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Australian Immigration Law Update - No 158 - EDITED BY: ADRIAN BITEL & MICHAEL JONES

In this issue

Subclass 600 Visitor Visas – Arrangements for Applications

Legislative Instrument - F2017L00832 - IMMI 17/076: Arrangements for Visitor (Class FA) Visa Applications Instrument 2017.

This Instrument specifies the kind of applicant, form, place and manner for visitor visa applications.  

The only change from the previous Instrument IMMI 17/021 - F2017L00128 is:

India has been removed from the list of specified countries in Schedule 7 and been added to the Schedule 8 list of countries, territories, organisations and conditions ie the applicant's passport must indicate that they are a Indian national.

Source: MIA Notice - No 48: 30 June 2017

Commonwealth agrees to pay Manus Island detainees $70m in class action settlement

Asylum seekers who alleged they endured physical and psychological harm on Manus Island between 2012 and 2016 say they "are finally being heard" after the Federal Government agreed to pay $70 million in compensation.

The group alleged the Commonwealth breached its duty of care by holding them in conditions that did not meet Australian standards.

During the period of their incarceration there was also a riot that resulted in the death of an asylum seeker and serious injuries to other detainees.

They also claimed they were falsely imprisoned after Papua New Guinea's Supreme Court ruled their detention was illegal.

A Victorian Supreme Court trial against the Commonwealth and security companies Transfield and G4S, which had been delayed for several months, was due to start today and had been expected to run for six months.

Law firm Slater and Gordon, which ran the class action, believed it to have been the largest immigration detention trial ever in Australia.

When it began, legal representatives for the plaintiff told the court it had reached an agreement to settle the case.

The in-principle agreement, subject to court approval, will include payment of plaintiffs' legal costs, which to date are more than $20 million.

Sudanese refugee Abdul Aziz Muhammad, who was part of the action and now lives on Manus Island, said he was "really, really happy" with the outcome.

Read More>>

Australian Citizenship Legislation Amend

Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 No. , 2017

Children born in Australia

The bill makes significant changes to the rules regarding automatic acquisition of citizenship by people born in Australia on their 10th birthday.

The bill limits automatic acquisition of citizenship at ten years of age to: (note: 1=a)

  1. child born in Australia to a parent who had diplomatic privileges and immunities under the Diplomatic Privileges and Immunities Act 1967, the Consular Privileges and Immunities Act 1972, the International Organisations (Privileges and Immunities) Act 1963 or the Overseas Missions (Privileges and Immunities) Act 1995 at any time during the 10 year period referred to in paragraph 12(1)(b) does not acquire Australian citizenship on their tenth birthday (assuming a parent of the person is not an Australian citizen or a permanent resident within the meaning of paragraph 12(1)(a)).

  2.  child born in Australia does not acquire Australian citizenship on their tenth birthday if at any time during the 10-year period referred to in paragraph 12(1)(b) the person was present in Australia as an unlawful non-citizen.

  3.  Child born in Australia does not acquire Australian citizenship on their tenth birthday if at any time during the 10-year period referred to in paragraph 12(1) (b) the person was outside Australia and, at that time, the person did not hold a visa permitting the person to travel to, enter and remain in Australia.

  4.  child born in Australia does not acquire Australian citizenship on their tenth birthday if a parent of the child did not hold a substantive visa at the time of the child’s birth, the parent entered Australia on one or more occasions before the person’s birth and, at any time during the period beginning on the day the parent last entered Australia and ending on the day of the person’s birth, that parent was present in Australia as an unlawful non-citizen.

  5. Collectively, the amendments made by this item seek to encourage the use of lawful pathways to migration and citizenship by making citizenship under the ‘10 year rule’ available only to those who had a right to lawfully enter, re-enter and reside in Australia throughout the 10 years. People who do not meet the proposed requirements will no longer have an incentive to delay their departure from Australia until a child born to them in Australia has turned 10 years of age, in the expectation that the child will obtain citizenship and provide an anchor for family migration or justification for a ministerial intervention request under the Migration Act.

The proposed amendment:

  1. requires that non-citizens hold a visa to enter and remain in Australia;

  2. provides citizenship by birth in Australia to children of Australian citizens and permanent residents; and

  3. with the exception of stateless applicants, requires that an applicant for citizenship by conferral not be an unlawful non-citizen.

