Special Category Visas (SCV) are a type of temporary visa available under the Migration Act 1958 (Cth). It is for people who are citizens of New Zealand and who wish to enter, remain and work in Australia. The DHA grants SCVs automatically to eligible New Zealand citizens upon arrival in Australia. These visas are valid for an indefinite period of time.
Under Section 32 of the Migration Act 1958, SCV holders have certain rights and entitlements in Australia, including:
- The right to live and work in Australia indefinitely.
- Access to the Australian healthcare system, including Medicare.
- The right to enrol in Australian educational institutions.
- The ability to apply for Australian citizenship, if eligible.
- The right to sponsor family members for permanent residency in Australia.
However, it is important to note that SCV holders do not have the same rights as Australian citizens or permanent residents. SCVs are temporary visas. For example, they cannot receive certain social security benefits. Moreover, they may face restrictions on their ability to access certain government services.
SCV holders who wish to stay in Australia permanently may be able to apply for permanent residency. They can do so through a variety of pathways, such as the Skilled Independent visa or the Partner visa. We recommend that individuals seek professional advice to determine the most appropriate pathway for their circumstances.
Criteria for Special Category Visa
According to Subsection (2) of Section 32, one criterion of the Special Category Visa is that the Minister should be satisfied that the applicant is:
- a non-citizen:
- who is a New Zealand citizen who holds, and has presented to the officer, or an authorised system, a New Zealand passport that is in force;
- is neither a behaviour concern non-citizen, nor a health concern non-citizen, or
- a person for whom a visa of another class would be inappropriate according to regulations
- a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.
Subsection (3) of Section 32 states that a person may comply with the point mentioned in Subsection (2) (a)(i) only if:
- the New Zealand passport is of a kind determined under Section 175A to be an eligible passport for the purposes of Division 5 of Part 2; and
- before the person receives an SCV, neither the system nor an officer requires the person to present the passport to an officer.
Section 33 Migration Act: Special Purpose Visa
While Section 32 highlights points in relation to Special Category Visa, Section 33 discusses points on Special Purpose Visa. Section 33 of the Migration Act 1958 (Cth) provides for the issuance of Special Purpose visas.
Non-citizens can receive these visas if they have a prescribed status or belong to a certain class of persons with such status. They can also receive the visa if the Minister declares in writing that they are eligible.
Special purpose visas will come into effect from the date that the prescribed status is obtained or from the date of the Minister’s declaration. Such visas cease to be in effect if the person ceases to have the prescribed status or if the Minister declares them undesirable to enter or remain in Australia.
The Minister can make a declaration in writing for such purposes. They can lay out the statement before the Parliament with the contents of the declaration and the reasons for it.
As mentioned above, Section 33 of Migration Act states that the non-citizen who has the Special Purpose Visa should have “prescribed status.” According to the Department of Home Affairs (DHA), “prescribed status” includes but is not limited to:
- a member of certain foreign armed forces
- a person on board a ship of a foreign armed forces
- an airline, or airline positioning crew member
- the accompanying spouse or dependant of an eligible person with a prescribed status
Section 34: Absorbed Persons Visas
Absorbed person visas includes a class of permanent visas that allow parties to remain in, but not re-enter Australia. According to Section 34 of the Migration Act, a non-citizen in the migration zone who:
- on 2 April 1984 was in Australia; and
- before that date, had ceased to be an immigrant; and
- on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and
- immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied;
is taken to have been granted an absorbed person visa on 1 September 1994.
What is migration zone? According to the Act, migration zone includes the area consisting of States, Territories, Australian resource installations and Australian sea installations, and to avoid doubt, includes:
- land that is part of a State or Territory at mean low water;
- sea within the limits of both a State or a Territory and a port; and
- piers, or similar structures, any part that has connection to such land or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in a port.
Section 35: Ex-citizen Visas
Section 35 of the Migration Act 1958 (Cth) is titled “Ex-citizen visa” and provides the legal framework for the grant of a visa to a person who was formerly an Australian citizen, but has lost their citizenship.
It applies for a person who before 1 September 1994, ceased to be an Australian citizen while in the migration zone, and did not leave Australia after ceasing to be a citizen and before that date.
Under this section, a person who is not an Australian citizen, but was an Australian citizen in the past and has lost their citizenship, may be granted a visa if they meet certain criteria.
The purpose of this provision is to allow individuals who have lost their Australian citizenship, but have a close connection to Australia, to be granted a visa to enable them to return to the country. This may include individuals who have:
- lost their citizenship due to renunciation,
- revocation or cessation
but who have family ties in Australia.
Importance of Seeking Legal Advice
Are you are looking to make an application for special category visas or special purpose visas? We recommend that you obtain legal advice to help you with your application.
Do not hesitate to contact us if you wish to apply for:
- special category visas,
- special purposes or absorbed persons, and
- ex-citizen visas
Speak to our friendly lawyers today.
