LLW3007 Visa structure, fundamental migration procedures, public interest 2021 PDF

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LLW3007 AUSTRALIAN MIGRATION LAW VISA STRUCTURE, FUNDAMENTAL MIGRATION PROCEDURES, PUBLIC INTEREST CRITERIA AND SPECIAL RETURN CRITERIA

NOTES (2021)

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LEGISLATION Readers may refer to these legislation: • Acts Interpretation Act 1901 • Legislation Act 2003 Readers should refer to these legislation: • Criminal Code Act 1995 Readers must refer to these legislation: • Migration Act 1958 • Migration Regulations 1994 Disclaimer Every effort has been made to ensure that the material presented in this topic is accurate as at the publication date shown. Nevertheless, this material is issued by Victoria University and FCG Synergy Pty Ltd on the understanding that: Victoria University and FCG Synergy Pty Ltd, their officers, authors, or any other persons or agencies involved in the preparation of this publication expressly disclaim all or any contractual, tortious, or other form of liability to any person (purchaser or reader of this publication or not) in respect of the publication and any consequences arising from its use, including any omission made, by any person in reliance upon the whole or any part of the contents of this publication. No person should act on the basis of the material contained in this publication without obtaining advice relevant to his or her own particular situation and without considering and taking professional advice as may be necessary. © Victoria University & FCG Synergy Pty Ltd 2021 These materials are produced by FCG Synergy Pty Ltd on behalf of Victoria University for use on its Australian Migration Law courses. No persons shall copy or reproduce any parts of the materials herein for any other purpose without express authorisation or permission.

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CONTENTS 1. AUSTRALIA’S VISA STRUCTURE .................................................................................. 5 TRAVEL DOCUMENTS.............................................................................................. 5 VISA CLASSES AND SUBCLASSES ........................................................................ 5 SUBSTANTIVE AND NON-SUBSTANTIVE VISAS .................................................. 6 VISA GRANT, EVIDENCING AND CANCELLING, VISA ENTITLEMENTS ............ 7 2. CRITERIA FOR VALID VISA APPLICATION ................................................................. 9 MIGRATION ACT, SECTION 46 ................................................................................ 9 MIGRATION REGULATIONS, SCHEDULE 1 ........................................................... 9 3. CRITERIA FOR GRANT OF A VISA (SCHEDULE 2) ................................................. 11 SUBCLASS XXX – NAME OF VISA ........................................................................ 11 CAN SCHEDULE 2 AFFECT VALIDITY OF A VISA APPLICATION? ................... 11 4. ADDITIONAL CRITERIA FOR UNLAWFUL NON-CITIZENS AND CERTAIN BRIDGING VISA HOLDERS (SCHEDULE 3) .............................................................. 13 ‘RELEVANT DAY’ (3001 and 3002) ......................................................................... 13 OTHER CRITERIA (3003 and 3004) ....................................................................... 14 ‘ONCE ONLY’ (3005)................................................................................................ 15 5. HEALTH REQUIREMENTS AND WAIVERS................................................................ 17 HEALTH REQUIREMENTS OVERVIEW ................................................................ 17 THE HEALTH CRITERIA (4005 and 4007) ............................................................. 18 6. CHARACTER, WAIVERS AND EXCLUSIONS ............................................................ 25 CHARACTER REQUIREMENTS (4001) ................................................................. 25 SECURITY REQUIREMENTS (4002)...................................................................... 26 INTERNATIONAL RELATIONS (4003) ...................................................................27 WEAPONS OF MASS DESTRUCTION (4003A) .................................................... 27 DEBTS TO THE COMMONWEALTH (4004) ..........................................................28 PERSONS WHOSE VISAS WERE CANCELLED (4013) ....................................... 28 PERSONS WHO HAD BREACHED VISA CONDITIONS (Schedule 4 Part 2) ...... 29 PERSONS WHO DEPARTED AUSTRALIA AS UNLAWFULS (4014) ..................29 PERSONS WHO HAD COMMITTED FRAUD (4020) ............................................. 29 PERSONS DEPORTED FROM AUSTRALIA OR HAD VISA CANCELLED ON CHARACTER GROUNDS (5001) ............................................................................ 31 PERSONS REMOVED FROM AUSTRALIA (5002) ................................................ 31 CERTAIN OVERSEAS STUDENTS (5010).............................................................32 7. OTHER PUBLIC INTEREST CRITERIA ....................................................................... 33 SETTLEMENT FACTORS (4009 and 4010) ...........................................................33 RISK PROFILES (4011) ........................................................................................... 33 YOUNG PERSONS (4012, 4012A, 4015, 4016, 4017 and 4018) .......................... 33 AUSTRALIAN VALUES STATEMENT (4019 and Schedule 4 Part 3) ................... 34 PASSPORT REQUIREMENTS (4021) .................................................................... 34 CODE OF BEHAVIOUR FOR ASYLUM SEEKERS (4022) .................................... 34 8. OTHER SCHEDULES 6D TO 13 ................................................................................... 36 VISA CONDITIONS (SCHEDULE 8) ....................................................................... 36 9. USING THE SCHEDULES TO PREPARE A VISA APPLICATION .............. 39 FACTSHEET 22: THE HEALTH REQUIREMENT .................................................. 41

