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immigration lawyers australia

Migration Update - November 2017

The Department of Immigration & Border Protection (DIBP) has made some important changes in November, including:

-       Postponing the introduction of the new Sponsored Parent visas;

-       Changes to the Public Interest Criterion ‘4020’ (fraud);

-       New requirements for health insurance and not having a health care debt

-       New conditions requiring temporary residents to use a single identity in dealing with Government departments and not to engage in criminal conduct in Australia.

Temporary Sponsored Parent Visa Update

The Government previously announced the introduction of temporary sponsored parent visas in November 2017.

The relevant legislation - the Migration Amendment (Family Violence and Other Measures) Bill 2016 has not passed the Senate and has been referred to a Senate Committee for Consideration.

Further updates are expected in 2018.

Changes to Public Interest Criteria (PIC) ‘4020’ (Fraud)

Significant changes have been introduced to the 4020 Public Interest Criteria (PIC).

PIC 4020 can result in refusal of a visa application if false or misleading information is provided.

Previously, Immigration would look at information provided in either:

-       the current application being processed; or

-       a visa which has been held by the applicant within the last 12 months; or

-       an application which has been refused in the last 3 years (or 5 years in some cases).

The changes will mean that an application can be refused if false or misleading information is provided for:

-       Visas held; or

-       Visas applied for within the last 10 years.

Therefore, if false or misleading information is provided in a visa application, it could affect future applications for up to 10 years.

Previously, it was possible to withdraw a visa application if false or misleading information had been provided and this would not necessarily result in 4020 refusals for future applications. This will no longer be the case as 4020 will apply for any visa applications made within the last 10 years, whether the application is granted, refused or withdrawn.

One of the commonly encountered issues with 4020 is the failure to declare past criminal records when making a visa application. Generally, a declaration about previous offences is included in the visa application form. If this is not correctly completed, it can enliven 4020 issues. This would affect both the current application, and potentially any future applications for the next 10 years.

Public Health Care Debts

A new visa condition ‘8602’ requires visa applicants for temporary visas not to have an outstanding public health debt. This would apply to medical costs owing to either Australian state, territory or federal governments. If a temporary visa holder incurs a public health debt, this could result in cancellation of their current visa and also make it more difficult to obtain subsequent visas.

Health Insurance Requirements Clarified

Many temporary visas have a requirement that the applicant hold suitable health insurance for grant and that they continue to do so whilst in Australia on their visa.

A definition of "Adequate arrangements for health insurance" has been added to the Migration Regulations. The definition allows the Minister to specify what kind of health insurance will meet visa requirements.

Single Identity Condition 8304

A new visa condition 8304 has been created which requires temporary visa holders to:

-       Use a single identity when dealing with Australian State, Territory and Federal Governments; and

-       If the visa holder changes name, to notify the relevant Australian government agencies they deal with as soon as practicable and ensure that the change is given effect

Criminal Conduct Condition 8564 and Violent/Disruptive Activities Condition 8303

Condition 8564 forbids the visa holder to engage in criminal activities in Australia. Previously it only applied to Bridging Visa E (BE) visas. The condition will now apply to a wide range of temporary visas.

-       Condition 8303 has been broadened to prohibit activities which endanger or threaten individuals. Previously, it only applied to violent or disruptive activities affecting the Australian community more broadly.

-       As a result it will be easier for Immigration to cancel temporary visas of people engaging in criminal or other dangerous activities in Australia.

For further information, advice and assistance, please contact the experienced team of Immigration Lawyers and Registered Migration Agents at Nevett Ford Lawyers Melbourne:

Telephone: + 61 3 9614 7111

Email: melbourne@nevettford.com.au

 

Australian citizenship changes – again!

On 20 April 2017, the Australian Government announced a series of changes to the Australian citizenship requirements.

After the legislation necessary to implement these changes was introduced into Parliament it became clear that the government would not receive sufficient support to have the legislation passed and so, on 18 October 2017, proposed amendments to the Bill were announced.

Subject to the passing of the proposed amended legislation, the new requirements for citizenship will come into effect on 1 July 2018 and include:

  • increasing the general residence requirement, which means applicants for Australian citizenship will need to have a minimum of four years permanent residence immediately prior to their application for citizenship with no more than one year spent outside Australia during that period
  • completing a separate English language test, where applicants will need to demonstrate English language listening, speaking, reading and writing skills at the modest level before applying for citizenship by conferral
  • strengthening the Australian values statement to include reference to allegiance to Australia and requiring applicants to undertake to integrate into and contribute to the Australian community
  • strengthening the test for Australian citizenship through the addition of new test questions about Australian values and the privileges and responsibilities of Australian citizenship
  • a requirement for applicants to demonstrate their integration into the Australian community
  • strengthening the pledge to refer to allegiance to Australia, and extending the requirement to make the pledge to applicants aged 16 years and over for all streams of citizenship by application, including citizenship by descent, adoption and resumption.

