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Australian Immigration Law Update No. 151 June 2016: Edited By: DAVID BITEL and ADRIAN BITEL

In this issue

Specialist Accreditation 2016-2017

Parish Patience is pleased to announce that David Bitel’s Immigration Specialist Accreditation has been renewed for the Year 2016-17 by the Law Society of New South Wales.

Subclass 457 Accredited Sponsorship changes

The DIBP has released an information sheet on changes to the Subclass 457 Accredited Sponsorship criteria.

The changes will be implemented from 1 July and those sponsors who have already obtained accreditation will be able to lodge a sponsorship variation after 1 July 2016.

Changes include:

Lower number 457 primary visa holders sponsored, now 10 (previously 30), over longer period of 24 months (previously 12 months).

All 457 visa holders to be employed under a written contract of employment.

All Australian employees to be paid in accordance with an Enterprise Agreement or an internal salary scale that reflects current market salary rates.

Additional benefits of sponsorship accreditation include streamlined processing of nominations where the base salary is equal to or higher than:

Fair Work High Income Threshold ($136,700 at 1 July 2015) and the occupation ANZSCO Skill level 1 or 2.

Or

$ 75,000 and the occupations classified as Skill Level 1 or 2, with exception of specific occupations.

Source: MIA NOTICE 2016 No 44: June 8

Streamlined nomination processing for accredited 457 sponsors

MIA members have requested further information on how “streamlined nomination processing” for accredited sponsors will be handled post 1 July 2016. The Department has advised that the meaning of “streamlined nomination processing” in practice will be explained in the Nomination PAM to be released on 1 July 2016.

In the interim, the following information has been provided. Under the new sponsorship accreditation arrangements for “streamlined nomination processing”, sponsors will be asked to provide more information ‘upfront’. For example, sponsors might ask for a copy of a template written contract of employment as part of sponsorship process. Then:

Sponsors would not need to provide this information every time they lodge a new lower – risk nomination; and

Case officers would be able to largely assess certain relevant criteria as ‘met’ based on certifications in the application, without having to seek or consider additional information with each application.

This would be subject to no significant concerns arising when reviewing the case and agents still providing ‘assessment – ready’ applications where possible.

Applications lodged by Accredited Sponsors already got priority allocation, but DIBP are hoping the new arrangements will then also ‘streamline’ the assessment process for lower – risk nominations and applications being finalized more quickly after initial assessment.

Source: MIA Notice 2016 No 45

Contributory Parent Visas Allocation Dates Update

The Parent, Child and Other Family section has advised that visa program numbers for Parent Visas are close to being filled for 2015/16 and if applicants have not been contacted by a case officer by now, it’s unlikely their application will be assessed in this year’s migration program.

Application dates for final processing for contributory Parent Visas are currently for applications received:

  • Offshore subclass 173 or 143 – 16 May 2014

  • Offshore subclass 884 or 864 – 7 August 2015

  • Temporary 173 holders applying for Permanent 143 – 6 November 2015

  • Temporary 884 holders applying for Permanent 864 – 6 November 2015

Source: MIA(Migration Institute Australia)

First refugees sent to Cambodia under $55m deal have left

The first group of refugees transferred from Nauru to Cambodia under a controversial deal have all left the country — less than a year after arriving.

The group of two Iranian men, an Iranian woman and a man from Myanmar arrived in Phnom Penh on June 4 last year.

The ABC understands the last of the original group — an Iranian man — left in recent weeks.

Cambodia agreed to take refugees from Nauru who tried to reach Australia by boat in exchange for $40 million aid from Australia.

The Federal Government also offered to pay the International Organization for Migration (IOM) $15.5 million to support those who moved there.

Of the five refugees who have been transferred from Nauru overall, just one Rohingya remains in the South-East Asian country.

Cambodian officials will reportedly fly to Nauru next month to interview two more refugees who have agreed to resettle.

An Iranian husband and wife returned to their country of origin in March, just five months after an ethnic Rohingya man returned to Myanmar.

The Cambodian Government reportedly said the man asked to go because he was homesick.

These earlier departures prompted strong criticism from the Opposition, whose immigration spokesperson Richard Marles slammed the resettlement deal as "an expensive joke".

Read More>> abc.net.au

Government announces a Migrant Worker Taskforce within Fair Work as part of election package

Federal Employment Minister Michaelia Cash will appoint former head of the ACCC Professor Allan Fels head of a new Migrant Worker Taskforce within Fair Work, if the Turnbull Government is re-elected on 2 July.

