Migration Program Revision Notes for HSC SSCE Legal Studies

Migration Program

Overview of Australia's migration system

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Australia operates a structured migration program designed to facilitate permanent entry into the country. The program consists of two main components: the migration program (for general migrants) and the humanitarian program (for refugees). This note focuses specifically on the migration program.

The migration program operates through three distinct pathways, each designed to meet different migration objectives and circumstances. These streams reflect Australia's economic needs, commitment to family unity, and recognition of special historical connections.

The three streams of migration

Australia's migration program comprises three separate streams:

Skilled stream: This pathway targets individuals who possess work-related qualifications, professional expertise, or business skills that can contribute to Australia's economic development. The government maintains a Migration Occupations in Demand List which identifies professions currently experiencing domestic shortages.

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Priority Occupations in 2015

In $2015$ , the Migration Occupations in Demand List included accountants, construction project managers, healthcare workers, architects, dental professionals, engineers, and building trades workers. This list changes regularly based on Australia's economic needs and skills shortages.

Family stream: This stream enables Australian citizens and permanent residents to sponsor eligible family members for migration. The pathway emphasises family reunion and allows various relatives to join their family members already established in Australia.

Special eligibility stream: This provides migration opportunities for individuals with previous connections to Australia, including former permanent residents and certain New Zealand citizens.

Skilled stream

Points test system

The Migration Act 1958 (Cth) establishes the legal framework for skilled migration. Applicants must successfully complete a points test, which assigns numerical scores based on specific criteria. This competitive system ensures Australia attracts migrants who can make meaningful economic contributions.

The points test evaluates multiple factors:

Educational qualifications: Higher education levels receive more points
Professional skills: Relevant work experience in demand occupations scores highly
English language proficiency: Applicants must demonstrate competent English ability
Age: Younger applicants receive preferential scoring
Sponsor characteristics: Where applicable, the sponsor's citizenship status and employment situation

Key requirements for skilled migrants

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Critical Age and Language Requirements

Applicants face several mandatory requirements. An age limit of $45$ years applies to independent skilled migrants, reflecting the government's preference for workers who will contribute to the economy for longer periods. Proficient English skills are essential, ensuring migrants can integrate effectively into Australian workplaces and communities.

The points system favours young, English-speaking professionals and tradespeople who possess qualifications in areas experiencing skills shortages.

Skilled migration categories

Several pathways exist within the skilled stream:

Business migration: For entrepreneurs and business owners
Employer nomination: Where Australian employers sponsor skilled workers
Investment-linked migration: For individuals willing to make significant financial investments in Australia
Distinguished talent: For individuals with exceptional abilities in specific fields

Government policy adjusts skilled migration levels based on economic conditions. For example, following the Global Financial Crisis, visa numbers declined, though the $2012$ program increased places compared to previous years. The $2012$ - $13$ program specifically aimed to address skills shortages in different Australian states, recognising their varying economic priorities.

Family stream

Overview of family migration

Family migration allows $60,855$ visas annually (as of $2015$ ) for relatives of Australian citizens and permanent residents. The sponsor must hold either Australian citizenship or permanent residency status. Generally, applications sponsored by citizens receive priority over those sponsored by permanent residents.

Eligible family relationships

Spouses and de facto partners: Partners of Australian permanent residents can apply for a provisional visa. After maintaining their relationship for $2$ years following arrival, they become eligible for permanent residency. This waiting period allows authorities to verify the relationship's authenticity.

Fiancé(e)s: Engaged couples receive a conditional $9$ -month visa within which they must marry. Following marriage, permanent residence may be granted $2$ years later, subject to the relationship continuing.

Dependent children: Australian residents can sponsor their children to join them. This includes biological children, adopted children, and stepchildren under specific circumstances. Orphaned children and unmarried relatives under $18$ years old can also migrate if they have no alternative care arrangements in their home country.

