Employment Workplace Relations

Director, Philip Brewin is a specialist in Workplace Relations and heads our Workplace Relations Work Group.

Corporate and Business Law

The Nevett Ford Corporate and Business Law team has a wealth of experience and expertise and have established quality relationships with clients, including many small and medium business enterprises, across a wide range of industries.

Dispute Resolution ( Litigation)

Nevett Ford has wide experience in all manner of litigation.

Mediation

Mediation is a process and set of principles designed to manage and resolve disputes between parties. It is an efficient and effective method of dispute resolution that can help to preserve relationships through the intervention of a third party, known as a mediator.

Property Law

Nevett Ford has been conveying Victorian property for more than 150 years.

Monday 15 December 2014

Government lodgement fees for partner visa subclasses are set to sky rocket in 2015!

The Department has announced that as of 1 January 2015, Government lodgement fees for partner visa subclasses will increase by 50%.


Provisional and permanent partner visas - currently priced at $3085 will increase to $4627.50

Prospective marriage visa - currently priced at $3085 will increase to $4627.50

Temporary and permanent partner visas - currently priced at $4575 will increase to $6865.50

Partner visa applications submitted prior to 1 January 2015 will not be impacted by the change in fees.

For additional information, contact Nevett Ford Lawyers on 03 9614 7111 or visit our website at http://nfmelbournelawyers.com.au/index.php



Wednesday 10 December 2014

Functional English - changes


Functional English proficiency can be demonstrated if the applicant can provide evidence of:

  • having completed all years of primary education and at least 3 years of secondary education at educational institutions in which all instruction was conducted in English; or
  • having completed at least 5 years of secondary education at institutions in which all instruction was conducted in English; or
  • having achieved an IELTS average band score of at least 4.5, based on the four test components of speaking, reading, writing and listening in a test conducted:

             - not more than 12 months before lodging the relevant application to migrate; or

             - at the time of the processing of the relevant application to migrate; or

  • having successfully completed, in Australia, at least 1 year of full-time study or equivalent part-time study towards a degree, higher degree, diploma, or associate diploma, at an institution or institutions where all the instruction was conducted in English.
  • having achieved a Test of English as a Foreign Language internet-Based Test (TOEFL iBT) total band score of at least 32, based on the four test components of speaking, reading, writing and listening in a test conducted:

          - not more than 12 months before lodging the relevant application to migrate; or

          - at the time of the processing of the relevant application to migrate; or

  • having achieved a Pearson Test of English Academic (PTE Academic) overall band score of at least 30, based on the four test components of speaking, reading, writing and listening in a test conducted:

          - not more than 12 months before lodging the relevant application to migrate; or
          - at the time of the processing of the relevant application to migrate; or

  • having achieved a Cambridge English Advanced (CAE) overall score of at least 147 based on the four test components of speaking, reading, writing and listening in a test conducted

          - not more than 12 months before lodging the relevant application to migrate; or

          - at the time of the processing of the relevant application to migrate; or

  • holding valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland, to a citizen of that country.

Monday 1 December 2014

Mandatory visa cancellation powers and reviewable decisions


Powers of mandatory visa cancellation, without notice, have been introduced by the government for persons serving full time imprisonment and who have a substantial criminal record:
  • This mandatory cancellation is not reviewable by the Administrative Appeals Tribunal (AAT), but can be revoked by the Minister for Immigration personally or the Minister's delegate
  • The decision not to revoke the cancellation by the Minister's delegate is reviewable by the AAT
  • Where cancellation is revoked by the delegate of the Minister or the AAT, the Minister personally can set aside the revocation and cancel the visa on character or national interest grounds​
  • There are also new personal powers for the Minister to cancel visas under section 106 & section 116 of the Migration Act 1958 ('the Act') and this decision is not reviewable by the AAT
  • A decision to cancel a visa under the new section 133A and section 133C of the Act are not reviewable by the Migration Review Tribunal (MRT)
  • ​A decision made personally by the Minister to cancel a protection visa is not reviewable by the RRT
  • A decision made by a delegate of the Minster to cancel bridging visa for a person who is in detention because of that cancellation, is reviewable by the MRT

Monday 24 November 2014

Work and Holiday visa for Spanish nationals commences

The 24 November 2014, marked the commencement of the new Work and Holiday visa arrangements for nationals of Spain and Australia.

