Changes to the Subclass 457 Visa program

Temporary Skill Shortage Visa (TSS visa) The Temporary Work (Skilled) (subclass 457) visa will be replaced with the completely new Temporary Skills Shortage (TSS) visa in March 2018.   Occupation lists: The occupation lists that underpin the 457 visa have been significantly condensed from 651 to 435 occupations, with 216 occupations removed and access to 59 other occupations restricted. The Consolidated Sponsored Occupation List (CSOL) is renamed as Short-term Skilled Occupations List (STSOL) and will be updated every six months based on advice from the Department of Employment. The other occupations list used for skilled migration, the Skilled Occupations List (SOL) is renamed as Medium and Long-term Strategic Skills List (MLTSSL).   Validity period: The maximum duration of 457 visas issued from this date for occupations that are on the STSOL will be two (2) years with an optional two-year extension allowed only once. Occupations on the MLTSSL will continue to be issued for a maximum duration of four (4) years.   Residency: The two-year short-term visa program will offer no prospect of permanent residency. The four-year medium-term visa holders will be able to apply for permanent residency if certain preconditions are met.   English Requirements: The four-year visas will require a higher standard of English language skills; a minimum of IELTS 5 (or equivalent test) in each test component. English language exemption salary threshold, which exempted applicants whose salary was over $96,400 from the English language requirement, will be removed.   Training benchmarks: Policy settings about the training benchmark requirement will be made clearer in legislative instruments. Training requirement for employers to contribute towards training Australian workers will be strengthened. Please ensure that your clients keep meeting this obligation (training benchmark A or B) as this is expected to be more carefully monitored.   Character: Provision of penal (police) clearance certificates will become mandatory.   Work Experience: Two-years work experience will be required for both visas.   Other documentation: In the majority of cases, mandatory Labour Market Testing (LMT) will be required, unless an international obligation applies. Employers must pay the Australian market salary rate and meet the Temporary Skilled Migration Income Threshold (TSMIT) requirements. A non-discriminatory workforce test to ensure employers are not actively discriminating against Australian workers.   Application fees $1150 for two-year visa and $2400 for four-year visas apply   Applications already lodged: 457 visa applicants that had lodged their application on or before 18 April 2017 with an occupation that has been removed from the STSOL, and whose application has not yet been decided, may be eligible for a refund of their visa application fee. Nominating businesses for these applications may also be eligible for a refund of related fees.

 

Please contact us for further clarity about how the changes may affect sponsorship, nomination and visa applications.

 

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Australia to commence consultations for the new 5-year temporary Parent Visa

The Australian Government has announced that community consultations are about to commence to develop a continuous 5-year temporary visa for parents of Australian citizens or permanent residents. The visa, which the Coalition had promised during the election campaign in June, is set to take effect on July 1, 2017.

At present parents of Australian citizens or permanent residents can apply for a 5-year visitor visa but can only spend up to 12 months in the country in any 18-month period and the visa is offered on a case-by-case basis to applicants who have lodged a concurrent permanent parental visa application. Otherwise the visa is for a 12-month period only.

The announcement comes after the Productivity Commission released a report that suggested supporting parents of immigrants cost the country too much at between $2.6 billion and $3.2 billion over their lifetimes.

The commission recommended an overhaul of the visa scheme, proposing among other changes that families of non-contributing parents paid for private health insurance and provided financial guarantee so they would not be a burden to the Australian government.

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Visa consequences of Turkish failed coup

The failed coup in Turkey will carry significant consequences for Turkish visa applicants.

 

On one side, Turkish citizens in Australia who claim to be opponents of the government will now have a chance to lodge protection visa applications on the basis that they will face persecution if they return to Turkey. Similarly, Turkish citizens seeking Condition 8503 waivers and Schedule 3 waivers (in respect of onshore partner visa applications) will be able to rely on the uncertain political situation in Turkey to have greater chances of success.