Parents: Parent migration operates under the 'balance of family' test. This requires that at least half of the parent's children (including stepchildren) reside in Australia, or that more children live in Australia than in any other single country. This criterion ensures parents have genuine family connections in Australia.

Aged dependent relatives: Individuals beyond retirement age who have relied on their Australian relative for financial support (typically for $3$ years or more) can apply for migration.

Carers: Relatives can migrate to provide care for family members with special needs who are Australian permanent residents.

Remaining relatives: Individuals whose parents, siblings, and children all reside in Australia may qualify under the remaining relative category.

Assurance of support

The assurance of support represents a critical requirement for most family stream applications. The Australian sponsor must sign a legally binding contract committing to provide financial support to the incoming migrant for a $2$ -year period. This requirement protects Australian taxpayers by ensuring new migrants do not immediately burden the social welfare system.

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Key Exceptions to Assurance of Support

Important exceptions exist: dependent children, fiancé(e)s, and spouses are exempt from the assurance of support requirement, as the sponsoring family member is expected to provide support regardless of legal obligation.

Financial requirements

Beyond the assurance of support, most family stream applicants (excluding dependent children and spouses) must pay:

A refundable bond
A Medicare levy contribution

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Visa Application Fees (2015 Examples)

Visa application fees vary significantly based on visa type:

Student visa: $550
Prospective marriage visa: $6,865

These fees are subject to regular adjustment and should be verified with the Department of Immigration and Border Protection.

Appeals process

If an application is rejected, Australian residents who sponsored family members can appeal to the Migration Review Tribunal. This independent body reviews migration decisions to ensure fairness and proper application of migration law.

Special eligibility stream

This stream provides limited but important pathways for individuals with historical connections to Australia. Eligibility criteria include:

Former residents: Individuals who held Australian permanent residency for $9$ years during their first $18$ years of life
Military service: People who served in the Australian Armed Forces for $3$ months or more before $19$ January $1981$

Spouses and dependent family members meeting certain conditions may be included in applications under this stream.

General requirements for all applicants

Regardless of which stream applicants use, all prospective migrants must satisfy certain fundamental requirements established under Australian migration law.

Character requirements

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Character Standards Under Migration Act 1958 (Cth)

The Migration Act 1958 (Cth) sets out strict character standards. All visa applicants must demonstrate good character. The Department of Immigration and Border Protection will refuse visas to individuals who:

Have received prison sentences of at least $1$ year for criminal offences
Have been involved in criminal activities or associate with known criminals
Are likely to commit crimes in Australia
Will behave, or encourage others to behave, in ways that bring contempt or hatred toward members of Australian society

Exam guidance: When evaluating character requirement cases, consider the seriousness of past offences, the time elapsed since offences occurred, evidence of rehabilitation, and potential risk to Australian society.

Health requirements

The Migration Regulations 1994 establish Australia's health standards for migrants. These requirements exist to protect Australia from excessive health costs and risks, and to prevent overuse of health resources.

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Mandatory Health Screening

All applicants and dependent family members must undergo:

A medical examination
An x-ray (for individuals aged $11$ years or older)
An HIV/AIDS test (for individuals aged $15$ years or older)

These comprehensive health checks ensure migrants do not pose public health risks or require extensive medical treatment that would burden the Australian healthcare system.

Points test evaluation

For permanent residence applications, most categories require completion of detailed application forms. Responses are allocated points that measure the applicant's desirability compared with other candidates. Different migration categories assess different characteristics, but common evaluation areas include:

Educational level: University degrees, vocational qualifications, and professional certifications
Professional skills: Relevant work experience and specialist expertise
English proficiency: Language testing results demonstrating communication ability
Sponsor qualities: Where relevant, the sponsor's citizenship status, employment situation, and relationship to the applicant

The citizenship test

Background and development

During the mid- $2000$ s, public debate intensified regarding citizenship requirements for permanent residents. In response, the government introduced mandatory testing to assess prospective citizens' knowledge and understanding of Australian society and values.

