Paul Cutler's Migration Law Blog

(for posts older than September 2014 refer to www.paulcutler.blogspot.com

Time limits and Schedule 3

What happens if your visa expires and you find yourself unlawfully present in Australia? Apart from leaving the country, the range of further visa options open to you are severely limited. The general rule is that you need to have a valid visa to make a valid application for another visa.

Two of the exceptions to that rule are a spouse visa or a visa to allow for medical treatment. Both of those require applicants to comply with “Schedule 3” of the Migration Regulations, and that effectively means the application needs to be made within 28 days of the expiry of the previous visa.

A recent decision of the Full Federal Court makes it clear that schedule 3 means what it says for medical treatment visas (see Ahmad v Minister for Immigration and Border Protection (No 2) [2018] FCAFC 200).

In relation to spouse visas schedule 3 can be waived if there are compassionate and compelling circumstances. Please contact me if you need advice on these issues.

New TSS Visa

The changes which were foreshadowed last April were finally implemented in the early hours of Sunday 18 March 2018 (after the regulations were released last Friday). There is now a new Temporary Skills Shortage (subclass 482) visa and there have also been changes to the ENS visa.

Basically:

  1. there are less occupations available and they have been divided into “short term” and “long term” needs list. That division of short/long term is also reflected in two different streams of the TSS visa;
  2. visas will only be granted for 2 years in the short term stream and 4 years in the long term stream;
  3. applicants who want to transition to permanent residence will need 3 years (not 2) working on the TSS;
  4. there will be stricter requirements for trying to find a local person to do the job (i.e. labour market testing will be more stringent) – see IMMI 18/059
  5. there will be more onerous English language requirements – see IMMI 18/032;
  6. the legislation to impose a “training levy” (instead of the current benchmarks) has currently not passed parliament, but in the meantime the training requirements are set out in  legislative instrument IMMI 18/017;
  7. there have also been changes to income threshold, annual earnings and new concept of Annual Market Salary Rate – see IMMI 18/033;

For a more detailed summary of the changes, one of the better places to look is the DHA skilled visa newsletters which are published on its website.

I am of course happy to help with any specific questions.

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Character Cancellation

Visa cancellations based on the character grounds can often seem harsh in their application. Last week the High Court had to consider a case involving a gentleman from Malta who arrived in Australia as a 3 year old and who had lived here for 60 years. In that case the argument was that section 501(3A) Migration Act was constitutionally invalid because cancellation would result in immigration detention and that was effectively a used of judicial power (to imprison) by the Minister which is not permitted under the doctrine of separation of powers. The court was unaniomous in rejecting the argument. In my view Justice Nettle summarised the position neatly:

Given that the plaintiff came to this country as a three-year-old child more than 60 years ago, it might be thought that whatever risk he now poses to the safety and welfare of the nation is one that the nation should bear.  In general, however, it is for Parliament to select the “trigger” for legislative consequences and especially so in the case of deportation.  It is not the role of this Court to say that the criteria of deportation are overly harsh or unduly burdensome or otherwise disproportionate to the risk to the safety and welfare of the nation posed by the subject non-citizen remaining in this country.  Contrary to the plaintiff’s submissions, there is no constitutionally guaranteed freedom from executive detention such that legislative provisions for the deportation of non‑citizens and their consequent detention must be justified as appropriate and adapted or proportionate to a non‑punitive end.  At least in this context, proportionality analysis of the kind essayed in McCloy v New South Wales and more recently applied in Brown v Tasmania has no role to play.

For the whole case have a look at: Falzon v Minister for Immigration and Border Protection [2018] HCA 2

If you have any cancellation issues, I’d be happy to try and assist.

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New Zealanders

Good news for NZ Citizens who were usually resident in Australia prior to 19 February 2017. There is now a special “New Zealand stream” in the skilled visa category. Full details are in the Minister’s press release. However, at the time of lodging the application, they must have resided in Australia for at least five years.

They will also need to meet certain criteria, including contributing to Australia, demonstrated through income tax returns which show taxable income at least equivalent to the Temporary Skilled Migration Income Threshold (TSMIT) for the qualifying period and meeting mandatory health, character and security checks.

