Year: 2015

Australian Immigration 2016

Posted by Rebecca Berkovic on December 30, 2015

This should be an interesting year for Australian immigration. The Government of Malcolm Turnbull is focused on improving Australia’s technological and scientific developments through the “National Innovation and Science Agenda” in 2016.

We are likely to see the following changes implemented:

Labour Market Testing exemption provisions introduced to the Temporary Work (Skilled) (subclass 457) visa to accommodate the China-Australia Free Trade Agreement (ChAFTA);
Possibly an increase in the Temporary Income Salary Migration Threshold (TSMIT) for the subclass 457 visa from the current $53,900;
The introduction of the new Entrepreneur visa in November 2016; and
Pathways to permanent residence for postgraduate research graduates with STEM (Science, Technology, Engineering and Math) qualification will be enhanced.

We will update our clients, colleagues and contacts throughout the year regarding Australian immigration changes affecting businesses and individuals.

Please contact us at info@hartmanlawyers.com.au for Australian immigration assistance or call our office:

Australia: +61 3 9021 0986
London: +44 20 3670 4586

We look forward to assisting you in 2016.

Disclaimer:

The information on this website is intended only to provide a summary and general overview on relevant matters. It is not intended to be comprehensive nor does it constitute legal advice. You are advised to seek legal or other professional advice before acting or relying on any of the content contained in this website.

Australian Government Announces New Entrepreneur Visa

Posted by Rebecca Berkovic on December 7, 2015

The National Innovation and Science Agenda

The Australian Government has introduced the National Innovation and Science Agenda. The aim of the Agenda is to:

“… embrace new ideas in innovation and science, and harness new sources of growth to deliver the next age of economic prosperity in Australia.”

The Government has recognised that innovation and science are crucial for the development of the Australian economy, and will introduce reforms to enable expansion in these areas.

Introduction of an Entrepreneur Visa

As part of the National Innovation and Science Agenda, the Australian Government has announced that, as part of the reforms, a new Entrepreneur visa will be introduced.

The Government will create:

A new provisional Entrepreneur Visa for entrepreneurs with innovative ideas and financial backing, and a pathway to permanent residence; and
Pathways to permanent residence for postgraduate research graduates with STEM (Science, Technology, Engineering and Math) qualification will be enhanced.

The Government has announced that the new Entrepreneur visa will be introduced in November 2016 and the permanent residence pathways for postgraduate research graduates will come into effect in December 2016.

The exact provisions of the Entrepreneur visa and postgraduate pathways are yet to be announced.

We will keep our clients and contacts updated regarding the new Entrepreneur visa and visa pathways. For more information, please feel free to contact the author to discuss the most appropriate visa options by email at rebecca@hartmanlawyers.com.au or by telephone on +61 3 9021 0986 or +61 (0)423 701 747.

Disclaimer:

China-Australia Free Trade Agreement and Labour Market Testing

Posted by Rebecca Berkovic on December 2, 2015

The Department of Immigration and Border Protection (DIBP) has now provided a Ministerial Determination impacting on the immigration procedures under the China-Australia Free Trade Agreement (ChAFTA).

Ministerial determination and LMT

The primary path for engaging Chinese labour will be through the Temporary Work (Skilled) (subclass 457) visa. The LMT provisions for the subclass 457 visa will apply, however exemptions have now been introduced in a recent Ministerial Determination to enable Australia to meet its international trade obligations under ChAFTA.

The Minister for Immigration and Border Protection, Mr Peter Dutton, in his Ministerial Determination has provided that LMT provisions are inconsistent with the terms of ChAFTA in certain situations.

Therefore LMT will not apply, and does not need to be conducted, for the following persons covered under the terms of the ChAFTA:

Executives, Senior managers and Managers as Inter-Corporate transferees;
Specialists as Intra-Corporate Transferees;
Independent Executives; and
Contractual Service Suppliers.

The LMT exemption provisions announced by the Minister will apply as soon as ChAFTA comes into effect.