 

On the other, Turkish citizens in Turkey will possibly face increased difficulties when lodging student as well as visitor visas since the Department is likely to use the unstable situation in Turkey as a ground to refuse the said applications.

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457 Visa Holders Have Work Rights Too

Employers of 457 Visa holders must comply with both Australian workplace and immigration laws, and any workers who are unfairly dismissed or treated improperly have the right to enforce their rights.


A case brought to the Fair Work Commission by Mrs Maricar Virata, a citizen of the Philippines who had been working in Australia on a 457 Visa, is a clear reminder to all employers of their obligations when considering terminating employees on these visas.


Mrs Virata was employed to be the manager of the Halls Gap Motel. Her salary was $55,000 per annum plus superannuation. Her evidence was that she was expected to work from 7 AM until 1 AM, and she was expected to be on call outside those hours if needed, although this was disputed by the respondent.


She was accompanied in Australia by her de facto partner, and it transpired that he was expected to also work just as hard at the motel, and that her remuneration was to be split between the two of them. The Fair Work Commission found that 'on any view’ this arrangement was exploitative.


Ms Virata claimed that at some point she started to ask questions of her employer about her work conditions and that then, when she was on leave in the Philippines, she was sacked by email.


The respondent denied that she was terminated for the reasons claimed by her but because of two complaints by fellow employees, a complaint from a customer, and because of relationship issues between Ms Virata and her partner.


The commission found that none of the reasons put by the respondent by way of justification for its actions were valid. It also found that the respondent did not give plain and clear reasons to Ms Virata prior to making the decision to terminate her; nor was  she given an opportunity to address any of the complaints which been made about her.


Ms Virata had not been given any proper warnings about how her performance was perceived by the respondent and because she was terminated by email once the complaints were put, she did not have an opportunity to respond to them with a support person present.


The commission described the respondent’s processes as being “inappropriate and unfair” and found Ms Virata was entitled to compensation for unfair dismissal.


Another factor taken into account by the commission was that because Ms Virata was on a 457 visa, it would be expected that the consequences of her being terminated were even more serious than might usually otherwise be the situation.


457 Visa holders need to be aware that there are employers who will try and take advantage of their vulnerable situation and terminate their employment without regard to their legal rights. Any worker who believes they have had their rights infringed should seek immediate legal assistance.

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Significant New Opportunities for Permanent Residence for New Zealand Citizens

First announced by the Prime Minister, Malcolm Turnbull, on 19 February 2016, and then later confirmed in the recent budget, a new pathway for permanent residence has opened up for certain New Zealand citizens who are able to demonstrate that they can satisfy the qualifying criteria.

In order to be eligible it will be necessary for New Zealand citizens to show that they were resident in Australia on 19 February 2016, have lived here for at least five years and earned income of at least the temporary skilled migration income threshold (currently $53,000 per annum) over that qualifying period.

This pathway will be available from 1 July 2017.

While obviously not all New Zealanders currently living in Australia will be eligible, it is estimated that some tens of thousands will be, and one would expect that as soon as applications can be lodged there will be a rush of people wishing to take advantage of this new pathway.

Obviously, once New Zealanders obtain Australian permanent residence, they may then wish to consider their citizenship options.

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Proposed changes to Partner Visas

A bill has been introduced to parliament which if passed, will mean that there will be substantial changes to the family visa application process. Below is an extract from the Explanatory Memorandum:

 

To address the integrity issues currently experienced in the sponsored family visa program (the program), the Bill will extend relevant aspects of this sponsorship framework to apply to family sponsored visas with a view to:

• separate sponsorship assessment from the visa application process for family sponsored visas;
• require the approval of persons as family sponsors before any relevant visa applications are made;
• impose statutory obligations on persons who are or were approved as family sponsors;
• provide for sanctions if such obligations are not satisfied; facilitate the sharing of personal information between a range of parties associated with the program; 
• improve the management of family violence in the delivery of the program by allowing the refusal of a sponsorship application; and
• cancellation and / or barring of a family sponsor where inappropriate use of the program or serious offences are detected – especially those involving family violence

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Working holiday visas – what work is possible?

