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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Work and Holiday (subclass 462) visa Arrangement with China

Work and Holiday (subclass 462) visa Arrangement with China

Starting from 21 September 2016, the Australian Government reached an agreement with People’s Republic of China to expand eligibility for the Work and Holiday visa (subclass 462) to Chinese Nationals. This enables young, educated Chinese citizens to be able to travel to Australia for work, study or holidaying purposes.

This new addition to the SC 462 Visa programme follows the recent enacted China-Australia Free Trade Agreement (ChAFTA), and is aimed at building on the growing international relationship between both countries. Australia and China are set to jointly benefit from the new changes, which are intended to encourage cultural exchange, and strengthen the connection between nations.

This is also a great platform for overseas visitors to experience living in Australia for an extended period of time (up to 12 months). The ability to work also means that visa holders can experience the Australian work culture and meet potential employers who might be willing to offer a permanent position if the visa holder impresses. The wages from work done will also allow travelers to see more of Australia during the 12 months of stay. At the moment the Australian Government has recently allocated 1,500 places in the Working and Holiday Visa program are going to be open for application, with more places to be released in further stages until the programme reaches its annual cap of 5,000 places.

In addition, the visa allows the holder to:

·         stay in Australia for 12 months from their date of first arrival;

·         work for the 12 month duration of their stay, but for no longer than six months with any one employer; and

·         study for up to four months.

General eligibility requirements for Chinese Work and Holiday visa applicants are:

·         hold a valid Chinese passport;

·         are at least 18 but have not turned 31 years of age at the time an application is lodged;

·         will not be with a dependent child while in Australia;

·         have enough money for support on a working holiday (at least AUD $5000);

·         have enough money to buy a return or onward travel ticket at the end of your stay in Australia;

·         have not previously entered Australia on a Working Holiday visa (subclass 417);

·         hold tertiary qualifications, or have successfully completed at least two years of undergraduate university study;

·         have functional English (equivalent to IELTS 4.5 or higher);

·         meet character and health requirements; and

·         are a genuine visitor.

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Visa Cancellations and Delays

 

As a result of a concerted and ongoing campaign by the Department of Immigration to cancel visas of persons it believes to be serious criminal offenders, there is now a very large backlog of persons in immigration detention awaiting news of their ultimate fate.

 

Once a visa is cancelled by the Department there is in most cases a right to seek a revocation of that decision, and because of the large numbers of cancellations that have been made there is a correspondingly large number of revocations being sought with the result that significant delays in processing are being experienced.

 

A recent report in The Age newspaper (10 January 2017) indicated that the number of people deported from Australia because of serious criminal convictions has increased more than tenfold since 2014 – with a huge spike in the number of New Zealanders being sent home.

 

The same report indicated that the Commonwealth Ombudsman has recently concluded an investigation into the treatment of persons who have had their visas cancelled and found serious delays in deciding revocation requests meant former prisoners were spending long periods in the above in immigration detention. Not surprisingly, a spokesman for the Minister said the government made no apologies for strengthening deportation laws to ‘further protect the Australian community’.

 

When making a revocation request to the Department it is necessary to carefully consider what information will be included. Issues such as whether there are children or other family members in Australia whose interests will be affected need to be carefully canvassed and focused submissions need to be prepared in a clear and cogent way.

 

While it seems that there will be no relief in terms of delays in processing, persons seeking revocation of a cancellation know that they will have ample time in which to prepare proper submissions and should use this time to their best advantage.

 

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Kiribati First to Pilot Australia’s Microstate Visa Program

The new program grants a 2-year work visa, restricted to jobs in northern Australia’s agriculture or tourism industries.

December saw the first arrivals in Australia of participants from Kiribati in a new “Microstate Visa.” The program is aimed to the citizens of Nauru, Tuvalu and Kiribati, and carries a different set of regulations to the Seasonal Workers Program available to nine Pacific Island countries, and Timor-Leste. The visa is currently in its pilot stage and will allow 250 people from each of the three countries, over a five year period, a two-year work visa, with the option of applying for a third year.

Kiribati was the first country to sign the agreement with the Australian government. The agreement with Tuvalu is currently awaiting to be sign by both countries. Due to the unique situation in Nauru as the host of Australia’s offshore detention facility, negotiations remain ongoing, but will hopefully be completed in the new year.

While the visa is a positive step in allowing greater access to Australia’s labor market, it does comes with some significant restrictions that limit participants to low-skill labor in agriculture and tourism, with discussions taken place to extend the employment opportunities into elderly care. The other major restriction is that these jobs must be taken in northern Australia. This can be viewed as part of the government’s desire to populate and develop Australia’s northern regions.

Part of the reason for this policy is the unique demands for labor in Australia’s northern regions, where companies have a rapid turnover of staff due to the transitory nature of the way people spend their time there. The Seasonal Workers program utilized by other Pacific Island states only allows for 6 months work with each employer, while European backpackers and southerners escaping the winter are not considered longer term employment prospects. Were this visa to be expanded after the pilot program, then a 2 to 3 year visa for Pacific Islanders may provide greater labor stability in the region.

While Australia may be attempting to facilitate its own labor and development requirements though this scheme, it is also a recognition of the great importance of providing labor market access as a development strategy for the South Pacific region. Being able to work in Australia will not only generate significant remittances to be sent back home, but it will be provide valuable skills for participants who return home after their visas expire.

Significantly, both the Microstate Visa and the Seasonal Workers Program have recently been extended to include tourism. For many of the Pacific Islanders who take the opportunity to work in the Australian agricultural sector, similar sectors or conditions don’t exist in their home countries to utilize their new skills upon returning. However, this is not the case with tourism, a major source of income for most Pacific Islands.

Although the expansion into tourism is welcome, limiting the sectors within which Pacific Islanders can work remains a constraining exercise. While these restrictions may have been created in order to limit the “brain drain” of more highly skilled Pacific Islanders, what they actually do is restrict the “brain circulation” flowing through the islands, preventing participants from developing a broader range of skills that could be of greater assistance to their societies.  New Zealand’s labor program for people from Kiribati, Tuvalu, Tonga and Fiji — the Pacific Access Category — provides permanent residence and simply requires that applicants obtain a job and not rely on public funds, it does not have any restrictions on which sectors these Islanders are able to work in.

The importance of labor mobility and the remittances this generates is increasingly becoming acknowledged as the most effective, and least paternalistic, tool to allow developing countries to improve their situations. Analysis from Australia’s premier foreign policy think tank the Lowy Institute suggests that were Australia to allow just one percent of the population of the South Pacific island nations to work permanently in Australia the benefits to these countries would be greater than Australia’s current aid program in the region.

Aside from migration’s importance for the South Pacific’s development, the threat of climate change also requires an acknowledgement that further migration pathways for these countries are becoming increasingly important measures for their human security. Especially for Tuvalu and Kiribati, the two countries in the South Pacific most under threat from rising sea levels, The Kiribati government has already purchased an area of land in Fiji as an insurance policy against its potential submersion, yet other options need to be explored.

If the pilot program for this new Microstate Visa produces positive results it is highly likely that the Australian government will expand its scope. Hopefully expansion of the program will remove both the regional and employment restrictions in order to increase its positive outcomes. This then could potentially lead to changes in the Seasonal Worker Program to allow citizens of other Pacific Island nations greater access to the Australian labor market.

Source: The Diplomat, 29 DEC 2015

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