Seasonal Worker Programme

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

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

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

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


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

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The back door to legal offshore detention

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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SIV (Significant Investor Visa)

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

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

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

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PIV (Premium Investor Visa)

The Premium Investor Visa was introduced on 1 July 2015.

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

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

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

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

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

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High Court finds offshore processing of asylum seekers is constitutionally valid

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

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

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

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


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

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

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


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


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


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


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

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