As some readers may be aware, the Australian Government had previously proposed changes to the process in how we apply for Australian Partner visas. Specifically, with the introduction of the Migration Amendment (Family Violence and Other Measures) Act 2018, it was suggested that before a Partner visa could be applied in future, the Australian sponsor would need to first be approved as a 'family sponsor'.

Importantly, this was a key change to how Partner visas had been prepared and submitted for many many years where there was no such requirement, and both the sponsorship and visa could be submitted together. This often allowed us to submit applications in urgent situations, where for example, the visa applicant was currently inside Australia and their visa was expiring. By being able to submit applications quickly, we were able to secure a bridging visa for applicants allowing them to remain in the country lawfully until a decision had been made on the Partner visa.

This process is visually explained in the diagram below:

As things stood, the proposed changes were not yet 'in effect' and it was business as usual.

THIS HAS NOW CHANGED....

As of today, the 9th April 2019, we have received confirmation that provisions and requirements set out in the Migration Amendment (Family Violence and Other Measures) Act 2018 will come into effect on the 17th April 2019 bringing in a new age in the way Partner visas are prepared and submitted. 

To confirm, from the 17th April 2019 onwards, it will be a requirement that the sponsorship in relation to an Australian Partner visa be submitted separately and before the application of the Partner visa. Only once the Australian has been approved as a 'family sponsor' will their spouse/partner be eligible to apply for the Partner visa, and for those onshore at the time of lodgement, be eligible for the grant of a Bridging Visa. 

This process is visually explained in the diagram below:

Important Things to Consider

1. Practically speaking, only Partner visa applicants who are currently inside Australia and have a visa expiry date within the next 2-3 months or so, should consider applying for the visa prior to the 17th April 2019. Otherwise, unless you are confident that your relationship facts and evidence sufficiently demonstrate you are in a de-facto or married couple, rushing to apply for a Partner visa may lead to problems in future when assessed against 'time of application' criteria ('Time of Application' criteria is best explained in our free Webclass ? here)

2. As above, couples looking to apply for off-shore Partner visas (such as the 309/100 and PMV 300) should not, necessarily, be looking to rush into lodging an application unless they are confident they already meet the visa criteria. 

3. We do not yet know the specific criteria for the approval of a 'family sponsor' in relation to Partner visas post 17th April 2019, however we assume the criteria will be similar, if not identical, to how sponsors are currently assessed, except the difference being this is now done 'upfront' as opposed to when the partner visa is assessed as per the OLD Process pictured above (stay tuned). Importantly, this may require that sponsors provide police clearances from both Australia and countries lived in overseas with their sponsorship applications. As these clearances can take several weeks to be returned it may be advisable to start arranging these asap. 

4. We do not yet know how long it will take for family sponsor applications to be decided. Also, given that the DHA will be implementing this assessment process for the first time, we would encourage readers to take any processing estimates initially released by the DHA with a grain of salt as it is unlikely any accurate timeframe will be established until the DHA has received, and processed, enough sponsorship applications to provide accurate data and statistics on waiting times 

5. This does NOT IMPACT applications already submitted and pending with the DHA.

What Should I Do?

Our office will soon be getting in touch with all our pending Partner visa clients to advise and plan regarding the 17th April 2019 implementation date of these changes. Rest assured we are 'onto it'! 
​
For those reading this who are not yet Salvo Migration clients and would like to discuss their Partner visa case, you can chat with our legal team, for free, on Facebook Messenger by clicking on the 'Lets Chat' button below. Otherwise, for those interested in commencing their matter with priority please leave an enquiry online here. 

Testimonials on Display

We have now added a Testimonials section on our website which you can view 👉 here. Each month we will add any newly received testimonials that visitors are welcome to scroll through. 

Brick by brick

​Brick by brick, our Wall of Approvals keeps growing. Below you will find a couple more we added recently...

To see the full Pricing Page please click 👉​ here.

To watch the Webclass please click 👉 here.

We have plans to introduce additional Web-classes in 2019 covering the following topics:

• Parent Visas: Whats The Best Option?
• Sponsored Visas (Everything You Need to Know as an Employer)
• Sponsored Visas (Everything You Need to Know as an Employee)
• General Skilled Migration; Pathways to PR in 2019 and Beyond
• New Zealand Citizens: How to Get Australian Citizenship

Stay tuned! 

Veazy

​WANT TO GET IN TOUCH? 📞
​
​Want to get your visa approved? We can help 😎

To speak to our legal team and leave a visa enquiry, please contact us 👉 here.

Warm Regards,

​The Salvo Migration Team

⏯ Watch the quick video below to see inside the Workbook!

• Partner Visa Journey - click  👉 here to read

• 5 Top Tips to Instantly Improve Your Partner visa - click  👉 here to read

 

• How to Avoid the 12 Month Rule - click  👉 here to read​

​Want to get your visa approved just like the examples above! We can help 😎

To speak to our legal team and leave a visa enquiry, please contact us 👉 here.

Warm Regards,

​The Salvo Migration Team

Want to see more? Click 👉​ here to follow us on Instagram! 

Need an immigration lawyer you can trust? Contact us today!
Click 👉 here to leave an online enquiry. 

Clearly outlining your timeline to the DHA visually helps to very quickly and simply explain to your case officer the important and key milestones they are looking for when assessing you against the 'time of application' Partner visa criteria. Please note, the above should be used as an example as there is no limit in terms of how many dates/events you can include in your timeline. That being said, the more you do the better prepared your application will be! 

For example, other dates/events you can include are a) date engaged, b) date Civil Union registered, c) date married (if applicable), d) date child born (if applicable), e) date joint property purchased, f) date large overseas holiday etc. 

IF YOU WOULD LIKE A COPY OF THE ABOVE 'RELATIONSHIP TIMELINE TEMPLATE' YOU CAN DOWNLOAD ONE FOR FREE HERE (NO EMAIL NECESSARY).


2. Make Sure Your Information & Documents are CONSISTENT!

​Minor mistakes including inadvertent inconsistencies can prove costly down the line and result in delays in obtaining your visa.

