Can I be self-employed on a 457 visa?

The recent changes introduced by the Australian Government to our immigration system make it extremely difficult for temporary skilled workers to self-sponsor on a 457 visa. There have been cases where the system has been exposed to abuse and fraud, particularly when people self-sponsor. With this in mind, the Australian Government recently decided to implement new measures, which now affect …

What is the latest on the proposed changes to Australian Citizenship?

The changes to Australian Citizenship announced by Prime Minister Malcolm Turnbull on 20th April 2017 have created turmoil in Parliament and frustration amongst thousands of future Australians. In spite of facing great opposition in Parliament, the Government decided to go ahead and implement controversial eligibility conditions for granting citizenship. Shadow Minister of Citizenship, Tony Burke, is adamant that at least two …

What I need to do to get a second year on my Working Holiday visa?

A second-year holiday visa is a special privilege given to young people between the age of 18 to 30 for them to enjoy the benefits that come with casual work rights that help them supplement their travels. Before you apply for an extension, you are required to conduct an online assessment to confirm your eligibility. Once you are sure of …

Australia – The New Land of Opportunity?

Global Australia Map

I recently returned from one of the most eye-opening cultural experiences of my life; 3 weeks in modern day America. It’s not the Confederate flag-waving, open carry nuts in the South that left an impression; indeed, we spent most of our time in the Pacific Northwest, where ‘Black Lives Matter’ banners and stickers outweigh even the Stars and Stripes in …

Can I move States on my State-Sponsored Visa (e.g. subclass 190 or 489)?

State-Sponsored Visa

One of the most common questions that gets raised in relation to State-Nominated (‘State Sponsored’) visas is whether you are bound to remain within the State (or Territory) that put their hand up to take you in the first place. Most of what will follow relates to a general State/Territory-nominated visa (e.g. subclass 190) – if you are on a …

Secondary Applicants – Including Family Members in your Application

Many visa types (including a range of family, skilled, humanitarian and student visas) allow you to include dependent family members in your application. When this happens, these family members are considered ‘secondary applicants’ in your application. As such, they must also meet all set requirements applicable to them. Generally, this includes meeting Australia’s stringent character and health requirements. If a …

Caps and Limits on Visa Numbers

Under the Migration Act 1958, the Minister for Immigration has the discretion to impose limits on the number of each visa granted in a given year. The purpose for this discretion is to allow the Government the capacity to respond to changing circumstances (for example, the need for more or fewer skilled workers in the economy). When the cap is …

Australian Skilled Migration Points Test

If you meet the criteria for a skilled migration visa, you may be eligible to come to Australia to live and work without a sponsor. The subclass 189 and 190 Skilled visas exist to attract workers to Australia who will contribute to the occupation in one of a number of specified skilled occupations. However, in order to be granted a …

Migration Agents Consumer Guide

The Consumer Guide is a brief, one-page overview of your rights under the Migration Agents Code of Conduct. The Code of Conduct requires that you be given a copy of the user guide once you engage a Migration Agent, and before they undertake any work for you. The Consumer Guide highlights the most important elements of your relationship with your …

Immigration Clearance

What does it mean to be ‘Immigration Cleared’, and why is this important? The phrase ‘immigration cleared’ appears throughout the Migration Act 1958. It relates to the legal status of a person once they have arrived in Australia. As the act of entering Australia impacts how a person is treated under the law (i.e. once you enter on a visa, …

The ‘Fast Track’ Process for Refugees

In recent years, we have witnessed a stark – and growing – gap between how the Australian Government considers asylum seekers who arrive by boat and those who arrive by air. Purportedly in an effort to defeat ‘people smuggling’ operations, the Australian Government, supported by the Opposition, have ratcheted up punitive measures to dissuade potential migrants from crossing to Australia …

Deportation and Removal from Australia

Any non-citizen present in Australia without a valid visa is considered to be unlawful and liable to be detained and removed to their country of Citizenship or habitual residence. This is the case whether a person has entered Australia without a visa, overstayed their visa or had their visa cancelled. However, how the person is dealt with by the Department …

Consequences of having been Removed or Deported from Australia

If you have been removed of deported from Australia as a result of having been an unlawful non-citizen or otherwise by the cancellation of your visa, you might have a difficult time returning to Australia. A range of limitations may apply, depending on the circumstances of your departure. Schedules 4 and 5 of the Migration Regulations 1994 set out the …

What does ‘dependent’ mean for visa purposes?