There are two types of working holiday visas – the working holiday (subclass 417), and the work and holiday (subclass 462). The main purpose of these visas is to allow younger persons the opportunity to visit Australia for up to 12 months. Visa holders are granted employment rights but limited to a maximum period of six months with any one employer unless specific permission is obtained to work longer.

Australia has reciprocal rights with a number of other countries which offer similar types of visas to Australians wishing to travel overseas to experience cultural differences.

The six-month work limitation applies to full-time, part-time, casual, shift and voluntary work. Any breach of this condition will mean that the visa is liable for cancellation, and it is therefore most important that persons who hold these visas are aware of the conditions and observe them stringently.

The ‘employer’ is the business or organisation which the individual works for directly. Many people mistakenly believe that they can continue working for the same employer if they use different employment agencies, business affiliates or subcontracting arrangements, however this is not the case. It is permitted however for an individual to be referred to different businesses by an employment agency or labour supplier.

It frequently occurs that a person on a working holiday visa may be offered permanent employment by the business that they are working for. This means they will have to transfer to another visa class – the most common being the 457 Visa. If the initial six month employment period under the working holiday visa is likely to expire while the new visa application is under processing, it is necessary to make application to the Department for permission to continue working with that employer from the date the six-month period expires. If this permission is not sought and obtained there is the possibility of cancellation action which would then have an impact on the work visa application.

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Medical Practitioner - You may be exempt to apply for a Skills Assessment if you hold a full and unconditional or general medical registration

It is a general requirement that any applicants who wish to apply under the occupation ‘Medical Practitioner’ will be required to provide an evidence of skills assessment.


However due to recent changes, the Department of Immigration and Border Protection is now accepting evidence of your full medical registration as evidence of a skills assessment.


Based on the current legislation, the definition of a ‘Full, unconditional or general medical registration’ will only be issued to the following two scenarios:


Scenario 1 – Applicant studied in Australia:

• The applicant is a graduate of an Australian or New Zealand Australian Medical Council accredited medical school and have completed an approved period of intern training.
  

OR

Scenario 2 – Applicants studied outside of Australia:

• The applicant must have successfully  completed the Australian Medical Council examination – including both the multiple choice questionnaire and the clinical examination
• The applicant have been awarded the Australian Medical Council Certificate
• The applicant must have completed a period of supervised training approved by a State or Territory Medical Board.

The Department of Immigration and Border Protection will accept one of the following certificates issued by the State or Territory Medical Board or by the Medical Board of Australia (MBA) as evidence of full registration:

• A full, unconditional or general medical registration
• Conditional specialist registration – this registration allows you to practise only in your particular speciality, with no further training or supervision requirements.

Conditional Specialist registration

If the applicant is an overseas trained specialist and the primary medical qualifications are not recognised in Australia, you are required to apply through the Australian Medical Council or Specialist Medical College procedure to have your specialist training and qualification assessed. The assessment will determine if your training and qualifications are equivalent to the Australian training skilled level and standard to be eligible to enter the workforce.


Are you an overseas trained medical practitioner that wishes to migrate to Australia? We can assist you with your skills assessment and further visa options. Please contact one of our experienced staff today to arrange an initial consultation.

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Law enforcement and intelligence bodies - specified Australian organisation and foreign countries

Commonwealth Gazette 2016/028 - GAZ 16/001 - C2016G00414 - Notice under section 503A of the Migration Act 1958, specifies the Australian law enforcement and intelligence bodies and foreign countries agencies recognised under s503A of the Act.

Schedule 1 of this Notice specifies 42 bodies that are defined as Australian law enforcement bodies or Australian intelligence bodies, for section 503A(9)(a) of the Migration Act 1958.

