Australia has a long standing history of migration policy which has promoted the development of our young country and provided a rich cultural diversity. More than one quarter of the Australian population migrated from elsewhere. This history of migration has developed, over the years, a myriad of procedures and options available to obtain permanent residency in Australia and those rules are forever changing and evolving.

This overview of the Australian Migration System is intended to provide a simplified guide to those procedures.

In explaining the procedures and options available, it is important to recognise that an applicant for immigration to Australia must try to present a thoroughly prepared case. This is presented to the Australian Government Department that decides who can successfully apply for residency.

All applicants have a number of options in seeking residency. I have prepared this outline in the belief that the approach that a person should adopt when applying for permanent residence is to seek and obtain as much information as possible before lodging an application and understanding what is required of an application can greatly assist in its correct presentation.

This overview is not intended as an exhaustive guide of all Australian visa categories. There are over 100 different visas, each with their own rules for eligibility and rules change frequently. If these rules are not met, the visa will not be granted. It is important that people who are considering whether to apply for a visa are aware of the requirements they must meet in order to be successful.

1.1. Immigration Policy

All Governments control who is allowed to enter and live in their country. The Migration Act 1958 and the Migration Regulations enacted by the Australian Government provide the rules for that control in Australia. The Legislation largely reflects the policies of the political party in Government.

1.2 Who can migrate to Australia?

People who want to live in Australia must apply to migrate, or if they are already in Australia to change their status to permanent resident.

There are four categories to Australia's migration scheme:

* The Family Migration Program;

* The Economic Migration Program;

* The Refugee and Humanitarian Program;

* Special eligibility (former citizens etc).

It is generally accepted that immediate family members (spouses, dependant children) should be able to join their family in Australia. However, the rules for other relatives are much stricter and many won't be accepted as migrants.

The Migration Program has also been used to supplement work skills and expand the business sector. Economic criteria are important in most migration categories.

The Australian Government for the current period has set an overall planning level or quota. The current years quota for migrant intake is 86,000 persons per year down from 150,000 persons per year 5 years ago.

The Australian Government has established a system of registration of migration agents. Applicants for migration may only obtain advice from a registered migration agent. Gino Moro of Collas Moro Ross Lawyers of Australia, is a registered migration agent and is available to provide advice in this area.

1.3 Visas

A visa is a single authority to travel to, enter and remain in Australia. Generally all non-citizens of Australia are required to hold a visa.

Types of visas:

There are four main types of visas:

* Permanent visas which entitle a person to remain permanently;

* Temporary visas which authorise a temporary stay subject to conditions;

* Protection visas which have been granted refugee status, and;

* Bridging visas which confer temporary lawfulness on someone who would otherwise be unlawful.

2. AUSTRALIAN MIGRATION PROGRAM

Here is an overview of the various Australian Migration Programs which entitle an applicant to a permanent visa;

2.1 FAMILY MIGRATION PROGRAM

The Family Migration Program allows Australian citizens and residents to sponsor some of their relatives who are overseas to migrate to Australia. To succeed as migrants, the relatives and their sponsor must meet all the requirements for migration and at least one of the migration categories outlined below. Australian citizens/residents do not have an absolute right to bring any relative to live in Australia. Even legally married spouses and dependent children must meet all the requirements for migration before they can come to Australia.

There are two components in the Family Migration Programs:

(a) Preferential family component: This targets certain close relative of Australian Citizens and permanent residents and consists of the following visas:

* spouse or de facto spouse;

* fiance;

* interdependent partner;

* dependent child;

* child adopted overseas;

* parent who meets the family test;

* orphaned unmarried relative under 18;

* special need relative;

* Aged, dependent relative;

* the last member of an immediate family not living in Australia

(remaining relative).

To be successful, family members must meet the definition of "family unity" and help, public interest and special return requirements.

(b) Concessional Family Component: This is for certain skilled relatives. Applicants must pass a points test which allocates points for skills, qualifications, age, relationship to sponsor, and settlement, location and citizenship of sponsor.

2.2 ECONOMIC MIGRATION PROGRAM

The Economic Migration Program is for people who have skills of talents which will benefit the Australian economy. There are four major categories in the program;

* Independent category (see 2.2.1.)