There is a wide range of visa types that permit the main applicant to include members of their family unit as part of their application. However, who may be included is dependent upon the type of visa applied for. While some are limited to a spouse and dependent children, others may provide avenues to sponsor parents and members of the …

Bridging Visas – Overview

A Bridging visa is a non-substantive visa, which is designed to fill in time gaps and ensure the holder remains in Australia legally. An example is the situation where a visa holder applies for another substantive visa, which is not granted until after the initial visa expired. If this person was not granted a bridging visa, they would become an …

Bridging Visa B (Class WB)

Who can qualify for this visa? In general, the Bridging Visa B is granted to applicants who already hold a Bridging Visa A or B and want to leave and return to Australia while their substantive visa application (or application for Judicial review) is being processed. In order to be eligible, an application must establish a genuine need to travel …

Skilled – Nominated (190) Visa

The Skilled – Nominated (190) is a permanent visa which must be applied for through SkillSelect. To be eligible for this visa, you must be nominated by a State or Territory government. This visa allows you to become a permanent resident of Australia. You must be invited to apply for this visa. When you receive your letter of invitation you …

Skilled Independent (189) Visa

This is a permanent, points-tested visa under SkillSelect for people who do not have a family or business sponsor or a State or Territory nomination. Once you have submitted an Expression of Interest (EOI) through SkillSelect, you may be invited to apply for this visa. At this time you must have: nominated an occupation that is on the relevant skilled …

Temporary Graduate (485) Visa

If you are an overseas student and have completed your studies but are not eligible for a permanent visa, you may be eligible for the Temporary Graduate (485) visa. This is an onshore visa that will allow you to gain work experience in Australia or improve your English skills. To apply, you must hold an eligible student visa (or have …

Business Talent Visa (132)

The Business Talent Visa (132) is a permanent business visa. This visa has two streams: Significant Business History Stream Venture Capital Entrepreneur Stream To apply for this visa, you must first submit an Expression of Interest (EOI) through SkillSelect. This visa requires nomination by a State or Territory Government, and then an invitation by the Minister. Should you receive an …

Character Requirements and the Character Test

If you wish to enter or stay in Australia, you must satisfy what is referred to as the ‘Character Requirement’. The requirement is for all non-citizens and sponsors and is set out is Section 501 of the Migration Act 1958. This is not a once-off test. You must continue to satisfy the character requirements during your stay in Australia. For …

Migration Health Requirements

Australia has very strict health requirements for migrants, both temporary and permanent, in order to maintain it’s high health standards. The intention of these requirements is to minimise risk and expense for the Australian public. In addition to meeting these health requirements, you may also need to take out health insurance for the period of your stay in Australia. While …

Offshore Refugee and Humanitarian Visas

Applicants for these refugee and humanitarian visas must be offshore at the time of application and decision. Please see here for onshore refugee visas. These visa subclasses are subject to severe caps. Refugee Visa (200) This is a permanent visa for people who are subject to persecution in their home country, but currently residing in another country. Typically, applicants would …

Protection (866) Visa

The Protection (866) visa is a permanent visa for people within Australia, who seek protection from Australia as a refugee. To be eligible for this visa you must: Be in Australia Have not arrived in Australia as an illegal maritime arrival or unauthorised air arrival. To be granted a Protection visa (subclass 866) you will need to be claiming Australia’s …

Student Visas (500)

There are only two student visa subclasses: Student Visa (500) Student Guardian Visa (590) To be eligible for a student visa, you need to be assessed that you are a genuine temporary entrant. This means, you intend to come to Australia on a temporary basis in order to study. You course must be full time and relevant to your circumstances. …

Assurance of Support for Family Visas

Some family visas require an ‘assurance of support’ before a visa will be granted. It is also possible for the Department of Immigration and Border Protection to request a discretionary assurance of support if there are concerns regarding the sponsor’s capacity to support the applicant. An assurance of support is legal agreement by the assurer to pay the Commonwealth Government …