Other parts of the wider policy announcement include a ten-fold increase for the current maximum penalty handed out to employers who intentionally ripped off workers. Employers will be fined $10,800 for individual and $54,000 for a corporation.

The government will also give FWO evidence-gathering power similar to those that the ACCC, ASIC and ATO currently have. A new penalty for obstructing Fair Work inspectors and/or providing false or misleading information will also be introduced as part of this policy.

Source: MIA Newsletter

Legend Migration Stack Update – 19 May 2016

Legend has updated the migration stack. The full updates to the Migration Act, regulations an PAM can be found by following the links from the home page.

Notable changes include:

Reg 5.19 – Approval of Nominated positions (Employer Nomination):

Employment in the same rolepolicy wording changed to provide more detail on determining whether the applicant has worked in the nominated position for two years.

Financial viability of the nominatorrearrangement of the policy wording to clarify documentation that can be provided as evidence of financial liability.

Schedule 3 / 3001, 3003 & 3004:

Update following Waensila caseCircumstances constituting compelling reasons can arise at any time, up until the time of decision and s65 delegates must have regard to submissions by the visa application as to any compelling reasons occurring after the date of application, which may continue to exist at the time of decision.

Sch4 / 4005-4007 Notes for Guidance for the Medical Officers of the Commonwealth of Australia:

Updated guidance notes for the following conditions

Alcohol and other drug dependence

Haematological conditions

Breast cancer

Colorectal cancer

Respiratory cancer

Ophthalmological conditions

Neurological conditions

Source: MIA NOTICE 2016 No 41

IELTS Research Report

IELTS is proud to announce the publication of a new research report, investigating the use of IELTS in determining employment, migration and professional registration outcomes in healthcare and early childcare education in Australia. The research conducted by academics at Deakin University focuses on two professional fields- health and early childhood education. The study explores language and cultural challenges facing overseas-trained professionals and international graduates transitioning into the Australian labour market.

Interviews with employers, government organizations, industry associations, overseas-trained professionals and international graduates confirm that communication is the heart of these professions. They highlight the complex, sophisticated language and communication skills required in workplaces that are often culturally very different from those previously experienced by facing these cohorts.

Key finding:

English language competency is critical in determining successful labour market outcomes. Conversely, weak English language proficiency can have serious safety implications. Cultural factors and the nuances of social relationship also provide serious challenges.

Other challenges face by overseas trained professionals and international graduates in this study include workplace discrimination, isolation and extreme frustration when unable to work in their area of qualification.

This report gives a complex analysis of the Writing Test and perceived changes in Academic Writing Proficiency.

Source: MIA Newsletter: May 2016

The simplified student visa framework

General information for education providers

The simplified student visa framework (SSVF) commenced on 1 July 2016.

Key changes under the SSVF are

  • A reduction in the number of student visa subclasses from eight to two; and

  • The introduction of a simplified single migration risk framework for all international students.

The SSVF is designed to make the process of applying for a student visa simpler to navigate for genuine students, deliver a more targeted approach to immigration integrity and reduce red tape for business.

The fact sheet summarises the key changes for education providers under the SSVF compared to the current student visa process.

Implications of the SSVF for education providers

Under the SSVF, all education providers registered with the Commonwealth register of Institution and Courses for Overseas Students (CRICOS) have been allocated an immigration risk between one (lowest risk) and three (highest risk), based on the immigration risk outcomes of their international students over the previous 12-month period. The same approach has also been used to allocate an immigration risk rating to each country. The risk outcomes are not publicly available.

The combined immigration risk outcomes of the student’s education, country of citizenship and advice they meet the Genuine Temporary Entrant onshore GTE policy will be used to guide the level of financial capacity and English language proficiency related documentation that the student need to provide with their student visa application.

Through this model, all education providers across all education sectors will have access to the benefits associated with streamlined evidentiary requirements’ for at least some countries.

Meaning of Streamlined evidentiary requirements

Where streamlined evidentiary requirements apply, the student visa applicant will generally able to satisfy the Department of their financial and English language proficiency by declaration. This is similar to existing streamlined visa processing and Assessment Level (AL) 1 arrangements.

The Department will however retain the discretion to seek additional information about the student’s financial capacity and English language proficiency where appropriate.

