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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Refugee visas - inadvertent release of names of applicants

In the case of SZSSJ v Minister for Immigrtion and Border Protection [2015] FCAFC 125 (2 September 2015) in Feburary 2014 the Department of Immigration & Border Protection (DIBP) inadvertently published on its website the names and identifying details of 9528 people who had applied for refugee status and had been rejected (and were awaiting return to their home country) or whose applications had not been decided.


A Full Court decided in four appeals brought by affected persons that the procedures set up the department (DIBP) to respond were inadequate and occasioned breaches of natural justice.

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Engineers Australia to accept TOEFL - January 2016

Engineers Australia have announced on their website that from 1 January 2016 it will be accepting the TOEFL IbT as an alternative English Language Test to address the English language competency element of the Migration Skills Assessment.

Applicants submitting their application on or after the 1 January 2016 will be able to provide either an IELTS test result form with a score of 6 or more in each of the 4 modules, or a TOEFL IbT result with the following minimum scores for each module:

• Listening 12
• Reading  13
• Writing     21
• Speaking 18

Applicants will need to upload the test results, as well as write their registration number.

TOEFL IbT results will be accepted up to 2 years after the test date.

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China Free Trade Agreement (ChAFTA) - Labour Market Testing (LMT)

The Minister for Immigration has determined that Labour Market Testing (LMT) for subclass 457 visa applications is inconsistent with the terms of the China Free Trade Agreement (ChAFTA) and therefore does not need to be conducted for the following natural persons covered under the terms of the ChAFTA:

• Executives, Senior managers and Managers as Inter-Corporate transferees
• Specialists as Intra-Corporate Transferees
• Independent Executives
• Contractual Service Suppliers

 

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Working Holiday Visa & Work and Holiday Visa (subclass 417 and subclass 462)

In order to extend the 6 months’ condition attached to 417 and 462 visas, visa holders must request the permission of the DIBP through Form 1445.

 

Permission may be granted if:

• a 417/462 visa holder has applied for an onshore work, training or spouse visa and employment can continue until a decision is made on one of those applications; or
• a 417/462 visa holder is working as an ‘au pair’, anywhere in Australia and the youngest child is less than 12 years old, for up to 12 months; or
• a 417/462 visa holder is working in:

• aged and disability care;
• agriculture, forestry and fishing;
• construction;
• mining; and
• tourism and hospitality.  

in  Northern Australia, which includes all of the Northern Territory and those areas of Queensland and Western Australia above the Tropic of Capricorn, for up to 12 months.

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Enhanced visa arrangements for Indonesian visitors

The Australian Government will introduce an option of a three-year, multiple-entry visa for Indonesian visitors to Australia next year – an extension of the current one-year visa.  The new visa measures are designed to enhance tourism and business links between Australia and Indonesia.

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Engineers Australia to accept English Language Test: TOEFL iBT

From the 1st January 2016, Engineers Australia will be accepting the TOEFL iBT as an alternative English Language Test to address the English language competency element of the Migration Skills Assessment. Applicants submitting their application on or after the 1st January 2016 will be able to provide either an IELTS test result form with a score of 6 or more in each of the 4 modules, or a TOEFL iBT result with the following minimal scores for each module: Listening: 12 Reading: 13 Writing: 21 Speaking: 18 Applicants will need to upload the test results, as well as write their registration number. TOEFL iBT results will be accepted up to 2 years after the test date. (Source: Engineers Australia)

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Offshore Skills Assessment Program (OSAP)

The Offshore Skills Assessment Program (OSAP) is an assessment pathway for visa applicants under the General Skilled Migration (GSM) visa program who are applying for a nominated occupation and hold a passport from a nominated country. OSAP skills assessments determine if applicants have the skills and experience necessary to work in Australia at the trade level for their occupation so that they can contribute immediately to the Australian workforce. The program currently covers the following occupations: • Air-conditioning and Refrigeration Mechanic (342111) • Automotive Electrician (321111) • Baker (351111) • Bricklayer (331111) • Cabinetmaker (394111) • Carpenter (331212) • Carpenter and Joiner (331211) • Chef (351311) • Cook (351411) • Diesel Motor Mechanic (321212) • Driller (712211)) • Electrical Linesworker (342211) • Electrician (General) (341111) • Electrician (Special Class) (341112) • Electronic Equipment Trades Worker (342313) • Fitter (General) (323211) • Fitter and Turner (323212) • Fitter-Welder (323213) • Hairdresser (391111) • Joiner (331213) • Metal Fabricator (322311) • Metal Machinist (First Class) (323214) • Metal Fitters and Machinists (nec) (323299) • Motor Mechanic (General) (321211) • Motorcycle Mechanic (321213) • Panel Beater (324111) • Pastry cook (351112) • Plumber (General) (334111) • Pressure Welder (322312) • Sheet Metal Trades Worker (322211) • Small Engine Mechanic (321214) • Technical Cable Jointer (342212) • Toolmaker (323412) • Vehicle Painter (324311) • Welder (First Class) (322313) The program covers applicants from Brazil, China (including Hong Kong and Macau), Fiji, India, Iran, Ireland, Papua New Guinea, Philippines, South Africa, South Korea, Sri Lanka, Thailand, United Arab Emirates, United Kingdom, Vietnam and Zimbabwe. It must be noted that not all occupations are available for all countries. Applicants under the Offshore Skills Assessment Program (OSAP) are required to submit a ‘paper’ application and, subject to a favourable outcome from this step, they then undergo a technical interview or practical assessment in their country of origin depending on their occupation. As noted above, the program allows individuals who have no formal qualifications to apply as well. Those applying in non-licensed trades qualify for an Australian Certificate III if the outcome of their application is successful. This then allows them to claim qualification points in their migration application. Please contact us if you think that you might qualify and you require advice.

