Changing status

Based on the contribution of Michael Clothier for The Law Handbook 2016 published by Fitzroy Legal Service, as amended by Zouheir Dalati and current to 20 April 2018

Introduction

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 visa

This visa is available for aged parents who can afford to pay over AUD$52,570 (including 884) per adult plus have their sponsors lodge a AUD$10,000 “assurance of support bond” plus AUD$4,000 for each family member (i.e. spouse, children, etc.) for 10 years as a guarantee that the visa applicants will not access social security 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 of the Migration Regulations).

Note that dependant is also defined in regulation 1.05A of the Migration Regulations 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.

Subclass 837: Orphan relative visa

This visa is available to an applicant in Australia who meets the criteria for subclass 837: orphan relative (see reg 1.14 Migration Regulations 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 in obtaining employment, or
• in becoming established independently in Australia in the area; and
• produces a nomination testifying to their achieve­ment and standing 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 (abolished on 1 January 2013)

• Subclass 885: skilled: independent overseas student visa
• Subclass 886: skilled: Australian-sponsored visa
• 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 wish to apply for permanent residence purely on the basis of their recently acquired Australian qualifications. They partially “mirror” the current offshore migration visas (see Skilled migrants: the points test and other issues) 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. However, the visas were themselves abolished on 1 January 2013.

Other options for overseas students who have graduated

The subclass 485: skilled – graduate (temporary) is for international students who have recently graduated from an Australian educational institution. It lets them live, study and work in Australia temporarily after they have finished their studies.

There are two streams to the 485 visa:

1. 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.
2. 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 domestic relationship (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 marriage has ceased during the two-year period, but the applicant has custody or joint custody of at least one child, in respect of whom a court has granted joint custody or access or a residence order or contact order to the Australian party, or the Australian party is subject to a formal maintenance obligation or other obligation under the Family Law Act 1975 (Cth) (see subclass 801, sch 2 of the 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 asylum visa

This visa is available to an applicant in Australia who has been granted territorial asylum by a government minister such as the Minister for Foreign Affairs. (This is different from refugee status, and is very rare; see subclass 800, sch 2 Migration Regulations.)

Special visas

In addition to the above, the government from time to time introduces special temporary or permanent visas as a humanitarian response to people temporarily in Australia.

Subclass 785 and 790 visas

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.

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 Refugee Convention. 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 stay of five years before re-assessment of Australia’s obligations and if an applicant can live and/or 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).

Subclass 852

The subclass 852 is called a referred stay permanent visa (previously called the witness protection (trafficking) (permanent) visa) allows a person who is a human trafficking victim to stay in Australia after giving evidence against a trafficker. If the Attorney-General certifies that the person has made a significant contribution to the prosecution 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.