Budget Impact on Migration Program

Listed below is a summary of some of the budget announcements which will have an effect on immigration related issues:

1. Annual intake; there is to be no change to the migration program numbers which will remain at 190,000 places for the 2017/18 year,
2. Temporary employment visas; as announced prior to the budget there have been significant changes to the 457 scheme; several hundred occupations are no longer eligible for temporary work purposes, the 457 Visa will soon be abolished and replaced by a new visa to be known as the dual stream Temporary Skills Shortage Visa and only those employees whose occupations appear on the new Medium and Long-term Strategic Skills List will be eligible for transition to permanent residence after three years of employment with the sponsoring employer (previously two years).
3. Training benchmarks; a levy, referred to as the Skilling Australians Fund Levy, will replace the current training benchmarks for employers sponsoring workers on 457 and 186 visas. From March 2018, businesses with turnover of less than $10 million per year will be required to make an upfront payment of $1200 per visa per year for each employee on a Temporary Skill Shortage visa. A one-off payment of $3000 will be required for each employee being sponsored for permanent employment under either the Employer Nomination Scheme or Regional Sponsored Migration.
   For businesses with turnover in excess of $10 million the payments will be $1800 and $5000 respectively.
4. Temporary sponsored parent Visa; this is a new visa to be introduced in November 2017 with an allocation of 15,000 visas annually. It will allow the temporary stay of sponsored parents in Australia for periods of up to three or five years. The visa may be renewed from outside Australia to allow a cumulative stay of up to ten years. The sponsor (the Australian child) will be responsible for any public health expenditure incurred by the visa holder whilst in Australia.
5. Foreign investors; A Foreign Investors Tax Levy of $5000 per year will be imposed on foreign investors who do not occupy or lease their Australian properties for at least 6 months of the year. In addition, other tax measures aimed at foreign investors -principally dealing with capital gains tax - have been announced.
6. Age Pension and Disability Support Pension Eligibility; from 1 July 2018 more strict residency rules for new migrants to access Australian pensions will be introduced. Claimants will be required to have 15 years of continuous Australian residence before being eligible to receive the age pension or a disability support pension. Certain exemptions will apply.

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New training levy for TSS and ENS programs from March 2018

From March 2018, employers wishing to sponsor foreign workers on the TSS and ENS/RSMS programs will be required to pay a training levy which will go towards the Skilling Australians Fund which will fund training of Australians in apprenticeship and trainee programs.

The payment for TSS visa holders will apply on an annual basis per employee. For ENS/RSMS applicants it will be a one-off payment likely to be collected on application. The amount of the new training levy will depend on the size of the business, to be determined on the annual business turnover. Businesses with a turnover of at least $10 million will pay more.


The training levies will be as follows:

	Businesses with turnover less than $10m	Businesses with turnover $10m or more
TSS	$1,200	$1,800
ENS/RSMS	$3,000	$5,000

 

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Changes to Employer Nominated Permanent Residence (subclass 186 visa)

In addition to the 457 changes recently and unexpectedly announced by Prime Minister Malcolm Turnbull, the Permanent Employer Sponsored Skilled Migration Program will also undergo a number of changes. The 457 visa has historically been a pathway to Australian Permanent Residence under this program.

From 19 April 2017

• Applicants under the Direct Entry Stream will only be eligible to apply if their nominated occupation is on the MLTSSL or STSOL
• Applicants under the Temporary Residence Transition Stream can still apply as usual (even if their nominated occupation is no longer on the STSOL or MLTSSL)

From 1 July 2017

• Occupation lists: The STSOL and MLTSSL will be further reviewed based on advice from the Department of Employment and Department of Education and Training
• English language requirements: A score of IELTS 6 in each component will be required (or equivalent test)
• Age: Applicants under the Direct Entry Stream must be under the maximum age requirement of 45 at the time of application. The maximum age requirement of 50 at the time of application will continue to apply to applicants under the Temporary Residence Transition Stream
  

From March 2018

• Salary: Employers must pay the Australian market salary rate and meet the Temporary Skilled Migration Income Threshold (TSMIT), currently $53,900 excluding superannuation
• Residency: The eligibility period under the Temporary Residence Transition Stream will be extended from 2 years to 3 years
• Work experience: At least 2 years of post- qualification relevant work experience will be required
• Age: All applicants (under both the Temporary Residence Transition Stream and Direct Entry Stream) must be under the maximum age requirement of 45 at the time of application
• Training requirement: Strengthened training requirement for employers to contribute towards training Australian workers

Who is affected?

It is expected that further details and clarifications to be announced by the Government over the coming weeks. 

Individuals who were preparing an application under the Direct Entry Stream and their occupation has now been removed - No longer eligible under the Direct Entry Stream

Individuals turning 45 years old - From 1 July 2017, applicants under the Direct Entry Stream must be under 45 years at time of application. From March 2018, all applicants must be under 45 years at time of application.