For companies wishing to invest in Australia and requiring employment of foreign workers for specific projects, please feel free to contact the author to discuss the most appropriate visa options by email at rebecca@hartmanlawyers.com.au or by telephone on +61 3 9021 0986 or +61 (0)423 701 747 for instructions.

Disclaimer:

Streamlining Subclass 457 Visas

Posted by Rebecca Berkovic on November 25, 2015

In preparation for implementing the streamlined processing recommendation of the Review into Integrity in the Subclass 457 Programme: “Robust new Foundations- Streamlined, Transparent and Responsive System for the 457 Programme,” the Department of Immigration and Border Protection (DIBP) has made amendments to the online Temporary Work (Skilled) (subclass 457) sponsorship, nomination and visa application forms as of 20 November 2015.

In 2016, the DIBP intends to create a streaming process for subclass 457 applications. Applications will be divided into streams based on the characteristics of the visa applicant and the sponsor.

Streams are intended to be divided according to the following factors:

Stream 1:

The sponsoring company should have a turnover of over $4 million;
The sponsoring company should have been an approved sponsor for more than four years;
The sponsor should have a totally sanction-free track record of approved sponsorship;
The visa applicant should be nominated in certain, specific occupations from the proposed new list of occupations; and
The visa applicant should be paid a base salary of more than $129 300 per annum.

If all these five characteristics are met, then the sponsor would be granted streamlined approval to and will be allocated to Stream 1. If fewer than five characteristics are met, the application goes to either Stream 2 or Stream 3.

Stream 2

The sponsoring company should have a turnover of at least $1 million;
The sponsoring company should have had no sanctions for the last four years;
The sponsoring company should have been an approved sponsor for more than one year;
The visa applicant should be nominated in one of the occupations in the proposed new list of occupations; and
The sponsoring company must be paid a base salary between $96 400 p.a. and $129 300 per annum.

If all five elements of Stream 2 (or a combination of Stream 1 and Stream 2) characteristics are met, the application will receive more scrutiny than those of Stream 1, but less than those of Stream 3.

Stream 3

Scrutiny of Stream 3 applications will be more rigorous than that of the other streams. Stream 3 will capture all applications not eligible for the other streams.

Practical changes

The new streamlining initiative by the DIBP will affect processing times for subclass 457 sponsorship, nomination and visa applications. It is intended to lead to expedited processing for applications in which sponsoring companies and visa applicants meet the requirements of Streams 1 and 2. However, this will increase processing times for the majority of applications falling into Stream 3.

Current alterations to the online application forms require additional information from sponsoring companies and visa applicants now required by the DIBP in order to submit eVisa forms.

For assistance and advice regarding subclass 457 sponsorship, nomination and visa applications, please feel free to contact the author by email at rebecca@hartmanlawyers.com.au or by telephone on +61 3 9021 0986 or +61 (0)423 701 747.

Disclaimer:

Data Matching between the DIBP and the ATO

Posted by Rebecca Berkovic on November 11, 2015

What is the Data Matching Programme?

The Department of Immigration and Border Protection (DIBP) and Australian Tax Office (ATO) share information regarding businesses and individuals.

The sharing of information has now been codified in the Gazette Notice of 21 October 2015 which has created a Data Matching Programme and formalised the process of information sharing between the DIBP and the ATO.

Which information will be shared by the DIBP and ATO?

The Gazette Notice of 21 October 2015 provides for Data Matching stipulations. Specifically, the DIBP will provide the ATO with names, addresses and other details of visa holders, their sponsors and migration agents for the 2013-14, 2014-15, 2015-16 and 2016-17 financial years. The data items that will be provided are:

Address history for visa applicants and sponsors;
Contact history for visa applicants and sponsors;
All visa grants;
Visa grant status by point in time;
All migration agents;
Address history for migration agents ;
Contact history for migration agents;
All international travel movements undertaken by visa holders (arrivals and departures);
Sponsor details (subclass 457 visa);
Education providers (educational institution where the student visa holder intends to undertake their study); and
Visa subclass code and descriptor. It is estimated that records relating to approximately 1,000,000 individuals will be provided.

These records will be electronically matched by the ATO to identify non-compliance with registration, lodgement, reporting and payment obligations under taxation laws.