Schedule 2 of this Notice specifies the countries or parts of countries, where foreign law enforcement body are recognised under section 503A(9)(b) of the Migration Act 1958.

This Notice revokes Notice F2006B00213 of 14 August 2013.

This Gazette Notice commences on 16 April 2016.

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Superyacht Crew Visa - Subclass 488

The 488 Visa is a temporary visa for the crews of superyachts resulting from of the Government’s 2007 election commitment to provide a temporary visa for this growing niche of the Australian tourism market. The purpose is a streamlined processing for this type of temporary work.

It is not to be confused with the Maritime Crew Visa, Subclass 988, which regulates the temporary entry by sea of crew of non-military ships. The difference is the employment on a Superyacht, which, in accordance with Reg 1.15G, is “a sailing ship or motor vessel that is used for sport or pleasure, does not carry cargo, and is at least 24 metres in load line length”.

The 488 visa is granted if there are ‘no adverse effects on the Australian labour market’ for employment or training opportunities, or conditions of employment in accordance with section 488.213. In other words, the DIBP needs to consider, when assessing a 488 application, whether it would be possible for Australian citizens/permanent residents to fill the proposed positions. In assessing this criterion, officers will consider six factors:

• whether any proposed work could be done by an Australian
• whether there is a shortage of similarly qualified or experienced individuals in Australia
• whether an Australian should be trained up to do the proposed work over a longer period
• whether there is time to train up an Australian to do the work required
• any evidence provided by the applicant's proposed employer that they have tried unsuccessfully to hire an Australian to do the proposed work (for example, evidence of job search, training programs) and
• whether the proposed work/activities are in Australia’s interest.

Although there is no obligation to conduct labour market testing, Superyacht sponsor applicants could be requested to provide evidence that their business has tried unsuccessfully to hire an Australian to do the proposed work (for example, evidence of job search, training programs) and that the conditions of employment of all crew are not ‘undercutting’ the Australian labour market, in the sense that they are all consistent with Australian Fair Work legislation. 

 

In light of this policy requirement, it is advisable to retain any evidence of job advertisements and training programs the prospective sponsoring business may have carried out.

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New Hope for Partner Applicants with Compassionate and Compelling Circumstances

The Migration Regulations contain a provision (called Schedule 3 criteria) which entitles people in a relationship, but without a substantive visa, to lodge a visa application if they can demonstrate that compassionate and compelling circumstances exist. Unfortunately, over time, department policy has tightened, with the result that many applications have been refused on the ground that compassionate and compelling circumstances could not be demonstrated to have existed at the time the application is lodged.


A recent court case of Waensila v Minister for Immigration and Border Protection has had a big impact on how applications may be dealt with from here on.


In this case, the Applicant’s circumstances highlighted that over the passage of time (3 and a half years) since applying for a Partner Visa, compassionate and compelling circumstances arose, which demonstrated that the applicant and his wife would experience hardship should he have to depart Australia to make a fresh application. As a delegate is obligated to consider all of the information before them in making a decision, it is now within their power to consider, post-application, compassionate and compelling circumstances that may exist.


The Federal Court of Australia in overturning the case of Boakye-Danquah v Minister for Immigration [2002] FCA 438; 116 FCR 557 determined that neither the legislation nor the explanatory memorandum restricted the use of the Schedule 3 waiver to the time of application. In rejecting the Respondent’s argument, Griffiths J characterised the waiver provision as a power to dispense with a criterion and not a criterion itself. As a result, the exercise of the waiver is not to be confined to the time of application requirement that the remainder substantive issues of the application are. In reference to the Explanatory memorandum, the Federal Court highlighted that the Schedule 3 waiver provision was intended to allow for cases where compassionate and compelling circumstances exist such that the Applicant should not have to leave Australia. Having regard to the purpose in which the waiver was introduced, the Federal Court found that the waiver must be flexible to achieve that purpose and that there are no inhibitions that restricted the use of this waiver to the time of application.