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SUBJECT DESCRIPTION This subject will discuss the fundamentals of Australian Migration law, the application of migration law and policy, and citizenship laws. It will cover the development and structure of Australia’s immigration system, legislation and policy. It will examine the fundamentals of Australia's visa system including making valid visa applications, procedures for decision-making and requirements for Partner visas.

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AUSTRALIA’S VISA STRUCTURE

TRAVEL DOCUMENTS Travel documents, e.g. passports and certificates of identity, are most commonly used for international travel and proof of identity, hence it is important that these documents should be valid and as up to date as possible and be renewed as their expiry date approaches. However, previously, some successful applicants for Australian visas may not need to hold valid travel documents at time of visa grant as it was a premise that an applicant who is already inside Australia would not require a valid passport if that person has no intention of leaving Australia. Following a case which hinged on whether a ‘seaman’s certificate’ was a passport, (Zhu, Zhong Xian [2001] MRTA 3470),1 the Migration Act 1958 has been amended, at s.5, to define a ‘passport’ as: ‘passport includes a document of identity issued from official sources, whether in or outside Australia, and having the characteristics of a passport, but does not include a document, which may be a document called or purporting to be a passport, that the regulations declare is not to be taken to be a passport.’ From 1 July 2005, most applicants for non-humanitarian visas are required to hold a valid non-expired travel document at the time of decision. This new requirement enables the department to collect passport details required for streamlined and efficient entry and departure processing of travellers to Australia at airline check-in counters, airports and immigration clearance. The requirement does not apply to humanitarian or refugee visas. As from 24 November 2012, a new public interest criterion 4021 has been inserted into the Migration Regulations, that unless it is unreasonable to require the applicant to have a passport, applicants for most visas are required to hold a valid passport issued to the applicant by an official source (i.e. by an official government agency of a recognised country), in the form as issued by the official source (i.e. has not been tampered with), and is not amongst a group of so-called passports which has been prescribed to be non-acceptable travel documents (e.g. Indigenous/Aboriginal Nation passport). Where applicants do not already hold a valid passport, they would only be required to provide a passport just before a decision to grant is made to avoid the situation of applicants applying for passports first and ultimately refused the visa. This requirement can also be waived in certain circumstances such as emergency situations or where a foreign government authority is not able to provide a passport for a client in the foreseeable future. Because of the label free visa scheme where most visas are now not actually evidenced in passports, persons travelling to Australia must inform the nearest Immigration office (if in Australia) or the nearest Australian overseas post immediately if they obtain a new passport after visa approval and before travel. Otherwise they may encounter delays at airports and may not be allowed to travel.

VISA CLASSES AND SUBCLASSES The visa structure is made up of visa CLASSES and SUBCLASSES. Each visa class contains one or more visa subclasses. Currently, no visa subclass falls within more than one visa class. With the vast range of visa classes and subclasses, Australia’s visa structure is complex and often confusing, particularly to lay persons, where the applicant often finding the procedure daunting and confronting, and in some instances inadvertently applying for the wrong visa which then leads to refusal and frustration.