The dates and information across all documents must be consistent, or any legitimate inconsistencies must be clearly explained up front. This includes cross checking key dates provided in the application form with the supporting evidence - relationship statements, joint leases, bank accounts, travel itineraries etc.

Any social media accounts or statements provided by family/friends must also be consistent with your application and documents. Immigration can cross check with any information publicly available or verify information directly with your witnesses. Therefore, if your social media profiles are set to PUBLIC, it is advisable that you change your 'relationship status' to reflect the dates claimed in your application (and hopefully in your Relationship Timeline should you use our template mentioned above). 

Ask yourself the following questions before you finalize and submit your application:

1. Are the dates I have included in the Application form consistent in the Sponsorship form?

2. Are the dates we have declared in our Relationship Statements consistent with both the Application and Sponsorship Form?

3. Is our Relationship Timeline Diagram consistent with the Relationship Statements, Application and Sponsorship Forms?

4. Do our supporting documents verify the dates we have claimed? 

Please note, the above questions should be used as an example. In practice, we cross check everything to make sure we don't miss an inconsistency that may be hiding somewhere 😊​

3. RENAME Your Documents Prior to Uploading

A key factor is ensuring your documents are organised and re-named in accordance to the document upload framework in IMMI systems.

Highlight your names and addresses on all documents, particularly where it demonstrates joint ownership or cohabitation. Merge any documents that belong together e.g. photos, social media extracts and phone records.
​
This will make it easier for Immigration to identify your documents and assess your relationship (resulting in a quick decision!)

Below you will see some examples 'naming conventions' we use in the preparation of client Partner visa applications:

Identity Documents

​Identity - Passport (Applicant Name)
Identity - Birth Certificate (Applicant Name)
Identity - Previous Marriage/Divorce (Applicant Name)

Character Documents

Character - Penal Clearance - Australia (Person Name)
Character - Penal Clearance - Country Name (Person Name)
Character - Form 80 (Person Name)

Relationship Evidence (IMPORTANT!)

Relationship Evidence - Social Aspects - Form 888 (Witness Name)
Relationship Evidence - Nature of Commitment - Relationship Statement (Applicant Name)
Relationship Evidence - Nature of Commitment - Relationship Statement (Sponsor Name)
Relationship Evidence - Intention to Marry - Notice of Intention to Marry/Marriage Celebrant
Relationship Evidence - Marriage Certificate
Relationship Evidence - Civil Union Certificate
Relationship Evidence - Financial - Joint Loan (Date of Document)
Relationship Evidence - Financial - Joint Bank Account  (Date of Document)
Relationship Evidence - Financial -  Power of Attorney (Date of Document)
Relationship Evidence - Financial - Joint Purchase - Item Name (Date of Document)
Relationship Evidence - Financial - Family Payment Allowance for Couple (Date of Document)
Relationship Evidence - Financial - Superannuation Beneficiary (Date of Document)
Relationship Evidence - Financial - Joint Insurance (Date of Document)
Relationship Evidence - Financial - Funds Transfer from NAME to NAME
Relationship Evidence - Household - Address - Joint Property Ownership (Date of Document)
Relationship Evidence - Household - Address - Joint Lease (Date of Document)
Relationship Evidence - Household - Address - Joint  Rental Receipts  (Date of Document)
Relationship Evidence - Household - Address - Joint Utilities - Name of Utility  (Date of Document)
Relationship Evidence - Household - Address - Mail for Sponsor/Applicant   (Date of Document)
Relationship Evidence - Household - Household Renovations - Item Name
Relationship Evidence - Household - Joint Responsibility for Children - Item Name
Relationship Evidence - Household - Joint Responsibility for Pets - Item Name
Relationship Evidence - Social - Colour Photographs of Couple
Relationship Evidence - Social - Social Media Extracts
Relationship Evidence - Social - Statutory Declaration from Witness Name 
Relationship Evidence - Social - Joint Membership - Membership Name
Relationship Evidence - Social - Joint Holiday Together - Location Name
Relationship Evidence - Social - Invitation/LetterAddressed to Couple
Relationship Evidence - Nature of Comitment - Last Will & Testament (Name of Person)
Relationship Evidence - Nature of Comitment - Engagement Evidence - Name of Item
Relationship Evidence - Nature of Comitment - Engagement Evidence - Name of Item
Relationship Evidence - Nature of Comitment - Engagement Evidence - Name of Item
Relationship Evidence - Nature of Comitment - Communication Between Couple - Name of Item
Relationship Evidence - Nature of Comitment - Life Insurance Policies
Relationship Evidence - Nature of Comitment - Pregnancy Evidence​
 
4. Write COMPELLING Relationship Statements

Immigration are ultimately looking for whether a relationship is genuine. The documents alone will not always paint a clear picture of the nature of your relationship or your love for each other.

It is therefore important to write detailed and compelling statements that explain how you met, your timeline, any key milestones and your future plans. Including key words of ‘love’, ‘commitment’ and ‘children’ can make the statement a more personal insight into your relationship and show your long term plans to be together, forever! 

It is also vital to cover key aspects of your relationship including your household, finances and social aspect. This will act as a summary of sorts and tie your evidence together (which you also would have renamed by now 😊​)

Additionally, there is no 'word limit' and you are welcome to be as descriptive as you wish, however we always make sure our clients are writing factual and emotionally compelling statements. For example, a smaller statement that uses 'love language' and clearly explains the care and commitment a couple have to each other will always hold more weight than pages and pages of cold and calculated phrasing. Don't be afraid to get emotive...this is your chance to essentially write your own love story (sorry, no vampires 🧛). 

5. PLAN AHEAD - Don't Rush! Give Yourself Time to Prepare Your Application Thoroughly
 
One of the most common requests we receive from clients is to prepare their application ‘quickly’. We of course always aim to work efficiently, however our advice is always that it is better to prepare an application thoroughly and to ensure our clients satisfy 'time of application criteria', rather than risk rushing through an application unnecessarily. 