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Do you know that there is more than ONE English exam?

For many years IELTS has always been the preferred method of English language test within the Department. However many applicants may not be aware that there are now other English exams accepted by the Department:

1. Test of English as a Foreign Language internet-based test (TOEFL iBT);
2. Pearson Test of English Academic (PTE);
3. Cambridge English: Advanced test (CAE) – This test will only be accepted when complete on or after 1 January 2015.
4. Occupational English Test (OTE) – This English exam is specifically designed for 12 Healthcare Professionals. The tests simulate real workplace tasks and test relevant language skills for each profession. These Occupations include:

• Dentistry
• Dietetics
• Medicine
• Nursing
• Occupational Therapy
• Optometry
• Pharmacy
• Physiotherapy
• Podiatry
• Radiography
• Speech Pathology
• Veterinary Science

PTE has been very popular recently as the structure is easier to follow and it is often suggested that applicants are able to achieve a better result. It is also popular for its fast turnover time. The PTE score can be available within five business days.

As a handy reminder, the table below sets out the English score required for a 457 visa application for the various tests.

English test	Minimum band score	Minimum scores for English test components
		Listening	Reading	Speaking	Writing
IELTS test	Overall band score 5.0	4.5	4.5	4.5	4.5
OET	-	B	B	B	B
TOEFL iBT	Total band score 36	3	3	12	12
PTE	Overall band score 36	30	30	30	30
CAE	Overall band score 154	147	147	147	147

Remember that the English requirements differ for permanent visa applications, Please contact us to discuss the English requirements if you are thinking of applying for a temporary or permanent visa.

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457 Visas: Employer and employee obligations

457 Visas: Employer and employee obligations

The highly publicised troubles of the 7-Eleven group highlights the need for all employers to be aware of their obligations to their employees, particularly if they are employing foreign workers. The current media attention centres around allegations  that foreign workers were paid at rates lower than should be paid for the type of work being done.

 

All employers are subject to scrutiny pursuant to the provisions of the Fair Work Act; in addition, employers of persons on 457 visas are subject to monitoring by the Department of Immigration and Border Protection.

 

From 1 June 2013, employers engaging or contracting legal workers face significant civil penalties up to $76,500 if it can be established that the employer:

 

• has allowed the person to work or does not have a visa,
• has allowed a person to work without a proper work condition,
• has referred a person to work who falls under the above categories, or, has participated in an arrangement where an illegal worker is allowed to work.
   

Employers who are investigated in respect of any of the above breaches must be able to prove that reasonable steps have been taken to verify that an employee or contractor had appropriate permission to work.

 

Two of the most common ways for foreign workers to be employed in a business are first, via the 457 program or second, as students who hold work rights.

 

Available statistics indicate that as at the end of June 2012 the number of businesses employing 457 Visa holders exceeded 22,000. This represented in excess of 160,000 primary and secondary visa holders, all with work rights.

 

Businesses which employ 457 Visa holders are approved by the Department of Immigration as sponsors, and part of the sponsorship process involves the sponsor agreeing to assume a number of obligations which may be subject to monitoring by the Department. Included in these obligations is an undertaking to ensure that the employed worker is to be remunerated appropriately for the role.

 

It is not necessary to have a sponsorship in place in order to employ students, and therefore no formal monitoring is involved. Nevertheless, businesses employing students are obliged to comply with the law and must verify that the students have proper work permissions. Normally students are permitted to work up to 20 hours a week while courses are in session and full-time during vacation periods.