The Australian Citizenship Act 2007 established the legislative framework for citizenship. It was amended by the Australian Citizenship Amendment (Citizenship Testing) Act 2007 in September $2007$ , formally introducing citizenship testing.

Review and reform

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2008 Citizenship Test Review Findings

The government reviewed the citizenship test in $2008$ . The report, titled Moving Forward ... Improving Pathways to Citizenship, identified significant problems. The review concluded that whilst testing serves a legitimate purpose, "the present test is flawed, intimidating to some and discriminatory. It needs substantial reform."

Consequently, the test underwent several modifications to eliminate weaknesses and reduce discrimination.

Current test requirements and practice materials are available through the Department of Immigration and Border Protection website.

Testing requirements

Permanent residents seeking Australian citizenship must demonstrate their understanding of Australian:

Democratic principles and governmental systems
Rights and responsibilities of citizenship
National values and traditions
History and culture

The test aims to ensure new citizens possess sufficient knowledge to participate meaningfully in Australian civic life.

Case study: Character requirement application

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Worked Example: David Irving Visa Refusals

David Irving, a British historian, has been repeatedly denied Australian visas based on character grounds. Irving gained international notoriety for his Holocaust denial views, which have outraged Jewish communities and historians globally. His visa applications were refused in $1993$ , $1996$ , and $2003$ .

$2003$ Refusal Reasoning

When denying Irving's $2003$ visa application, the Australian High Commission in London cited multiple concerns:

His demonstrated defiance and contempt for laws in other countries he had visited
His deportation and exclusion from multiple countries
The inability to assume he would behave differently in Australia

International Legal Problems

Irving's character issues extended beyond Australia. In $1991$ , following public speeches in Germany, he was convicted for Holocaust denial. His $1992$ appeal failed, resulting in a permanent ban from Germany. In $1992$ , Canada deported him for lying to an immigration adjudicator.

Additionally, his previous unsuccessful Australian visa appeals meant he owed the Australian Government $35,140 in fees.

Legal Analysis

This case demonstrates how character requirements operate in practice. The decision considered:

Pattern of behaviour: Repeated violations across multiple jurisdictions
Contempt for law: Disregard for legal requirements in other countries
Predictive assessment: Likelihood of similar behaviour in Australia
Financial obligations: Outstanding debts to Australian government

Exam tip: When analysing character test applications, examine both past behaviour and potential future conduct. Consider whether the person's actions demonstrate respect for law and whether they pose risks to Australian society.

Remember!

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Key Points to Remember:

Three-Stream System:

Australia's migration program operates through three streams: skilled, family, and special eligibility, each serving different migration objectives
The skilled stream uses a competitive points test favouring young, qualified, English-speaking professionals aged under $45$ years
The family stream enables family reunion but requires sponsors to provide an assurance of support (financial commitment for $2$ years) for most categories
All visa applicants must meet character and health requirements under the Migration Act 1958 (Cth) and Migration Regulations 1994
The citizenship test, introduced in $2007$ and reformed in $2008$ , assesses prospective citizens' knowledge of Australian society and values

Essential Terminology:

Migration Act 1958 (Cth): Primary legislation governing Australia's migration program
Points test: Assessment system allocating scores based on age, qualifications, experience, and English proficiency
Assurance of support: Legal contract requiring sponsors to provide financial support for $2$ years
Balance of family test: Criterion requiring half or more of parent's children to reside in Australia
Provisional visa: Temporary visa granted to spouses/partners before permanent residency
Migration Review Tribunal: Independent body hearing appeals against visa refusals
Character requirements: Standards excluding individuals with serious criminal histories or those likely to harm Australian society

Critical Frameworks:

Three-stream migration system: Skilled + Family + Special eligibility
Character assessment: Criminal history + Criminal associations + Potential future behaviour
Health screening: Medical examination + X-ray ( $11+$ ) + HIV test ( $15+$ )
Family migration priorities: Citizens' sponsors > Permanent residents' sponsors

Migration Program (HSC SSCE Legal Studies): Revision Notes