Accordingly, unless you are pressed by an upcomming visa expiration date or deadline, and you have time up your sleeve, an intentional strategy you may choose to implement is to wait as long as possible before applying. The aim being, that you will have more time to compile and strengthen your facts and evidence before lodgement. This might mean something as simple as holding a joint account for a longer period and using it more frequently.

The focus here is again to ensure you meet 'time of application' requirements with your evidence showing you are in a committed de facto or married relationship when your application is submitted. All too often couples apply sooner than they should simply because they assume they meet the visa requirements. So if you have time, use it and remember that some of the more substantial relationship evidence is often provided by third parties  including statements from family or friends,  financial documents, wills & last testaments etc. 

​The above is effectively the same strategy we use for all of our client Partner visa applications. Because we never know the true strength of a relationship until we start reviewing client documentation, we always encourage people to get in contact with us sooner rather than later so that we have sufficient time to improve the evidence and application well in advance of lodgement and PLAN AHEAD  ⏱️

​ 🔒​ We Respect Your Privacy. No Spam Ever.

What’s New?

Recently, the Australian Government made changes to the requirements of local businesses looking to sponsor non-Australians into skilled positions. One such change was further clarification in terms of the kinds of advertising it expects businesses to have conducted seeking to fill the position with Australian workers prior to submitting a Sponsorship application for a foreign worker. This is otherwise known as the Labour Market Testing requirement.
 
Where Should you Advertise?

Accordingly, Australian businesses will now need to demonstrate the following in relation to the position they wish to fill with a non-Australian worker:

What Should the Advertisements Say?

In order to meet DHA requirements, the advertisements should provide the following information:

• be in English
• the title, or a description, of the position;
• the name of the approved sponsor or the name of the recruitment agency being used by the sponsor; and
• the annual earnings for the position (unless the annual earnings will be greater than the Fair Work High Income Threshold, currently AUD 142,000);

 
How Long Should it Run For?

Under DHA policy, for online advertisements, it is expected that the advertisement would have remained live for at least 21 consecutive days. Similarly, for print or radio advertisements, it is expected that applications or expressions of interests were accepted for at least 21 consecutive days. That being said, further upcoming changes are likely to extend this period to 28 days (watch this space).

Do You Have an Example?
 
We sure do! Please see below for a template/example that you can use in your advertisements.

I Have Already Advertised. Can I Use It?

As long as your advertisement is similar to the example provided above and was placed within 12 months of lodging the Nomination, this may be acceptable. However, as eluded to above, further changes in the pipeline are likely to reduce this to advertisements having to have been placed within 4 months of lodging your application.
 
Accordingly, given the ever continuing changes surrounding this are of immigration law, we would encourage you to seek professional advice prior to submitting your application.

Is Anyone Exempt?

Due to current International Trade Obligations, exemptions do exist in certain cases. This blog will not necessarily summarize all of the exemptions under the relevant Legislative Instrument, however for the benefit of most of our readers, we can confirm that nominees who are Citizens/Nationals of China, Japan or Thailand as well as Citizens/Nationals/Permanent Residents of Chile, Korea, New Zealand and Singapore will be exempt under current rules (i.e. if you are one of the above, your employer will not be required to meet Labour Market Testing requirements in order to sponsor you).

Looking for Help?
 
If you have any questions relating to the LMT requirement and how to ensure your businesses satisfies these new requirements, please feel free to leave an online enquiry here.

​Salvo Migration

In more good news for Australian businesses wanting to sponsor foreign workers (sarcasm - see here), on the 10 May 2018 the Australian Senate passed the Migration Amendment (Skilling Australians Fund) Bill 2017 and Migration (Skilling Australians Fund) Changes Bill. Effectively, the combined impact of this Legislation is replacement of the previous Training Benchmarks with the imminent introduction of a Training Levy. In short,  the Training Levy is an additional fee payable by Australian employers at the time that they nominate non-Australians for Sponsored Visas. The funds received will be put towards the financing and operation of the Skilling Australia Fund, managed by the Department of Education and Training. 

Once finalized and in force, it is anticipates the Training Levy fee payable by Australian employers will be as follows:

For businesses with turnover of less than $10 million per year

• TSS Visa - $1200 for each year the nominee will be working for the business, for example:
  
  Carpentry Brisbane Ltd wish to sponsor Kerry McGill, a qualified and experienced carpenter, for 4 years on a Subclass 482 TSS visa. Carpentry Brisbane Pty Ltd will be required to pay $4800  towards the Training Fund at the time that they nominate Kerry, being $1200 x 4 years.
  
  Please note, the requirement for the business to make a payment towards the Training Fund repeats each time a new worker is nominated on the TSS visa. The up front payments are required per worker, per year. 
  
  
• ENS/RSMS - a one-off payment of $3000 each worker nominated for the ENS or RSMS.

For businesses with turnover of $10 million or more per year

• TSS Visa - $1800 for each year the nominee will be working for the business, for example:
  
  Carpentry Brisbane Ltd wish to sponsor Kerry McGill, a qualified and experienced carpenter, for 4 years on a Subclass 482 TSS visa. Carpentry Brisbane Pty Ltd will be required to pay $4800  towards the Training Fund at the time that they nominate Kerry, being $1200 x 4 years.
  
  Please note, the requirement for the business to make a payment towards the Training Fund repeats each time a new worker is nominated on the TSS visa. The up front payments are required per worker, per year. 
  
  
• ENS/RSMS -  a one-off payment of $5000 each worker nominated for the ENS or RSMS.

If you have any questions relating to the Training Levy or Sponsored visa requirements in general, please feel free to get in contact with us here, or join our private Facebook Group here.

We hope this helps.

Salvo Migration

To quote the great Bob Dylan...The times they are a changin'. Indeed this is becoming more prevalent in the way emerging cryptocurrency and blockchain technology is shaping to change our lives and futures in a variety of industries. We cant profess to be IT experts here at Salvo Migration (unfortunately we are only experts in Australian immigration law), however, we are always looking at ways to make our clients lives as stress free as possible. With this end in mind, we are pleased to announce that our clients will now be able to pay for their professional fees and Home Affairs Visa Application Charges using a variety of cryptocurrencies. We hope this will give clients more flexible payment methods and make things a little more manageable when budgeting for all the costs associated with any visa application. 

