NEW Work and Holiday Visa - Hungary (subclass 462 visa)

On 24 February 2016 Hungary became the latest country to sign a reciprocal arrangement with Australia, allowing young people from both countries to visit each other’s nations under the Australian Government’s work and holiday arrangements.


The arrangement was signed at Parliament House between the Minister for Immigration and Border Protection Peter Dutton and Hungarian Ambassador to Australia, His Excellency Dr Attila Laszlo Gruber.


Mr Dutton said this was a great development as it would encourage young people to add Australia or Hungary as another holiday destination when going abroad to travel, work and study for a short term.


“Under the arrangement, people aged 18 to 30 years will be able to travel to each other’s country for one year and undertake short-term work and study under the Work and Holiday subclass 462 visa,” Mr Dutton said.


“We will be working closely with our Hungarian counterparts to establish a mutually agreed start date for this arrangement as soon as possible.


“Once the arrangement has commenced, eligible young people from Hungary and Australia will be able to apply for this visa programme.”


The arrangement will be capped at 200 places each year.


The commencement date will be announced on the Department’s website.


SOURCE: DIBP

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ACT Skilled Occupation List (SOL) Updated

The ACT Occupation list for Subclass 190 sponsored visas has been updated today.

Changes in skills needs in the ACT has allowed for a large number of occupations to be opened and 2 have been closed.

The occupations of child care centre manager and panel beater have been closed.

Thirty four new occupations have been opened in the communications, construction, finance, hospitality, and nursing.

Contact Nevett Ford Lawyers Melbourne for further information, advice and assistance.

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South Australia to recognise highly performing international graduates

Immigration South Australia (SA) is making it easier for talented international graduates of South Australian public universities to qualify for state nomination through the "high performing graduate" category.

Immigration SA offers state nomination to international graduates of South Australia who meet state and federal government requirements for a 190 or 489 General Skilled Migration (GSM) visa.

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An additional pathway to permanent residence for ‘non-protected’ Special Category Visa (SCV) holders

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​​Options for permanent residen​​ce for 'non-protected' SCV holders

In acknowledgment of our special bilateral relationship, the Australian Government will provide an additional pathway to permanent residence, and therefore citizenship, for New Zealand Special Category visa (SCV) holders who arrived after 26 February 2001, who have lived in Australia for the last five years and shown a commitment and contribution to Australia.


This additional visa pathway will be available from 1 July 2017, for New Zealand citizens who arrived post 26 February 2001, but on or before, the date of the announcement, 19 February 2016.

How this p​​​athway will work

The Department of Immigration and Border Protection will have responsibility for implementing the pathway.


The pathway will be made available within the Skilled Independent category of the General Skilled Migration (GSM) stream of Australia's annual Migration Programme.
This pathway will allow SCV holders who have been living in Australia for the past five years, and have earned income at or above the Temporary Skilled Migration Income Threshold (TSMIT) as evidenced by their Australian Taxation Office Notice of Assessment throughout their qualifying residence period, to apply for permanent residency and thereafter citizenship.​

The pathway ​​requirements

Requirements for this visa pathway will include mandatory residence, contribution and community protection criteria.  This includes:

• have been resident in Australia for the five years immediately prior to visa application
• contributed to Australia, demonstrated through income tax returns (Notice of Assessment) for the period of residence evidencing taxable income at or above the Temporary Skilled Migration Income Threshold (TSMIT) 
• mandatory health, character, and security checks.

Eligible applicants not in Australia the day of the announcement

If an applicant meets all relevant criteria and can demonstrate they were resident on the date of announcement, they will be eligible.

Estimated number of eligible applicants

Approximately 60,000 – 70,000 of the 140,000 post 2001 SCV holders who have been in Australia for at least five years are expected to be eligible.​

Temporary Skilled Migration Income Threshold (TSMIT) and eligibility

The Temporary Skilled Migration Income Threshold (TSMIT) is a salary threshold used by the 457 programme as an indicator that an occupation is skilled and to ensure that a visa holder has reasonable means of support whilst in Australia.  It is curr​​ently set at AUD53,900.
Setting the eligibility threshold at the TSMIT ensures we are providing a pathway to prospective citizens who can make a strong contribution to Australia's future.
This is consistent with the economic objectives of Australia's Migration Programme, as it takes into account a level of contribution based on income tax returns. 