What does this mean for persons who have already applied for citizenship?

Applications for Australian citizenship lodged up to 30 June 2018 will be assessed against the eligibility criteria in place when the application was made.

Applications on or after 1 July 2018 (subject to the passage of legislation)

From 1 July 2018 (subject to the passage of legislation), the new requirements for Australian citizenship will take effect. If you apply for Australian citizenship on or after this date, your application will be assessed against the new requirements.

Further information

Please contact us if you require more information.

Australia may introduce ‘mandatory’ provisional visas before permanent residency

Migrants coming to Australia may have to spend a certain period of time on mandatory provisional visas before they are granted a permanent residency. The Immigration Department is exploring this possibility in a visa transformation discussion paper by inviting submissions from the public.

The number of persons in Australia applying for permanent residence has grown substantially over the last two decades. In 2015-16, around half of all permanent visas were granted to people already in Australia on a temporary visa.  This means that temporary residence is increasingly becoming the first step to living in Australia permanently.

It has also been argued that it’s in the national interest to facilitate a pathway to permanent residence for the “best and the brightest” international students and “skilled workers” and that some permanent visas include mandatory provisional visa stages.

However, under most of the permanent visa categories, migrants do not have to spend any time in Australia before they are granted permanent residency, which the discussion paper says is inconsistent with “like-minded countries”, such as the UK, the Netherlands and the US that have a more formal assessment process and period for evaluating those who seek to stay permanently.”

Though introducing such a probationary period for permanent migrants is likely to deliver budget savings, concerns have been raised that it could create a divide in the Australian society. The proposed reforms could undermine Australia's social cohesion and potentially increase the risk factors that may lead to violent extremism by creating a two-tier society where migrants are treated substantially differently to Australian citizens.

Major changes being discussed include slashing the number of visa categories from 99 to about 10 and making the visa system flexible so the government can respond more quickly to local and global trends.

Would you like to know your eligibility for a visa or seeking permanent residence? Call our office today.

Subclass 187 RSMS is an alternative solution to Permeant Residence

The RSMS (Regional Sponsored Migration Scheme) has significant benefits as compared to other skilled migration pathways. RSMS has the widest occupations list of any skilled migration visa type. Any occupation at ANZSCO skill level 1, 2 or 3 can be used to apply for an RSMS visa.
The RSMS Occupations List includes the following occupation categories:

  • Skill Level 1: Management and Professional occupations requiring a bachelor degree or 5 years of work experience
  • Skill Level 2: Associate Professional occupations requiring a diploma-level qualification or 3 years of work experience
  • Skill Level 3: Technician and Trade occupations requiring a Certificate III which includes 2 years of on-the-job training or a Certificate IV

The RSMSOL includes 224 occupations which are not on either the STSOL (used for 457 and ENS visa applications) or the MLTSSL (used for Skilled Independent Subclass 189 visas). These include occupations such as:

  • Various Specialist Managers such as PR managers, Policy and Planning Managers, Production Managers, Procurement Managers, Wholesalers and Importers or Exporters
  • Hospitality, Retail and Service Managers such as Retail Managers, Call or Contact Centre Managers and Financial Institution Branch Managers
  • Occupations in the Arts such as performers, authors, directors
  • Human Resources occupations
  • Sales Representatives in Industrial, Medical and Pharmaceutical Products
  • Air and Sea Transport Professionals such as pilots, ships engineers etc
  • Science occupations such as biochemists, metallurgists, research and development managers
  • Various engineering professional, technician and drafting specialisations
  • Office Managers and Practice Managers
  • Receptionists, secretaries and personal assistants
  • Child Care Group Leaders
  • Various trades

However, from March 2018, the selection of occupations for RSMS will be much more limited. Most applicants will need to have an occupation on the MLTSSL - at 183 occupations; this is much shorter than the RSMSOL which has 673 occupations. Additional occupations may be available for regional positions, but at this stage it is not clear how many extra occupations will be available.

Training Requirement

 

Unlike the 457 and ENS programs, the employer does not need to show that they have met the training benchmarks to be able to sponsor for RSMS. Establishing compliance with the training benchmarks is generally the most involved part of applying for 457 and ENS, so this is of great benefit.