Accordingly, we now accept the following cryptocurrencies:

1. Bitcoin
2. Ethereum
3. Litecoin
4. Dash
5. Bitcore
6. Monero
7. Eth Classic
8. Zcash
9. Steem
10. PIVX
11. Dogecoin
12. BC

​​
If you are interested in using cryptocurrency to help pay for the costs associated to your visa application, or even if you just want to use plain old 'normal money', please feel free to leave us enquiry below and we will respond within 24 hours!

As our readers are probably aware, varying changes were made to Australian visa pathways throughout 2017. You may also know that further changes will be coming into effect sometime 'early' March 2018. What you may not know, however, is the true combined effect of these changes and visa pathways for migrants to this country. In this lengthy blog, we will dive a little deeper into what these changes really mean in the context of the Australian visa framework so that hopefully you can start to make an informed decision, or plan ahead, should you be trying to secure a visa to this country in the near future. 
​
Accordingly, it is important to start off by saying that changes to Australian immigration laws are not uncommon. We have seen countless immigration policy and legal changes in the last several years. With each change comes new Regulations, new requirements and new ‘stuff’ that we, as registered Migration Agents/Lawyers, need to become very well versed on as quickly as possible. Often, the specifics of these changes are not known until they have taken legal effect, meaning that there is inevitably a very 'intense' short period of time which we, as the professionals in our industry, must read all available resources as quickly and carefully as possible to ‘learn’ the new ‘stuff’ and then be able to advise clients accurately. 

This cycle of change is not new and it will continue to happen simply due to the highly politized nature of Australian immigration. With every newly elected Government, comes an adjusted stance on Australian immigration, sometimes even reversing previous changes implemented by the prior Government. This causes unpredictability, but ultimately, also leads to the need for legally trained professionals who should be able to digest and comprehend these changes better than clients, who often may not be native English speakers.

This now brings me to the current state of affairs. The sweeping changes that came about in 2017 and further proposed changes in early in 2018 have been unprecedented. Since the announcements in April 2017, we, as a migration agency, have found ourselves spending more time explaining to people why they are not eligible for a visa rather than explaining the requirements of a visa someone is eligible for. Let’s dive into this a little more

Pathways into Australia

There are only limited pathways into Australia. I have said this for many years and the saying has never rang truer than today. The simplest and quickest way that I can summarize this is to direct you to this video here where I outline, what was at the time, the ‘Common Pathways to Permanent Residency’ (refer to the image below also). I will say that the pathways to residency have evolved since that video and the image were created, however the initial temporary visas used to enter Australia remain the same (i.e Tourist/Visitor, Student and Working Holiday visas). Statistics show that of the 7.7 million temporary visas granted in the 2015-16 Programme Year approximately 5.3 million (70%) of these were represented by the visas I mentioned above (source: https://www.border.gov.au/about/reports-publications/research-statistics/statistics/year-at-a-glance/2015-16). Of the remaining 30% of temporary visas granted, 1.9 million (25%) of these were Subclass 444 visas available only to New Zealand Citizens. The remaining 5% included Maritime Crew and Transit Visas, other Temporary Visas and the doomed Subclass 457 visas. 

​Accordingly, if you are in Australia, or looking to enter Australia, statistics tell me that you will be on either a Tourist, Student or Working Holiday visa. I call these visas ‘vehicles’ and they are great at getting you here, however, what if you want to stay permanently? What options do you have? Lets have a look.

Permanent Residency Options

​The image above helps to visually demonstrate important statistics that defined the 2014/2015 programme year. It tells us that 190,000 permanent places were available during that period, made up substantially of certain visas types. Although the image above is slightly outdated, the 2016-17 Programme Year followed similar numbers with 183,608 permanent visas granted (Source: https://www.border.gov.au/ReportsandPublications/Documents/statistics/report-on-migration-program-2016-17.pdf). 
 
Accordingly, the 2016-17 Programme Year was made up of the following:
 
·         Skill Stream: 123,567 permanent visas (approximately 67% of all permanent visas granted)
·         Family Stream: 56,220 permanent visas (approximately 30% of all permanent visas granted)
 
Importantly, the above two Streams represented approximately 97% of all permanent visas granted during this period.

Importantly, if we break these statistics down further, we can start to identify and narrow down specifically what type of visa subclasses fall within these Streams:

Of the 123,567 Skilled visas granted:

o    48,250 (39%) of these were for Sponsored visas

• 78.9% of these were ENS 186 visas
• 21.1% of these were RSMS 187 visas

o    67,857 (54%) of these were Skilled (GSM) visas
o    Approximately 7% of these were for other visas
 
Of the 56,220 of Family Stream visas granted:

o    47,825 (85%) of these were Partner visas
o    7563 (13%) of these were to Parent visas
o    Approximately 2% of these were for other visas

So, let’s see what this looks like visually:

What this shows us is that four visa categories (Sponsored, Skilled (GSM), Partner and Parent) accounted for approximately 171,495 permanent visas granted in the 2016-17 Programme Year, which equates to 93.5% of all permanent visas granted to Australia in that period.

Additionally, the current 2017-18 Programme Year has identical planning levels, meaning that by 30 June 2018 we can anticipate that a similar number of visas would have been granted in the streams discussed above (source:  https://www.homeaffairs.gov.au/about/corporate/information/fact-sheets/20planning). 
 
Understanding the statistical significance of Sponsored, Skilled and Partner visas, we can now explore how the changes earlier this year and future propose changes in March 2018, have already, and will impact each of these streams in different ways.

