The NSW Department of Industry has provided the following Visa related updates

• Announcement of shorter processing time for Business Talent Subclass 132 Visa from 29 January 2016.
• New NSW migration brochures in Simplified Chinese for Sydney and Regional NSW available to welcome business and investor migrants.
• NSW Industry's migration achievements for 2015.
• NSW Migration myth busters, including, its a myth that SIV migrants must make and hold their investments in NSW.
• Regional NSW had the strongest job growth of any Australian region last year creating 70,000 new jobs and is drawing increased international interest and investment.
• Announcement of an AVCAL special seminar: ‘Focus on Significant Investor Visa’ education program event on Monday 22 February 2016.
• New migrant settlement information for NSW now online.

Nevett Ford Lawyers can assist with all Australian visa types.  Please call us for further information and advice.

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DIBP makes changes to Marketing Specialist occupation nominations

The Department of Immigration appears to have decreased the spectrum of the role of Marketing Specialist (ANZSCO 225113). Applicants should be aware that recent decisions by the DIBP have allowed nominations in the said occupation only in the presence of medium to large as well as complex business organisations and classified it as a high level and senior role. As a result, sponsor applicants with small businesses and visa applicants without the relevant qualification and experience should explore other possible occupations if their circumstances allow.

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Consequences of visa refusal or cancellation

When a person’s application for a visa is refused or his or her visa is cancelled under section 501 of the Migration Act, unless he or she already holds a protection visa, the person becomes an unlawful non-citizen.


Under the Migration Act, as an unlawful non-citizen the person must be placed in immigration detention and detained until he or she is either granted a visa, deported, or removed from Australia.


In addition to being detained and possibly removed from Australia, a person who has a visa refused or cancelled under section 501:

• will be prohibited from applying for another visa (other than a protection visa or a ‘removal pending’ bridging visa) while in Australia
• if removed from Australia following cancellation of their visa, will not be eligible to be granted most types of visas (and therefore to return to Australia) if their visa was cancelled because of a substantial criminal record, past or present criminal conduct, or a combination of past or present criminal and general conduct

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Visa compliance audit uncovers serious flaws in system

Visa compliance audit uncovers serious flaws in system


An audit of how the Federal Government manages visa compliance was able to find weaknesses in almost all of the programs many areas, which leaves Australia in a vulnerable position to the visitors that have committed or are committing serious crimes.


A review was issued by the Australian National Audit Office late last year and it was able to identify major issues in the organisation. This includes missing records as well as ‘extensive shortcomings.


It was stated in the report that the challenges that face the Department of Immigration and Border Protection should not be in any way underestimated, ”given the extent of the reforms and the longstanding nature of the problems.”


”There are weaknesses in almost all the aspects of the DIBP’s arrangements for managing visa holders’ compliance with their visa conditions,” stated the report. “These weaknesses undermine the department’s capacity to effectively manage the risk of visa holders not complying with their visa conditions – from simple overstaying through illegal working to committing serious crimes.”


A spokesperson for Mr Peter Dutton, the Minister for the Department of Immigration and Border Protection, stated that a taskforce was put together last year to deal with fraud and exploitation that involve temporary visa holders.


The changes in the legislative that took place in late 2014 had also seen visas either being cancelled or refused for more than one thousand visitors, they said in a statement to the ABC.


They also stated that ”the Coalition Government has acted to ensure a firm approach to visa compliance, instituting various measures to strengthen Australia’s visa regime.”


”Measures to improve intelligence and data collection will help ensure people in Australia on visas adhere to their visa conditions.”


Calls for the ‘the dob-in phone line’ to be given a boost.


The Immigration Department has accepted the 4 recommendations which were put forward in the audit, and this included giving the number of calls to “the dob-in phone line” a much needed boost.


A spokesperson for the DIBP said in a statement to the ABC said that important work was well under its way to make improvements on analysis, data collection, intelligence, and storage capabilities.


They stated that ”a new framework is also being implemented to centralise the management of strategic policy, procedural instructions and standard operating procedures” and that “a review of current immigration compliance practices is also currently underway.”


The DIBP has granted over 7.5 million visas in the past financial year, with more than 4.3 millions visas being accounted for by visitor visas.