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De-regulation

On 21 June 2017, the Migration Amendment (Regulation of Migration Agents) Bill 2017 was introduced into the House of Representatives. One of the purposes of the bill is to remove the requirement that lawyers who provide migration advice have to be registered as migration agents. In fact the effect of the legislation (if passed) will be that lawyers will not be permitted to be separately registered.

There are some other changes relating to the registration of agents as well. The text of the bill and the explanatory statement can be found on the parliamentary website.

This change will affect me, but not the services I provide. I currently have a practising certificate from the NSW Bar Association and am also registered as a migration agent (0101077).

Training Benchmarks

One of the changes made to the ENS (and temporary working visa) is the replacement of the training benchmark with a “flat fee”. Over the years collating documents to show compliance with the training benchmark has been a difficult task for many clients. I can only assume it’s been difficult on the DIBP compliance side as well. While this is an extra cost, I think it will work better.

From March 2018, businesses with turnover of less than $10 million per year will be required to make:

  1. an upfront payment of $1,200 per visa per year for each employee on a Temporary Skill Shortage visa
  2. a one-off payment of $3,000 for each employee being sponsored for a permanent Employer Nomination Scheme (subclass 186) visa or a permanent Regional Sponsored Migration Scheme (subclass 187) visa.

Businesses with turnover of $10 million or more per year will be required to make:

  1. an upfront payment of $1,800 per visa year for each employee on a Temporary Skill Shortage visa
  2. a one-off payment of $5,000 for each employee being sponsored for a permanent Employer Nomination Scheme (subclass 186) visa or a permanent Regional Sponsored Migration Scheme (subclass 187) visa.

I acknowledge the assistance of the MIA in helpfully providing a summary of this information to its members.

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The end of the 457

The following summary came to me as a notice circulated by the Migration Institute of Australia:

  • Any 457 sponsorship, nomination or visa applications that are NOT listed in the relevant Instrument IMMI 17/040  (check any notes against your occupation) and NOT decided by 18th April 2017 will no longer be able to be approved. Refund of DIBP application fees may be available.
  • Any new 457 applications lodged from 19 April 2017 onwards will have to have their occupation on the STSOL or MLTSSL occupation lists.
  • If you are granted a 457 visa after 18 April 2017 off the STSOL list, it can only be granted for 2 years. There will be one (only) further extension allowed after that for another 2 years. You will not be allowed to apply for a permanent 186/187 visa under that occupation if it is on the STSOL.
  • If you are granted a 457 visa after 18 April 2017 off the MLTSSL list, it can be granted for 4 years. You will be able to be apply for a permanent 186/187 visa after 3 years on a 457 visa if that company decides to nominate you.
  • From March 2018 the new TSS visa will have replaced the 457 visa. You will need to have 2 years work experience before applying and your occupation will have to be on the STSOL or MLTSSL lists. If you are on the STSOL list you will also have to show you only want to stay in Australia temporarily.
  • From March 2018 you need to have your occupation on the MLTSSL occupation list to apply for company/employer sponsored permanent residence. You will also need to commit to working for the company for 3 years, have an IELTS of 6+ and be under 45 years of age.

Some consequences of this:

  1. Occupations such as cook and restaurant manager are on the STSOL list. While you can still be sponsored for 2 years by a restaurant on the 457 visa and gain another 2 year extension, you can no longer apply for a permanent visa unless it is added to the MLTSSL list for you being in a designated regional area.
  2. Retail manager is still available in regional areas for the 187 visa at the moment. But from March 2018 this will not be the case, as this occupation is not on the MLTSSL list.
  3. Most student graduates will not be eligible for temporary or permanent company sponsorship after March 2018 as you require at least 2 years FULL-TIME WORK EXPERIENCE first.