Impact on Sponsored Visas

Since the recent announcements, Sponsored visa pathways were the hardest hit. There have been numerous changes and measures introduced which has made being eligible for these visas very difficult. To date, these include:

• Changing of the occupation lists to the MLTSSL and STSOL
• Removal of occupations from both these lists
• Changing of policy in terms of the length of 457 visa can be granted depending on which list your occupation falls into in addition to removing a transition pathway to residency for non-MLTSSL occupations
• Introduction of ‘Caveats’ (i.e additional criteria) for occupations lucky enough to be still on the lists which narrows eligibility further
• Reduction of age limits for ENS and RSMS visas
• Increase in English language requirements for ENS and RSMS visas

Moreover, come March 2018, future changes will make Sponsored visas even harder as we see the abolishment of the 457 visa and the limiting of permanent pathways to those on the GOOD OCCUPATION LIST (i.e the MLTSSL) or those on a yet to be defined ‘additional list’ for RSMS applications.

Accordingly, let’s summarize the real changes which we will see come March-2018:

1. The 457 will be replaced by the TSS visa, which amongst other things, and will require 2 years skilled employment in the occupation
2. The ENS and RSMS visas will require 3 years skilled employment

With regards to point 2 and 3 above, the question has to be asked how many applicants of these visas were previously recently qualified international students (with no work experience) or working holiday makers which came to Australia shorty after receiving their qualification? Accordingly, these changes will effectively put a line through any Australian international graduate looking to be sponsored and a percentage of those recently qualified from back home as they will not have the required years of work experience in their occupation.

The impact of this is that most Australian Vocational qualifications will become valueless in terms of providing graduates with a pathway to a Sponsored visa or permanent residency. How will this impact the international student sector as word trickles back to common student migrant countries (India, China, Nepal etc) that Australia has made it much more difficult for international graduates to gain permanent residency unless you come and study a very narrow list of occupations that is now updated every 6 months? We have already begun to hear reports of Universities simplifying the process for international students to gain enrolment as well as offering scholarship incentives due to a reduced interest in enrolling in further studies. In addition, we have also received news of smaller educational institutions having to close due to the dramatic drop in international student enrolments already. Sure, the big tertiary institutions will always be in a position to entice international students, however what about the little guys? Unfortunately I predict that many more smaller institutions will face similar issues if they haven't already. 

To add to this, from March we will see the introduction of a Training Levy applicable to the new TSS and pre-existing ENS visas. Let’s be frank, the amount of Australian employers that would be willing to pay, up-front, thousands of dollars to a training levy in order to sponsor a migrant worker would be, in my humble opinion, limited to big/large businesses. Small businesses will not, again in my humble opinion, be willing to incur these expenses. What this will create is added pressure on the migrant worker to ‘absorb’ these added costs, despite this being regulated against. This could essentially increase the cost to migrants by several thousand dollars. That being said, in my experience, migrants looking for a better quality of life and future in Australia will do whatever it takes as long as they have a pathway to residency. However, if the post-March 2018 landscape only provides a Sponsored pathway to PR for those on MLTSSL occupations, then what will those qualified in STSOL occupation do? Will it be worth it financially for them to spend thousands on a process that may only extend their stay for another 2 years? I predict this will be a genuine question asked by many would-be applicants and how many of them will decide they will give New Zealand or Canada a go instead given that our migration systems are comparable but may have better pathways to residency and Citizenship?

Increased costs will naturally lead to migrants looking to save money elsewhere. This will logically cause applicants to self-prepare more applications with the hope of not needing to engage a migration agent or lawyer. The money spent on the training levy payment can be saved by preparing the application themselves, right? Yes, this may be the case, however anyone who has been in the migration industry long enough knows that there are just some things the DIBP website and generic checklists do not say or tell you what you really need. In addition, the most notorious ‘criteria’ of any Sponsored visa is what is called the genuine need of a position. This is effectively the ability of an employer to be able to prove on paper that the occupation they are nominating is real and is needed in their business. There is, unfortunately, no simple way to do this as the very nature of the assessment is discretionary. How can one really tell if a position is needed? It simply depends on all of the circumstances and all of the evidence provided. 

I don’t say this in an attempt to ‘motivate’ readers to seek out a legal professional, I say this because I simply predict a large volume of self-prepared Sponsored applications which will lead to a:

• Larger volume of incomplete applications submitted to the DIBP
• Larger volume of Request for Information emails sent to applicants outlining generic documents/information needed with no real guidance or templates provided to assist the applicant
• Slower processing time as the DIBP deal with this higher volume of incomplete applications (we have already witnessed an increase in processing time averages)
• Higher refusal rates by the DIBP due to applications that do not sufficiently evidence that the criteria is satisfied (predominantly surrounding the Genuine Need criteria)
• Higher rate of appeals of these refusals to the AAT
• High rate of applicants then looking for legal representation for these AAT appeals

 
So from March 2018 I would conclude that the door on Sponsored visas has not necessarily shut entirely, but has, at best, been left ajar slightly. Lets reflect that this is in relation to a stream that had previously accounted to 26% of all permanent visas granted to Australia.

Unfortunately, the ones thin enough to squeeze in will be limited to the significant minority of those who had once applied for these visas.  The effect of this is that migrants will seek alternative pathways, however, what does that really mean?

Impact on Skilled Visas
 
One alternative pathway is a Skilled Visa, being a visa independently of an Australian employer or Sponsor. Importantly, these visas hinge on an applicant having a migration skills assessment in a ‘skilled occupation’ and meeting a ‘points test pass mark’. Accordingly, when I say Skilled Visas, naturally I am referring to 189. 489 and 190 pathways. The Subclass 189 is bound to the ‘GOOD OCCUPATION LIST’, whatever form it may take at any current point in time, which is currently referred to as the MLTSSL.