Enabling Special Category visa holders to supply evidence from tax returns provides a concession to requirements relative to citizens of other countries, as it does not duplicate existing government requirements and is not onerous, but provides clear evidence of contribution.


This represents a clear concession over existing migration pathways.  It reflects the ease of mobility under the Trans-Tasman Travel Arrangement (TTTA), while retaining a focus on skilled migration through a demonstrated contribution to Australia's income tax system.

E​xemptio​ns to the income test

Limited exemptions to the income test requirement will be considered for particularly vulnerable New Zealand citizens.  The mandatory residence criterion, including all other relevant criteria, will still need to be met before a visa could be granted.


Details of how applications for exemptions to the income test will be assessed will be determined between the Minister for Immigration and Border Protection and the Minister for Social Services.

Who will be considered a vulnerable individual​

This level of detail will be determined between the Minister for Immigration and Border Protection and the Minister for Social Services. The mandatory residence criterion would still apply in these circumstances.

• As an example, possible vulnerable individuals may include the primary carer of children who, for reasons of a court order are unable to return to New Zealand with their children, and who as an SCV holder is unable to access working age payments.

Will an applicant who has been on maternity/paternity leave during the qualifying period be ineligible if their income fell below the required threshold during that period?​

If the applicant continued to be employed during that period, DIBP may take that into account and have the capacity to consider other proof of income, for example, a statement from the applicant's employer covering the period in question.


This level of detail will be worked through by DIBP during implementation of the measure, noting that there is no intention to disadvantage applicants with a consistent record of income and employment but who have taken periods of parental leave.

Visa application charg​​​e (VAC)​

There will be concessions to the visa application charge (VAC) solely for New Zealand citizens to better reflect the freedom of movement and right of abode they enjoy under the TTTA by:

• The visa application charge will be consistent with the General Skilled Migration Programme: AUD3,600 per primary applicant with an additional AUD1,800 for partners, AUD1,800 per dependent child over 18 and AUD900 per child under 18.
• Applicants will only have to pay 20 percent of the VAC when they lodge their application, with the remainder to be paid before the visa is granted.

Steps to become an Australian citizen

• New Zealanders taking advantage of this pathway will usually be able to apply for citizenship after one year of permanent residence, provided they meet the allowab​​le overseas absences requirement.
• Note: This requirement means, a person must not have been absent from Australia for more than one year in total in the four year period, including no more than 90 days in the year before applying
• The usual citizenship eligibility requirements will apply such as:
• ​be of good character if 18 years of age or over
• be likely to reside, or continue to reside, or maintain a close and continuing relationship to Australia
• meet the identity requirement
• pass the citizenship test if aged between 18 and 59 years or pass a citizenship interview.
• Note: All applicants must submit a valid application and pay the relevant fee. 

What if someone ​arrived in Australia the day before, or on the day of the announcement, will they be eligible to apply in five years' time?

Yes. They could apply, but the grant of a visa will depend on whether they meet all relevant criteria.

Will the visa application charge (VAC)​ be reduced for the Con​tributory Parent visa?

No.

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NEW Short-Term Mobility Visa

Starting July 2016, a new visa program will be implemented by Australian Immigration, called the Short-Term Mobility Visa, which is supposed to make it easier for skilled migrants to come and work in Australia. This visa is valid for a 12 month period and allows the nominee multiple entries into Australia to undertake “specialised work” for short-term appointments.

The Short-Term Mobility visa is part of the Federal Government’s plan to simplify the visa system and enable Australian businesses a lot more flexibility in terms of attracting skilled migrant workers for short-term periods of employment.

This visa will allow employers to fill short term vacancies for specialised workers and may include intra-company transfer and foreign correspondents.

The Short-Term Mobility Visa will only apply to a small sub-set of people, such as high-level executives who may be coming to Australia to set up divisions of their businesses, or software developers that are installing specialised computer programs or equipment especially for Australian companies.