Carer (116 and 836) visas

This visa is for someone who needs to move to Australia to: care for a relative in Australia with a long-term or permanent medical condition, or assist a relative providing care to a member of their family unit with a long-term or permanent medical conditions. The Australian sponsor needs to show medical evidence that she or she suffers from at …

Remaining Relative (115 and 835) Visas

This is a permanent visa that allows people to settle in Australia to be with their only remaining near relatives. This visa allows a person with all relatives ‘settled’ in Australia to be sponsored to come to Australia by a close relative. This visa class is subject to a severe cap and an outcome is expected to take many years. …

Aged Dependent Relative (114 and 838)

This permanent visa is designed for relatives of ‘settled’ Australians who are ‘aged’ and financially dependent. These visas are subjected to a very severe cap and you will have to wait many years to receive and outcome. The Aged Dependant Relative must be: Single (eg never married, divorced, widowed) Dependant on the Australian sponsor for a reasonable period (in practice, …

Skilled – Regional (887) Visa

This is a permanent visa for people who are in Australia and have lived (for at least 2 years) and worked (for at least 1 year) in specific regional areas. You must currently hold a: Skilled Regional (Provisional) visa (subclass 489) Skilled Independent Regional (Provisional) visa (subclass 495) Skilled Designated Area Sponsored (Provisional) visa (subclass 496) Skilled Regional Sponsored visa …

Skilled – Recognised Graduate (476) Visa

This visa allows recent engineering graduates to gain up to 18 months of skilled work experience. You must be younger than 31 years of age and graduated from an engineering degree within the last two years. Your degree must be from a specific recognised institution. In the two years before you apply, you must have completed one of the following …

Family Violence and Relationship Breakdowns

Family violence is taken very seriously in Australia. For the purposes of migration, family violence refers to conduct that may have been threatened, or actually taken place, that causes the alleged victim to reasonably fear or to be reasonably apprehensive about his or her own wellbeing or safety. Family violence is defined as violent, threatening or other behaviour by a …

Parent Visas

Applicants for parent visas are typically required to meet what is called the ‘balance of family’ test. The balance of family test requires that at least half of your children live permanently in Australia, or that more of your children live permanently in Australia than in any other country. In order to count as living permanently in Australia, your children …

Visas for Children

Child (101 and 802) Visas These visas allow children to come live with their parents in Australia. The sponsoring parent must be an Australian citizen, the holder of an Australian permanent resident visa or an eligible New Zealand citizen. The spouse or de facto partner of the child’s parent can also sponsor the child. The 101 visa is for children …

Labour Market Testing

Labour market testing is a legal requirement unless the nominated position is exempt. Employers who seek to employ someone on a 457 visa may be required to labour market test. The intention of labour market testing is to ensure that the nominated positions are genuinely skilled positions that cannot be filled by Australian workers. Through Labour Market Testing you test …

Partner visa (subclasses 820 and 801)

These partner visas allow people to come to Australia to be with their de facto partner or spouse. The sponsoring partner must be an Australian citizen, Australian Permanent Resident or eligible NZ citizen. Partner visas have a two-step process: temporary and permanent. To apply for this visa you must be inside Australia. If you are outside of Australia you can …

Partner (Provisional) visa (309) and Partner (Migrant) visa (100)

These partner visas allow people to come to Australia to be with their de facto partner or spouse. The sponsoring partner must be an Australian citizen, Australian Permanent Resident or eligible NZ citizen. Partner visas have a two-step process: temporary and permanent. To apply for this visa you must be outside of Australia. If you are inside Australia you can …

Prospective Marriage Visa (300)

The Prospective Marriage Visa (300) is designed for people who wish to come to Australia in order to marry the person sponsoring them. The sponsor must be an Australian citizen, Australian permanent resident or eligible NZ Citizen. This visa is a temporary visa that lasts for 9 months. This visa cannot be extended and you cannot apply for another one. …

De Facto Relationships

A person is in a de facto relationship with another person if: They are not legally married They are not related by family They have a relationship as a couple living together on a genuine domestic basis Have a mutual commitment to a shared life to the exclusion of all others The relationship is genuine and continuing. Both parties are …