Mahalingam Sutharshan (Shan)
LL.B (Col), LL. M (Monash), LL. M (ANU)
Director - Parish Patience Immigration Lawyers
Registered Migration Agent

Answering the SOS with RSMS

As the dust slowly begins to settle from the announcement that the Subclass 457 Temporary Work (Skilled) Visa will be abolished in March 2018; there is still significant uncertainty regarding the future of Employer Sponsored Migration and what the extent to which the new TSS Visa will be different from the 457 Visa. During the current transition phase the saying “the advice we give today may no longer apply tomorrow” has almost become a catchphrase as we continue to walk the fine line between keeping a client optimistic about their future Permanent Residence prospects and the harsh reality that they may lose their pathway before they can secure such an outcome.

In this climate of uncertainty, there remains one beacon of hope: The Regional Sponsored Migration Stream (RSMS). In the short time since the announcement on 18 April 2017, a notable trend has already begun to emerge; with increasing numbers of temporary residents departing for regional areas, unwilling to gamble their future on hopes of change and increased occupational eligibility in metropolitan areas.

What is the Regional Sponsored Migration Scheme?

RSMS, otherwise known as a Subclass 187 Visa, is an Employer Sponsored Permanent Residence Visa eligible to those working in any area within Australia which is classified as regional. The Visa Holder is granted Permanent Residence, and in return they must live and work for their regional employer for a minimum of two years from the date the visa is granted.

The Department of Immigration and Border Protection (DIBP) uses postcodes to determine whether a special town or locality is eligible for RSMS. In New South Wales, all areas outside of Sydney, Wollongong, and Newcastle are classified as a regional area. Tasmania, South Australia, and the Northern Territory are all classified as regional areas; including their capital cities.

There are two pathways through which an individual can obtain Permanent Residence. The first pathway is through the Direct Entry Stream. If an individual can show evidence of sufficient experience in the occupation they are being sponsored to fill, as well as a certain level of English, then they can apply for RSMS immediately. If a person cannot meet the necessary English language requirements, or employment experience, they can apply for a Subclass 457 Visa and work in the role for a period of two years. After two years, the individual will be eligible to apply through the Temporary Residence Transition Stream.

The RSMS Immunity

Despite the drastic changes to the Subclass 457 Visa Program, RSMS has retained an element of immunity to most of the proposed changes; limiting the extent of the damage to non-regional areas. The Australian Government has affirmed that it will remain committed to ensuring regional employers continue to have access to the skilled workers they require; including maintaining the very broad occupation list from which they can nominate foreign workers for RSMS.

Prior to the announcement on 18 April 2017, the RSMS list already provided a significantly greater range of occupations to regional employers than that which was available to their non-regional counterparts. Following the removal of over 200 occupations from the list, and many more being made ineligible as a Permanent Residence Pathway; the Australian Government has granted a significant concession to regional employers. It should be noted that all 200 occupations removed in April 2017 still remain open to regional employers.

From the information published on the DIBP’s website, as well as statements made by the Australian Government, there is a clear intention to maintain the status quo in terms of RSMS; offering a significant degree of immunity from the major overhaul of the Subclass 457 Visa. Some changes, such as Age and English language requirements, may be imposed; however the key issue of eligible occupations will more than likely remain unchanged.

Why Offer Such Concessions?

The concessions offered to the RSMS Program is driven by the need for skilled workers in regional areas. Due to lower populations, as well as limited education and training institutions, regional areas naturally suffer from a significant shortage of skilled workers. This issue is aggravated by skilled workers to relocate to regional areas to work due to the inconvenience caused by such a move, and the lack of essential services within the regional areas. In addition to this, regional employers cannot compete with the notably higher salaries offered by non-regional employers to skilled workers; even though much of the difference can be offset by the lower cost of living in these regional areas.