One of the benefits of this visa is that applicants do not need to meet a minimum level of English language proficiency or undertake laborious labour market testing (unlike the subclass 457 visa) and will only be required to fulfil basic health, character and safety requirements. However, while it may appear an easy option for skilled migrants, this visa is only really geared towards a small target audience of professionals with a specific skill set.

The development of the Short-Term Mobility visa has likely been prompted by frustrations experienced by Australian businesses unable to find staff to fill the gap between the subclass 400 and subclass 457 visas.

This visa can be applied for within Australia or overseas, however, family members of Short Term Mobility visa holders are not permitted to be included on the same visa application. In instances where the work is considered ongoing, visa holders will likely need to apply for another visa such as the Temporary Work (Skilled) (subclass 457) visa.

We will keep you updated as more information becomes available.

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Seasonal Worker Programme

The Seasonal Worker Programme has been expanded to include more sectors of the agricultural and farming industries, in an effort to address seasonal labour shortages. Seasonal workers can now also be employed in a broader range of sectors including cattle, sheep, grain and mixed enterprises, as well as fruit and grape harvesting.

The changes to the programme are expected to provide a boost to labour forces for Australian farmers, and economic benefits and skills development for workers from the Pacific Islands and Timor-Leste.

Please be aware that recruitment for the Seasonal Worker Programme is undertaken by the governments of these countries in partnership with Australian authorities. They are not accessible for individual or private applicants.  

Suitable visas for other applicants wishing to work in these sectors, include Subclasses 417, 457, 401 or the permanent RSMS. 


Employers not eligible to be included in the seasonal worker scheme, may also consider negotiating a labour agreement if multiple workers are required.

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The back door to legal offshore detention

The High Court held valid a law which the dissenting judge acknowledges permits the Commonwealth to do outside of Australia what it can’t do inside Australia.

Parliament last year took the most unusual step of passing legislation retrospectively so as to sidestep the detention limitations set out in an earlier decided case of Lim. But for this, it would have been unlikely that the Government would have been successful in the challenge.

The High Court noted that it is lawful for Australia to make laws in respect of the removal of aliens but it is not within the High Court’s power to determine the validity of Nauruan law to detain those such aliens. There is a disjunction between the laws enabling the deportation of a person from Australia and the detention of that person in the land of another country (i.e. Nauru).

The Commonwealth used the back door to avoid the limitations set out in the Lim case by the natural disjunction between the laws of Australia and the laws of Nauru and invoking the powers of the constitution. In other words the laws permitting the removal of aliens from Australian is unhindered; just as is the ability of Nauru to make laws to detain these aliens. By enacting law (section 198AHA) to facilitate the joinder of the operations of each countries’ laws in respect to aliens it was found to have been within the powers of the constitution. What would not have been constitutionally valid was for the Commonwealth to pass a law that prescribes the detention of aliens in a foreign country.  

Therefore the real issue in contention was the validity of the Commonwealth to make law to facilitate and fund the ability of the Nauruan’s to detain these aliens, specifically the ones deported from Australia. The majority of the High Court held that it was within the powers of the Constitution (section 61) to make laws to facilitate these functions. However, the ability is not totally unfettered; it must be within reason and is ‘limited to action that can reasonably be seen to be related to Nauru’s regional processing functions.’

Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors [2016] HCA 1

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Business Skills Visa 888 for Entrepreneurs – How much your ownership interest in the main business must be

The 888 (Business Innovation Stream) visa is a permanent visa available for those who hold an 188 (Business Innovation Stream) visa to apply after they have successfully owned and managed on daily basis the main business in Australia for at least two years and met a range of requirements pertaining to the primary visa applicant’s management role in the main business, financial performance of the main business and net assets owned by the primary visa applicant (or with spouse jointly) in Australia.

The Migration Act 1958 and Migration Regulations 1994 have specific requirements on the primary applicant’s ownership interest in a business which they intend to use for permanent residency application.

It is defined in the Migration Act 1958 that ownership interest in relation to a business means:

• an interest in the business as a shareholder in a company that carries on the business, or
• a partner in a partnership that carries on the business, or
• the sole proprietor of the business.

Further, ownership interest includes such an interest held indirectly through one or more interposed companies, partnership or trusts.