All students, regardless of the financial capacity and English language proficiency documentation that may be required, will continue to have to meet all other core visa criteria, such as the Genuine Temporary Entrant requirement and health and character criteria.

Eligible students for streamlined evidentiary requirements under SSVF

The following table provides an overview of the students that will notionally have streamlined evidentiary requirements under the SSVF.

Eligibility for streamlined evidentiary requirements is determined on the combined immigration risk rating of the student’s country and citizenship and intended education provider. Where the student intends to package courses to combine their preliminary course of study with their main course of study, the education provider immigration risk rating applied to the Student visa application would correspond to the student’s main course of study.

In the table S refers to streamlined evidentiary requirements while R refers to regular evidentiary requirements. Where regular evidentiary requirements apply the student will generally be required to provide evidence of their financial and English language capacity with their visa application.

Read More>> MIA Newsletter

7-Eleven hit with record fine

The operator of a 7-Eleven store involved in rampant exploitation of its workers has been handed a record court penalty of more than $400,000.

The penalty follows revelations in Fairfax Media about systematic underpayment of workers in 7-Eleven stores around the country.

The Fair Work Ombudsman said the court-imposed penalty was the largest it had won after its investigation found 12 employees in Brisbane had been short-changed more than $82,000.

The Brisbane store owner had allegedly asked his staff to secretly repay thousands of dollars after they had been paid back some of the money they were owed.

The workers were paid as little as $13 an hour and the store owner, Sheng-Chieh Lo, had tried to conceal the underpayments through false payroll records. Federal Circuit Court judge Michael Jarrett described the false records as "a sophisticated system of data manipulation".

Judge Jarrett said the 7-Eleven franchisee had shown "contemptuous disregard" for Australian workplace laws and that it had tried to deceive the fair work regulator. The $408,348 he issued in penalties is $65,000 more than the previous record of $343,860 awarded against a Perth store in 2013.


Brisbane businessman Mr Lo, who owns and operates the 7-outlet on Boundary Road, West End, was penalised $68,058 and his company, Mai Pty Ltd, $340,290. Mai Pty Ltd has was ordered to correct the underpayment.

Mr Lo was found to have underpaid 12 employees, including international students, $82,661 over 12 months to September 2014. More than $35,000 of the underpayment is still outstanding.

The court heard that Mr Lo initially provided inspectors with false records to cover up the underpayments, and showed inspectors selective bank records as evidence that his employees had received back-pay. He later admitted he had made arrangements for the employees to pay back thousands of dollars to him and his wife.

"Mr Lo's contempt is demonstrated by his persistent attempts to deceive the Fair Work inspectors investigating the relevant complaints and his insistence, undertaken in a secretive way, that any amounts he paid to the relevant employees to make good [Mai Pty Ltd's] defaults should be immediately paid back to him," he said.

Judge Jarrett said the underpayments were "substantial amounts for low-income earners who were reliant on the minimum award wage".

Most of the employees received just over half what they were entitled to, with individual underpayments ranging from $1673 to $21,966.

Mr Lo was said to have expressed no regret, instead trying to justify his actions "without accepting responsibility for them".

"Employers should be in no doubt that they have a positive duty to ensure that they comply with the obligations which they owe to their employees under the law," Judge Jarrett said.

The court penalty is the latest in a number of actions targeting systemic exploitation of workers within the 7-Eleven network, which has been the subject of a national inquiry.

Fair Work Ombudsman Natalie James said her office was in talks with 7-Eleven to ensure it was taking steps to ensure workers were correctly paid in future.

The Brisbane outlet was one of 20 targeted by Fair Work inspectors during surprise night-time visits last year.

7-Eleven announced on Tuesday the approval of the first round of payments under its in-house wage repayment program and said it was happy to be judged on its actions.


Read more>> www.smh.com.au

Skill Select Occupation ceilings 2016/17 released

The Department has released SkillSelect 2016/17 occupation ceilings

MIA Members are advised to proceed with caution if advising clients using these new occupation ceilings, as some anomalies in the published ceilings have been identified.

While the occupation of Accountant appears to have a markedly increased ceiling, the asterisk beside the occupation indicates the following note:

*The occupation ceiling for Accountants was set at two and half per cent for the 2015-16 programme year, a further reduced ceiling of two and a half per cent will apply for the 2016-2017 programme year.

The increase in Accountant places from the 2525 to 4777 in this latest release does not reflect this note.

A similar note has been added to the occupation of Chef.