Due to these adverse circumstances, regional areas have become increasingly dependent upon foreign workers to overcome the severe skills shortage experienced due to their remote locations. Almost all occupations classified as ineligible for Permanent Residence following the Subclass 457 changes remain open to RSMS.  This means that individuals employed in occupations such as Cooks, Café and Restaurant Managers, Customer Service Managers, Hotel or Motel Managers, Fleet Managers, Call Centre Managers, Fitness Centre Managers, Social Workers, Bakers, Pastry Cooks, and all levels of Tradespersons are still eligible to acquire Permanent Residence through Employer Sponsored Migration.

Conclusion

We anticipate that in the coming months there will be a significant increase in applications through the RSMS Program, as for many this will be the only pathway available to them for Permanent Residence.

It is also interesting to note that the DIBP has announced that the concessions for regional employers will continue to remain in effect for both the temporary and permanent visas. Based on recently released information regarding the new TSS Visa; it appears that regional employers may be given the ability to choose whether they sponsor a worker for two years with no Permanent Residence option available, or for four years with a Permanent Residence option. The exact nature of the RSMS Program under the TSS Visa will slowly be revealed as we get closer to the retirement of the Subclass 457 Visa in March 2018.

Should you wish to inquire about your eligibility for the RSMS Program, please do not hesitate to make an appointment with a member of our Skilled Migration Team.

Mr. Alasdair Dougall
Solicitor
Registered Migration Agent

Age limit for Subclasses 190 & 489 lowered from 1 July 2017

The MIA (Migration Institute of Australia) has confirmed with the Department of Immigration and Border Protection that the age limit for Subclasses 190 and 489 will be lowered to 45 years of age on 1 July 2017.

The relevant legislative instrument is yet to be released.

Source: MIA Notice No 44: 29 June 2017

Skilled and Business Migration seminar in Hanoi, Vietnam on 28 May 2017 and Hai Phong, Vietnam on 04 June 2017

Parish Patience Immigration Lawyers again ran the second round of the seminar about Skilled and Business Migration in Hanoi, Vietnam on 28 May 2017 and Hai Phong, Vietnam on 04 June 2017 in a joint event with our proposed Vietnamese counterpart and partner, New Ocean JSC. The seminar went very well and as well received. The number of people who attended at each of the seminar was about 200 and our partner was pleased with us and underestimated the number of people who came, so are happy with the outcome.

The first presentation was conducted by Mr. Blair Commin, Mr. Thong Nguyen, and Mr. Motasim Billah. All presentations for Skilled Migration and Business Migration were followed by Questions and Answers which resulted in a vigorous discussion. There was a lot of interest at the seminars. A number of consultation were carried out after the seminar and several have realistic migration prospects.

Following the seminar, we were fully booked for the next three days at each city before we left Vietnam. We saw about 60-70 people after the seminars. We have sent about several cost agreements and expected to open a number of files for Business and Skilled Visas so. We should expect more to come from other migration programs such as Family, Student and Training as they have been introduced as well.

Overall it was another successful trip to Vietnam.

Thong Nguyen
Director – Parish Patience Immigration Lawyers
Registered Migration Agent 

1 July 2017 occupation list for Temporary Work (Skilled) Visa Subclass 457 and Employer Nomination Scheme (Subclass 186) Visa

As of 1 July 2017 the list of eligible occupations has been revised following a review of the available occupations. Some occupations are moved between the Medium to Long-term Strategic skills List (MLTSSL) and the Short-term Skilled Occupation list (STSOL).

Occupations entirely removed from the list of eligible skilled occupations on 1 July 2017 are listed below. Nine of these were eligible for Subclass 457 and 186 visas on 19 April 2017 (Marked *)

  • Equipment Hire Manager*

  • Fleet Manager*

  • Picture Framer*

  • Psychotherapist*

  • Real Estate Agent Principal*

  • Real Estate Agent*

  • Real Estate Agent Representative*

  • Ship’s Engineer

  • Ship’s Master

  • Ship’s Officer

  • University Tutor*

See Removed list here

Protection Visas - online lodgement from 1 July 2017

Temporary Protection visas (TPV) and Safe Haven Enterprise visas (SHEV) will be able to be lodged online from 1 July 2017.  

A single paper application form for temporary and permanent protection applications will be available from 1 July 2017.

A new paper Form 1505 will be introduced for subsequent TPV and SHEV applications. This form must be used for all subsequent applications.

Paper Forms 866 and 790 will continued to be accepted for initial applications only.

