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visa lawyers melbourne

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.

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.

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:

  • AUD $3,600 per primary applicant with an additional AUD $1,800 for partners, AUD $1,800 per dependent child over 18 and AUD $900 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.