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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457 visa - sponsorship obligations - penalties

When applying for Subclass 457 Business Sponsorship approval employers need to meet the "Training Benchmark" requirement.
 
The training benchmark requirements must continue to be met throughout the life of a Subclass 457 Business Sponsorship approval but many employers forget about this once the sponsorship is approved.
If a business fails to meet the training requirement it can result in:

• Cancellation of sponsorship and associated sponsored visas
• Sponsorship Bars - preventing you from sponsoring more 457 visa holders Fines of over $10,000 can apply for each breach
• Bar from being able to sponsor for other visa categories such as permanent Employer Nomination Scheme (ENS) (subclass 186) visas
• issues in renewing Standard Business Sponsorship (SBS) approval

Businesses need to keep records of training and be able to show they meet the training benchmark for each 12 month period after approval of the sponsorship.


Nevett Ford Lawyers can provide legal advice and assistance on the 457 sponsorship obligations and application process in general.

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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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Applying for Same Sex Partner Visa

The Australian Partner Visa allows a person in a same-sex relationship with an Australian citizen, permanent resident or eligible New Zealand citizen to apply for permanent residency.

Successful applicants are granted a temporary, two year visa which allows them to work full time, travel to and from Australia and access to medical services.


After two years, from the date of lodgement of Partner Visa application, the Department of Immigration and Border Protection (DIBP) will assess your application and will grant permanent residency visa upon satisfaction.

Same Sex Partner Visa Eligibility

To be eligible for Partner Visa, you and your partner must satisfy the following:

• that your relationship is genuine;
• you and your partner are living together;
• any separation time has only been temporary.

Type of Partner Visa Available

Nevett Ford Lawyers can help you to prepare and lodge visa applications, including:

• Partner visa (subclass 309 and 100)

  This visa allows a partner of an Australian or eligible New Zealand citizen to travel and live in Australia.

• Partner visa (subclasses 820 and 801)

  This visa allows a partner of an Australian or eligible New Zealand citizen to stay in Australia until an application for a permanent visa is lodged.

Australian immigration law is complex and subject to change.  It is important to obtain up-to-date information before applying for this visa.  


 Please contact Nevett Ford Lawyers for further information, assistance and advice.

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How do I know if a foreign national holds a valid visa with work rights?

A foreign national working in Australia without a visa or in breach of their visa conditions is an illegal worker. It could be a criminal offence to employ an illegal worker, so it is important that you check the work entitlements of non-citizens you want to employ.


Not all visa holders have their visa details recorded in their passports. The best way to quickly and easily check the work entitlements of non-citizens is via the department’s Visa Entitlement Verification Online (VEVO) (see Immigration website). The service is free and VEVO is available 24 hours a day, seven days a week.


Nevett Ford Lawyers can assist with all Australian visa types.

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