The arrangement allows for 500 young adults who meet the visa criteria to enjoy up to 12 months in Australia to study or undertake short term work.

Alternative English Language tests commence

Alternative English Language tests commenced on 23 November 2014, for the following visa programmes:

  • Temporary Graduate
  • Skilled
  • Former Resident
  • Work and Holiday 

The Test of English as a Foreign Language internet based test (TOEFL iBT) and the Pearson Test of English Academic (PTE Academic) have been added to the IELTS and OET tests for these visa programmes. 

The Cambridge English (Advanced (CAE) test will be also accepted from 1 January 2015.

Student visa applicants can continue to provide scores from the IELTS, OET, TOEFL iBT, PTE Academic or Cambridge English: Advanced (CAE) tests. 

Wednesday 19 November 2014

Functional English - legal definition updated for Australian migration purposes


The methods for demonstrating "functional" English for para 5(2)(b)​ of the Migration Act 1958 have been updated.

The following tests and scores for demonstrating functional English will now be accepted:

  • An average score of at least 4.5 in an IELTS test.
  • A total band score of at least 32 in a TOEFL iBT test 
  • An overall band score of 30 in a Pearsons (PTE) test 

Monday 17 November 2014

Contributory Parent Visas - Apply Sooner Rather Than Later

If you are contemplating applying for a Contributory Parent Visa it would be wise to get an application lodged with the Department of Immigration as soon as possible, as processing times for this category of visa are already significant and likely to become longer with the demise of other options.

Based on current planning levels, contributory parent applicants can expect to wait 12 to 24 months for a visa grant to be made.

The Minister for Immigration has the power to ‘cap’ the number of visas which can be granted each year in a particular visa class. All parent Visa subclasses (103, 143, 173, 804, 864 and 884) are subject to capping, meaning that once the number of visa places set by the Minister for a class has been reached in a particular year, no further visas in that class can be issued and any outstanding applications will ‘rollover’ into the next processing year. For the 2014/2015 migration year the minister has allocated a total of 7175 contributory parent Visas.
 
Gradually over time, if the number of applications continues to exceed the annual cap, there can be a build up of large numbers of applications waiting to be finalised with the result that visa grants can take several years to finalise. For this reason, it is most important to get an application into the system as quickly as possible.

China - Australia Free Trade Agreement (ChAFTA) announcements

Australia and China have announced the conclusion of negotiations for a China-Australia Free Trade Agreement (ChAFTA).

The implementation of this agreement is subject to a number of treaty-making processes which may take some time according to the implementation timeline.

Fact Sheet: Movement of Natural Persons

This fact sheet provides information on:

1. Access to Australia for inter-corporate transferees, contractual service providers. Installers and servicers and business visitors.

Australia will provide guaranteed access to Chinese citizens for the following categories:

  • Intra-corporate transferees and independent executives for up to four years (including executives, managers and specialists);
  • Contractual service suppliers for up to four years; including guaranteed access for up to a combined total of 1,800 per year in four occupations: Chinese chefs, WuShu martial arts coaches, Traditional Chinese Medicine practitioners and Mandarin language tutors (subject to meeting standard immigration requirements);
  • Installers and servicers for up to 3 months; and
  • Business visitors for up to 90 days, or 6 months for business visitors who are service sellers.
  • Australia will also provide entry and stay for dependants and spouses of Chinese citizens that have been granted entry, in accordance with the FTA, for a period of longer than one year.
  • China and Australia have also committed to process expeditiously applications for immigration formalities, provide timely information on visa application progress, and ensure transparent procedures and requirements relating to the movement of natural persons of the other party.
  • In order to better facilitate the temporary entry of workers associated with trade and investment, Australia and China will also increase cooperation in the areas of skills recognition and licensing, including through encouraging the streamlining of relevant licensing procedures and improving access to skills assessments.