How can you protect your business?

It is crucial that information provided by business sponsors and visa applicants to the DIBP is consistent with information provided to the ATO. This is a crucial way to protect businesses and ensure that Data Matching does not cause any concerns.

It may be wise to obtain professional advice when preparing and lodging sponsorship, nomination and visa applications with the DIBP.

For Australian immigration assistance and advice, please feel free to contact the author by email at rebecca@hartmanlawyers.com.au or by telephone on +61 3 9021 0986 or +61 (0)423 701 747.

Disclaimer:

China-Australia Free Trade Agreement and Labour “Safeguards”

Posted by Rebecca Berkovic on October 25, 2015

The China-Australia Free Trade Agreement (ChAFTA) took 10 years and 21 rounds of negotiations before it was concluded in November 2014. Following the signing of the Agreement in Australia on 17 June 2015, the Australian Federal Government proposed the introduction of a new visa type in order to implement the trade arrangements of ChAFTA.

The new visa will be a subclass of the Temporary Work (Skilled) (subclass 457) visa covered by labour agreements called Investment Facilitation Arrangements (IFAs). IFA’s can be implemented by Chinese companies investing in Australia. The visa is intended to enable Chinese companies to employ foreign workers in Australia for large infrastructure-based projects. However, the less stringent rules of the proposed new visa have been protested by the Union Movement in Australia.

The opposition Labour Government has suggested a series of amendments to IFA’s intended to “safeguard” the Australian labour force. It seems that this package of “safeguards” will be adopted by the Federal Government.

Investment Facilitation Arrangements (IFAs)

The new stream of subclass 457 visas are intended to make it easier for Chinese owned companies registered in Australia to import skills for their projects. Eligible projects must commit to a capital expenditure of over $150 million.

IFA’s will operate within the framework of the existing subclass 457 visa, however the major difference was supposed to include that:

IFA’s would not require the sponsoring company to meet current labour market testing provisions that apply to a number of nominated occupations; and
There would be no necessity to show that there is a skills shortage in the Australian labour market.

This was supposed to enable Chinese companies investing in projects over $150 million in Australia to bypass the labour market testing provisions in sponsoring overseas workers in Australia.

Three Stage Process of the IFA

Applying for an IFA will involve a three stage process:

Firstly, a substantially Chinese-owned company represented by the China International Contractors Association (CICA) must prove to the Australian the Foreign Affairs and Trade Department that a project is eligible for an infrastructure “IFA” in accordance with ChAFTA;
If the Chinese-owned company’s project is deemed to be an “IFA,” it is possible to then apply to the Department of Immigration and Border Protection (DIBP) to negotiate the IFA. The terms of the agreement will include, the number of foreign workers able to enter Australia, their English language proficiency and the qualifications and employment experience of the foreign workers; and
Thirdly, each employer involved in the IFA will be required to set up a specific labour agreement with the DIBP stipulating the number and type of jobs needed for the project and the sponsorship obligations of the employer.

Concern has been expressed by the Union movement and other related parties about lack of labour market testing for companies bringing in foreign workers under an IFA.

Labour “Safeguards”

Labour has agreed to support the introduction of ChAFTA enabling legislation in Parliament if a package of “safeguards” are adopted which will amend the requirements of IFA’s. The Labour Party claims that the “safeguard” package is intended to protect Australian wages and conditions and uphold workplace skills and safety standards.

The package of “safeguards” include the following items:

Employers entering migration work agreements, including under ChAFTA IFA’s, will be required to conduct labour market testing;
Employers will be required to adopt training plans showing how they will train local workers, and overseas worker support plans showing how they will support subclass 457 visa workers;
New visa conditions will be created requiring 457 visa workers in licenced trade occupations not to work unless they hold a licence, to obtain the relevant licence within 90 days of arriving in Australia and to notify the DIBP if refused a licence; and
Requirements for public reporting on the impact of work agreements.

Changes to the requirements of IFA’s will be included in the Migration Regulations 1994 to ensure that they are legally binding.