Recent changes have reduced the occupations on this, however for the most part, I would say it was not majorly affected. In saying that, what has impacted the 189 is that with the tightening of Sponsored visas, it has caused a greater volume of applicants now seeking to qualify independently. This causes a greater number of Expression of Interests submitted leading to longer waiting times for an Invitation and points cut offs for occupations. Please note, this is not speculative as this is already happening (refer to below):

(Image above taken from the 3rd January 2018 Invitation Round - http://www.homeaffairs.gov.au/trav/work/skil/invitation-round-3-january-2018)
​
Accordingly, the image above is taken directly from the Department's website (now referred to as the Dept. of Home Affairs) and suggests that the minimum points required for the most recent round of Invitations for the Subclass 189 visa was 70 points. ​ Importantly, this is consistent with reports that those scoring 65 (being 5 above the pass mark) are still needing to wait months before receiving an Invitation in any given occupation. This is not to mention those highly competitive occupations, such as Finance and IT, which have an even higher points minimum to have any realistic chance of being Invited.   

The domino effect of this is that due to the increased competitiveness of the 189, migrants are now also seeking State/Territory Nominated options such as the 489 and 190. In my experience, these visas are an enigma. Everyone wants to know about them, but only a very small minority meet the requirements. Keep in mind that Australia has seven (7) States/Territories, each with their own ‘list’ of occupations they are looking to nominate into their State/Territory in addition to specific application guidelines, procedures, forms and even criteria for any given occupation. All of this combines to make State Nomination a marathon with many hurdles for anyone exploring this pathway.

However, the fact of the matter is that since all of the changes in 2017, migrants are now panicking, and understanding the limiting of Sponsored options, are now looking into State nominated pathways. We have seen a x10 increase in State nomination enquiries since April 2017, however, the percentage of enquirers that met any State requirements could be approximately be calculated at around 5%. This is reflective of recent trends where we find we are spending more time explaining to people why they aren’t eligible for a visa. In saying this, State Nominated pathways do still exist and migrants will still be eligible, however it will be the minority of those seeking it. Furthermore, the flow on effect from all this will also include the following:

• More people will apply for migration skills assessments required for most Skilled Visas (a win for the assessing authorities)
• More people will try and improve their IELTS/English scores to meet the increased points criteria for the 189, 489 and 190 (a win for the testing centers and English tutors)
• More people will apply for State Nomination which will increase competition for already limited positions which could lead to the increase of criteria by the States/Territories as they start to fill their vacancies quicker than before – or, it will lead to the removal of occupations altogether
• More migrants will move to regional locations and other States/Territories as they secure a State nomination (a win for the States/Territories)
• More migrants, arguably the majority of which will be international student visa holders or Graduate 485 visa holders, will not receive an Invitation to apply for the 189, 489 or 190 prior to the expiration of their current visa, leading to more non-genuine Student visa applications in an attempt to extend their stay ‘until they can get invited or find another option’ (a win for Education agents and short-term win for international colleges and tertiary institutions - discussed further below)
• This will lead to more Student visa refusals > more Student visa appeals > longer AAT processing for these kinds of appeals etc

Impact on Graduate 485 Visas 

In addition, as mentioned above, another visa which is impacted by these changes is the 485 Graduate visa available to international students who have studied certain qualifications for at least 2 years in Australia. This visa is currently available under 2 streams as explained below:

• Graduate Stream > for those who have completed trade qualifications or higher in an occupation on the MLTSSL (i.e the good list)
• Post-Study Stream > for those who have completed a Bachelor level of higher from an approved university/school

Let’s break these down a little more.
 
Graduate Stream

The fundamental requirement of this stream is that the international student have qualifications relevant to an occupation on the MLTSSL. Looking at the MLTSSL itself, we can generalize available occupation types as Construction, Child Care Management, Health Administration, Finance, Architecture/Surveying, Engineering, Agriculture, Veterinarian, Teaching, Medical/Health Professionals, Nursing, IT, Legal, Social Work and Trades.

Importantly, aside from Trade occupations, most of the remaining occupations on the MLTSSL require at least a Bachelor level qualification if a student is to be sufficiently qualified to obtain 485 Skills Assessment needed for this stream of the Graduate visa. Accordingly, this suggests that Vocational qualifications (such as non-trade related Diploma's or above) may be of little benefit to international students looking for a post-Student visa option independently of an employer. If I were a college offering non-trade vocational qualifications relying on the international student market, this would make me very nervous.
 
Post-Study Stream

The fundamental requirement of this stream is that the international student have completed a Bachelor level or higher qualification. This again provides that completing vocational qualifications may not assist a migrant in meaningful way with regards to opening doors to long term visa options, aside from perhaps acting as a qualifying course to a higher level qualification.
 
What Does this All Mean?
 
If we accept that Sponsored visas will be more difficult from March 2018 (which in my humble opinion is indisputable) then we must also accept that migrants, namely international Students (being one of the main temporary visa types held by non-Citizens in this country) will seek alternative pathways to stay permanently. If we accept that permanent Skilled visa options (189/190 and the temporary 489) will also become more competitive (which we can see that they already have), then we are left with the Graduate 485 as one possible way to extend your stay in the country. However, as indicated above, regardless of either stream chosen, unless the migrant has completed a trade qualification or Bachelor level degree it suggests that they may not be eligible for this visa.

Even if students are eligible and they do eventually get granted their 485 visa, what do they do next? The 485 is not an automatic pathway to residency and it has, in the past, been commonly used as another ‘vehicle’ allowing the visa holder to secure a pathway to permanent residency, which generally was Sponsored, Skilled or Family. Leaving aside Family options for a moment (which can be summarized as Partner or Parent visas – as indicated by the Statistics mentioned above) and noting the challenges surrounding Sponsored visas post-March 2018, this only leaves Skilled visas. However, we have discussed above that a Skilled visa is also not a walk in the park with increased competition and many requirements to be satisfied.
 
The question then is, who will commit to coming to Australia and completing a Bachelor or qualification in a field when the Australian Government has now committed to ‘continually re-evaluating the skilled occupation listed on a regular basis’? International students now face the very real possibility that at the time they commence their qualification their industry/occupation is on the 'good list' with prospects for permanent residency, however by the time they have finished (say, 2 – 3 years later) it has been removed and they are left stranded on a temporary 485 visa with limited Sponsored visa options and Skilled visas being even more remote.
 