2. China to be include in Work and Holiday Arrangements (WHA)

Australia and China have also completed negotiations on a Work and Holiday Arrangement (WHA) under which Australia will grant visas for up to 5,000 Chinese work and holiday makers annually.

As one of the five super-growth sectors within the Australian economy, tourism is a trade and investment priority for this Government – with the potential to be our fastest growing industry over the next three decades. The WHA will increase demand for tourism services and support the development of Australia’s tourism sector, particularly in rural Australia.

This will help deliver more jobs, increased investment and economic opportunities for communities across Australia.

No implementation date has been announced.

3. Investment Facilitation Arrangements

Through a Memorandum of Understanding allowing for Investment Facilitation Arrangements (IFA) Chinese owned companies registered in Australia undertaking large infrastructure development projects above $150 million will be able to negotiate, similarly to Australian business, increased labour flexibilities for specific projects. This will be done on a case-by-case basis under arrangements similar to the former Enterprise Migration Agreements.

IFAs will provide flexibility for companies to respond to the unique economic and labour market challenges related to large infrastructure development projects. They reflect the Government’s focus on strengthening infrastructure development and attracting investment, leading to the creation of jobs and increased economic prosperity for all Australians.

IFAs will operate within the framework of Australia’s existing 457 visa system and will not allow Australian employment laws or wages and conditions to be undermined. The nationalities of eligible overseas workers under IFAs will be non-discriminatory, consistent with Australia’s 457 visa system.
 
No other details are yet available.

Additional English language tests accepted by the Department of Immigration & Border Protection - commencement dates


Two additional English language tests, the TOEFL and Pearson tests, will be accepted from the 23 November 2014 and the Department's online lodgement systems will also be updated at that date.

The Cambridge English language test is expected to be accepted from 1 January 2015.

Extra countries added to enable online Visitor visa system applications


The following countries can now access online Visitor visa applications for Australia:
 
  • Bhutan
  • Burma
  • Cambodia
  • Laos
  • Mongolia
  • Pakistan
  • Thailand

Tuesday 11 November 2014

Spain & Portugal are to be added to the list of countries eligible for the Australian 'Work and Holiday' (subclass 462) visa

Spain and Portugal are also added to the list of countries for Work and Holiday visa arrangements.

This visa allows you to:
  • stay in Australia for up to 12 months
  • work in Australia for up to six months with each employer
  • study for up to four months
  • leave and re-enter Australia any number of times while the visa is valid.
You might be able to get this visa if you:
  • are at least 18 but have not turned 31 years of age at the time you lodge your application
  • will not be with a dependent child while you are in Australia
  • have enough money to support yourself on a working holiday (about AUD 5000)
  • have enough money to buy a return or onward travel ticket at the end of your stay
  • have not previously entered Australia on a Working Holiday Visa (subclass 417)
  • have functional English
  • have a letter of support from your government (except applicants from the USA)
  • meet character and health requirements
  • are a genuine visitor.

Eligible countries

You can apply for this visa if you hold a passport from:
  • Spain (new)
  • Portugal (new)
  • Argentina
  • Bangladesh
  • Chile
  • Indonesia
  • Malaysia
  • Poland
  • Thailand
  • Turkey
  • United States of America
  • Uruguay.

Sunday 9 November 2014

Streamlined Visa Processing (SVP) - extended for Vocational Education and Training Sector

The Migration Regulations have been amended to allow student visa applicants enrolled in Advanced Diploma courses with an approved education provider to access streamlined visa processing and extend this SVP to the Vocational Education and Training sector. 

Subclass 400 Temporary Work (Short Stay) - changes to legislation

The Migration Regulations have been amended in relation to the Subclass 400 Temporary Work (Short Stay) which extends both the entry period and the stay from 3 months to 6 months

TOEFL to be accepted by professional accounting associations

The Institute of Chartered Accountants, the Institute of Public Accountants and CPA Australia have announced they will all accept TOEFL test scores to demonstrate English language proficiency for skills assessments and professional accreditation from 1 November 2014.