From 1 July 2017 paper applications will not be accepted at Departmental offices and must be posted to the following addresses.

Permanent Protection Visas (Subclass 866)
Onshore Protection
Department of Immigration and Border Protection
GPO Box 9984
SYDNEY NSW 2001

or 

Onshore Protection
Department of Immigration and Border Protection
GPO Box 241
MELBOURNE VIC 300

Temporary Protection (Subclass 785) and Safe Haven Enterprise Visas (Subclass 790)
IMA Protection Support 
Department of Immigration and Border Protection
GPO Box 241
MELBOURNE VIC 3000

Source: MIA Notice – No: 43 26 June 2017

Subclass 457 & ENS Training benchmarks: New Legislative Instruments

Three legislative instruments related to training benchmarks have been released today.

Subclass 457 Training benchmarks - Legislative Instrument - F2017L00796 - IMMI 17/045: Specification of Training Benchmarks and Training Requirements Instrument 2017 

Subclass 186 ENS Direct Entry - Legislative Instrument - F2017L00789 -IMMI 17/074: Specification of Training Requirements Instrument 2017

Both instruments update and further define the criteria for Training Benchmarks A & B recent expenditure, time frames, acceptable training expenditure and the definition of payroll, as follows:

Recent expenditure

For Training Benchmark A (TBA) this is at least 2% of payroll expended in the previous financial year OR in the previous twelve months, as evidenced by receipts for payment or a letter from the relevant fund.

For Training Benchmark B (TBB) this is at least 1% of payroll expended in the previous financial year OR previous twelve months and evidenced by a receipt for the payment(s) or an employment contract for the relevant individual whose salary payments are counted towards the benchmark.

Acceptable expenditure for TBA

Only expenditure made to the following funds are acceptable for TBA purposes:

  • an industry training fund

  • a fund managed by a recognised industry body

  • a recognised scholarship fund operated by an Australian university or TAFE college 

Expenditure that will not be accepted for TBA:

  • training funds operated by RTOs or private individuals

  • funds that allocate a percentage or part of the contributions as commissions or offer refunds for failed immigration applications

Applicable expenditure for TBB

The expenditure that may count towards this benchmark has been amended and more clearly defined.  Changes include:

  • the addition of reasonable travelling costs to training venues

  • face to face training delivered by RTOs must contribute to an Australian Qualifications Framework qualification

  • only the salary of persons whose sole role is to provide training to Australian employees may be claimed

Expenditure that will not be accepted:

  • training not relevant to the industry the business operates within 

  • training undertaken by principals of the family and their family members

  • induction training

  • staff salaries for undertaking training courses

  • purchase of general software

  • membership fees, books journals and magazine subscriptions

  • attending conferences unless for cpd purposes

Definition of Payroll

The definition of payroll has been clarified and is specified as the the total amount of the payments made to employees and to contractors and subcontractors, whether or not such payments are included for payroll tax purposes or not.

The methods for calculating training expenditure requirements where there is no payroll have not changed.

Both Instruments commence on 1 July 2017. 

Legislative Instrument 2017 - F2017L00795 - IMMI 17/075: Repeal of Training Benchmarks and Training Requirements) Instrument 2017.  This Instrument repeals the whole of IMMI 13/030 on 1 July 2017 and the instruments above will come into effect.

Source: MIA Notice - No: 45 29 June 2017

A.P.B. Education

Specialist IELTS Test Training and Coaching

Passing an IELTS test is now an essential requirement for all applicant for General Skilled Migration, student visas, and for many employer sponsored applicants. Adrian Bitel provides individual lessons to assist applicants achieve proficiency to the required levels in:

  • Reading          

  • Speaking

  • Writing

  • Listening

He gives comprehensive ONE to ONE Personalised Coaching in any or all of the above areas at very competitive rates.

Contact: Adrian Bitel on (02) 9286 8700 or Mobile: 0412 656 026                                                                        

 

Parish Patience Immigration Lawyers
Level 3, 83 Pitt Street
Sydney NSW  2000
Australia 
 
Tel:  +61 2 9286 8700

 

         Email:             ppmail@ppilaw.com.au

Website:             www.ppilaw.com.au

 

 

 

 

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