Freedom of Information Requests

Under the Freedom of Information Act 1982 you have a right to access information that the Australian government holds. In migration applications, it can often be important to know what information the Department of Immigration and Border Protection holds about you. The Department will have: 14 days to acknowledge receipt of your FOI request 30 days to notify you of …

Working Holiday (subclass 417) Visa

The Working Holiday (417) is for young people (from eligible countries) who wish to come to Australia on a temporary basis to work and holiday for up to one year. To be eligible for this visa you must: Be at least 18 but not yet 31 years of age not have a dependent child accompanying you at any time during …

Temporary Work (International Relations) Visa

The Temporary Work (International Relations) Visa allows temporary entry into Australia: in relation to a bilateral agreement (Government Agreement stream) to represent a foreign government or to teach a foreign language in an Australian school (Foreign Government Agency stream) to do domestic work for a diplomat (Domestic Worker stream) as a person with statutory privileges and immunities (Privileges and Immunities …

Temporary Work (Short Stay Activity) (400)

This visa allows people to come to Australia to perform certain types of work which only require a short stay. This visa is for people to: do short-term, highly specialised, non-ongoing work in limited circumstances, participate in an activity or work relating to Australia’s interests. Generally stay is limited to 3 months, but 6 months may be considered in exceptional …

Health Requirements for 457 Applicants

Applicants for 457 visas are subject to the normal health criteria for all visa applicants. However, there is a streamlined process. Applicants are divided into 3 categories, depending on their country of origin: low risk medium risk, or high risk For low risk countries, no health examinations or chest x-rays are required. For medium risk countries, these are not required …

Temporary Skilled Migration Income Threshold

All 457 visa holders are subject to a minimum income threshold. This is called a ‘market rate’ based minimum salary. For visa holders this means: the terms and conditions offered must be no less favourable to those provided to an Australian worker (performing equivalent work in the same workplace and location), and the base rate of pay will be at …

Training Benchmarks

If you are a sponsoring business and have been operating in Australia for more than 12 months, you will need to demonstrate that you meet a benchmark of providing training opportunities for Australian citizens or permanent residents. The amount you are required to commit depends on your annual payroll. There are two types of training benchmarks, A and B. Training …

Standard Business Sponsorship (SBS)

For the 457 visa, Standard Business Sponsorship (SBS) is the most common path to employ skilled workers from overseas on a long-term, temporary basis. Labour Agreements are the other possible path. To apply under this category, prospective applicants must be sponsored by an Australian business (unless you are an overseas business looking to establish business activity in Australia). Before nominating …

Labour Agreements

Under the 457 visa, there are two categories: Labour Agreements Standard Business Sponsorship (SBS) A labour agreement is a formal agreement between the Government and a person or organisation in Australia. Under this agreement, an employer is authorised to employ people in Australia on a temporary or permanent basis. The purpose is to provide a flexible solution to skill shortages …

Permanent Employer Sponsored Visas

There are two permanent employer sponsored visas: The Employer Nomination Scheme (ENS) (186) visa, and The Regional Sponsored Migration Scheme (RSMS) (187) visa. The intention of these visas is to allow highly skilled workers permanent entry into Australia when an employer can not find a local to fill the position. You can be in or outside of Australia when applying …

Maritime Crew Visa (988)

The Maritime Crew Visa (988) is for crew members of non-military ships and their immediate family. This visa permits travel and entry to Australia by sea. You must apply for this visa while outside of Australia and will not be entitled to work other than on the normal operational requirements of the ship. The ship must be either: used for …

Superyacht Crew Visa (488)

The Superyacht Crew Visa (488) allows crew members to work on board a superyacht in Australia for a period of up to 12 months. While in Australia on this visa, you will be able to apply for a further 488 visa. In order to be eligible for this visa you must: Be employed as a superyacht crew member be sponsored …

Transit Visa (771)

The Transit Visa (771) is for people who need to transit through Australia on their way to another country for a period of no longer than 72 hours. It is also for people who need to transit through Australia in order to join a ship as the member of a crew. This is a temporary visa and must be applied …