What does this leave as a permanent or long stay visa option? I would respectfully suggest that it leaves open the door to the abuse of the Family visa streams, and specifically, an increase of the submission of Partner visa applications as migrants access potentially the only remaining option. 

Impact on Partner Visas
 
As mentioned above, Partner visas are the third remaining ‘most common pathway to permanent residency’. With the tightening of rules on Sponsored visas and the increase in competition for Skilled Visas, migrants will have limited options but to apply for Partner visas with their Australian partners. This is, of course, a legitimate and genuine visa option, however we predict the following:

1. Increased applications of Partner visas generally
2. Increased applications of Partner visas by couples that are not yet in a strong position to evidence their de facto or married relationship however are pressured by approaching visa expiry dates with little remaining options
3. The above two points will lead to an increase in the average processing times of these visas (which has already begun given that at the time of writing average processing times are advertised at being 25 months for 90% of applications (see here - http://www.border.gov.au/about/access-accountability/service-standards/global-visa-citizenship-processing-times). Keep in mind these were once upon a time around the 6-9 month range).
4. Increase in Civil Registrations of de facto couples in an attempt to strengthen Partner visa claims
5. Increase in Marriages in an attempt to strengthen Partner visa claims (a win for marriage celebrants)
6. Increase number of refusals of Partner visas due to the points raised above
7. Increased number of Partner visa refusal appeals to the AAT leading to increased waiting times for the AAT

What Does all This Mean?

In a nutshell, this means that things are about to get tougher. Visa options are narrowing and criteria for what is left is increasing. Australia has not shut its door entirely, however only very select  migrants may have the key to get in. Given these changes, in attempt to try and help as many as we can, we would invite any reader to join our private Facebook Group here. Inside you will find close to 1000 members and our team answering questions to help the community.

Leave an Enquiry

If you think you are eligible for a visa discussed above, please feel free to leave an enquiry below and our office will respond as quickly as possible.

​Martin Salvo
Director
MARN 1175200
Immigration Lawyer

The migration industry took a collective sigh of relief today as the DIBP released further information clarifying transitional arrangements that will exist to those who held or had applied for a Subclass 457 Visa prior to the announcements made in April 2017. The transitional arrangements relate specifically to those who will be looking to apply through the Temporary Transition Stream of the Subclass 186 or Subclass 187 visa after March 2018, otherwise known as applying for permanent residency.

Accordingly, we can now confirm the following in relation to those applying through the Transition Stream of either the ENS 186 or RSMS 187 visa after March 2018:

1. The qualifying period to have held a 457 visa and worked for your employer will remain at 2 years. This suggests that the requirement to work for your employer for 3 years on a 457 visa will only apply to those who applied for their 457 visa after the April 2017 announcements. 
2. There will be no requirement that you have 3 years experience in your occupation. The requirement will remain that you have worked for your employer in your position for at least 2 years as mentioned above.
3. There is no need for your occupation to be on either of the occupation lists. You will simply need to be renominated under the same occupation as your current 457 visa (as is the case currently with any TRT application).
4. The age limit will remain at 50
5. The English language requirement still remains at needing to show 'competent English' which came into effect in July 2017. However, please refer to our blog here on how you may meet the requirements without needing to sit an English test. 

Importantly, the above is in relation to those looking to apply for the ENS or RSMS through the TRT stream after March 2018. Anyone looking to apply before March 2018 will apply under the existing rules and requirements, which effectively mirror the transitional arrangements mentioned above. 

What We Still Don't Know

Although the DIBP announcement has provided clarity in some key areas, there are still some things we do not yet have clarification on. These being:

1. For those that applied and were granted an 18 month 457 visa prior April 2017, how these transitional arrangements will affect their eligibility through the TRT stream given they may have, or will need to, renew the 457 visa in order to meet either the 2 or 3 year requirement.
2. Whether those who had held or had applied for a 457 visa prior to April 2017, but then renewed their 457 after April 2017, will be eligible to apply under these transitional arrangements.
3. Whether those who had held of had applied for a 457 visa prior to April 2017, but have since transferred their 457 to another employer and will need to renew their 457 visa in order to meet the 2 year requirement with that employer, will be eligible to apply under these transitional arrangements.
4. Whether those who applied for a 457 Nomination, but not a 457 Visa, prior to the April announcements will be eligible to apply under these transitional arrangements.

If you have questions that need answering, we encourage you to join our private Facebook Group here. Our team will do our absolute best to respond to your enquiries, free of charge, as quickly as we can. 

Otherwise, if you have already worked for your current 457 sponsor for at least 2 years and are looking to apply for your permanent residency, please contact us online here and we will respond within 24 hours.

Salvo Migration

On 1 July 2017,  a new stream of the Skilled Independent (subclass 189) visa was introduced available to New Zealand Citizens residing in Australia who satisfy certain criteria. Importantly, although New Zealand passport holders already enjoy the ability to remain indefinitely in Australia, they currently do so as the holder of a Special Category Subclass 444 visa, a visa that neither temporary nor permanent in the sense that it will not lead to Australian Citizenship. Conversely, the Subclass 189 visa is a permanent visa meaning that once granted, NZ Citizens and their attached family will then eventually be able to apply for their Australian Citizenship (for current requirements for Australian Citizenship please see our blog here).

​How Much Does it Cost?

The Subclass 189 (NZ Stream) is currently set at $3670 for a main applicant, $1835 for any attached adult (i.e a spouse or child above the age of 18) and $920 for any child under the age of 18. Importantly however, these charges are split as follows:

1st Visa Application Charges (Payable when you submit your application)

Main Applicant = $734
Spouse/Adult Child = $367
Child Under 18 = $184

2nd Visa Application Charges (Payable when the visas are ready to be granted by the DIBP)

Main Applicant = $2936
Spouse/Adult Child = $1468
Child Under 18 = $736

What Are the Requirements?