It was also outlined by the review that there was a rise in the number of people who overstayed their visas since the year 2011.


Almost nineteen thousand people overstayed their visas by anywhere from 1 to 5 years, with more than seventeen thousand overstaying by fiften years or perhaps even more.


New reform in the DIBP was the 3 major change in less than a decade, a period which also saw 3 different secretaries in the department.


Auditors however, found that in spite of the restructure and reform that has taken place, there is still little evidence there is overall improvement, not least as a result of the change that has been ongoing, with initiatives that are not often evaluated or fully implemented.


Source: abc.net.au by Stephanie Anderson

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Farmers dealing with labour shortage calling against new tax on visa holders

Right now, there is no tax payable on the 1^st eighteen thousand two hundred dollars ($18,200) the working holiday visa makers are going to earn. However, from the 1^st of July of 2016, these visa holders are going to have to pay tax on every dollar they earn. The farmers who state that up to fifty per cent of their seasonal workforce is made up of a lot of these visa holders are making plans to do a major lobby against this planned tax change.


The peak horticulture lobby groups of Queensland, Growcom, Cotton Australia, and the Queensland Farmers Federation are all planning to launch an ‘intensive lobbying campaign’ so that the severe impact of the measures on the agricultural sector can be highlighted, as they fear it can set an exodus of seasonal farm labour.


”It is very simple,” Mr Pat Hannan, the chief executive officer of Growcom, stated at a recent interview with ABC Rural Radio. ”It will deter backpackers from coming and working on our farms.”


Mr Hannan continued on to say, “Without labour to get the crop into the ground and particularly to get the crop out of the ground, our farmers, some of them, are under threat of losing their businesses. It’s really that serious.”


”When you are saying to backpackers, ‘you might have been paid $22.62 an hour before but now we’re only going to pay you $14.59 an hour’, I have got to say that gets around pretty quickly and the backpacker community is going to be less inclined to come to Australia to enjoy their working holidays,” the Growcom CEO said.


Mr Hannan said that this kind of decision is going to hurt farmers and rural communities, which heavily relies on labour provided by backpackers.


”There are a lot of rural communities that survive based on the backpackers and labourers that come into those communities during peak planting and harvest times,” said Mr Hannan. ”It is very short-sighted not to take the dramatic effect on the economies of those areas into account when you make changes the way the Government has.”


He also added that the ones who are affected are the backpackers, as well as the growers and the farmers, which in turn are going to affect the local rural economies.


Source: MigrationAlliance.com.au

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Business groups push for reforms to 457 visa

The campaign for reforms in the 457 visas are once again reignited by business groups in Australia, declaring that it is high time that ”misinformation” regarding the scheme that benefits skilled foreign workers be dispelled.


It is most likely that this move is just going to spark tensions with Australian unions due to the 457 visa for temporary skilled migrants, however, business groups are adamant in lining up to say that the government should get rid of Labor-era labour market testing arrangements that are at present in the scheme.




A letter has been sent to the Productivity Commission from the Australian Chamber of Commerce and Industry (ACCI) stating that it is better if the labour market testing is abolished. On the other hand, the Australian Mines and Metals Association (AMMA) is warning that this requirement is just going to add red tape to the process.




This comes as a number of employer groups are preparing for a different review of the salary threshold for occupations which can be filled by workers who are holding 457 visas, in the newest inquiry that is probably going to spark controversy over the skilled migration visa scheme.




The Australian Chamber of Commerce and Industry has foreshadowed the argument against the increase in the income threshold for 457 skilled worker visas that are beyond inflation and is arguing that employers located in regional areas should have the capabilities to hire skilled foreign workers on a salary that is at a discount to the threshold, so long as this was in agreement to the market rates of Australia for the people in that specific regional area.




Ms Jenny Lambert, the employment, education, and training director of ACCI, stated that there seems to be ”misinformation” that foreign workers are taking jobs away from Australians.


”That is the wrong basis to move forward,” Ms Lambert said yesterday.
It is by the end of April that the report from the review of the Temporary Skilled Migration Income Threshold is expected to be submitted.




The Australian government agreed to bring forward the review of the Temporary Skilled Migration Income Threshold – which is currently set at fifty three thousand nine hundred – under a deal with Labor to end the wrangling over the China and Australia free trade pact, otherwise known as ChAFTA.