Distinguished Talent Visas

Distinguished Talent Visas (subclass 124/858) are for people who have, at the international level, demonstrated exceptional talent or an outstanding record of achievement in their field. Migration to Australia must present a clear benefit to Australia. To quality for this visa you must demonstrate a record of exceptional and outstanding achievement, that is internationally recognised. You must still be prominent …

Visitor Visas

The basic Visitor (subclass 600) visa allows you to visa Australia for a period of up to three, six or 12 months. You are not allowed to work in Australia while on this visa. Depending on your passport, you may be eligible to apply for the eVisitor Visa (651) or the Electronic Travel Authority Visa (601). The Visitor Visa (600) consists …

Eligible NZ Citizens and the Special Category Visa (444)

Historically, New Zealand citizens did not require visas to travel to Australia. This changed on 1 September 1994, when NZ citizens were granted Special Category visa upon arrival and became what was called ‘Eligible New Zealand Citizens’. Practically, this meant that NZ Citizens could access social security benefits as well as other entitlements such as sponsoring relatives for permanent residency …

Former Australian Citizens and Permanent Residents

If you are a former Australian citizen, there are a number of options you can explore in order to return to Australia. These include: Applying for a Resident Return Visa Resuming your Australian citizenship, or Applying for a Former Resident Visa (151) Former Resident Visa (151) If you are a former Australian permanent resident, you may be able to apply …

Resident Return Visas

If you have been granted permanent residency, typically your visa will allow you to travel to and from Australia for a period of five years. After five years, if you do not choose to apply for Australia citizenship, you will need to apply for a ‘Resident Return visa’ in order to be allowed to travel to and from Australia after …

Visa Application Charges

There are a range of visa application charges that you may be required to pay to the Department of Immigration and Border Protection, depending on the type of visa you are applying for and your specific circumstances. These fees are charged are indexed, typically biannually. The fees and charges you have to pay may include: First Installment Visa Application Charge …

Australia’s Annual Migration Intake

The make up of Australia’s Migration Program has changed over time. Historically, migrants were primarily family migrants. While family migrants still make up a significant portion of Australia’s annual intake, over time, there has been a shift to skilled migration as the primary source of migration. According to the Department of Immigration and Border Protection, currently 68 per cent of …

Role of the Commonwealth Ombudsman in Immigration

The Commonwealth Ombudsman is an independent statutory office that exists to receive, investigate and resolve complaints about Commonwealth Government Departments and Agencies. Specifically, the Ombudsman will investigate claims of unfair or unreasonable treatment or maladministration that has caused harm to the complaining party. The Ombudsman has the power to compel an organisation to take actions that will undo the damage …

What is meant by ‘Public Interest’ Criteria?

An interesting feature of Australia’s migration legislation is its references to the ‘public interest’ in affording a discretion to the Minister to grant, refuse to grant, or cancel a person’s visa. But what is in the ‘public interest’, and how does it affect visa holders and applicants? Helpfully, this is a question that has been partially explained by a Senate …

Citizenship Test

In order to become an Australian citizen, an applicant must first pass the ‘citizenship test’ which, according to the Department of Immigration and Border Protection, ensures that prospective citizens “have an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship”. It is also intended to assess English proficiency of applicants, as it is conducted in English only. …

Eligibility for Partner Visas – Same Sex Couples

The Australian Government, in what can only be described as a petty attempt to impose some members’ beliefs on society, has decided to persist with the fiction that same-sex couples cannot be married, despite the overwhelming tide of public opinion, both in Australia and in many other countries. As is the case with other areas of Australian law, the definition …

Designated Areas for the Skilled – Regional Sponsored (Provisional) visa

If you are applying for a Skilled – Regional Sponsored (Provisional) visa and are being sponsored by an eligible family member, your sponsor is required to live in a region that is ‘designated’ by the Government for these purposes. What areas are designated for the purposes of the Skilled – Regional Sponsored (Provisional) visa? Your sponsor relative can live anywhere …

An Overview of the Migration Tribunal System

The main review mechanism for decisions of Government in Australia is the Administrative Appeal Tribunal (AAT). Up until 1 July 2015, decisions made in accordance with the Migration Act 1958 were subject to review by the AAT or one of two specialist Tribunals; the Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT), depending on the subject matter of the …