Australian Government Reinstates 'Non-Contributory' Parent Visa & Carer Visa

The Australian Senate voted on Thursday, September 25th of this year, to overturn the Abbott Government’s attempts to repeal a number of important and affordable visas, specifically for overseas workers’ family members and potential carers.

According to Senator Sarah Hanson-Young, the immigration spokesperson of the Greens, what the Senate has voted for is to make sure that families are given a chance to live together and be able to look after each other in Australia.

“The success of this disallowance motion means that thousands of Australian families will have a chance to reunite with relatives from around the world,” Senator Hanson-Young continued to say.

What the results of the vote mean is that from now on, the permanent residents or the citizens of Australia can sponsor their parents as well as their dependent relatives to come to the country or at least sponsor a relative to care for them in the event that they become ill and have a permanent or long-term medical condition through the 5 types of ‘non-contributory’ visas which include the Aged Parent Visa, the Aged Dependent Relative Visa, the Carer Visa, Parent Visa, and the Remaining Relative Visa.

However, these visas are only going to be made available for a limited time (possibly up to six months from now), so if you would like to lodge an application for one of these visas it would be better that you submit it as soon as possible. In addition, only the new applications are going to be accepted for these visa subclasses. This means that any application lodged after the 2nd of June, 2014 and before the 25th of September also of this year, is going to be considered invalid. Therefore, it’s going to have to be submitted once again.

It may be an inconvenience but these are the new guidelines which would have to be followed in order for the lodged applications to be valid.

Thursday 6 November 2014

DIBP Seeking Public Opinion for Migration Programme of 2015-2016

It has been announced by the Department of Immigration and Border Protection (DIBP) on the 14th of October of this year that the government of Australia is seeking the view of the public in preparation for the 2015 to 2016 Australian Migration Programme.

There are 2 components that can be found on Australia’s migration programme:
  • The Humanitarian Component – This one is for refugees and other individuals who are in need of humanitarian assistance.
  • The Migration Component – This consists of skill stream migrants, the family stream migrants, and the special eligibility migrants.
The government reviews a range of factors every year to take into consideration for migration levels to be set for the following year. The planning level made last year for the Migration Programme for the period of 2014-2015 was set at one hundred ninety thousand places. The Humanitarian Programme was set to thirteen thousand seven hundred fifty places.

According to the announcement, the Australian public’s views regarding the optimal composition and size of the permanent migration program has a very crucial role when it comes to the process of setting levels of migration.

In order for the DIBP to collect the views of the public for the Immigration Programme period of 2015-2016, a discussion paper was introduced to provide a wide starting point for considering what the best settings are going to be for next year’s levels of migration. It was also stated in the announcement that the discussion paper canvasses both the social and economic factors which are important in taking into account the programme’s settings.

A link is provided at the end of the discussion paper leading to a short survey which aims to seek for the views of the Australian public regarding the migration programme’s optimal size and composition. The DIBP ensures that all input gathered from participants are going to be taken into extreme confidentiality.

Anybody who is interested in the 2015-2015 migration programme of Australia can volunteer to having their views included by simply reading the discussion paper and then completing the survey. Deadline of submission is on the 5th of December of this year.

Thursday 23 October 2014

Subclass 457 business sponsors - penalties, sanctions & enforcement

On 14 September 2009, the Migration Amendment (Worker Protection) Act 2008 (“the Worker Protection act”) gave effect to reforms to the temporary sponsored worker program (subclass 457). 

The laws introduced a new enforcement regime, including the introduction of civil penalty provisions.  The laws enabled the department of immigration to apply to a court (that is, an eligible court as defined in section 5(1) of the Act) for a civil penalty order or, alternatively, serve an infringement notice on a 457 business sponsor that is believed to have contravened a civil penalty provision. 