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http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/MRTA/2001/3470.html

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Recognising this situation, the Minister for Immigration and the Minister for Finance and Deregulation made a joint media release on 4 June 2010 that the government would set in motion initiatives to simplify the visa system, and reduce the number of temporary visas by 50% by 2010 and the total number of visas by 50% by 2015. Under the visa structure, applicants must apply for a visa class. To be eligible for visa grant, they must meet the criteria for at least ONE of the visa subclasses in that visa class. For example, an applicant applying for the offshore CHILD (Migrant) Class AH visa has to meet the criteria in ANY ONE of its 3 subclasses 101, 102 or 117, whereas someone applying for the onshore CHILD (Residence) Class BT visa would have to meet the criteria of either subclass 802 or 837. CHILD (Migrant) Class AH: 3 subclasses • 101 Child • 102 Adoption • 117 Orphan Relative

CHILD (Residence) Class BT: 2 subclasses • 802 Child • 837 Orphan Relative

Having said that a visa applicant must apply for a particular visa class for the application to be valid, this statement may not entirely hold true in the present visa structure. Currently, a visa subclass may have several streams, e.g. the Business Innovation & Investment (Provisional) subclass 188 visa in Business Skills (Provisional) (Class EB), has 7 separate streams in Business Innovation, Investor, Significant Investor, Premium Investor, Entrepreneur, and 2 Extension streams, with each of these streams having their own individual criteria, and different visa application charges, which must be satisfied for an application in that stream to be valid. So simply applying for the 188 visa in one stream will not necessarily mean the application is equally valid for consideration in any other stream, even though they are all within the same visa class or subclass.

SUBSTANTIVE AND NON-SUBSTANTIVE VISAS Migration legislation defines all visas to be substantive, except for the following three visas which are non-substantive (s.5): • Bridging visas • Criminal justice visas, and • Enforcement visas Within the hierarchy of substantive visas, with the exception of a few, e.g. maritime crew visas and electronic travel authorities, once a substantive visa is granted, it automatically ceases any previous substantive visas held, except a special purpose visa (s.82(2)). Most of the visas are prescribed in the Migration Regulations, Schedule 1. There are however a few special visas which are provided for elsewhere in legislation, and are not prescribed in the Migration Regulations. These visas can be substantive or non-substantive, and include: • Transitional (temporary or permanent) visas (R2.01(b) Migration Regulations 1994) • Criminal justice visa (ss.141-164 Migration Act 1958) • Enforcement visa (ss.38A, 164A-164D Migration Act 1958) • Special purpose visa (s.33 Migration Act 1958, R2.40 Migration Regulations 1994) • Absorbed person visa (s.34 Migration Act 1958) • Ex-citizen visa (s.35 Migration Act 1958) • Australian declaratory visa (Migration Series Instructions) • Authority to return and return endorsement (Migration Series Instructions) • APEC Business Travel Card (R2.07AA Migration Regulations 1994) In addition, there are some visas which are ‘Act-based’ (s.46AA), although they also appear in the Migration Regulations. Special application validity and visa grant are prescribed for these visas: • Special Category (444) visa [s.32] • Permanent Protection (866) visa [s.35A(2)] • Temporary Protection (785) visa [s.35A(3)] • Safe Haven Enterprise (790) visa [s.35A(3A)] 6

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Bridging (010, 020, 030, 040, 041, 050, 051, 060, 070) visas [s.37] Temporary Safe Haven (449) visa [s.37A] Maritime Crew (988) visa [s.38B]

VISA GRANT, EVIDENCING AND CANCELLING, VISA ENTITLEMENTS • •

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'Grant' of a visa occurs when a decision maker makes a decision to approve a visa application, on paper or electronically. 'Evidencing' is the physical and separate manifestation of the 'grant', usually by means of placing a visa label or rubber stamp in a passport. However, as from 1 September 2015, physical evidencing of visas have been replaced by electronic visas, and there will no longer be any physical visa labels after this date. Cancelling' is the act that actually cancels the visa. Upon cancellation of a visa, unless the holder is granted another visa, he/she will become an unlawful non-citizen and subject to mandatory detention. Visa entitlements, such as work rights, can be verified through the Visa Entitlement Verification Online (VEVO) 2 facility on ImmiAccount,3 on the website.