The review is not just going to look at the appropriate level that would be most suited for the threshold, it is also going to look at the roles of indexation as well as regional concessions for the threshold.


During the debate over ChAFTA, it was insisted by Labor that the threshold be increased to fifty seven thousand dollars. However, this push was dropped after the revelation that this kind of pricing would exclude some rural areas out of the scheme should this push through.
Ms Lambert said that the threshold should hold at its present level though there were still good points of argument that were raised for the sake of indexation and inflation.




For regional areas however, there was an argument that a discount be made because there is a difference between regional and metropolitan labour markets.


”The higher you lift the threshold the less businesses and positions would be eligible to have someone come in on a 457,” Ms Lambert stated. ”And that creates real economic problems not just for the business who can not find a skilled worker, but for the regional community who may not have the services available to them because the skilled worker is not available at the price that the region can afford.”




Ms Lambert also stressed that employers should not be able to pay foreign members of their staff less than what equivalent local workers are going to be paid in that region.
Areas hit by skills shortages at that moment, areas such as in the Northern Territory, can ask for something that is called a ”designated area migration agreement.”




Employers can seek concessions of up to ten per cent that is below the threshold under the designated area migrated agreement, so long as the cost of living in that area is lower compared to the national average, and that the foreign workers there are being paid the same as Australians.




Ms Lambert however, said that businesses were not actually guaranteed there would be such agreements to cover them in their areas.




In the mean time, ACCI has made a submission to another review into migration being conducted by the Productivity Commission, saying that it does not agree with a draft finding in support of labour market testing as the testing is the same as ”asking employers to walk through wet cement.”


Mr Scott Marklamb, the executive director of AMMA’s policy and public affairs, said that while there are some highly skilled occupations that were exempt from doing the testing, the ”resource employers support the abolition of this needless and burdensome requirement.”
It was stated by a spokesman for the Business Council of Australia that it consistently called for the elimination of the labour market testing.


SOURCE: The Australian (newspaper)

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Call for ‘burdensome’ Labour Market Testing to be abolished

See article from Chandler Training: http://www.chandlertraining.com.au/call-for-burdensome-labour-market-testing-to-be-abolished/

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China-Australia Free Trade Agreement (ChAFTA) & Trades Recognition Australia (TRA)

The China-Australia Free Trade Agreement (ChAFTA) came into force on the 20 December 2015.

The ChAFTA means that applicants with a passport from:

• China and Macau Special Administrative Region (SAR), will no longer be required to have a skills assessment in the following occupations:

Cabinetmaker [394111]

Carpenter [331212]

Carpenter and Joiner [331211]

Joiner [331213]

• China, Hong Kong SAR and Macau SAR will no longer be required to have a skills assessment in the following occupations:

Auto Electrician [321111]

Diesel Motor Mechanic [321212]

Electrician (General) [341111]

Electrician (Special Class) [341112]

Motor Mechanic (General) [321211]

It is recommended that applicants use the TRA Pathfinder to help find which TRA programme is suitable for their needs. 


If you require advice and assistance Nevett Ford Lawyers Melbourne has a team of experienced immigration lawyers and registered migration agents.

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Partner visa - are you providing enough evidence to the DIBP?

The Permanent Partner visa (second stage) is the Subclass 100 and the Subclass 801. Generally the Department of Immigration and Border Protection (DIBP) will make contact with you approximately two years after the Partner visa is lodged. At the time of request, the applicant generally needs to provide:

1. statements from the applicant and the sponsor;
2. updated police clearance in Australia; and
3. updated evidence of cohabitation, financial and social aspects of the relationship.

 

We have recently received many enquiries concerning applicants that have lodged their own Subclass 100/801 that have received unfavourable decisions or request for further evidence from DIBP despite having presented the usual documents and evidence required for this visa.

 

This issue has arisen due to DIBP becoming stringent with assessing documents provided during the second stage of the partner visa and subsequently it is seeking more evidence than only statements and updated police clearance. DIBP’s requirements are to see evidence that the relationship is genuine and continuing following the grant of the temporary visa. Further to lodging the temporary partner visa application, it is ideal to keep a healthy record of all the documents between you and your partner in preparation of the permanent visa stage.

