Paul Cutler's Migration Law Blog

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

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.

 

Dual Regulation

Today I received two emails about the removal of the requirement for lawyers to be registered as migration agents.

dual controlEMAIL 1 – from the Law Council of Australia

Today the Australian Government announced that it will dismantle the dual regulation of lawyer migration agentsMigration lawyers with practising certificates will not have to register with the Office of the Migration Agents Registration Authority (OMARA) once the reforms have been legislated and commence later in 2015.

The Law Council’s media release warmly welcoming this reform is attached.

Registration requirements for migration agents entering the profession will be tightened, and re-registration processes streamlined for agents who have a proven record of good standing. The Government says it will implement a majority of the recommendations of the 2014 Independent Review of the OMARA.The Government’s media release is accessible here.

EMAIL 2 – from the Migration Institute of Australia

Whilst the removal of lawyers from the registration system is something the MIA has made submissions against, the final outcome does not remove the personal need and responsibility of lawyers to undertake migration courses should they wish to provide migration assistance.  Membership of the MIA as the professional association, which offers professional support, education and collegiality should be an integral part of the migration profession as it is well placed to assist both lawyers and non-lawyers in acquiring specialist migration knowledge, practice and procedure.

Creative commons acknowledgment for the photograph.

Significant Investor – changes afoot

The DIBP website now has further information about the  temporary suspension of the SIV programme from 24 April 2015 to 30 June 2015:

  • all new nominations will be suspended;
  • prospective SIV applicants can still lodge Expressions of Interest after 24 April, but they will only be able to be nominated from 1 July 2015 and will be subject to the new complying investment framework;
  • the new complying investment framework is still being finalised
  • those who have already been invited to apply for an SIV will not be impacted;
  • existing SIV applications and those who have already been invited to apply prior to the suspension will continue to be processed under the current regulations;
  • Visa processing and visa grant will continue to occur between 24 April 2015 and 30 June 2015 for anyone who has already submitted an application, or who has been nominated prior to 24 April 2015 and then submits an application before 1 July 2015. The current rules (pre 1 July 2015) will apply to them.

Biometrics

The following is an extract from the DIBP policy manual:biometric

DIBP is responsible for identifying each person who crosses Australia’s border. This role is unique among Australian Government agencies. It involves establishing the identity of people born outside Australia (that is, non-citizens), to a sufficient standard to grant permission to enter and remain in Australia for the period of time and purpose authorised by their visa. The department fulfils this responsibility to ensure it can effectively deliver Australia’s visitor, migration and citizenship programmes, while preventing the entry of persons who may seek to threaten the national interest.

When short, medium and long-term visits and migration to Australia are reduced to core elements, they are about identity and intent. Is the person who they say they are? Are they coming to Australia for the lawful purpose authorised in their visa?

The department has a national responsibility to ensure that high standards of integrity apply to identifying non-citizens. Accurately establishing identity is the prerequisite for all security, character and immigration checks. There may be serious consequences if the department gets identity “wrong”.

To achieve these objectives, Australia is increasingly using biometric data in visa processing. Not all visa applications and not all visa applicants are subjected to biometrics. There is a current list of countries to which it applies and to the visa subclasses to which it applies on the DIBP website. See also the following: http://www.immi.gov.au/allforms/biometrics/offshore/

457 Review

This week the Government released its response to the “Independent review into the integrity of the 457 programme”.

Full details of how these changes will come into effect will unfold with time, but some of the key issues are:

  • Training Benchmarks A and B will be replaced with an annual training fund contribution based on the number of 457 sponsored and with the contributions scaled according to the size of the sponsoring organisation (6.1)  These contributions will be made to the Department of Industry and directed to areas of identified training need (6.2/3).  The Government will undertake further consultation with stakeholders on how this will be implemented. It is believed that this will increase the integrity of the way these funds are used and remove the payment of commissions. Training expenditure cost may decrease for sponsors under this new arrangement. 
  • It will be made unlawful for a sponsor to be paid by a visa holder to be sponsored and a strong penalty and conviction will be applied (10.7)
  • Labour market testing will not be abolished, however, the Department will examine ways to reduce the burden to employers and red tape in this process (2.0)
  • The English language level will be altered to an IELTS average of 5 overall, with no less than 4.5 in any band (7.1) 
  • Alternate English language test providers are likely to be announced next month (7.3)
  • The exemption for demonstrating English language competency will not be extended to further countries, although the current exemption for 5 years continuous study in English will be changed to 5 years cumulative study (7.5)
  • SBS approvals will be extended from 3 to 5 years and from 12 to 18 months for start up businesses.  These new approval time frames will commence from the time of renewal or new applications for SBS. Current approvals will not be extended to these time frames (10.1)
  • The ATO and the Department have signed an MOU which allows information to be shared on 457 visa holder salaries.  The MOU allows the Department to request salary compliance checks across a broader range of the sponsored employees and businesses, without increasing the number of work site visits (18.1)
  • Visa charges are being reviewed as part of the Joint Review of Border Fees, Charges and Taxes (11.0)
  • The age limitations and the TRT time frames for transition to ENS are being reviewed as part of the Skilled Migration and 400 Visa Series Review, but the recommendations on these from the 457 review are supported (15.1/2)
  • The Ministerial Advisory Council on Skilled Migration cannot be replaced, but advice is being sought on whether it can be reconstituted to be more responsive on labour market issues (1.1/2)
  • Information provided to sponsors will be reviewed and revised for clarity, but further resources will not be allocated (16.0)

I acknowledge the assistance of the Migration Institute of Australia in providing this summary in MIA Notice 2015.22 circulated to its members on 18/3/15.

 

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