Visitors and temporary residents in Australia may apply for change of status to another temporary class or a permanent class if they meet the legal requirements of that particular class. Visitors and temporary residents wishing to change status to another temporary or permanent class must meet the criteria of that class set out in schedule 2 of the Migration Regulations.
A summary of the permanent visa classes
Subclass 864: Contributory aged parent A permit that allows a person who is not a citizen to stay in a country on certain conditions, for the length of time stated in the visa.
This visa is available for aged parents who can pay over AUD$50 000 per adult plus have their sponsors pay a AUD$10 000 ‘assurance of support bond’ plus AUD$4000 for each family member for 10 years to A binding promise made as reassurance that another person will carry out their legal obligations (e.g. paying a debt). The person making the promise is called a guarantor. If the person being guaranteed fails to pay, the guarantor becomes responsible for the debt. that the visa applicants A document that sets out what a person wants to happen to their money and other property after they die. not access social Money or property promised to be handed over as a guarantee for repayment of a loan, or as a guarantee that a defendant will meet their bail conditions. payments in that time.
Subclass 802: Child visa
This visa is available to applicants in Australia who are dependent children of Australian citizens or permanent residents.
A dependent child is a person’s natural or adopted child. The child must be younger than 18 years old, and be unmarried (and not engaged). If the child has turned 18 years, they must be under 25 years and be dependent or at least substantially incapacitated (for work) because of a physical or mental impairment (see reg 1.03 Migration Regulations).
Note that dependant is also defined in regulation 1.05A to mean someone who is ‘wholly or substantially dependent on another person for financial support’ (except for certain refugee visas that allow for psychological and physical dependence).
Subclass 836: Carer visa
This visa is available to people in Australia who want to stay to help a relative who needs care due to a long-term or permanent medical condition. A carer certificate must be obtained by the sponsoring relative from Bupa (www.bupamvs.com.au/carervisamvs).
Subclass 837: Other family (residence) visa
This visa is available to an applicant in Australia who meets the criteria for subclass 837: orphan relative (see reg 1.14 for definition), and who is the relative of a settled Australian citizen or permanent resident who has nominated the applicant, and who is usually resident in Australia.
Subclass 828: Aged dependent relative visa
This visa is available to people who are usually residents in Australia, who are single, widowed or divorced, who are old enough to receive the age pension, and who are financially dependent on a relative. The relative must be a settled Australian citizen or a permanent resident who has nominated the applicant.
Subclass 808: Confirmatory (residence) visa
This visa is available to an applicant in Australia who has previously applied overseas to enter Australia permanently and has been allowed to enter Australia on a provisional basis, subject to proof that certain outstanding criteria will be proved after entry (see subclass 808, sch 2 Migration Regulations).
Subclass 866: Protection (residence) visa
This visa is available to applicants within Australia who have been granted refugee status (see subclass 866, sch 2 Migration Regulations).
Subclass 858: Distinguished talent visa
This visa is available to an applicant who:
- has an internationally recognised record of exceptional and outstanding achievement in:
- a profession; or
- a sport; or
- the arts; or
- academia and research; and
- is still prominent in the area; and
- would be an asset to the Australian community; and
- would have no difficulty getting employment, or
- in becoming established independently in Australia in the area; and
- produces a nomination testifying to their achievement and The right to appear in a court action and be heard. In general, a person cannot bring a case or have their say in a court about something that does not directly affect their interests. They must be able to show that they have sufficient interest in the case because, for example, of possible effects on their property or commercial activities. Also called locus standi. in the area from:
- an Australian citizen; or
- an Australian permanent resident; or
- an eligible New Zealand citizen; or
- an Australian organisation;
- having a national reputation in relation to the area; and if the applicant has not turned 18, or is at least 55 years old, at the time of application.
Overseas student (residence) visas
The visas were abolished on 1 January 2013. They included the subclass 885: skilled: independent overseas student visa, the subclass 886: skilled: Australian-sponsored visa, and the Subclass 887: skilled: designated area-sponsored (permanent) visa. These subclasses were created on 1 September 2007 and took over from previous visas (subclasses 880, 881, 882) that were abolished to cater for overseas students who wished to apply for permanent residence on the basis of their recently acquired Australian qualifications.
They partially mirrored the current offshore migration visas (see ‘Skilled migrants: the points test and other issues’, below) and allowed international students who had completed at least two years of academic studies in Australia and nominated a skilled occupation worth at least 50 points on the Skilled Occupation List (SOL) to apply in Australia within six months of completing their studies and not be required to have any work experience in the nominated occupation. A points test applied.
Other options for overseas students who have graduated
The subclass 485: skilled – graduate (temporary) visa allows overseas students who are under 50 years of age and do not meet the points test for a permanent visa to remain in Australia for 18 months to gain skilled work experience or improve their English language skills, which might then allow them to pass the points test or gain sponsorship by an Australian employer. Holders of this visa may apply for permanent residence at any time if they are able to meet the pass mark on the general skilled migration points test (see ‘Skilled migrants: the points test and other issues’, below) and they are invited to apply under the SkillSelect system.
There are two streams to the 485 visa:
- Graduate work stream: for international students with an eligible qualification who graduate with skills and qualifications that relate to an occupation on the Skilled Occupation List. A visa in this stream is granted for 18 months from the date of grant.