VISA EVIDENCING AND VISA CODES There were many visas, e.g. electronic travel authorities (ETA), which were already granted ‘labelfree’. As a result of the 2012/13 Budget measures, the government had introduced a “visa evidencing charge” for persons who want to have their visas evidenced in their travel documents. Nevertheless, as from 1 July 2005, the Migration Regulations 1994 was amended to facilitate the elimination of labels for the evidencing of most visas (except refugee and humanitarian visas). This was further reconfirmed in March 2016 when Parliament passed the Migration Amendment (Cessation of Visa Labels) Act 2016, abolishing the use of visa labels and imposition of visa evidencing charges.4 Details of visas that are granted label free can usually be checked electronically at airline check-in counters, airports and immigration offices, and non-citizens will be able to present their passports as evidence of both their identity and their visa for immigration clearance purposes. Example of Visa Label (pre-1 September 2015), and Port-and-Date (Departure and Arrival) Stamps

VISA CODES Visa classes are denoted by a two-letter alpha code, e.g. • Class AX Parent (Migrant) • Class TU Student (Temporary) • Class WB Bridging B • Class XB Refugee and Humanitarian Visa subclasses are denoted by a three-digit numeric code:

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http://www.border.gov.au/Services/Pages/vevo/vevo-overview.aspx http://www.border.gov.au/Services/Pages/immiaccount.aspx 4 http://newsroom.border.gov.au/releases/no-more-australian-visa-labels 3

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0xx 1xx 2xx 3xx 4xx 5xx 6xx 7xx 8xx 9xx

Bridging visas Permanent (Migrant) visas Refugee & Humanitarian (offshore) visas Provisional Temporary visas Temporary Residence visas Student visas Visitor, medical treatment visas, ETA’s Transit, border and temporary protection or humanitarian visas Permanent (Residence) visas Maritime crew and Diplomatic visas

Principal/dependant codes • Pxxx Primary visa holder • Sxxx Secondary visa holder

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CRITERIA FOR VALID VISA APPLICATION

MIGRATION ACT, SECTION 46 The basic criteria for making a valid application are set out in Section 46 of the Act. S.46(3) states further that ‘The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application’.

MIGRATION REGULATIONS, SCHEDULE 1 Schedule 1 of the Migration Regulations 1994 describes in detail the requirements for making a valid application for each visa class, including the application forms to be used, first and second instalment visa application charges (for the primary applicant as well as for any seconday applicants), how the application must be lodged (e.g. whether it must be lodged online or to be sent to a particular address), the locality where the applicant must be (whether in Australia or outside), and how multiple applicants (i.e. members of the family unit of the primary applicant) can combine their application, etc. Schedule 1 is important in that it prescribes the conditions for making a valid visa application. As indicated in the note under Schedule 1, it sets out the specific ways in which a non-citizen applies for a visa of a particular class, and an application that is not made as set out in this Schedule is not valid and will not be considered. Schedule 1 of the Migration Regulations 1994 generally follows the following format. 1xxx. 1 2

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VISA CLASS NAME & CODE Form(s) to be used – usually prescribed by legislative instrument Visa Application charges: • First instalment (payable at time of application) • Second instalment (payable prior to visa grant) Other: • Prescribes how application is to be lodged and may also prescribe where applicant must be at time of application. • May contain other conditions and requirements, which must be satisfied at time of the visa application. • May contain a subclause to allow family unit member of the primary applicant to be included in application. May have additional paragraphs prescribing other conditions Last paragraph usually lists the visa subclasses within that visa class

OTHER CONDITIONS Schedule 1 also prescribes certain other conditions which must also be satisfied for a visa application to be valid, and are usually contained in paragraphs following forms and visa application charges. A common provision is that members of the family unit of the main applicant may usually be able to combine their application with that of the main applicant. Other conditions which need to be satisfied may vary from one visa class to another. Some examples of these other conditions are: • for persons who are onshore at time of application, the Migration Regulations may stipulate that they must hold substantive visas, or visas of a particular type, to be able to make the application. For example, applicants for the Skilled Independent (189) visa, who are in Australia at time of application, at item 1137(3)(c), must hold either a substantive visa, or a bridging A or B or C visa to be able to make a valid application. 9

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for certain visas, the Regulations will stipulate how the application is to be lodged. For example, the Contributory Aged Parent (864) visa, at item 1130A, stipulates that applicants must send their application by prepaid post to a specified PO box addres...