 

Deciding on the evidence that DIBP requires can be difficult and can delay the approval of the visa if not correctly submitted.

Nevett Ford has extensive experience in different areas of migration and can assist you with preparing an application that satisfies DIBP. For further information please contact us for a consultation.

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What are 457 visa Training Benchmarks? How do you meet the requirements?

Training Benchmarks are requirements that need to be fulfilled by the company who is applying to be a subclass 457 visa 'business sponsor'.


The requirements were introduced to ensure local Australian workers are provided training to perform the work required by the company, thus reducing the dependency of the company on overseas workers.

The Training Benchmarks are as follows:

Training Benchmark A - recent expenditure to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business

Training Benchmark B - recent expenditure to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business who are Australian citizens or Australian permanent residents.

If the business is new (operating for less than 12 months), an auditable training plan is required instead.

If you are unsure how to demonstrate that you have met the Training Benchmarks, please contact Nevett Ford Lawyers Melbourne for a more information, assistance and advice.

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What are the obligations of the 457 business sponsor and visa applicant after the visa is granted?

It is critical that the 457 visa holder and business sponsor adhere to the obligations and conditions of the 457 visa when it is approved. Failure to meet the conditions will result in visa cancellations and/or removal of sponsorship status for the business.

457 visa holder obligations:

• You are only allowed to work for the business that sponsored you
• Must start work within 90 days or arrival to Australia
• Must not stop working for the employer for more than 90 consecutive days
• Obtain registration or licences if necessary
• Maintain adequate health insurance for you and your family in Australia.

457 business sponsor obligations:

To prevent exploitation of overseas workers and to ensure skill shortages are genuinely met the sponsor will need to do the following:

• Cooperate with the Department for checks on compliance
• Ensure employment conditions are fair
• Keep and maintain records of employment for the 457 visa holder
• Ensure that the sponsored 457 visa worker does not perform duties other than what is required for the nominated occupation
• Do not obtain payment from the sponsored worker for the costs of the 457 visa application
• Continue to meet the 'Training Benchmark' requirements
• Pay the travel costs for the sponsored worker to leave Australia when the visa validity expires.

Please contact Nevett Ford Lawyers Melbourne if you need more information about your obligations or situations such as when employment ceases, or if the business is being monitored by the Department.

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Parent visas - Australia

All Parent visas must have a sponsor and a primary visa applicant.


The sponsor must be an Australian citizen, permanent resident or eligible New Zealand citizen, that is your child or stepchild, or their eligible partner.


The primary visa applicant must be a parent of a child or stepchild who is a settled Australian citizen, permanent resident or eligible New Zealand citizen.


Parent visa categories include the following:


Parent Visa (Non-Contributory)
Contributory Parent Visa
Aged Parent Visa (Non-Contributory)
Contributory Aged Parent Visa

Which Parent Visa is Best?

The range of Parent visa options available and differing requirements can be confusing:

• As a child you want the best for your parents.
• As a parent want to be able to spend time with your family in Australia, and avoid wasting time or money on the visa process.

With the Contributory Parent visa applications, the 2^nd instalment is a very significant amount of money and a large investment for your family.


Nevett Ford Lawyers (Melbourne) can provide you with advice and assistance in relation to the visa process.

Parent Visa (Non-Contributory)

There are a number of requirements that must be met for this type of visa.

Balance of Family (BoF) test for the applicant

This requires that:

• Half of the applicant’s children must be settled Australian citizens or permanent residents or,
• More of the applicant’s children must be settled Australian citizens or permanent residents than being settled in any other single country.

All children of the parent and the parent’s current partner, including adopted and step children must be included in the balance of family test. Step children of a former partner can be counted in limited circumstance.


An assurance of support must be paid for in relation to all applications.

All applicants must meet health and character requirements.


The processing time for this type of visa is estimated to be over 10 years. Parent visas are subject to quotas in relation to the number of visas granted per financial year. The quota allocated in recent years has been small, and this has resulted in very long processing times.


Contributory Parent visas have shorter processing times.

Contributory Parent Visa

There are a number of requirements that must be met for this type of visa.