In addition to the civil penalty provisions, the administrative sanctions to bar a sponsor or cancel the approval of a 457 business sponsor were expanded to provide that action could be taken against all classes of approved sponsor in certain circumstances. 

On 1 July 2013, the Migration Act 1958 was amended to introduce enforceable undertakings as an alternative sanction option that may be applied if an approved 457 business sponsor is found not to have mat the applicable sponsorship obligations.  Enforceable undertaking may be used in addition to, or instead of, other administrative penalties available to the department of immigration.   

The various actions that may be taken in relation to approved 457 business sponsors or former approved sponsors are as follows: 

·         Bar or cancel the sponsor (under section 140M);

·         Serve an infringement notice

·         Obtain an enforceable undertaking

·         Pursue a civil penalty 

Business Monitoring

The department of immigration routinely monitors approved and former approved 457 business sponsors to determine their compliance with the sponsorship obligations.  Monitoring of sponsors typically requires the provision of records and documents, and may involve a site visit to the sponsor’s premises to interview visa holders, other employees and the sponsor. 

Wednesday 22 October 2014

$15m Premium Investor Visa (PIV) update

Minister for Trade and Investment Andrew Robb said that direct investment in residential real estate would not be a complying investment under the government’s proposed new Premium Investor Visa (PIV).

The PIV would offer a more expeditious pathway for international investors to permanent residency as compared to the existing Significant Investor Visa (SIV). Under the PIV a 12 month pathway to permanent residency would be available for investors meeting a $15 million threshold in an eligible investment.


At present SIVs are available for applicants making an eligible investment in Australia of at least A$5 million for a minimum of four years.

The Government said it would further enhance this programme to encourage more high net worth individuals to make Australia home and to leverage and better direct additional foreign investment.

Monday 20 October 2014

Abbott announces reforms to 457 visa program

The Prime Minster announced last week his plans to make changes to the 457 scheme to make the visa process more flexible and efficient  for business.

Ryan Curtis-Griffiths, Director at Nevett Ford, provided insight into the reforms for HC Magazine online.

The full article can be found on HC online.

Attention 457 business sponsors - Powers of immigration inspectors

Sponsoring and nominating employees from overseas to Australia on 457 visas requires your business to comply with a range of obligations. Nevett Ford Lawyers can provide guidance to ensure full compliance with Immigration Laws and Regulations, which constantly change. The Department of Immigration conducts random checks of businesses and we can help you to ensure that your business is complying.

Immigration inspectors have powers under the Migration Act 1958 that provide the mechanism for the department to investigatesponsor compliance with the visa program requirements.

Inspector powers include the right to:
  • enter business premises
  • require a 'person' to produce a record or document
  • inspect and make copies of records or documents
  • interview 'persons' while at premises.
For the purposes of exercising inspector powers, a 'person' includes a natural person or a body corporate.

The purposes for which the powers of an inspector may be exercised are:
  • to determine whether a term or a condition of a work agreement is being, or has been, complied with (e.g.in relation to a 457 visa holder employee);
  • to determine whether a prescribed circumstances to bar a sponsor or cancel the approval of a person as a sponsor exists;
  • investigate a circumstance, if a circumstance exists or has existed, in order to assist the Minister (or delegate) in determining what (if any) action to take under section 140M of the Migration Act 1958.
Nevett Ford Lawyers can provide audit services for employers to ensure that your immigration law obligations are being met to minimise risk. This includes advising your business on potential breaches and managing non-compliance issues on your behalf with the Department of Immigration to resolve them.

Wednesday 15 October 2014

Significant Investor Visa (SIV) Update - Victoria

The Victorian Government's October 2014 Significant Investor Update has been released

The update provides information from the Victorian Government on their activities to support and attract investor migrants to Victoria, through the Business Innovation and Investment Program’s Significant Investor Visa stream.