Time will tell whether the Department of Immigration is prepared to accept this decision and assess applications on the basis of it, or alternatively, whether legislation will be implemented to revert to the more strict regime which has applied up until now.


Please contact Nevett Ford Lawyers Melbourne if we can be of assistance.

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Getting to Australia faster on visitor visas for Chinese nationals from mainland China

A trial of the priority service for Chinese nationals in the People’s Republic of China, will make Australia a more attractive visitor destination and will help grow the tourist economy, including in northern Australia. These measures will help Australia capitalise on the increased affluence of Asia and the northern Australia’s proximity to the region.

The Department of Immigration and Border Protection will trial a priority service for processing Subclass 600 (Visitor) visa applications in both the Tourist and the Business Visitor streams, for certain visa applicants who are Chinese nationals. It is expected this trial may appeal to affluent individuals who may wish to travel to Australia at short notice.

The priority service may be requested by a visa applicant for a fee of AUD1,000, charged in addition to the existing visa application charge. The priority service provides priority consideration of a visa application, however there is no regulatory requirement that the application be decided by a particular timeframe. While the Department will endeavour to make a decision on a priority service visa application within a shortened timeframe, applicants will be informed in advance that there is no guarantee of a faster outcome, as issues such as character and health matters may delay processing. No refund will be available unless the visa application charge is being refunded. Invalid requests for this priority service, for example applicants holding passports not specified under the Regulation, would receive full repayment of the AUD $1,000 fee. Processing times for Visitor visas, more generally, will not be affected by this service.

Applicants must still meet all regulatory requirements for the grant of a Visitor visa.

Source: Explanatory Statement issued by the Minister for Immigration and Border Protection dated 15 March 2016

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General Skilled Migration – Important Things To Know

For those that are eligible, the Skilled Independent Subclass 189 visa is an ideal way to obtain Australian permanent residence.

Unfortunately, there are many people who do not have a proper understanding of how the program works and as a result, end up wasting time trying to pursue a visa they are not eligible for.

The first, and most important point, is that for migration purposes the government publishes two occupations lists. One is called the Skilled Occupations List (SOL) and the other is the Consolidated Sponsored Occupations List (CSOL). These lists have been devised for different purposes.

It is only occupations which appear on the SOL which are eligible for the189 visa. Many prospective applicants are of the belief that if they can find their occupation on the CSOL they are entitled to apply for the 189 visa when this is not the case.

If you have an occupation which is listed on the SOL and wish to apply for a 189 visa, it is necessary to apply for a skills assessment. For each occupation on the SOL, the details of the nominated assessing authority are included. There is a charge for an assessment to be done and you should expect the process to be quite comprehensive – this means that you will need to provide certified copies of relevant qualifications, transcripts of studies and work references with comprehensive descriptions of work duties involved in.

At the moment, in order to apply the 189 visa it is first necessary to lodge what is known as an Expression of Interest with the Department of Immigration. In order to be able to successfully lodge the Expression of Interest it is necessary to be able to demonstrate that you can obtain at least 60 points by reference to a points test in which points are given for various attributes such as skills, age, English language ability et cetera. If you can demonstrate that you meet the pass mark you may then be invited by the Department of Immigration to apply for a visa.

Before considering whether or not to proceed with an application it is also necessary to bear in mind that eligible applicants must:

• be between 18 and 49,
• have competent English or higher (this is proven by way of test)
• meet health and character requirements.

Even if an applicant satisfies the pass mark, an invitation to apply for a visa may not necessarily issue. In respect of each occupation there is a ceiling which determines the intake of applicants for that occupation for the year, thereby regulating the labour market for that particular occupation.

If an invitation is issued you have 60 days in which to lodge your visa application with the Department, failing which the invite lapses. Obviously, it is most important to be confident that you will have all required documentation ready for lodging as soon as possible after an invitation is received.

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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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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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