Paul Cutler's Migration Law Blog

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

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.

Creative commons acknowledgement for the photograph.

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.

Innovation Agenda

innovationThis week the government released its National Innovation and Science Agenda Report.

One of the recommendations includes:

We will bring entrepreneurs and other innovative talent to Australia by:

  • Introducing a new Entrepreneurs Visa for up and coming entrepreneurial talent;
  • Actively seeking out and encouraging talented individuals to come to Australia, using existing Government overseas networks; and
  • Enhancing pathways to permanent residency for high quality STEM and ICT post-graduate students.

Apparently changes are 12 months away….but watch this space.

Creative commons acknowledgment for the photograph.

Charging for a Migration Outcome

The Migration Amendment (Charging for a Migration Outcome) Act 2015 came into effect today (30 Nov 2015).

payment The legislation introduces a new criminal and civil penalty regime that will make it unlawful for a person to ask for, receive, offer or provide payment or other benefits in return for a range of sponsorship-related events.

The Bill also allows visa cancellation to be considered where the visa holder has engaged ‘Payment for Visas’ conduct.

It will be a criminal offence for a sponsor or other third party to ask for or receive a benefit from a sponsorship related event and will be punishable by a maximum of 2 years imprisonment or a fine equivalent to $64,000 for an individual person or $324,000 for a body corporate.

Civil penalties applicable to the sponsor, visa applicant or other third party who received or provides or offers a benefit related to a sponsorship related offence will equate to $43,200 for an individual person or $216.000 for a body corporate.

A discretionary power to consider cancellation of visas where any person who engages in this conduct will also be introduced.

I acknowledge the assistance of the MIA for providing this information in their notice to members today.

Creative commons acknowledgment for the photograph.

Cap and Cease

cancelledOn 22 September 2015 the Assistant Minister set a cap for offshore General Skilled Migration (GSM) visas. The following  offshore General Skilled Migration (GSM) visas are affected:

  • Skilled Independent (subclass 175)
  • Skilled Sponsored (subclass 176)
  • Skilled Regional Sponsored (subclass 475).

The cap sets the maximum number of places that can be granted in the 2015–16 financial year for these visa subclasses. This total has already been reached. Therefore, applications for these visas that were not finalised before 22 September 2015 are taken not to have been made and the relevant visa application charge will be repaid to affected applicants.

This means that applicants who have been waiting for years are only entitled to a refund. The MIA has corresponded with DIBP and received the following response:

It is understandable that many offshore clients will be unhappy with the outcome. The Government has determined that it is unfair to keep them waiting in the queue and we have taken action accordingly.

Having taken into account the High Court’s judgment in Plaintiff S297/2013 v Minister for Immigration and Border Protection & Anor [2014] HCA 24 and Plaintiff M150 v Minister for Immigration and Border Protection & Anor [2014] HCA 26 we remain of the view that Ministerial Determination IMMI 15/112 is validly made.

….now there’s customer service for you.

Creative commons acknowledgment for the photograph.

 

Couple

A recent Full Federal Court case has clarified whether living together is required as a pre-requisite to be being a de facto relationship. The answer is that living together is not necessary.In SZOXP v Minister for Immigration and Border Protection

couple [2015] FCAFC 69 the court looked at the meaning of Migration Regulation 5CB(2)(c) which provides a definition of de facto which includes:

(i)        live together; or

(ii)       do not live separately and apart on a permanent basis; and

The case is quite interesting to read because it sets out a lot of legislative and other history about the requirements of a relationship. The conclusion reached was:

  1. The appellant’s construction of s 5CB of the Migration Act, which does not require that the parties physically reside in the same premises prior to the application, is supported by the plain meaning of the section. It is consistent with other provisions of the Migration Act, notably the definition of spouse in s 5F. It avoids the ambiguities and the difficulties associated with an implication of the additional words into s 5CB(2)(c)(ii) sought by the Minister. It is supported by the section’s legislative history. And it is supported by the well hallowed meaning of the phrase “living separately and apart” as that phrase had been established at the time the section and its predecessors were enacted.

Creative commons acknowledgement for the photograph.

1 July 2015

calendarThere were a number of major changes to migration related matters which occurred on 1 July 2015. Two of the most significant were:

BORDER FORCE

As part of the amalgamation of the Department of Customs and the Department of Immigration and Border Protection which came into effect on 1 July. Amongst other things, this means that the DIBP has a new website: www.border.gov.au (which will replace the old immi.gov.au site which has been around for as long as I can remember)

REVIEW TRIBUNALS

The amalgamation of the Administrative Appeals Tribunal, the Social Security Appeals Tribunal and the Migration Review Tribunal Refugee Review Tribunal was merged into a single body, the Administrative Appeals Tribunal.The amalgamated Tribunal promotes accessibility of review by simplifying the merits review system and providing a single point of contact for Tribunal users. Key services of each of the amalgamated tribunals will be retained, while allowing for greater sharing and utilisation of members’ specialist expertise. See the press release for more information. 

Creative communs acknowledgment for the photograph.

 

Loss of citizenship

The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 was introduced into parliament at the end of June 2015. The following information comes from the explanatory memorandum:

The Bill introduces three new ways in which a person, who is a national or citizen of a country other than Australia, can cease to be an Australian citizen:

  • the person renounces their Australian citizenship if the person acts inconsistently with their allegiance to Australia by engaging in specified terrorist-related conduct;
  • the person ceases to be an Australian citizen if the person fights for, or is in the service of, a declared terrorist organisation. A declared terrorist organisation is any terrorist organisation as defined by the  Criminal Code and declared by the Minister to apply;
  • the person ceases to be an Australian citizen if the person is convicted of a specified terrorism offence as prescribed in the Criminal Code .

The proposed amendments are intended to capture those dual citizens who, by acting against the interests of Australia by choosing to engage in terrorism, have by this conduct repudiated their allegiance to Australia, thereby renouncing their Australian citizenship.

The operation of these provisions are by operation of law and do not necessitate the Minister making a decision.  That is, a person’s own conduct, specified in the new sections 33AA, 35 and 35A will be the cause of the person’s citizenship to cease.

The amendments in the Bill:

  •  apply to a person who is an Australian citizen regardless of how the person became an Australian citizen, including a person who became an Australian citizen upon the person’s birth;
  •  will not result in a person becoming stateless.   The Bill only applies to persons who are a national or citizen of a country other than Australia, that is, dual citizens, and who would therefore not be rendered stateless if their Australian citizenship were to cease;
  •  prevent a person from re-obtaining Australian citizenship where they have ceased to be an Australian citizen under the three new provisions providing for citizenship to cease. The person can never become an Australian citizen again unless the Minister exempts the operation of the relevant cessation provision;
  •  requires the Minister to give written notice of the automatic cessation of Australian citizenship to such persons as the Minister considers appropriate;
  •  allows the Minister to rescind the written notice and exempt a person from automatic cessation of their Australian citizenship if the Minister considers it is in the public interest to do so;
  •  protects the disclosure of information in circumstances that would prejudice national security. The protection of such information is necessary to protect information; however, the courts will have access to the information in accordance with two existing mechanisms to manage such information in litigation: public interest immunity (PII) and the  National Security Information (Criminal and Civil Proceedings) Act 2004 (the NSI Act).

The amendments in the Bill do not limit the application of judicial review.

 

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