The document contains the following information:

  • Reforms to Significant Investor and 457 visa programs
  • Significant Investor nomination update
  • Victoria’s flexible visa nomination requirements
  • Victoria’s new feature web page for Chinese Significant Investors
  • Significant Investment Managers’ seminar
  • Victoria’s new Commissioner in Greater China
  • Information resources for Significant Investors
  • Significant Investor Services Director

Monday 13 October 2014

Significant Investor Visa (SIV) changes & creation of Premium Investor Visa (PIV) ($15 million) category


The Government today announced important changes to the Significant Investor Visa and creation of a Premium Investor visa. 

The new Premium Investor Visa (PIV) will require an investment of $15 million, nomination by Austrade and has no residency requirements.  PIV holders will be eligible for permanent residency after holding the complying investment for 12 months.

Other changes include:

  • the involvement of Austrade in the nomination of applicants on behalf of the Australian Government and in determining complying investment policy
  • allowing 'role swapping' between primary and secondary applicants during the provisional visa stage​
  • introduction of 180 day residency requirements for secondary visa holders​
  • changes to improve visa processing times
The changes will be made progressively through the 2014-15 programme year, with changes requiring legislative amendment expected to come into effect from 1 July 2015.

These changes will not apply to current SIV holders or current applications. 

Have you entered the Diversity Visa Lottery? Beware of fraudulent emails and letters!

The Department of State has issued a warning to all Diversity Visa Lottery entrants of an increase in fraudulent emails and letters sent to applicants. Be wary of websites requesting upfront registration payment or deposits as Diversity Visa fees can only be paid at the visa interview stage at the relevant U.S. Consulate/Embassy. The official Diversity Visa website will never ask for an upfront payment.

Please refer to the following link for further information: http://travel.state.gov/content/visas/english/general/fraud.html

Subclass 485 (temporary residence) Visa - you may be eligible if you're currently in Australia and studying a bachelor degree (or higher)

Are you studying a bachelor degree or higher in Australia and did you obtain your current student visa after 5 November 2011? 

You may be eligible for the subclass 485 (temporary residence) visa.

This visa has two streams:
  • Graduate work stream – for international students who graduate with skills and qualifications that relate to an occupation on the Skilled Occupation List (SOL): Schedule 1. A visa in this stream is granted for 18 months.
  • Post-Study work stream – for international students who graduate with an eligible qualification. 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, depending on the applicant's qualification.
To be eligible graduates must have completed their studies in Australia while on a qualifying student visa. A qualifying student visa is a subclass 572, 573 or 574.

English Language Intensive Courses for Overseas Students (ELICOS) Sector, Schools Sector and Foreign Affairs or Defence Sector students are not eligible unless they subsequently complete an eligible qualification on a qualifying student visa.

Applicants who have undertaken studies while on other visas that allow study, such as dependents of Temporary Work (Skilled) (subclass 457) visa holders, are not eligible for this visa.

In addition, applicants must:
  • be in Australia
  • be under 50 years of age
  • have attained an eligible qualification within six months of applying for the visa.
Post-study work stream

Graduates of an Australian bachelor degree (including honours), masters by coursework degree, masters (extended) degree, masters by research degree or doctoral degree can apply for this stream, provided they meet the other eligibility requirements.

The visa is only available to graduates who applied for their first student visa (including subclasses 570, 571, 572, 573, 574, 575, 576 or 580) on or after the introduction of the Genuine Temporary Entrant (GTE) requirement on 5 November 2011.

Graduate work stream

This stream is for international students who have recently graduated with skills and qualifications that relate to an occupation in demand in the Australian labour market, as determined by the Skilled Occupation List. Applicants in this stream must have completed a trade qualification, diploma or degree. Successful applicants are granted a visa of 18 months validity.

Sunday 12 October 2014

How do children adopted outside Australia become Australian citizens?

The way in which a child who is adopted outside Australia becomes an Australian citizen depends on how their adoption is/was finalised.  There are 3 different ways in which this can occur.

1. Adoptions finalised outside Australia - under full Hague Convention arrangements under section 19C of the Australian Citizenship Act 2007

The key requirements of section 19C are that:
    • at least one adoptive parent is an Australian citizen;
    • an adoption compliance certificate has been issued by the child's country of origin in accordance with the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption (Hague Convention); and
    • the adoption is recognised in Australia under the law/s of the Commonwealth and each State and Territory.
2. Adoptions finalised in Australia - under bilateral and simple Hague Convention arrangements.

