time to be worked in Australia. Advice needs to be sought on this issue from tax advisers who are specialists in international tax.

Temporary Resident

Means that the person has permission to remain in Australia for a defined period of time which is indicated on the visa approval letter. Most temporary visas provide multiple travel facilities.

Permanent Resident/Migrant

Both terms mean the same thing. They mean that the visa holder has permission to live and work in Australia indefinitely. A permanent resident visa holder does NOT automatically gain an Australian passport. Additional criteria must be met in order to gain an Australian passport, through an application for Citizenship (see Citizenship section at the end of this link).

Practical Issues

Clarification of practical matters frequently raised by our clients is provided below. Whilst we understand these are comparatively simple matters, our experience is that much anxiety is caused if the answer is not known.

Evidence of visas

Visa labels are no longer issued by the Australian government with permission to enter Australia being approved electronically. Airlines are able to electronically check passports to see whether visas are held.

Combined applications

Permanent visas and long term temporary visa applications can be lodged on a family basis. One adult person must meet the threshold criteria and is termed the ‘principal applicant’. The remaining accompanying family members included in the application are known as ‘secondary applicants’. Secondary applicants do not have to meet the threshold criteria but they must prove their relationship to the principal applicant (e.g. marriage/birth certificates).

Accompanying children

Children up to 18 years can be included in combined applications automatically. Those aged between 18 & 22 years need to prove dependency on the principal applicant (e.g. full time students). Family members 23 years and over are generally unable to be included in a combined family application.

Visa filing fees

Filing fees for all visas are calculated per person with a different fee payable depending on whether the person is a principal applicant or secondary applicant.

Visa Specific

Feedback from our clients indicates that there is a lot of confusion relating to Australia’s current Immigration programs and that it is very difficult to navigate through information on public domains. We have therefore summarized below important issues relevant to some of the most frequently used elements of the Immigration system.

Permanent Residency

Many people who come to Australia initially as a temporary resident, decide they would like to remain permanently. This is not necessarily an option for everybody nor is it an easy process.

As indicated previously, the number of people who can gain permanent residence in Australia each year is determined by the government of the day. The number is re-assessed each year according to what the government believes meets Australia’s need at any point in time, the state of the economy and employment opportunities.

The major benefits of obtaining permanent residency are gaining permission to remain in Australia indefinitely, potential qualification for citizenship, access to the national health scheme Medicare, access to education (up to end of senior school) on the same fee structure as Australian nationals (some variations between States).

Permanent resident applicants must undergo stringent medical screening to ensure that the Australian community is protected from major health concerns, that the Australian taxpayer incurs no undue costs and that there is no prejudice of access to scarce medical resources.

Filing fees for permanent visas have become very high and processing timelines lengthy. These are deliberate measures by government.

Temporary Residency

A significant part of the temporary residence program is directed towards the needs of the business community. It provides the opportunity for skilled workers to be sponsored by employers to fill positions which cannot be filled through local recruitment. Up until April 2017, these visas were issued for 4 years with a defined pathway to a permanent visa.

Due to major government changes in April 2017 and March 2018, these visas are now issued for defined periods of time from 1-4 years, depending on the occupation of the applicant.

While work rights are automatically granted to spouses of temporary resident visa holders, this does not guarantee that work will be found in the preferred occupation. Considerable research therefore needs to be undertaken relating to the acceptability of the spouse’s qualifications before coming to Australia. Any occupations where registration is required (e.g. medical, veterinary, teaching) are particular areas of focus in this regard.

As Medicare is generally not available to holders of temporary resident visas, applicants for these visas are required to provide evidence of private medical insurance as part of the visa process.

Spouse/Partner visa applications

In addition to legally married couples (both same sex and heterosexual) the Australian Immigration system also recognises de-facto couples, so long as evidence to support the length and exclusive nature of the relationship is provided.

Spouse visa applications are very document intensive due to the high number of applications where relationships are not genuine and other significant integrity problems, the filing fees are very expensive and processing lengthy.

Due to the lengthy processing time (currently around 24 months), applicants who apply whilst IN Australia are automatically granted bridging visas to allow them to remain in Australia during processing, with full work rights.

An application submitted outside Australia is likely to be processed more quickly but no bridging visa or work rights are granted.

Children born in Australia to foreign nationals

Children born in Australia do not automatically obtain Australian Citizenship. Children born in Australia have an entitlement to Australian Citizenship only if at least one of the parents is an Australian permanent resident or citizen.

If the parents are temporary residents, the child assumes the temporary resident status of the parents.

Citizenship

The current threshold criteria for Citizenship applications requires that an applicant has lived legally in Australia for a cumulative period of 4 years, the last year of which must be as a permanent resident. In late 2017 the government attempted to make requirements more stringent (including a longer period of permanent residence) but these were not approved by the Parliament. We expect a further attempt to change the rules will be introduced into Parliament during 2018.

Citizenship confers the right to vote and to hold an Australian passport.

It is not compulsory for permanent residents to become Australian citizens. Indeed some permanent residents are unable or unwilling to apply for Australian citizenship as dual citizenship is not allowed by their home country.