IFA’s into the Future

It seems that the Federal Government will adopt the “safeguard” package proposed by the Labour Party in relation to IFA’s. This will increase the bureaucratic hurdles for substantially Chinese-owned companies wishing to invest in multi-million dollar infrastructure projects in Australia, should they require the assistance of foreign workers. Meeting the requirements of IFA’s and implementing sponsorship obligations stipulated in the migration agreements will be more onerous than was initially intended under ChAFTA for Chinese companies.

Disclaimer:

Suspension of Subclass 175, 176 and 475 Visa Processing

Posted by Rebecca Berkovic on September 22, 2015

As of today, the Skilled (Independent) (subclass 175), Skilled- Sponsored (subclass 176) and Skilled Regional Sponsored (subclass 475) visas will be capped and ceased by the Department of Immigration and Border Protection (DIBP).

Visa applicants whose applications have been ceased will be refunded their application fee by the DIBP, but will be deemed never to have made their application.

This is an unfortunate situation for many visa applicants who have waited in uncertainty for years to receive a decision on their visa application. Many of these applicants met the requirements of the subclass 175, 176 or 475 visas they applied for, but are now no longer eligible under the new Skilled Migration regime.

The DIBP has announced that it will continue to process subclass 175, 175 and 475 visas for visa applicants who are onshore in Australia.

For advice regarding Skilled migration to Australia, please feel free to contact the author by email at rebecca@hartmanlawyers.com.au or by telephone on +61 3 9021 0986 or +61 (0)423 701 747 for advice.

Disclaimer:

Current Immigration Minister Remaining

Posted by Rebecca Berkovic on September 21, 2015

Following the leadership spill of the Liberal party on 14 September 2015, and the subsequent voting in of Malcom Turnbull as Australia’s 29^th Prime Minister, there has followed a reshuffling of Cabinet with an increase in positions from 19 to 21.

It is noted that the current Minister for Immigration, Peter Dutton, has retained his position and will continue at the present time as Australia’s Minister for Immigration.

We are yet to see what immigration policy and legislative changes may be introduced under Malcolm Turnbull’s Prime Ministership.

Disclaimer:

Tribunal Appeal Rights and the Subclass 457 Visa

Posted by Rebecca Berkovic on September 8, 2015

The situation of appeals to the Administrative Appeals Tribunal (AAT) (and its predecessor of the Migration Review Tribunal (MRT)) for applicants whose subclass 457 visa applications were refused was narrowed in December 2014. This occurred following the decision of Judge Nicholls in the case of Minister for Immigration v Lee & Ors (2014) FCCA 2881 (10 December 2014) (The “Lee” decision).

However, the recently decided case of Kandel v Minister for Immigration & Anor, (2015) FCCA 2013 (7 August 2015) (the “Kandel” decision) in the Federal Circuit Court has shed further light on tribunal appeal rights in the situation of refusal of a subclass 457 visa by the Department of Immigration and Border Protection (DIBP).

The “Lee” decision

In the Lee decision, the Federal Circuit Court determined that the MRT did not have jurisdiction to review a subclass 457 visa refusal unless an approved nomination was in force at the time the review application was lodged with the Tribunal.

This case involved a nomination by H2 Property of a citizen of South Korea to be sponsored by the company as a “Marketing Specialist” on a subclass 457 visa. The nomination was approved by the DIBP, however by the time the DIBP made a decision regarding the visa application, the nomination (valid for a 12 month period) was no longer effective and the visa application was refused. An appeal regarding the refusal of the visa application was lodged with the MRT, however the Minister asserted that the MRT had no jurisdiction to review the application given that the nomination had expired.

The Court found that the MRT had wrongly determined that the sponsorship period remained in force for four years and that it only remained in force 12 months after the approval of the nomination. The Court significantly held that it was necessary for an approved nomination to be in force in order for the Tribunal to review the DIBP refusal of a subclass 457 visa application.

The “Kandel” decision

The “Kandel” decision involved the situation where the visa applicant’s subclass 457 nomination and visa application were refused by the DIBP. The visa applicant received a letter stating that the application was not reviewable by the Tribunal. However, in this situation the visa applicant lodged a new nomination application with the DIBP and then seven minutes later lodged an application for review. The AAT found that it did not have jurisdiction to review the decision of the refusal relying on the “Lee” decision that an approved nomination was not in force.