 

The Prime Minister and Minister for Immigration confirmed that existing 457 visa holders (as of 18 April 2017) will still be able to apply for a Permanent visa and will not be affected by these changes. (See News.com.au article)

Timeline of future 457 changes are:

from 19 April 2017 – 216 occupations removed and 59 others restricted, 24 occupations restricted to regional Australia, Occupational lists renamed, validity period for occupations on STSOL 2 years.

from 01 July 2017 – English salary exemption $96,400 to be removed, training benchmarks to be changed, mandatory penal clearance certificates.

before 31 December 2017 – collection of TFN for 457 visa holders for ATO data matching, publication of sanctioned sponsors.

from March 2018 457 visa abolished and replaced with TSS visa which will comprise the Short-Term(2 years) and Medium-Term stream(4 years).

Timeline of future 186/187 changes are:

from 19 April 2017 – CSOL condensed, 216 occupations removed, 24 occupations restricted to regional Australia, Occupational lists renamed as STSOL and MLTSSL.

from 01 July 2017 – review of STSOL and MLTSSL, IELTS 6 required in each component, changes in age (DE stream 45 years old, no change to TRT).

before 31 December 2017 – collection of TFN for 457 visa holders for ATO data matching, publication of sanctioned sponsors.

from March 2018 the MLTSSL will apply to ENS/RSMS with additional regional occupations, Market salary rate will apply and meet TSMIT, eligibility period for PR extended from 2 to 3 years, at least 3 years’ work experience required, under 45 years of age, contribution towards training fund.

New Entrepreneur Visa

Migration Amendment (Entrepreneur Visas and Other Measures) Regulation 2016, creates these new streams within the Business Innovation and Investment visa class, to provide a pathway to permanent residence for:

  • high calibre entrepreneurs with financial backing from third parties in Australia,
  • who are nominated by a State or Territory government, and
  • who meet residence requirements, and
  • complete successful entrepreneurial activities in Australia

A link to the new regulations is at: Migration Regulation – F2016L01391

A National Disgrace

disgraceThe Australian Senate’s Education and Employment References Committee has released its 355 page report on the impact of Australia’s temporary work visa holders on the Australian labour market and on temporary work visa holders. The report, entitled A National Disgrace: The Exploitation of Temporary Work Visa Holders, details unscrupulous and exploitative practices and makes 33 recommendations.

 

The recommendations cover a wide range of areas including the need for:

  • TSMIT to be indexed to average full-time weekly earnings and indexed annually
  • the replacement of local workers by 457 workers to be prohibited
  • the removal of labour market testing exemptions
  • labour market testing to be required for labour agreements and DAMAs
  • one-for-one 457 (professional)/Australian tertiary graduate employment
  • 457 (trade) sponsor must have 25% (or at least 4) trade workforce apprentices
  • training benchmarks to be replaced with training levy of $4000 per 457 worker paid into existing government programs that specifically support sectors experiencing labour shortages as well as apprenticeships and training programs.

You can read the report at the above link. I acknowledge the information contained in MIA Notice 24 which as circulated as a service to members and which contained a very useful summary which I have used as the basis for this post.

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Self 457 Sponsorship

Compare the following:

The DIBP policy manual (called PAMS3) was updated in November 2015 to try and preclude applicants from applying for “self sponsored” 457 visas.


Position created to secure a migration outcome (PAM3: Genuine Position) 

The intent of the 457 program is to enable Australian businesses to temporarily fill short term skill shortages with overseas workers when they cannot find a suitably qualified or experienced Australian citizen or permanent resident to fill the position. The program is not intended to be used for non-citizens to establish a business in Australia and self-sponsor themselves; there are other visa pathways available for such purposes

 
and on the other hand
The comments of Vasta J in He v Minister [2015] FCCA 2915 at [30]:
    1. The real question is whether the policy itself goes beyond what is in the statute.

    2. To my mind, the policy does go beyond what is in the clause. There are no qualifications upon the term “assets”. There are no qualifications upon the term “in the main business”. While the policy may spell out how the Department wishes to interpret this clause, such is not reflected in the plain words of the cause itself.

So what we have here is change in policy, but not a change in the law. It will be interesting to see if any self-sponsorship cases make it to the courts.

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