- Post-study work stream: for international students who graduate with a higher education degree from an Australian education provider, regardless of their field of study. This stream is only available to students who applied for, and were granted, their first student visa to Australia on or after 5 November 2011. A visa in this stream can be granted for up to four years from the date the visa is granted, depending on the visa applicant’s qualification.
Subclass 801: Partner (residence) visa
This visa is available to an applicant in Australia who has been in a genuine marital or A relationship where people live together as a couple or a family. This describes people’s living arrangements, not their marital status. A domestic relationship can be registered in Victoria. (heterosexual or same-sex) with an Australian citizen or resident for at least two years and has held, during that period, a subclass 820: partner (temporary) visa or a subclass 824: interdependent (temporary) visa. The two-year wait is waived for long-term marriages/relationships (i.e. those that have lasted five years at the time of application, or two years if there is a child of the relationship). The relationship must be genuine and continuing until the date of the decision whether to grant the visa, unless:
- the Australian partner has died and the widow or widower would have continued with the relationship if the partner had not died, and has developed close business, cultural or personal ties in Australia; or
- the relationship has ceased during the minimum two-year period of temporary residence as the partner of an Australian citizen, due to family violence by the Australian partner; or
- the A voluntary, formal and legally binding agreement between two people to have a permanent relationship together. There must be a statement in front of official witnesses who register the marriage with the authorities. See also cohabitation; de facto; divorce; domestic relationship. has ceased during the two-year period, but the applicant has Lawful control over a person which prevents them leaving. A person under arrest is in police custody and is not free to go. A person in prison is serving a custodial sentence that keeps them confined to the prison grounds. or joint custody of at least one child, in respect of whom a An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. has granted joint custody or access or a A parenting order that states who a child will live with – usually one of their parents – after a separation or divorce. or A parenting order made by a court, stating how often someone (a parent, or another adult) can see a child who doesn’t live with them. to the Australian A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses., or the Australian party is subject to a formal Money paid to a person to financially support them. When a couple has separated both parents have a duty to support their children, and a court can order a parent to make regular payments to support the children. Maintenance for a spouse is now less common, and must be applied for within 12 months of a divorce. It is usually covered in a final settlement of all property. obligation or other obligation under the Family Law A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1975 (Cth) (see subclass 801, sch 2 Migration Regulations).
This visa is also available to applicants who have entered Australia on a subclass 300: prospective marriage visa and have married the person named in their application (see subclass 831, sch 2 Migration Regulations).
Subclass 800: Territorial Refuge or protection from persecution, usually in another country. Historically, also a place for the detention and treatment of the mentally ill. visa
This visa is available to an applicant in Australia who has been granted territorial asylum by a government minister. (This is different from refugee status, and is very rare; see subclass 800, sch 2 Migration Regulations.)
From time to time, the government introduces special temporary or permanent visas as a humanitarian response to people temporarily in Australia.
The subclass 785 and 790 visas are such visas. They were created to allow a three- to five-year temporary stay for certain asylum seekers who arrived by boat during certain periods in the past and certain holders of temporary safe haven visas. They are currently in use for some asylum seekers who arrived by boat, who are found to be refugees prior to certain dates.
The present federal government has adopted a harsher attitude towards asylum seekers who arrive by boat without visas (as opposed to asylum seekers who arrive on tourist visas). The government has moved asylum seekers who arrive by boat ‘offshore’ to regional refugee processing centres, which will be expected to house them until various countries are willing to take them. The government has reached agreements with Nauru and Papua New Guinea to open such centres, and has negotiated with Cambodia to accept people from those centres who are found to be refugees.
Recently, the minister lifted the bar on applying for a visa for certain asylum seekers who managed to reach Australia but held no entry visa and engaged Australia’s obligations under the United Nations Convention relating to the Status of Refugees (1951). Approximately 30 000 people are in Australia in this category and they are barred from accessing permanent protection. Two temporary visas have been created for them:
- a temporary protection visa (subclass 785) and
- a safe haven enterprise visa (subclass 790).
The latter visa allows for a five-year stary before re-assessment of Australia’s obligations. If an applicant can live/study for 42 months in a regional area of Australia, the possibility of applying for a permanent visa is opened up. It is only a possibility because an applicant must meet the skills or other criteria of mainstream visas. There is no possibility of them getting a permanent protection visa (subclass 866).
The subclass 852: referred stay permanent visa (previously called the A person who can provide direct information based on their own knowledge about a relevant fact, and appears in court to give evidence about it. In some cases a witness may provide an affidavit or deposition setting out their evidence if they are not able to attend court. protection (Trading people or illegal products such as guns, drugs or ivory, often across borders, for commercial reward.) (permanent) visa) allows a person who is a human trafficking victim to stay in Australia after giving Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. against a trafficker. If the Attorney-General certifies that the person has made a significant contribution to the The party presenting evidence in court on behalf of the state or Commonwealth government against a person accused of committing a crime. Also called the Crown. of a trafficker and the minister is satisfied that the person’s life would be in danger upon return to their home country, this visa can be granted in the same way that a protection visa is granted to a refugee.