Judge Street in the Federal Court, effectively overturned the “Lee” decision, finding that it is not necessary for a subclass 457 nomination to be approved in order for the refusal of a subclass 457 visa application to be reviewed at the Tribunal. Rather, it is only necessary for a visa applicant to be “identified” in a nomination application in order for the AAT to have jurisdiction to review a decision by the DIBP to refuse a subclass 457 visa application.

Current AAT appeal rights

It seems that under the present state of the law, it will be possible to apply to the AAT in the situation where a subclass 457 visa application is refused at the Department stage:

Where the subclass 457 sponsorship application has been refused by the DIBP and is appealed by the sponsoring employer;
Where a subclass 457 nomination application by the sponsoring employer has been approved and is still in force; and
Where a subclass 457 nomination application by the sponsoring employer has been refused by the DIBP, but a new nomination application has been lodged.

The review situation following the “Kandel” decision has been clarified where as long as the subclass 457 visa applicant has been identified in a nomination application, this will now be sufficient to enable a review by the AAT in the case where the subclass 457 visa application is refused by the DIBP. A nomination is no longer required to be in force in order for the AAT to have jurisdiction to hear the appeal of a refused subclass 457 visa application.

For advice regarding subclass 457 nomination and visa application appeals, please feel free to contact the author by email at rebecca@hartmanlawyers.com.au or by telephone on +61 3 9021 0986 or +61 (0)423 701 747 for instructions.

Disclaimer:

Increased scrutiny of subclass 457 visas

Posted by Rebecca Berkovic on July 30, 2015

Following the election of the Coalition Government in 2013, we witnessed a relaxation by the Department of Immigration and Border Protection (DIBP) in the processing of Temporary Work (Skilled) (subclass 457) sponsorship, nomination and visa applications. In Prime Minister, Tony Abbott’s, election speech he mentioned the emphasis of the new Government on allowing Australian businesses to develop through the ability of sponsoring skilled overseas workers on subclass 457 visas.

However, we have now witnessed a complete turnaround on the processing efficiency and relative leniency within the DIBP in regards to subclass 457 sponsorship, nomination and visa applications which was present following the Coalition Government’s election.

Increased processing times

The lack of efficiency and greater level of scrutiny of subclass 457 sponsorship, nomination and visa applications has resulted from:

The DIBP has changed the processing mechanism so that rather than once case officer assessing each application, it is allocated to a “team” which assesses the file, and therefore it is no longer possible to deal directly with one assessor personally when contacting the DIBP about specific applications;
The DIBP has increased the amount of Request for Information (RFI’s) sent out on each application; and
The DIBP is utilising the “genuineness criteria” to add additional scrutiny to positions nominated within a business.

The increase in processing times has led to some frustration for businesses requiring staff to commence their role and for subclass 457 visa applicants wishing to gain certainty of the Australian visa status.

Increased refusals

In addition to greater processing times, it has been reported that there has been a greater number of subclass 457 sponsorship, nomination and visa applications refused by the DIBP. Figures released by the DIBP show that the number of subclass 457 applicant grants declined by over 4.1% since March 2015.

Proceeding carefully

The 457 visa program is essential for businesses to be able to fill positions where there are local labour shortages or where an overseas employee has crucial skills to assist the business. The DIBP seems to seesaw from efficiency and leniency to inefficiency and harshness in assessment. We seem to have now reached the latter period again.

It has therefore become important that in order to maximise the chance of success of a subclass 457 sponsorship, nomination and visa application being approved that it is lodged by a person/organisation with an in depth knowledge of the Migration Regulations 1994, Migration Act 1958 and informing policy and case law.

Should your organisation, or you as an individual, require advice regarding subclass 457 eligibility criteria, we are certainly able to assist. Please feel free to contact the author by email at rebecca@hartmanlawyers.com.au or by telephone on +61 3 9021 0986 or +61 (0)423 701 747 for instruction.