Current immigration policy

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Australia’s current immigration policy is considered to be non-discriminatory, meaning that migrants will be accepted from any country and will not be excluded on the basis of ethnic origin, gender, colour or religion.

Preference is given to applicants:

- whose skills will contribute to the Australian economy migration
- who are suffering persecution in their own country
- who have a relative living in Australia

Immigration policy is necessary as:
1) To ensure that the needs of the population do not exceed the country’s resources
2) To ensure that there are strict procedures to control who enters and must be removed from the country


[SOURCE: David Hamper, John Boesenberg and Christina Kenny, Legal Studies Preliminary (2nd ed, 2007) 300]


Immigration legislation

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Section 51 (xxvii) of the Constitution gives the federal government power to legislate in the area of migration.

Australian Constitution - Section 51 - Legislative powers of the Parliament
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
.....
(xxvi.) The people of any race, for whom it is deemed necessary to make special laws:
(xxvii.) Immigration and emigration:
(xxviii.) The influx of criminals:
(xxix.) External Affairs:
(xxx.) The relations of the Commonwealth with the islands of the Pacific:
…..

[SOURCE: http://australianpolitics.com/constitution/text/51.shtml]




Commonwealth legislation about migration


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· Migrations Act 1958
[SOURCE: http://australianpolitics.com/constitution/text/51.shtml]

· Migration Regulations Act 1994
[SOURCE: http://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/]


These legislations:
1) place immigration under the control of the Department of Immigration and Citizenship (DIAC)
2) set out the rules that have to be followed in processing visa applications


[SOURCE: David Hamper, John Boesenberg and Christina Kenny, Legal Studies Preliminary (2nd ed, 2007) 300]


The types of visa
Anyone who wishes to visit or live in Australia requires a visa. The visa will be checked upon arrival in Australia and may contain some conditions, such as a prohibition on employment.
If people do not abide the conditions on their visa and do not leave before their visa expires, they may be taken into detention and forcibly deported from Australia. If this is the case, it is almost impossible to be granted a visa to come to Australia in the future.


Three types of visas:
1) Temporary Residence Visas: allows a person to stay in Australia for a specific amount of time with restrictions on certain activities (e.g) holidaying, studying or working) Examples include tourist visas and student visas.
2) Residence Visas: allows permanence residence in Australia but restricts permanent residents from voting or holding a public office. Subject to cancellation if a serious crime has been committed.
3) Bridging Visas: allows a person to stay in Australia while an application for a Residence Visa is being processed by the DIAC.

[SOURCE: David Hamper, John Boesenberg and Christina Kenny, Legal Studies Preliminary (2nd ed, 2007) 300]


Health requirements
As set out in the Migration Regulations 1994, anyone who wants to live in Australia needs to meet certain health standards.

The immigration applicant, as well as his/her immediate family members, needs to be screened by the DIAC. This applies even if the family members do not intend to migrate to Australia. If the applicant is confirmed to have tuberculosis by a Medical Officer of the Commonwealth, their application fails immediately as he/she is considered a safety risk. Otherwise, they will be tested for hepatitis, HIV/AIDS, diabetes, obesity and any other diseases that could possibly lead to the patient needing a lot of support (medical, pharmaceutical, community services and special financial support) from Australia’s health care system, on which he/she could become a burden. The decision made by the Medical Officer on whether the applicant meets a certain health standard is binding on the DIAC. However, according to the Migration Regulations Act 1994, the medical requirements may be waived if the applicant does not become an unreasonable burden to the Australian public.
Due to the issue of social equality, the immigration cannot accept an applicant who did not meet the health requirements, even if the applicant is willing to pay for his/her own future medical expenses. This is because it can be seen as discriminatory to withhold health entitlements from some people, as Medicare is required to cover all Australian citizens and residents.


[SOURCE: David Hamper, John Boesenberg and Christina Kenny, Legal Studies Preliminary (2nd ed, 2007) 301]



Character requirements
There are character requirements set out in Section 501 of the Migration Act 1958 (Cwlth) that people need meet in order to acquire a visa to either visit or live in Australia. According to the Migration Act 1958 (Cwlth), people who will be denied or cancelled their visa include:

- People who have committed a criminal offence and have been sentenced to at least a year of imprisonment
- People who have been involved in criminal conduct or who have associated with known criminals
- People who are likely to commit a crime in Australia or have come to stalk another person
- People who intend to disparage and evoke contempt or hatred in others towards a section of the community
- People whose past and general conduct indicate them to be not of good character


DIAC, however, can still grant a visa to live in Australia even if a person fails the character test. This decision will be based on community expectations, international law and the existence of any strong links between the applicant and Australia. Unless the Minister for Immigration has personally made the decision to deny or cancel a visa because of a person’s character, the decision can be appealed to the Administrative Appeals Tribunal.

[SOURCE: David Hamper, John Boesenberg and Christina Kenny, Legal Studies Preliminary (2nd ed, 2007) 302]



Assurance of Support
When a migrant is entering Australia under:

1) a Skilled Stream Visa (requiring a sponsor)
2) a Parent Visa
3) an Other Family Visa (dependent aged relative, last remaining relative or carer)

The person sponsoring a migrant sometimes need to provide an Assurance of Support, a legally binding commitment to financially support the migrant their first 2 years in Australia. This is because new migrants generally are not entitled to welfare benefits during their first 2 years in Australia. If the migrant receives welfare benefits during this period, the sponsor is required to reimburse the Government with the amount that the migrant has received. For this reason, the sponsors need to lodge a bond of $3500 with the Commonwealth Bank for a two-year Assurance of Support or $10000 for a ten-year Assurance of Support. A ten-year Assurance of Support is needed for those migrating under a Contributory Parent Visa. Sponsors of migrants who are coming to Australia under categories of visa other than those listed above could also be required to provide an Assurance of Support if they are likely to be a burden on Australia's public health and welfare system.


[SOURCE: David Hamper, John Boesenberg and Christina Kenny, Legal Studies Preliminary (2nd ed, 2007) 303]