Migration Regulations 1994 also stipulate total value of ownership interest in the main business that the primary applicant (or with spouse) must have.  In this regard, annual turnover of the main business is relevant.  In summary, the value of the applicant’s ownership interest, or the total value of the ownership interests of the applicant and the applicant’s spouse, in the business should be:

• at least 10% of the total value of the business if the business is operated by a publicly listed company; or
• at least 30% of the total value of the business if the business is a private business and its annual turnover is at least $400,000;
• at least 51% of the total value of the business if the business is a private business and its turnover is less than $400,000.

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SIV (Significant Investor Visa)

Under the complying investment framework for the SIV program, SIV applicants are required to invest at least $5 million over four years in complying investments which must now include:

• At least $500,000 in eligible Australian venture capital or growth private equity fund(s) investing in start-up and small private companies (“VCPE”). This is subject to review and the Government may increase this to $1 million for new applications depending on how the market responds;
• At least $1.5 million in an eligible managed fund(s) or Listed Investment Companies (“LICs”) that invest in emerging companies listed on the Australian Securities Exchange (“ASX”); and

• A ‘balancing investment’ of up to $3 million in managed fund(s) or LICs that invest in a
  combination of eligible assets that include other ASX listed companies, eligible corporate bonds or notes, annuities and real property (subject to the 10 per cent limit on residential real estate).

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PIV (Premium Investor Visa)

The Premium Investor Visa was introduced on 1 July 2015.

The PIV is a separate visa program that targets talented entrepreneurs and innovators with a minimum $15 million to invest at the invitation of the Australian Government.

The PIV focuses on attracting a small number of highly talented and entrepreneurial individuals to Australia who can contribute those skills and talents into areas which deliver a long term economic benefit to the country.

The Premium Investor Visa is available at the invitation of the Australian Government only, with potential applicants to be nominated solely by Austrade. State and Territory Governments will be able to play an important role in helping to identify potential applicants. Expressions of Interest (EOI) for the Premium Investor visa will not be considered unless you have previously discussed your application with Austrade.

Austrade to then assess and nominate on approved criteria based on entrepreneurial skill or talent and ongoing ‘benefit’ to Australia.

Nevett Ford Lawyers Melbourne can assist with all Australian visa related matters.

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High Court finds offshore processing of asylum seekers is constitutionally valid

The High Court of Australia has found that the Australian Government’s offshore processing of asylum seekers is constitutionally valid.

The case has been brought by the Human Rights Law Centre which has worked with the Refugee Advice and Casework Service and the Darwin Asylum Seeker Support and Advocacy Network.

The case sought, amongst other things, a declaration that the Commonwealth's conduct in enforcing the plaintiff’s offshore detention or the Commonwealth’s entry into contracts in connection with this detention be ruled unlawful, by reason that such conduct is not authorised by any valid law of the Commonwealth.   

The High Court found that the offshore processing of asylum seekers is constitutionally valid and held, by majority, that the plaintiff was not entitled to the declaration. 


The High Court also held that the conduct of the Commonwealth in signing an MOU for the transfer of irregular maritime arrivals to Nauru was authorised by s 61 of the Constitution, and the MOU that included the administrative operations of the centre on Nauru and the Transfield contract was authorised by s 198AHA of the Act.

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Love & marriage… do not have to go together with the horse and carriage

The Federal Court aptly referenced Frank Sinatra’s hit on “love & marriage” in deciding whether romantic love is a requirement for a partner visa.  


This case involved a couple who were undoubtedly in a relationship of sorts, but admittedly not “in love”. The Federal Court in rejecting an appeal from the Federal Circuit Court, unanimously held that the absence of romantic love was not necessarily  fatal in determining a partner visa application. The Court held that romantic love is not a determinative factor and cannot be elevated above the considerations in which a delegate is bound to consider.


This does not mean that applications based on contrived relationships will have greater chances of success; all standards of the regulations must still be satisfied. This case does however recognise that people enter into relationships for a variety of reasons - love not always topping the list.


Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 (29 January 2016).


If you have any queries in relation to your partner visa application, please contact Nevett Ford Lawyers Melbourne on (03) 9614 7111 or melbourne@nevettford.com.au.

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