From March 2018, a training levy will be payable when applying for an RSMS visa. For businesses with under AUD 10 million in turnover, the training levy will be $3,000. For larger businesses, the levy will be $5,000. It is not yet clear if this can be paid by the individual applying for the RSMS visa, or whether it must be paid by the employer.

Skill Level and English Requirement

Most applicants only need to meet the ANZSCO skill level for their occupation to meet the skill requirement for RSMS. Either a formal qualification or work experience is generally sufficient to meet the ANZSCO skill level, though registration is also necessary if this would be required for the position.

Unlike general skilled migration or the ENS Direct Entry Stream, a formal skills assessment is not in general required. This would normally only be necessary where nominating a trade occupation and where the applicant does not have an Australian trade certificate.

In terms of minimum work experience, this is currently not required if you hold a relevant qualification. This means that international students can potentially qualify for an RSMS visa without any work experience. 

From March 2018, a minimum of 3 years of work experience in the occupation will be required when applying for an RSMS visa.

For the Direct Entry RSMS pathway, Competent English is sufficient to qualify (6 in each band) - this is similar to what is required for the ENS visa, but significantly easier than the requirement for General Skilled Migration.

To meet the pass mark of 60 points for General Skilled Migration, many applicants will need Proficient English (7 in each band of IELTS or equivalent). Many applicants in pro rata occupations need 65 or 70 points to receive an invitation for a Skilled Independent Subclass 189 visa - these applicants may need to get full points for Superior English (8 in each band or equivalent).

The RSMS visa is a permanent visa which allows you to live in Australia indefinitely. This is more beneficial than the 457 visa, which for most occupations is now valid for only 2 years. It is also more beneficial than the Skilled Regional Provisional Subclass 489 visa, which is a 4-year visa which requires you to live and work in a regional area for 2 years before being eligible for permanent residence. However the RSMS visa can be cancelled if you do not commence work with your employer or if you do not stay with the employer for 2 years. However, if this is due to circumstances beyond your control (eg business went into liquidation, redundancy etc.), your visa is unlikely to be cancelled, particularly if you do continue to live in a regional area.

Lastly the RSMS is a highly beneficial visa which in many ways is easier to qualify for than the 457, ENS and General Skilled programs.

However, from March 2018, many applicants will no longer be eligible for the RSMS visa - particularly if your occupation is not on the MLTSSL or if you do not have 3 years of skilled work experience.

Contact Nevett Ford Lawyers if you require advice or assistance.

Employer Nomination Scheme S/C 186 Visa - Changes Commence

Further to the announcement earlier in the year by the Department of Immigration and Border Protection (DIBP) the first wave of amendments to the Employer Nomination Scheme have been released, with most changes taking effect from 1 July 2017. 

The major talking points from these amendments include:

  • The reduction of the upper age limit from 49 to 44 years of age for an applicant (Direct Entry Stream);
  • The removal of the exemption from providing a skills assessment due to earnings being above the high income threshold (Direct Entry Stream);
  • The removal of the exemption from providing evidence of competent English due to earnings being above the high income threshold (Direct Entry Stream);
  • A change in the level of English Language Skill required by primary applicants (Temporary Residence Transition Stream).  This change has increased the requirements from vocational to competent which in practice this means an IELTS test score of at least 6 in all bands (or equivalent test); and
  • The introduction of specific requirements, for particular occupations (known as caveats) for applications made under the Direct Entry program.  This now mirrors that which applies under the Temporary Work 457 visa program which was originally introduced in April 2017. 

High Income Threshold Exemptions
While most of the above reforms apply on to applications lodged after 1st July 2017, both the English Language and Skills Assessment exemptions where the High Income Threshold was met were retrospectively applied to applications lodged but not finally determined by that date.  The subsequent media release made by the DIBP clarifying that these amendments would not be applied to applications lodged before 1 July 2017 has not yet been backed by formal legislative amendment supporting this statement.

Reforms Overall
In an earlier blog post we outlined the timetable of changes which is taking place.  The above represents step one of the broader reform agenda due to affect both the Temporary Work Visa program (Subclass 457) and the Employer Nomination Scheme (Subclass 186). This agenda will see changes rolled out on an on-going basis until March 2018, by which time all announced reforms will have been implemented. 

Whether you are an individual visa holder considering how these changes affect you personally or an employer wondering how these and the further proposed changes affect your ability to recruit globally please feel free to contact us at Nevett Ford to see how we are able to assist.