Some of Australia's intercountry programs require the adoption to be completed after the child returns to Australia.  Where the final adoption order has been made in a State or Territory court after the child arrives in Australia as a permanent resident, and at least one of the adoptive parents is an Australian citizen, the child will automatically acquire Australian citizenship under section 13 of the Australian Citizenship Act 2007 (at the time the adoption order is made).

3. Adoptions finalised outside Australia - under other arrangements such as expatriate adoptions.

Where the adoption has been finalised outside Australia under other arrangements, and the adoption does not need to be finalised in Australia, children may be eligible, under subsection 21(5) of the Australian Citizenship Act 2007.  The child must have at least one adoptive parent who is an Australian citizen, must hold a permanent visa for entry into Australia (eg Adoption (subclass 102) visa) and have entered Australia on that visa.

What is the difference between the SOL and the CSOL?

Skilled Occupation List (SOL)

The current Skilled Occupation List (SOL) is relevant for applicants for:
  • independent points-based skilled migration who are not nominated by a state or territory government agency (such as the subclass 189 visa);
  • Temporary Graduate visa (subclass 485) - Graduate Work stream.
Consolidated Sponsored Occupation List (CSOL)

Whereas whe current Consolidated Sponsored Occupation List (CSOL) is relevant for applicants for:
  • points-based skilled migration who are nominated by a state or territory government agency under a State Migration Plan
  • the Employer Nomination Scheme (ENS), who must have been nominated by an Australian employer to fill a position in an occupation that appears in the CSOL (such as the subclass 186 and 187 visa)
  • the Temporary Work (Skilled) visa (subclass 457)
  • the Training and Research visa (subclass 402).

Wednesday 8 October 2014

New Character Provisions Likely


The Minister for Immigration has introduced a Bill that amends the Migration Act 1958 in terms of what is known as the character provisions.
 
The Bill has been referred to the Senate, Legal and Constitutional Committee for consideration.

If the Bill does become law in its present form a number of significant changes will be introduced including mandatory cancellation of a visa for an offence where the person has received a sentence of 12 months or more, or where they have committed a "sexually based offence involving a child"
 
One proposed amendment is a new s 501(6), the intention of which is to lower the threshold of evidence required to show that a person who is a member of a criminal group or organisation, such as a criminal motorcycle gang, terrorist organisation or other group involved in war crimes, people smuggling or people trafficking, does not pass the character test. The intention is that membership of the group or organisation alone is sufficient to cause a person to not pass the character test. 

Further, a reasonable suspicion of such membership or association is sufficient to not pass the 
character test. There is no requirement that there be a demonstration of special knowledge of, 
or participation in, the suspected criminal conduct by the visa applicant or visa holder.

These proposed changes, if made into law, will give the Government broad ranging visa cancellation powers. The existing powers of the Minister in relation to the character provisions are already quite extensive with the result that large numbers of visa holders (many of whom have been permanent residents of many years standing) have had their visas cancelled and forced to return to their country of origin.

The introduction of broader powers which can be exercised on the basis of a “reasonable suspicion” will undoubtedly expose a large number of visa holders to potential adverse action by the Minister ,and because a decision can be based on suspicion only, will be difficult to challenge.

 

Federal Court - review of adverse ASIO security assessments

In Jaffarie v Director General of Security [2014] FCAFC 102 (18 August 2014) Jaffarie was assessed by ASIO in June 2013 to be a risk to "security" under section 4 of the ASIO Act 1979 (Cth).  This triggered a number of decisions adverse to Jaffarie under the Migration Act 1958.  Jaffarie's action in the original jurisdiction of the High Court to challenge the assessment was remitted to the Federal Court and determined by a Full Court which dismissed it.

