People wanting to gain permanent residency in Australia can do so through humanitarian grounds, as a skilled migrant, or part of a family unit. There are specific criteria that a person must fulfil before permanent residency is granted, and we here at FindLaw will give a general overview on how the process works. For the purposes of this piece, the focus will mainly be on gaining permanent residency via the family or skilled worker streams.
What are the general entry criteria for migration to Australia?
Applicants for permanent residency must undergo health and character tests as required in the Migration Act.
Health test: The main applicant, as well as a spouse or children must undergo a health check, even if they aren’t applying for a visa. The test may include an x-ray and HIV/AIDS tests, as well as any other test deemed necessary by the Medical Officer of the Commonwealth.
The Medical Officer will make an assessment on whether the health requirement has been met, which is then relayed to Migration Regulations officers who decide if a visa is to be granted. If a health issue is found, officers may waive the health requirements if it is decided that there are no further health risks to the wider Australian community. However, the waiver cannot be exercised if the Medical Officer considers an applicant as a health risk.
A person who is found to have tuberculosis is automatically precluded from entering Australia because the disease is seen as too great of a health risk to the community. Other diseases discovered do not automatically prevent a person from migrating, but is instead assessed on an individual basis.
Character test: The character, like the health test, is primarily based on a public interest test. Applicants who have criminal records, known to associate with criminals, are considered a threat to national security, or seen to have the potential to engage in criminal conduct in Australia, may fail in their application for permanent residency.
Migration Regulations officers have wide discretionary powers to make a judgement on the character of an applicant, and whether or not a visa should be granted.
How are permanent residency visas granted for family members?
Family members can include a spouse (including same-sex partners), children, parents, and other family.
For a partner visa application to be successful, the applicant and their sponsor must:
• be in a legitimate and committed relationship
• be of legal, marriageable age in Australian law
• have been legally married in Australia or their country of origin
• in a de facto relationship, demonstrate that they have been living together in a genuine relationship for at least 12 months before lodging the visa application.
The application is a two stage process in which an initial provisional two year visa is granted, which then turns into a permanent residency. The provisional two year visa can be waived if a couple have been in a relationship for more than five years, or the couple has a child.
A person who intends to sponsor a fiancé, a nine month Prospective Marriage visa will be granted, with an expectation that a marriage will take place, after which, an application for a partner visa can be made.
In the case of Prospective Marriage visas, a sponsor may also be required to obtain an Assurance of Support (AoS) form demonstrating that they’re able to financially support their partner, and not rely on the welfare system. An AoS undertaking requires that any benefits received will be paid back to the government. It should be noted that an AoS requirement is discretionary and not applied in all cases.
Visa applications relating to children can be granted in two ways: either as a dependent child under the age of 18, or if a child is over the age of 18, they must demonstrate that they are still dependent on the parent for financial support. Children over the age of 25, engaged or married, will not be granted a visa.
How are skilled migrants assessed?
Skilled workers can either be sponsored to work in Australia by an employer, or apply to independently migrate, in which a number of factors will be considered before a visa can be obtained.
For workers who are not sponsored, and outside of Australia, the general considerations that will be taken into account are whether or not Australia requires the skills and qualifications that an applicant possesses, is under the age of 45, and meets the minimum English standards.
Applicants granted permanent residency as a skilled migrant are eligible to undertake vocational or university study, receive Medicare, sponsor others for permanent residency, and be eligible for Australian citizenship.
The information in this article is by no means exhaustive. If any reader needs assistance for immigration issues, please seek legal advice.