Working Holiday Visa (Subclass 417) - Slovak Republic & Slovenia added to list of eligible countries

Slovak Republic and Slovenia have been added to the list of eligible countries for Working Holiday Visas (subclass 417).

Applications from eligible Slovak Republic and Slovenia citizens should be lodged at, or posted to:

Australian Embassy, Berlin, Germany

Visa Office

Wallstrasse 76-79

D-10179 Berlin, GERMANY

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Entrepreneur visa

Minister Dutton has announced a new Entrepreneur visa to encourage and attract innovators and entrepreneurs to come to or stay in Australia.  The new visa is one of a number of strategies under the newly announced National Innovation and Science Agenda.

The new visa will assist in retaining highly educated and talented foreign students who have gained their knowledge base in Australia.  Graduates with STEM subject qualifications (science, technology, engineering and mathematics) or specific ICT and related fields will benefit from the new visa. A pathway to permanent residence will be facilitated for foreign student graduates from these disciplines with specialised doctorate level and Masters-by-research qualifications.

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Citizenship Bill 2015 passed

The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 was passed by Parliament on 3 December 2015.

Australian citizens aged 14 and over can have their Australian citizenship revoked or ceased if they are also a citizen or national of another country and participate in specific activities.

Australian citizenship can be renounced or ceased for:

• engaging in international terrorist activities using explosive or lethal devices;
• engaging in a terrorist act;
• providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act;
• directing, recruiting or financing terrorism or the activities of a terrorist organisation;
• engaging in foreign incursions and recruitment

Australian citizenship ceases at the time a person outside Australia commences to:

• serve in the armed forces of a country at war with Australia
• serves or fights for a declared terrorist organisation 

Australian citizenship can also be ceased by determination by the Minister

• for serious crimes under the Criminal Code
• resulting in imprisonment for six years or six years cumulatively
• and that demonstrated the repudiation of allegiance to Australia

The Bill also provides:

• giving notice of a determination
• general provisions related to the Minister's power, including rescinding a notice or exempting a person from its provisions 
• the declaration of terrorist organisations
• the resumption of citizenship

The Bill will become the Act and commence on the day after it receives Royal Assent.

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Select Legislative Instrument No 211, 2015 - F2015L01937 - Migration Amendment (Offshore Resources Activity) Regulation 2015.

This Select Instrument specifies the visas that permit the holder to participate in, or support, an offshore resources activity in relation to an area.

Section 9A was inserted into the Migration Act so persons who participate in, or support, an offshore resources activity are taken to be in the migration zone. These activities included the exploration or exploitation of minerals, greenhouse gas and petroleum resources within Australia’s Exclusive Economic Zone and the waters above the Continental Shelf.

This section operates to regulate foreign worker participation in offshore resources activities by bringing these persons into the migration zone and requiring them to hold a visa. This section, as drafted, required non-citizens to hold visas to work in these areas as prescribed in the Regulations.  However, no visa classes were prescribed at the time of drafting.  

This Regulation amends the Principal Regulations to provide that:

• Subclass 400 (Temporary Work (Short Stay Activity)) visa and the Subclass 457 (Temporary Work (Skilled)) visas now permit the holder to participate in, or support, an offshore resources activity in relation to an area;
• holders of these visas who will be in an area to participate in or to support an offshore resources, are authorised to enter Australia in a way other than through a port or pre-cleared flight; and
• an Australian citizen or holder of a permanent visa, a Subclass 400 or a Subclass 457 visa, who has entered Australia in an area to participate in, or to support an offshore resources activity and whose entry has been reported in writing to Immigration will not need to comply with the requirement to be immigration cleared under section 166 of the Migration Act.  

This Regulation commences 14 December 2015.

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Breaking a Nut with a Sledgehammer – the use and abuse of PIC 4020

Public interest criteria (‘PIC’) 4020 was first introduced in April 2011 as a measure to attempt to reduce fraud in visa applications. Originally the provision only applied to General skilled migration and employer sponsored visa applications, however now, if any of the following visas are applied for, it is necessary to satisfy PIC 4020:

• skilled migration visas
• business visas
• temporary visas
• student visas
• family visas.

In summary, the impact of PIC 4020 is that a visa can be refused if an applicant provides a bogus document or information that is false or misleading in relation to the application, or if the Minister is not satisfied of an applicant’s identity. Refusal is possible even if an applicant did not knowingly provide false or misleading information with the application. Apart from having a visa refused, an applicant is also subject to a three-year ban period in respect of any visa application for a visa which is subject to PIC 4020 – these days, most visas!

While no one would argue that the objective of maintaining integrity within our visa system is of paramount importance, there is great concern within the migration industry that PIC 4020 is being used in a manner which could not possibly have been intended when first introduced into legislation. Examples of refusal situations and consequent three-year bans include:

• poorly completed applications which do not have all the questions answered, leaving case officers to allege that the application is ‘misleading’,
• persons obtaining police clearances in respect of visa applications and then discovering minor convictions entered against them in their absence and without their knowledge which of themselves would not have precluded them from eligibility for migration,
• persons receiving notices of intention to cancel because of incorrect or inconsistent spelling of names in application forms,
• references from employers containing incorrect information regarding the applicant.

It is possible to obtain a waiver of a PIC 4020 determination if the applicant can show that the grant of the visa would be in the interests of Australia, or that there are compelling and compassionate circumstances affecting the interest of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen.

It is obvious that when preparing a visa application applicants must take care to ensure that all information which is provided is accurate. Sometimes however it is not possible to know with absolute certainty that everything which has been provided is 100% correct. As soon as it becomes apparent that there may be a problem with information contained in a visa application, urgent steps should be taken to ensure that the correct information is provided to the Department with an explanation setting out the circumstances which gave rise to the situation.

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Australian Working Conditions - Overseas workers – know your workplace rights

Pay rates and workplace conditions are set by Australian law. All people working in Australia, including those from overseas, have rights and protections at work. These cannot be taken away by contracts or agreements.

If you have questions about your pay and conditions while in Australia, you can contact the

Fair Work Ombudsman for information.

Visit fairwork.gov.au for information for visa holders and international students. This includes

information in 27 languages.

There are also a range of helpful videos at www.youtube.com/fairworkgovau about working in Australia in many languages.

You can also contact the Fair Work Ombudsman by phone within Australia on 13 13 94

(Translating and Interpreting Service 13 14 50).

The Fair Work Information Statement which is available in 27 languages also provides

important information, www.fairwork.gov.au/employee-entitlements/national-employmentstandards/fair-work-information-statement

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Can my employer cancel my visa?

No. Employers cannot cancel visas. Only the Department of Immigration and Border

Protection (DIBP) can grant, refuse or cancel visas.

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Federal Court Judgement - Brown v Minister for Immigration and Border Protection

In Brown v Minister for Immigration and Border Protection [2015] FCAFC 141 (24 September 2015) a Full Court concluded the Minister did not make any jurisdictional error in ordering the visa of the appellant be cancelled under section 501 of the Migration Act 1958 (Cth) on conviction for crimes that attracted a sentence of more than one year's imprisonment.

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