The Full Court considered how public interest immunity claims for information said to relate to national security were to be determined, how statements of reasons voluntarily supplied to the Court in confidence were to be considered, what constitutes a "serious threat" and what constitutes Australia's "territorial and border integrity". 

The Court rejected as misconceived an argument that the making of a security assessment constituted interference with judicial power of the Commonwealth.  It rejected a submission that the Minister of Immigration had denied Jaffarie procedural fairness, by considering classified material but only advising Jaffarie of unclassified reasons. 

Visa Targets Reached by Australian Immigration

It was recently announced that the target of the Australian Government to attract one hundred ninety thousand new migrants, in the latest financial year, was achieved.

The information from the Department of Immigration and Border Protection (DIBP) is showing that Australian industry benefited from some one hundred twenty eight thousand five hundred fifty places being granted within the stream of skilled positions.

Mr. Scott Morrison, the minister of DIBP, said that this is equal to almost sixty eight per cent of the programme. He also said that the skill stream is aimed towards giving assistance to filling the identified skill shortages in the country’s economy. He explained that it has resulted to giving the Australian economy the major boost that it needs.

Overall, in the year 2013 to 2014, more than sixty three per cent of visas given in the skilled stream was accounted for by occupational professionals. This was followed by twenty two per cent from trades workers and technicians, and nine per cent of the skilled stream visas granted to managers.
Over sixty per cent of skilled migration visas have been delivered within the designation that is sponsored by employers. This amounted to forty seven thousand four hundred fifty places. Six thousand one hundred sixty places were taken by business innovation and investment, and twenty four thousand six hundred fifty six visa categories were nominated by state and territory governments.

The family stream accounted for sixty one thousand one hundred twelve places, which represents around thirty two per cent of the migration programme. The family stream prioritised the reunion of the workers’ partners as well as their children.

Within this particular visa stream, forty seven thousand seven hundred fifty two places were accounted for by the partner category. This was equal to seventy eight per cent of the family sector. Meanwhile, in the child category, three thousand eight hundred fifty places was delivered. What remained of the family stream places were given within the other family (585 places), contributory parent (6,675), and parent categories (2,250).

”The delivery of a well-managed migration scheme demonstrates our capacity to carefully structure our programmes to deliver the size & composition required to meet the needs of the Australian economy,” said Mr. Morrison, also saying that the purpose of having migration is to drive the country’s economy, as well as shape society, and give the labour market the support that it needs and also to reunite family.

The largest source country of migrants for Australia was India, where it got thirty nune thousand twenty six places, or 23.1 per cent of the total. It was followed by China which got twenty six thousand seven hundred seventy six places. The third country is United Kingdom, which got twenty three thousand two hundred twenty places.

A breakdown of the figures however, has shown that the number of visas given to Indian applicants has decreased by 2.6 per cent. For China, the numbers also went down two per cent compared with the financial year before. For British people, the number of visas increased by seven per cent.
Most of the people settled in New South Wales. 33.7 per cent of the new migrants was in the state, and the numbers actually went up from 30.2 per cent in the prior financial year. The second largest number of migrants, which was 24..4 per cent was in Victoria, followed by 17.8 per cent in Western Australia.

It has been recorded that over the past decade, only Victoria and New South Wales were the only states that had decreases in the numbers of the total migration programme. The largest fall recorded in New South Walwes was 4.7 per cent in 2013/2014. During the same period, Victoria was down 2.8 per cent.

The largest increase in numbers over the past decade was recorded in Western Australia, which went up 5.8 per cent in the proportion of the migration programme. A 0.7 per cent increase was recorded in South Australia, and in the Northern Territory it saw a case of a threefold increase, going up from 0.5 per cent in 2003/2004, to 1.4 per cent in 2013/2014.

In the data, it also shows how the size and composition of the migration programme has been made flexible, and how it changed over the years. It was a much smaller programme that consisted of mostly family migrants in 1993/1994 that became a larger programme that consisted more of skilled migrants in 2013/2014.

The government is the one that sets planning levels each year. The size and the composition adapts to meet the country’s social and economic needs.

Source: www.AustraliaForum.com