* Employer Nomination category (see 2.2.2.)

* Business Skills categories (see 2.2.3.)

* Distinguished Talent category (see 2.2.4.)

Here is an outline of the economic migration program categories:

2.2.1 The Independent Category targets young, well qualified people. Applicants must pass the independent points test which awards points for recognised qualifications and work experience, age and English language ability.

The applicant must:

* pass the general points test;

* be of working age (under 64 for women and under 65 for men);

* if the occupation appears in the occupations requiring English list, be able to communicate affectively in a range of situations.

* pay the English language education charge if necessary;

* meet health, public interest and special return requirements.

Applicants are allocated points for their employment qualifications, age and language skills.

At present the pass mark in the independent categories is 115 points but it may change from time to time. Here is the current independent points test.

2.2.2 The Employer Nomination Category targets highly skilled applicants coming to work in areas where there is a shortage of skilled workers in Australia. There are two separate classes and sub-classes within this program; Labour Agreement Visas for those in an occupation covered by a Labour Agreement and Employer Nomination Visas for those in occupations where no agreement exists.

2.2.3 The Business Skills Categories for people who have established skills in owning and running a business, people who are senior executives in large companies or people who manage investments. Applicants must pass a points test which awards points for the size and type of business, age, English language ability and capital. Current application fees are A$2465. There are six sub-classes of these visas within this category, namely:

1. Business Owners

2. Established Businesses in Australia

3. Senior Executive (Business Skills)

4. Investment Linked Business Skills

5. State Sponsored Business Owners

6. State Sponsored Business Executives

These six categories are now outlined as follows:

1. Business Owners:

* The applicant must in any two of the last four fiscal years

- be or have been a shareholder or proprietor in one or more qualifying business(es);

- have maintained direct or continuous involvement in the day-to-day management of a main business of which they are the owner or proprietor, or;

- in the case of a business providing professional, technical or trade services, have been engaged in the management of that business (as opposed to providing services) for at least half the time,

- have net assets personally or together with their spouse in a qualifying business(es) of at least A$300,000. If the business is a public company then the equity must equal at least 10% of the share capital.

* have a successful business career

* gain at least 105 points in the business skills points test (see below)

* notify their intention to develop a business in an Australian State and their business history

* not have a history of involvement in unacceptable business activities

* sign a declaration acknowledging Australia's requirements for entry using this visa

* meet health, public interest and special return requirements.

2. Established Business in Australia (visa sub-class 845):

This visa is for people who are in Australia on a temporary basis and have established business interests there. Applicants for this visa will gain 60 points in the business skills points test (see below) for business attributes if, in the 12 months before application, their main business employed at least 3 Australians in addition to the applicant's family unit and the business had a turnover of at least A$200,000 or exported goods or services from Australia to the value of at least A$100,000.

The applicant must:

- hold an acceptable current visa

- have been in Australia holding such visa for at least 9 of the preceding 12 months

- have had an ownership interest in one or more established main businesses in Australia for at least 18 months before applicant and continue to hold that interest.

- have had for the 12 months before application and continue to have, together with their spouse.

± total net assets of at least A$250,000

± total net assets in a main business of at least A$100,000

- in the past 12 months maintained direct and continuous involvement in the management of the main business.

- score at 105 points on the business skills points test (see below)

- have an overall successful business career

- not have a history of involvement in unacceptable business activities

- sign a declaration acknowledging Australia's requirements for entry using this visa

- meet health, public interest and special return requirements.

3. Senior Executive (Business Skills): The applicant must:

* In any two of the past fiscal years have occupied a position in the three highest levels of the management structure of a major business and have been responsible for strategic developments affecting a major component or a wide range of the operations of the business;

* Have an overall successful business career;

* Have a genuine and a realistic commitment after entry to established business in Australia or participate in an eligible business in Australia.

* Notify the gazetted department or authority of a state or territory of Australia of their intention to develop a business in that region and of their business history;

* Gain at least 105 points in the business skills points test;

* Not have a history of involvement in business activities which are not generally acceptable in Australia.

* Sign a declaration acknowledging the government requirements for entry using this visa;

* Pay the English language education charge if necessary;

* Meet health, public interest and special return requirements.