 

Nevett Ford lawyers are specialised in all areas of migration and can advise you on your obligations in relation to employment of foreign workers, as well as providing migration advice to those wishing to apply for an Australian visa.

 

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Accountants - pass mark migration

In the last published Skill Select round (September 2015) the Department of Immigration & Border Protection (DIBP) only invited 20 Accountants for the 189 visa (instead of the normal 210 invites).

 

As a result this pushed up the invite pass mark to 70 points.

 

This is most likely due to the fact that so many Accountants have been invited in the State sponsored 190 and 489 visas and also as DIBP may want to keep places for later in the program year so that they guarantee obtaining the highest scoring candidates in their 189 program. We also expect that those at 65 points who have already lodged an EOI will likely get an invite before Jun 2016.

 

Therefore, any new Expressions of Interest (EOI) lodged from now on at 65 points may struggle to be allocated a place in the 2015/2016 program year.

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Western Australian skilled migration occupation list (WASMOL)

Applicants who have an occupation identified on the Western Australian skilled migration occupation list (WASMOL) may be eligible for Western Australian State nomination using the following visas:

 

Skilled Nominated visa (subclass 190) or Skilled Regional (Provisional) visa (subclass 489).

 

State nomination applicants will have to compete with all potential employees in the Western Australian labour market to secure any available or advertised position.

For occupations which require licensing or registration before being permitted to work in Western Australia, a positive skills assessment and State nomination does not guarantee you will meet the licensing or registration requirements of the relevant licensing or registration authority.  Those considering applying for Western Australian nomination are advised to check with the appropriate licensing or registration authority to verify their suitability for licensing or registration.

 

Occupations may have the following status.

Available = occupation is available for nomination
Restricted = occupation is under review and invitations will not be issued pending the outcome of the review
Closed = occupation is closed for invitations

 

Occupations are categorised as schedule 1 or schedule 2.

 

The occupations identified on WASMOL do not relate to any specific job vacancies, nor represent any guarantee of a job, but rather identify occupations that are considered a priority for the State. It is recommended that you research employment opportunities in Western Australia (in your occupation) before making the decision to migrate.

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Northern Territory Designated Area Migration Agreement (DAMA)

Because of its remote location and acute skills shortages in the Northern Territory, their government have negotiated a Migration agreement for companies to be able to more easily sponsor 457 visa holders.

Where a Northern Territory employer is seeking a Temporary Skilled Migration Income Threshold (TSMIT) concession, the business will need to demonstrate that the salary being

offered to a prospective overseas worker is no less favourable than what an Australian citizen or permanent resident could expect doing the same job in the same location.

Occupations accessible under the DAMA:

http://www.australiasnorthernterritory.com.au/Working/bsm/employer-nominated/dama/Pages/accessible-occupations.aspx

 

 

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Fair Work - Recovery of unpaid wages

A Private Members Bill has been introduced in the House of Representatives entitled the Fair Work Amendment (Recovery of Unpaid Amounts for Franchisee Employees) Bill 2015.  

The aim of the Bill is to ensure employees are paid correctly, whether or not they are Australian citizens.  It will require more oversight by franchisers over the franchisee companies within their chains, to ensure legal minimum wages are paid to employees and the terms and conditions of employment meet the National Employment Standards (NES).

The Bill also promotes fairer contracts between franchisers and its franchisees.  The harsh terms of some franchisee contracts, which leave little profit for franchisees, have been reported as a major reason for franchisees attempt to cut costs by reducing wages rates.

The Bill has been read for the second time.  

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Skilled Migration Program pushed by Senator Nick Xenophon

Mr Nick Xenophon, the independent senator in Australia has forwarded his push for a new skilled migration program so that economically challenged areas in South Australia, his home state, can be boosted for everybody’s benefit. He believes that this move can lift the state out of its economic gloom.


”We need a targeted, sensible, business investment migration program for low population states and regions that would turbocharge the economies of those areas,” Senator Xenophon said on an interview with the AAP.


The senator met with businesses leaders and members of the state government and the opposition so that he can outline his plans for the introduction of legislation to federal parliament so that the migration program can be revised and be able to attract skilled foreign workers so that labour shortage can be met growth can finally be encouraged.


”We need to do this,” the Senator urged. ”We need to do it really urgently.”


”If we can boost business migrants in the thousands, if we can have billions of dollars coming into the state … I reckon that would be unambiguously good for South Australia,” he further went on to say, proving his point.


According to Senator Xenophon, Senator Jackie Lambie, the independent senator from Tasmania, is going to co-sponsor the bill.


”It is about Tasmania as well,” Senator Xenophon said. ”Tasmania and South Australia are lagging behind all other states with population growth.”


Source: SkyNews.com.au

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