Visas, permanent residence and citizenship in Australia are governed by federal law, mainly the Migration Act 1958 (Cth), the Migration Regulations 1994 (Cth) and the Australian Citizenship Act 2007 (Cth). A visa application can look like a matter of filling in forms and uploading documents, but every visa has specific legal criteria, and failing any one of them can lead to refusal. Once a visa is granted, the holder must keep complying with its conditions. This article outlines how an immigration lawyer can help at each stage, and the key legal points to consider before you make a decision.
Australia's immigration law framework
Visa applications are decided by the Department of Home Affairs. Most Home Affairs decisions can be reviewed by the Administrative Review Tribunal (ART), which replaced the Administrative Appeals Tribunal (AAT) on 14 October 2024. Where there is a legal error, you may also be able to seek judicial review in the Federal Circuit and Family Court of Australia or the Federal Court.
Beyond the Act and Regulations, ministerial directions, legislative instruments and Home Affairs policy guidelines also shape how visas are assessed and prioritised. These change often, so each case should be assessed against the rules in force when you apply.
Main visa types and recent changes
- Student visa (subclass 500): Applicants must meet the Genuine Student requirement and the financial capacity, English language and health insurance requirements. See Guide to the subclass 500 Student visa and subclass 590 Student Guardian visa.
- Employer-sponsored visas: The Skills in Demand visa (subclass 482) replaced the Temporary Skill Shortage (TSS) visa on 7 December 2024 and has Specialist Skills, Core Skills and Labour Agreement streams. The Employer Nomination Scheme (subclass 186) is a permanent visa.
- Skilled migration: These include the Skilled Independent (subclass 189), Skilled Nominated (subclass 190) and Skilled Work Regional (subclass 491) visas, which generally require a skills assessment, the points test and a SkillSelect invitation.
- Family visas: These include partner visas (subclasses 820/801, 309/100 and 300), child visas and parent visas.
- Business and investment visas: The Business Innovation and Investment Program (BIIP), including subclass 188, closed to new applications on 31 July 2024. Entrepreneurs, investors and professionals with an outstanding record of achievement may now consider the National Innovation visa (subclass 858) or other suitable visas.
How a migration lawyer differs from a registered migration agent
Registered migration agents can help with visa applications. Practising lawyers are bound by professional conduct rules and continuing professional development requirements, can advise on related legal issues outside migration law (such as criminal, family, commercial or estate matters), and can represent clients in court. Cases involving a refusal, cancellation, character assessment, ART review or judicial review usually call for more thorough legal analysis. For the differences in qualifications and regulation, see How a migration lawyer differs from a registered migration agent.
The process
- Initial assessment: We review your passport, current visa and its conditions, qualifications, work history, family relationships and past applications to work out which visa pathways are open to you.
- Application strategy: We compare the criteria, risks and pathways to permanent residence of different visas, and arrange skills assessments or English tests if needed.
- Preparing and lodging: We gather the evidence, prepare legal submissions, lodge through ImmiAccount and respond to requests from Home Affairs.
- Managing your status while you wait: We keep track of your bridging visa rights and limits, so that travel or a breach of conditions doesn't put your application at risk.
- After an adverse decision: We assess ART review, a fresh application or judicial review within the legal time limits.
Common issues and risks
- Lodging a new application onshore while your current visa has condition 8503 "No further stay", without first getting a waiver.
- Giving information that is inconsistent with earlier applications. This can trigger public interest criterion 4020 (false or misleading information) and lead to refusal and a bar on applying again.
- Missing a review or response deadline. Some migration law time limits are very short, and some cannot be extended.
- Overlooking how criminal charges or family violence allegations can affect your visa and character assessment.
Common documents
Documents vary by visa but generally include identity and passport documents, birth and marriage certificates, qualifications, employment evidence, English test results, police certificates, financial evidence and health examination results. Documents not in English need an accredited English translation. If overseas documents need to be notarised or legalised, arrange this early.
How we can help
Chua Tan Associates has practised in Melbourne since 1990, offering legal services in English, Mandarin and Cantonese. Two of our lawyers are Accredited Specialists in Immigration Law, accredited by the Law Institute of Victoria. We advise on visa pathways, prepare and lodge applications, handle refusals, cancellations, ART review and judicial review, and give joined-up advice where immigration issues overlap with criminal, family or commercial matters. For more about our services, see our Australian immigration law services page.
FAQs
Do I need an immigration lawyer to apply for an Australian visa?
Not always. If your case is straightforward and your documents are in order, you can lodge the application yourself or use a registered migration agent. But if there's a past refusal, a cancellation, a character issue, a health waiver, ART review or court proceedings, get legal advice before you lodge. A wrong legal call now can affect future applications.
Can I still apply for a subclass 188 business investment visa?
No. The Business Innovation and Investment Program, including subclass 188, closed to new applications on 31 July 2024. Entrepreneurs and investors looking to come to Australia now may consider the National Innovation visa (subclass 858), employer-sponsored visas or other suitable visas, depending on their background.
What should I do if my visa is refused?
Start by reading the decision carefully to understand why it was refused and whether you have a right to ART review. Time limits for review vary with the type of decision and some are very short, so go by what the decision letter says. Get legal advice quickly before choosing between review, a fresh application or judicial review.
What is the subclass 482 visa called now?
Since 7 December 2024, the subclass 482 visa has been called the Skills in Demand visa. It replaced the Temporary Skill Shortage (TSS) visa and has Specialist Skills, Core Skills and Labour Agreement streams. Eligible holders can later apply for permanent residence through the subclass 186 transition pathway.
Chua Tan Associates has practised in Melbourne since 1990, acting for clients in Australia and overseas in English, Mandarin and Cantonese. For a confidential consultation, call +61 3 9602 3988 or email chuatan@tpg.com.au. This article is general information only and is not legal advice.
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