A major business is one which has had an annual turnover of at least A$50 million for two of the past four fiscal years immediately before the application was lodged.

4. Investment Linked (business skills): The applicant must:

* invest a minimum of A$750,000 in a designated investment in Australia. (A designated investment includes, for example, publicly issued Government bonds which mature three years after the investment is made.)

* demonstrate a high level of management skill, and have a successful record of relation to a eligible investment or qualifying business;

* have at least three years direct experience in management of an eligible investment or qualifying business;

* in at least one of the past five fiscal years have maintained a direct involvement in managing a business which they or together with their spouse have at least 10 percent ownership interest, or in managing eligible investments personally or together with their spouse which have a net value of at least A$1 million;

* throughout the past two fiscal years have assets to the net value of at least 50 percent more than the value of the designated investment in Australia;

* gain at least 105 points in the business skill points test;

* not have a history of involvement in business activities which are not generally acceptable in Australia;

* have a genuine and realistic commitment to continue to maintain a business or investment activity in Australia once the designated investment has matured;

* sign a declaration acknowledging the government requirements for entry using the visa;

* meet health, public interest and special return requirements.

5. Australian State Sponsored Business Owners: Applicants will get an additional 15 points for sponsorship by an appropriate State or regional department of authority. The applicant must in any two of the past four fiscal years have net assets of at least $200,000 in a qualifying business.

6. Australian State Sponsored Senior Executive: Applicant must have been a senior executive in a "major business" with an annual turnover of A$10 Million. The Applicant will get an additional 15 points for sponsorship by an appropriate State or regional department of authority:

5.2.4. The Distinguished talent category is for "stars' usually from sporting or cultural backgrounds or others who have highly regarded skills or an exceptional record of achievement in their occupation or profession, and who are seen as contributing to Australia.

5.3 REFUGEE AND HUMANITARIAN PROGRAM:

Under this program Australia gives protection to people who arrive at Australia's borders or who are already in the country if they fit the United Nations definition of a refugee.

6. TEMPORARY VISAS

Here is an outline of some of the temporary visas available:

6.1. Student Visa

The applicant must:

* be enrolled in a full time course that is a registered course for the enrolled in full time study as an exchange student or assisted student;

* have acceptable health insurance;

* be a genuine student and have adequate finances;

* meet settlement criteria if intending to study in Australia for 12 months or more;

* make adequate arrangements for the education of school age dependents;

* meet health, public interest and special return requirements.

Study visa applicants from India usually have to have their bona fides assessed before confirming enrollment and paying tuition fees for the course of their choice. Here is an outline of the 7 steps to be followed by proposed applicants for a student visa:

Step 1. Find a suitable institutional course;

Step 2. Establish eligibility for course enrollment;

Step 3. "Self Assessment"- applicants to have their "bona fides" checked before they formally enrol in a course;

Step 4. Lodge application at the nearest overseas post of the Australian Consulate or Embassy and return the application with the relevant fee and the confirming eligibility for the course;

Step 5. Confirm enrollment with the Australian Institution, pay fees;

Step 6. Complete visa application;

Step 7. The application will be accepted or rejected.

All students are given multiple entry visas for the duration of their course plus a period of between 1 and 3 months if the end of the course coincides with the end of the academic year. Students must continue to study full-time of the course for which they were originally approved. It may be possible in some special circumstances to transfer from one course to another. Students are still concerned full time students during session breaks and long vacations periods, provided they are still enrolled and meet all course requirements. All students can work up to 20 hours a week during term time and full time during vacations. Some students may be able to get permanent residence. To succeed, they must meet one of the requirements for changes status.

6.2. Temporary Worker Visa

Some skilled people can come to Australia to work at pre-arranged jobs for temporary periods. They must usually be sponsored by an Australian Employer. In a few cases overseas employers may send someone to work in Australia. All applicants must meet health, special return and public interest criteria. They are required to show that if they intend to stay in Australia for over a year "they are likely to become established in Australia without undue difficulty and without imposing undue difficulty or cost on the Australian community.