Balance of Family (BoF) test for the applicant

This requires that:

• Half of the applicant’s children must be settled Australian citizens or permanent residents or,
• More of the applicant’s children must be settled Australian citizens or permanent residents than being settled in any other single country.

All children of the parent and the parent’s current partner, including adopted and step children must be included in the balance of family test. Step children of a former partner can be counted in limited circumstance.


An assurance of support must be paid for in relation to all applications.

 All applicants must meet health and character requirements.


This visa is subject to an additional ‘contribution’ which is a 2^nd instalment paid to the Department prior to the visa grant. The 2^nd instalment is a significant amount of money, which is subject to increases each year.


Processing times for Contributory Parent visas are significantly faster than the Non-Contributory Parent visa applications.

Aged Parent Visa (Non-Contributory)

This requires that the visa applicant be an aged parent. The definition of aged for men is 65 or over. For women the age requirement is between 63.5 and 65, depending the year the woman was born.
Aside from the age requirement, this visa has similar requirements to the Parent visa (non-contributory). 


A benefit of the Aged Parent Visa is that it can be lodged onshore (i.e. whilst the visa application is physically in Australia).


The processing time for this type of visa is estimated to be over 10 years. Aged Parent visas are subject to quotas in relation to the number of visa granted per financial year. The quota allocated in recent years has been small, and this has resulted in very long processing times.


Contributory Aged Parent visas have shorter processing times.

Contributory Aged Parent Visa

This requires that the visa applicant be an aged parent. The definition of aged for men is 65 or over. For women the age requirement is between 63.5 and 65, depending the year the woman was born.
This requires that:

• Half of the applicant’s children must be settled Australian citizens or permanent residents or,
• More of the applicant’s children must be settled Australian citizens or permanent residents than being settled in any other single country.

All children of the parent and the parent’s current partner, including adopted and step children must be included in the balance of family test. Step children of a former partner can be counted in limited circumstance.


An assurance of support must be paid for in relation to all applications.

 All applicants must meet health and character requirements.


This visa is subject to an additional ‘contribution’ which is a 2^nd instalment paid to the Department prior to the visa grant. The 2^nd instalment is a significant amount of money, which is subject to increases each year.


Processing times for Contributory Aged Parent visas are significantly faster than the non-contributory Parent visa applications.


A benefit of the Contributory Aged Parent visa is that it can be lodged onshore.

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What is the Australian Nursing and Midwifery Accreditation Council (ANMAC)? How is it different from the Nursing and Midwifery Board of Australia (NMBA)?

ANMAC is responsible for making an assessment on an applicant’s work experience and qualifications to determine the applicant’s suitability for skilled migration. A health professional would obtain the migration skills assessment from ANMAC before lodging a visa application.

NMBA is the registration body in Australia which manages the registration of nurses and midwives in Australia. It is compulsory for nurses and midwives to be registered in Australia. You cannot work in Australia as a nurse or midwife unless you are registered with NMBA. NMBA also sets policies and standards for the nursing and midwifery profession.

In summary, you will need to:

• apply for the skills assessment with ANMAC to apply for Australian work visas or the General Skilled Migration visas; and
• apply for registration with NMBA to work as a nurse or midwife in Australia.

Nevett Ford Lawyers (Melbourne) can provide advice and assistance.  Please call us today to speak to an experienced team of immigration lawyers and registered migration agents.

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Expert review of the 457 temporary skilled migration income threshold

Mr John Azarias has been appointed to undertake an evidence-based review of the Temporary Skilled Migration Incomes Threshold (TSMIT).

The review was recommended by the Independent Review into Integrity in the Subclass 457 Programme.

The review will consider a range of issues including the factors that should determine the settings, the appropriate base level, and the roles of indexation and regional concessions for the TSMIT.

The TSMIT defines the salary threshold for jobs that can be filled by a 457 visa holder and is designed to protect Australian workers and ensure that visa holders are undertaking skilled employment.

The Government has brought forward the review as part of an agreement with the Opposition to ensure the passage through Parliament of legislation to implement the landmark China-Australia Free Trade Agreement.

Mr Azarias will provide a report to Government at the end of April 2016. As recommended by the 457 Integrity Review, the TSMIT will be retained at $53,900.00 until the findings of the review are considered by Government.