Individuals who were preparing applications under the Temporary Residence Transition Stream - Minimal impact if lodged before March 2018 (although new English language requirement applies from 1 July 2017).

Please contact Nevett Ford immigration lawyers to discuss your individual circumstances by telephone + 61 3 9614 7111.

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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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Onshore Partner Visa Processing Time

Finally recognising the need to reduce the ever-increasing delays in processing times, the onshore Partner Visa management section of the DIBP recently decided to depart from the usual chronological method of assessing applicants by month of lodgement and favour Partner applications which are potentially of the highest quality and lowest risk.

 

In other words, priority will now be given  for onshore Partner visa applications to low-risk applicants and those regarded by DIBP as fully front-end loaded with documentation that immediately satisfies Partner criteria.

 

Currently average processing times for most Temporary Partner and Permanent applications are currently between 16-23 months from date of lodgement (s/c 820) and from date of eligibility (s/c 801/100).

 

The assistance of migration professionals is imperative if your circumstances require a faster processing time for your onshore Partner Visa application; for instance if you no longer wish to comply with more onerous visa conditions like the ones attached to a Student visa or a 457 visa.

 

Our expertise will ensure that present DIBP requirements are complied with and your onshore Partner Visa application will be decision ready when the time comes for assessment.

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A reminder of the proposed visa for NZ citizens to be introduced in July 2017

An additional pathway to Australian Permanent Residence for ‘non-protected’ Special Category Visa (SCV) holders (subclass 444)

The Australian Government (Department of Immigration & Border Protection) will provide an additional pathway to Australian Permanent Residence, and therefore citizenship, for New Zealand Special Category visa (SCV) holders (subclass 444) who arrived after 26 February 2001, who have lived in Australia for the last five years and shown a commitment and contribution to Australia.

This additional visa pathway will be available from 1 July 2017, for New Zealand citizens who arrived post 26 February 2001, but on or before, the date of the announcement, 19 February 2016.

Estimated number of eligible applicants

Approximately 60,000 – 70,000 of the 140,000 post 2001 SCV holders who have been in Australia for at least five years are expected to be eligible and we can assist.

How this pathway will-work

The Department of Immigration and Border Protection will have responsibility for implementing the pathway.

The pathway will be made available within the Skilled Independent category of the General Skilled Migration (GSM) stream of Australia's annual Migration Program.

This pathway will allow SCV holders who have been living in Australia for the past five years, and have earned income at or above the Temporary Skilled Migration Income Threshold (TSMIT) as evidenced by their Australian Taxation Office Notice of Assessment throughout their qualifying residence period, to apply for permanent residency and thereafter citizenship.

The pathway requirements

Requirements for this visa pathway will include mandatory residence, contribution and community protection criteria. This includes:

• have been resident in Australia for the five years immediately prior to visa application
• contributed to Australia, demonstrated through income tax returns (Notice of Assessment) for the period of residence evidencing taxable income at or above the Temporary Skilled Migration Income Threshold (TSMIT)
• mandatory health, character, and security checks.

Temporary Skilled Migration Income Threshold (TSMIT) and eligibility

The Temporary Skilled Migration Income Threshold (TSMIT) is a salary threshold used by the Subclass 457 program as an indicator that an occupation is ‘skilled’ and to ensure that a visa holder has reasonable means of support whilst in Australia. It is currently set at AUD53,900 (excluding employer superannuation contributions).

This new visa pathway represents a clear concession over existing migration pathways and is consistent with the terms of the Trans-Tasman Travel Arrangement (TTTA) between Australia and New Zealand.

Exemptions to the income test

It is expected that limited exemptions to the income test requirement will be considered for particularly vulnerable New Zealand citizens.  These exemptions are not yet known but the details will be released by the Department in due course but what is known is that details of how applications for exemptions to the income test will be assessed will be determined between the Minister for Immigration and Border Protection and the Minister for Social Services. The mandatory residence criterion, including all other relevant criteria, will still need to be met before a visa could be granted.

Who will be considered a ‘vulnerable individual’

As an example, possible vulnerable individuals may include the primary carer of children who, for reasons of a court order are unable to return to New Zealand with their children, and who as an SCV holder is unable to access working age payments.

Will an applicant who has been on maternity/paternity leave during the qualifying period be ineligible?

If the applicant continued to be employed during that period the Department may take into account and have the capacity to consider other proof of income, for example, a statement from the applicant’s employer covering the period in questions.  There is no further detail on this point at this stage but apparently there is no intention to disadvantage applicants with a consistent record of income and employment but who have taken periods of parental leave.