6.3 Working Holiday Makers Visa

The applicant must:

* usually be aged over 18 and under 26

* show that the grant of a working holiday visa would be to the benefit of the applicant and Australia, or be a citizen of a country with which Australia has reciprocal working holiday-maker agreements

* apply for the visa in their country of citizenship or unless they are a citizen of a reciprocal agreement country

* have no dependent children

* have sufficient money for return ticket and additional funds to support themselves upon arrival and between jobs and have a reasonable chance of getting a job.

* not intend to undertake any study in Australia other than a short English language course

* be a genuine working holiday-maker whose main purpose is to have a holiday in Australia

* meet health, public interest and special return requirements

6.4 Retirees (self-supporting retired people) Visa:

This is for older, wealthy people who have no dependents ( other than a spouse) and who can be self-supporting in Australia. The applicant must:

* if applying in Australia, hold an acceptable visa or have held one;

* have reached 55 years of age and have no dependents other than a spouse or a de-facto spouse. If the applicant is married or have a de-facto spouse, the spouse can be under 55;

* have at least A$500,000 capital to transfer to Australia or A$150,000 plus pension rights or investments which provide an income of at least A$35,000 a year. Capital income of both partners will be taken into account in application from married or de-facto couples;

* not intend to be employed in Australia;

* meet health, public interest and special return requirements.

Retirement visas are granted for an initial stay of 4 years. Retirees who wish to stay longer can seek extensions for up to 2 years at a time. Retirees cannot work. If they do so their visa may be cancelled.

7. Change of Status to permanent resident:

Overview: People who want to live permanently in Australia are usually expected to apply to migrate from their country of origin. Migration Law allows some people to "change their status" and become permanent residents after they have entered Australia on temporary visa. In order to change status applicants must:

* meet all the criteria for a change of status visa;

* usually hold what is known as substantive visa, which are all visas except for a bridging visa which is a type of visa that keeps the holder lawful while they are waiting to leave Australia or for a decision to be made on a visa application;

* be in Australia;

Visitors' work rights in Australia: Visitors are not allowed to work in Australia, unless they have met the special work requirements. Work is defined as "an activity that in Australia normally attracts remuneration" (i.e. payment of some kind). If a visitor works while they are in Australia and the Department of Immigration finds out, they will probably have their visa cancelled and have to leave Australia. They will face a re-entry ban on lodging an application for a visa to return to Australia and may face a fine of A$10,000. If a visitor visa holder wishes to work they must make an application for:

* a temporary resident visa which allows the holder the work, or

* a further visitor visa and establish financial hardship.

8. Australian Citizenship

To become an Australian Citizen, a permanent resident must usually:

* have been in Australia as a permanent resident for a total of two years in the past five years;

* has spent the past twelve months in Australia;

* be age 18 years or over;

* be of good character;

* have a basic knowledge of English;

* have an adequate knowledge of the responsibilities and rights of a citizen.

People should think carefully before deciding to become an Australian citizen. Citizenship means people acquire new rights and obligations in Australia. It may also affect their rights and obligations in the country of which they are currently a citizen.

There may be disadvantages to becoming an Australian citizen which applicants should consider. These could include loss of their previous citizenship, restrictions on re-entry to their country of origin, loss of their country's pension/benefits, and obligation to pay dual taxes or loss of property or inheritance rights. What could happen depends on the laws of the person's country of origin and not on Australian Laws. All applicants for citizenship must be permanent residents. Dual citizenship is permissible.

9. Review of Migration decisions:

If the Australian Department of Immigration makes a decision which is unfavourable to an applicant or visa holder, it is sometimes possible to seek a review of that decision, i.e lodge an appeal. There are a number of different bodies which can review a migration decision with further appeal rights available to the Federal Courts of Australia. In all cases there are very strict time limits which apply to lodging an application for review.

10. Conclusion.

An applicant should never make the mistake of quickly preparing an application which does not thoroughly present the strengths of the case.

The onus of establishing the strength of the case is the responsibility of the applicant. Satisfactory supporting material and documents should always be provided. If the applicant understands what is required for each category available, the chances of a successful application will be enhanced. An applicant who falls within the conditions of a category described should realise that there is no automatic acceptance.

The Australian Government has the discretion to assess all applications. A person's right to apply does not presuppose guaranteed success. It depends upon how thoroughly the evidence is being presented, and how "strong" the application is, when considering the merits of the case.