The Role of the Court in Migration Cases

Any decision made by a Government decision-maker – except in exceptional cases – is subject to merits review at a relevant tribunal. For a visa applicant, this means that if you have a decision taken to refuse to grant, or to cancel, your visa, you are likely to have a right to appeal that decision to the Administrative Appeals Tribunal. …

Definition of ‘Refugee’

The Australian Government provides, in section 5H of the Migration Act 1958, its current definition of what is a ‘refugee’. Section 5H relevantly states: Meaning of refugee (1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person: (a) in a case where the …

Overstaying your Australian visa

As a starting point, it is safe to say that being in Australia, or indeed in any country, without a valid visa is not a good idea. If your visa has expired, whichever visa you held, your legal right to be inside the country has expired with it and you could be arrested and detained until you are placed on …

Accredited Sponsors Scheme – Subclass 457 Visas

In 2011, in recognition of the fact that there are many Australian businesses and agencies that have a long and constructive history of sponsoring employees from overseas into specific jobs, then Minister for Immigration Chris Bowen enacted a scheme to allow such employers ‘accredited status’ (Direction no. 52). In practice, accreditation provides these bodies with three major advantages: 1. An …

Visa Condition 8107 – Work Restriction

If you are in Australia on a skilled visa, you may be subject to a very specific restriction designed to ensure you are working continuously for the time you are in Australia for that purpose. Condition 8107, which is placed on all 457 visas, stipulates that the visa holder must commence work with their nominated employer within 90 days of …

Section 48 Bar

Section 48 of the Migration Act 1958 is a complicated and vexed legislative provision for applicants who find themselves on the wrong end of it. In short, s48 says that if you are in Australia as a non-citizen, do not hold a substantive visa and have (since you last entered Australia) either: – been refused a visa (other than a …

The 8503 ‘No Further Stay’ Condition (and the role of waivers)

When you are issued with an Australian visa, it carries with certain conditions that must be met. Regulation 2.05 of the Migration Regulations 1994 specifies that conditions can be either ‘mandatory’ – that is, they must apply to all holders of that visa – or ‘discretionary’ – they might apply in particular circumstances if determined by a decision maker. It …

What is a Registered Migration Agent?

A registered Migration Agent is a professional with specific expertise in assisting clients to successfully apply for visas to come to, or remain in, Australia. All practising Migration Agents are required to be registered with the Migration Agents Registration Authority (MARA), which is part of the Department of Immigration and Border Protection. In order to remain registered, each Migration Agent …

457 Temporary Skilled Visa – Minimum Salary Requirements

The 457 visa is a sponsored skilled visa issued for up to 4 years, which the Government has decided requires the visa holder to be employed at a minimum salary level in order to become, and remain, eligible. This is referred to as the Temporary Skilled Migration Income Threshold (TSMIT) and is subject to change from time to time. Today, …

Changing Employers while on a 457 Sponsored Visa

If you are currently in Australia on a Skilled Sponsored, subclass 457 visa, you know that your visa is only valid as long as you are continuously employed by the company sponsoring you. However, if you wish to switch employers, it is possible to do so as long as the new employer is willing to continue your sponsorship for the …

Visa Condition 8101 – Breaching the ‘No Work’ Condition

Depending on the type of visa you are issued and your circumstances, you may find yourself subject to one or more relevant conditions. One of the more common conditions is condition 8101 – relevantly, that the visa holder may not engage in work in Australia (this is defined as activities for which they would ordinarily be paid money). If you …

How Long will it Take for my 457 Visa Application to be Processed?

As with most questions about processing times with the Immigration Department, the answer is – it depends. In general: – if your application is considered ‘Low Risk’, estimated processing time is 2 months. – if your application is considered ‘High Risk’, estimated processing time is 3 months. The main factors that are relevant to processing time are: – The risk …

Australia’s Migration Zone

It might seem counter-intuitive, but for the purposes of migration Australia is not Australia at all. Indeed, while it would be sensible to assume that setting foot on Australian soil would mean that a person has entered Australia, the Migration Act 1958 specifies that this simple assumption is far more confusing than it seems. Firstly, for the purposes of the …