Visa application charge (VAC)

There will be concessions to the visa application charge (VAC) solely for New Zealand citizens.  At this stage it is expected that the visa application charge will be consistent with the General Skilled Migration Programme:

• AUD3,600 per primary applicant with an additional AUD1,800 for partners, AUD1,800 per dependent child over 18 and AUD900 per child under 18.

Applicants will only have to pay 20 percent of the VAC when they lodge their application, with the remainder to be paid before the visa is granted.

Steps to Australian citizenship

New Zealanders taking advantage of this new pathway will usually be able to apply for citizenship after one year of permanent residence, provided they meet the allowable overseas absences requirement.  Note: This requirement means, a person must not have been absent from Australia for more than one year in total in the four year period, including no more than 90 days in the year before applying.

The usual citizenship eligibility requirements will apply such as:

• be of good character if 18 years of age or over
• be likely to reside, or continue to reside, or maintain a close and continuing relationship to Australia
• meet the identity requirement
• pass the citizenship test if aged between 18 and 59 years or pass a citizenship interview.

What if someone arrived in Australia the day before, or on the day of the announcement, will they be eligible to apply in five years' time?

Yes. They could apply, but the grant of a visa will depend on whether they meet all relevant criteria.

Nevett Ford Lawyers includes a group of highly specialised Immigration Lawyers and Registered Migration Agents (including 2 Accredited Immigration Law Specialists).  We can assist with all visa types including this new category.

Call or email us today if you would like more information.  We offer ‘initial’ consultations if you would like to discuss your eligibility.

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Partner visa (Australia) - married or de facto

You could be granted a Subclass 820/801 or Subclass 309/100 Partner visa if:

• Your partner is an Australian citizen, permanent resident or an eligible New Zealand citizen.

• You are married or can show that you have lived together with your partner in a ‘de facto’ relationship for 12 months.

The 12-month cohabitation can be waived if the couple registers their relationship in the state they live in. Relationship registration is only available for people living in certain Australian states.

Relationship registration in Queensland, Victoria, Australian Capital Territory or New South Wales:

The registration process is different in each state and not all states allow couples to register. If you can register your relationship, you can lodge a Subclass 820 partner visa application without having lived together for the 12 months prior to lodging the visa. You must however be living together when your 820 partner visa is lodged.

For example, to register your relationship in New South Wales, you’ll need to prove that neither of you are married and that one of you has lived in NSW for a short period of time. Registering your relationship in NSW is crucial if you have not lived together for 12 months prior to lodging the application.

To register your relationship in Queensland, you’ll need to prove that neither of you are married and that at least one of you has lived in Queensland for a minimum of 6 months. You must register your relationship in Queensland to be able to lodge the Subclass 820 visa, if you have not lived together for the most recent 12 month period.

To register your relationship in Victoria, you’ll need to prove that neither of you are married and that at least one of you has lived in Victoria for a short period. Victorian relationship registration is essential if you have not lived together for the past 12 months.

To register your relationship in the Australian Capital Territory (ACT), you’ll need to show that neither of you are married and that one of you is ‘usually’ resident in the ACT. An ACT relationship registration allows you to apply for a Subclass 820 partner visa if you have not lived together for 12 months.

We can provide detailed information on relationship registration requirements.

Showing evidence of your genuine and ongoing relationship

In relation to a Subclass 820/801 Partner visa application you must be living together when the visa is lodged. You need to show evidence of your shared life, such as financial commitment to one another, shared living and social recognition of your relationship. We help you put together your evidence to demonstrate your commitment to each other.

A permanent residency partner visa straight away

If you have been living your partner for at least 3 years prior to your application – or you have a child together and have lived together for the previous 2 years, you can apply for the Subclass 801 visa straight away (i.e. without having to hold the Subclass 820 (temporary residence) Partner visa first.  It is ultimately at the discretion of the Department as to whether they will grant the permanent residence visa straight away but if you meet either/both of these policy criteria then you have a good chance.

If this does not apply to you, the Subclass 820 visa application must be submitted first before you can apply for permanent residency. Once 24 months has passed since your first visa application, you can then apply for the Subclass 801 permanent residency visa, by showing that you are still a legitimate couple.

Onshore Partner visas and work rights

If you hold an eligible visa and you lodge your Partner visa, you transition on to ‘Bridging Visa A’ or a BVA when the first eligible visa expires. You have full work rights on your BVA, during the partner visa processing time and you can also obtain a temporary Medicare card for medical services.

It should also be noted that if you lodge a partner application whilst holding a 457 visa, you cannot stop working for the sponsor until your Subclass 820 visa is granted.

If you hold a Working Holiday 417 visa and lodge a partner visa, we can help you apply for a work rights wavier, allowing you to remain working longer that the allowed six months, for one employer.

It currently takes the Department approximately 12 - 15 months to process the Partner visa application.

Please contact us if you would like further information, advice and assistance, including an initial consultation. 

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