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Lee Case Overturned Clarifying Appeal Rights for 457 Refusals

As a result of the 2014 Lee case (Minister for Immigration and Border Protection v Lee [2014] FCCA 2881), the Administrative Appeals Tribunal (AAT) has had no jurisdiction to review 457 visa refusals unless there was an approved nomination at the date the appeal was lodged.

This was a significant barrier to appealing refused 457s, particularly where the reason for refusal of the 457 was an issue with the nomination.

 

The Lee case has been overturned by the Full Federal court in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182. As a result, it is now possible to lodge an appeal for a 457 refusal where at the date of the appeal:

• There is an approved nomination; or
• A nomination application is still pending; or
• There is a refused nomination, but the nomination has also been appealed to the Administrative Appeals Tribunal (AAT) (formerly the 'Migration Review Tribunal (MRT)'.

However, it appears that it would not be possible to appeal a 457 visa refusal if:

• A nomination has been refused, but not appealed to the MRT; or
• A nomination has previously been approved, but has now expired.

 

 

 

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Self Sponsorship for 457 Visas

Changes have been made to the Australian immigration policy document (known as the Policy Advice Manual (PAM)) for 457 nominations which means that self-sponsorship is now very difficult. The changes are in relation to the "genuine position" requirement for the nomination. As a result, the nomination would be refused on the basis that the position has been created just to facilitate a visa application.

 

Immigration has set out the following "risk factors" which could indicate the position is not genuine

• Visa applicant is a director or owner of the sponsoring business;
• Visa applicant is a relative or personal associate of an officer of the sponsoring business;

Immigration will wish to see an ASIC historical extract with the application - this would give information on the company owners and directors, and so assist in establishing whether the visa applicant is associated with a company officer. Sponsors must also declare who the company officers and shareholders are in the application for sponsorship approval.

The policy document specifically mentions that the application will be scrutinised if an overseas business is being used to "self-sponsor" a business owner to establish a branch in Australia. The stated reason is to prevent the 457 program from being used to 'circumvent' the Business Innovation and Investment (Subclass 188) program.

  

Based on these changes, "self-sponsorship" is not recommended. 

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Offences Introduced for Charging Visa Applicants for Employer Sponsorship

Offences Introduced for Charging Visa Applicants for Employer Sponsorship

The Migration Amendment (Charging for a Migration Outcome) Act 2015 has been passed and came into effect from 14 December 2015.


This legislation makes it illegal for a benefit to be given by a visa applicant to another person in return for a "sponsorship-related event". Effectively, this means that if a visa applicant pays an employer to sponsor them, the following can result:

• Refusal of a visa application - applicants must now declare that they have not paid for sponsorship, and this could result in Public Interest Criteria (PIC) 4020 refusal and a 3 year re-entry ban;
• Cancellation of the visa applicant's visa - even if this did not require employer sponsorship;
• Significant fines to the employer - up to $324,000 for a corporation
• Jail sentence of up to 2 years for the visa applicant, as well as a fine of up to $64,800 for individuals;
• Fines for company officers and directors who allow payment for sponsorship to occur due to recklessness or negligence, or if they know about it.

The above offences apply to 457 visas, but also apply to other visa types, including:

• Employer Nomination Scheme (ENS) Subclass 186;
• Regional Sponsored Migration Scheme (RSMS) Subclass 187;
• Temporary Work (Long Stay Activity) Subclass 401;
• Training and Research Subclass 402 (Research stream);
• Entertainment Subclass 420; and
• Superyacht Crew Subclass 488.

There are both criminal offences (which require proving the person's state of mind) as well as civil offences which do not require proof that the person acted knowingly.
"Benefits" which are prohibited include:

• Payments or valuable consideration
• Deductions - for example from a person's salary
• Real or Personal Property
• An advantage, service or a gift
• Payment of reasonable fees to a migration advisor is exempt from the above provisions

"Sponsorship related events" which are prohibited include:

• Applying for approval as a sponsor, renewing this, or not withdrawing an application
• Applying for nomination
• Employing or engaging a person to work or perform an activity, or not terminating a person

This legislation makes it clear that people paying an employer to sponsor them for a visa are acting contrary to the legislation and the consequences are severe.

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