Source: MIA Notice 2016 No 46

Criminal gangs in visas for sale scam

Crime syndicates and people smugglers are involved in widespread rorting of Australia’s programs for working and student visas, whistleblowers and a former top immigration official say.

The claims come as the Australian Border Force is facing more than 100 allegations of corruption, including suggestions that some immigration officers may be supporting the rorting , a Fairfax Media and ABC 7.30 investigation can reveal.

Border Force Chief Michael Pezzullo has referred 132 cases of alleged corruption involving immigration officers may be supporting the under resourced federal law enforcement watchdog in the past 12 months, more referrals than the watchdog has received in any year since its creation in 2006.

The revelations point to a failure to deal with endemic crime in Australia’s visa system involving some licensed migration agents and education providers, and a thriving cash-for-visa black market.

A former Immigration Department investigations head has alleged “fear-mongering” on refugees and asylum seekers has been used to deflect attention from the real problems in the immigration system.

Joseph Petyanszki, who jointly headed the department’s investigation office between 2007 and 2013, said the department had ignored tens of thousands of cases of rorting perpetrated by migration agents and dodgy employers who game the student and work visa systems to allow foreigners to pay for entry.

Mr Petyanszki’s investigators uncovered thousands of fraudulent visa applicants’ in Victoria, South Australia, Tasmania and Western Australia. In most cases, no charges were ever brought.

The investigators identified one major corruption case inside the department involving an officer who subsequently fled overseas.

Mr Petyanszki called for a major overhaul in the fight against migration crime. “In the border security debate, it has been easy to deflect the public’s attention to boat arrivals. But this fear –mongering has totally ignored where the vast bulk of real fraud is most significantly undermining our immigration programs”, he said.

The Fairfax Media – 7.30 investigation includes interviews with two whistleblowers and a covertly filmed sting, which captures a fixer saying that for $50,000 in cash per foreigners his syndicate can create phantom jobs and visa sponsorship. The revelations suggest corruption infects every level of the visa supply chain- migration agents, employers who sponsor workers, education providers and immigration officials. There is little effective deterrence for perpetrators.

In a follow up report Faifax and 7.30 will reveal how organized criminals are infiltrating the border security system, along with claims that the existing watchdog, the Australian Commission for Law Enforcement Integrity, is badly outgunned.

The large number of immigration corruption allegations referred to the commission has prompted Senator Xenophon to say of the law enforcement integrity commission.

The comments are likely to be backed by several independent senators and the Greens, who are pushing for a national Independent Commission against Corruption. However, government sources defend the existing integrity commission, saying that even though it is under-resourced, it has helped uncover major corruption, and quietly driven vital reforms.

Mr Petyanszki’s concerns are supported by serving officials who, speaking confidentially, say organized crime figures are among those rorting the visa system to set up criminal enterprises.

In claims also backed by serving officials, Mr Petyanszki said the overwhelming focus by both major parties on stopping asylum-seeker boats reaching Australia had enabled endemic visa rorting by those arriving by plane.

A departmental spokesman said the Border Force has spent 12 months ramping up its attack on visa and migration fraud.

“The Department’s activities are focused on defeating visa fraud at the systematic level, including investigating and prosecuting networks involved in criminally exploiting Australia’s visa regime,” the spokesman said.

He cautioned that many of the 132 corruption allegations had not been verified and some involved allegations about people who falsely claimed to be Border Force staff.

Indian community leader Jasvinder Sidhu said he was aware of dozens of cases in which Indian nationals had paid crooked fixers sums of up to $80,000 to get visa sponsorship for jobs that did not exist, or for education courses that the applicant never attended.

A fixer subsequently filmed by Fairfax Media and 7.30 claimed he was unable to keep up with demand for the corrupt services offered by his Korean boss, who is a migration agent operating in Sydney and Melbourne.

Indian nationals who have paid unscrupulous bosses to sponsor them have, according to Mr Sidhu, been exploited or, according to Mr Sidhu, been exploited or, in some cases, sexually assaulted by their employer. They do not complain to police for fear of losing their visas.

Source: Sydney Morning Herald – 27/06/2016

A.P.B. Education: Specialist IELTS Test Training and Coaching

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 1, 338 Pitt Street
Sydney NSW  2000
Australia 
 
Tel:  +61 2 9286 8700
Fax: +61 2 9283 3323
 
Email: ppmail@ppilaw.com.au

Website: www.ppilaw.com.au

 

 

 

 

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