The requirements of the Subclass 189 NZ Stream can be summarized as follows:

1. Main applicants must hold a Subclass 444 (Special Category) visa
2. Main applicants must have been 'usually resident' in Australia for at least 5 years immediately for a continuous period of at least 5 years immediately before the date of the application; and
3. That continuous period of usual residence in Australia started on or before 19 February 2016
4. Note that the DIBP, in some circumstances, consider applicants to be ‘usually resident’ in Australia during periods when they are not physically present in Australia. For example, fly in and fly out workers.
5. There is no residence requirement for secondary applicants (such as spouse/de facto partner, and dependents children).
6. However secondary applicants must have a valid substantive visa at the time of application as well
7. Main applicants meet the Income Requirement (see below)
8. Standard Health and Character requirements are applicable

 What Does 'Usually Resident' in Australia mean?

• 'Usually resident' in Australia, means that evidence from an actual physical residential address in Australia, such as where an applicant usually eat, sleep, and your intentions to make that place your home.
• Must have been ‘usually resident’ in Australia at 19 February 2016, and continuously up to the time of applying for the visa, indicating applicant has been living in Australia for 5 years.
• DIBP will assess circumstances in two stages, which will examine movement records (previous travel history) and evidence of residence.

What Is the Income Requirement?

• The primary applicant must provide copies of a notices of assessment (NOA), and of any notices of amended assessments, given to them by the Commissioner of Taxation in relation to the four most recently completed income years in the period of five years immediately before applying.

• Unless exempt, for each of the four recent completed income years, the Main applicant’s taxable income (as shown on the Notices of Assessment or re-assessment) must be no less than the minimum amount specified in the table provided below:

• The minimum amount specified above must be based on the primary applicant’s individual taxable income only, not a combination of their partner, other family members or a business. 
• Note: that business owners will need to provide their own notices of assessment from the Australian Taxation Office and cannot provide details of business turnover instead.

Does This Visa Interest You?

At Salvo Migration we are proud of the fact that our Professional Fees are fixed and transparently listed . Accordingly, our charges to help you and your family in the preparation of this specific visa and stream are $3300 plus Outgoings of $110. We do not charge additionally for you to attach your family, however do keep in mind the varying DIBP application charges applicable to your family composition (as mentioned above).

If you are looking for help with the preparation of this visa application, please leave an enquiry online here and we will respond within 24 hours.

Since the 1 July 2017 changes to the Permanent Employer Sponsored visas, we have received many questions about the new Competent English requirements (and exemptions), in relation to people holding the Temporary Subclass 457 visas who wish to transition to the Permanent Subclass 186 visa. So we have put together this simple summary to help you assess if you or any friends/family may be eligible for this exemption. 
 
What is Competent English?
 
From 1 July 2017, all applicants wanting to apply for the ENS (186) through the Transition Stream (i.e 457 visa holders) will need to demonstrate Competent English as opposed to the lower standard of Vocational English which was in place before 1 July 2017. This generally, means that you will need to score at least 6 in each of the four test components in the IELTS test or equivalent scores in other approved English tests.

More information on how to achieve Competent English through the different English tests can be found at this link here.
 
In addition, keep in mind that passport holders from the UK, Ireland, New Zealand, United States and Canada are automatically considered to have competent English and are not required to sit any English tests.
 
What are the English test exemptions?
 
Since 1 July 2017, there is now only one (1) legislative exemption which allows you to avoid the English test. This is specifically if you have completed at least 5 years of full-time study in secondary and/or higher education institution where all the tuition was delivered in English.
 
Secondary education (high-school) must consist of full-time study where it is delivered in English. You would typically need a letter from your Secondary school principal or teacher(s) to confirm that you attended the school for a certain amount of years, and confirm that it was taught in English. Please note, this does not mean that you have studied the ‘language/subject/unit’ of English, but rather, all your classes were taught in English specifically.
 
Higher Education Institutions includes tertiary studies at university or equivalent level. This can include undergraduate (Diploma and/or Bachelor) and graduate (Masters and/or Doctoral) studies. Importantly however, Vocational Educational Training (VET) courses (i.e Certificates) where there is a mixture of classroom learning and on-the-job training is NOT accepted. Unfortunately, this may operate to exclude courses such as Certificate III or IV where you attended work placement as part of that qualification. This is most common in Trade specific courses where you are required to complete a practical component in your VET studies.
 
In addition, English language courses are also unlikely to be accepted by the DIBP towards this exemption.
 
Combining Your Studies
 
The minimum 5 years of full-time study can consist of both the Secondary Education and/or High Education Institutions. For example, you may have completed the final 2 senior years at an Australian High School and then completed a 3-year Business degree at an Australian University.
 
Have Questions?

Have Australian immigration/visa questions? Feel free to join our free private Facebook group Salvo Migration Community. In this group our team will provide visa information, let members know of important visa updates as well as answer members visa related questions (as quickly as we can!). It’s also a great place for people to share visa stories, tips and help each other. If you would like to join, please click here – its FREE!

Otherwise, if you require the representation of a Migration Agent, then get in contact with us here.

Otherwise you can find us at the following address:

Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma  

Today, migrants across Australia are rejoicing as yesterday evening the Australian Governments proposed Bill to enforce strict changes to Citizenship requirements was killed off in the Senate. 

The effect of this is that Citizenship applications submitted after 20th of April 2017 will now be assessed under the current rules, ending a 6 month stand off in which applications had been put on hold by the Department of Immigration and Border Protection.

What Are the Current Requirements?

The current requirements for Citizenship can be summarized as follows:

1. No IELTS/English requirement!
2. Has held permanent residency for at least 12 months
3. Has been lawfully in Australia for at least 4 years (this can include time spent on temporary visas or bridging visas)
4. Have not been physically outside of the country for more than 90 days in the 12 months prior to making the Citizenship application (Some exemptions apply)
5. Have not been physically outside of the country for more then 12 months in the 4 years prior to making the Citizenship application (Some exemptions apply)
6. Are of 'Good Character' - please see here for more information
7. Pass the Citizenship Test - please see here for more information
8. Attend a Citizenship Ceremony

What is yet to be seen is the processing/waiting times that applicants will now have to endure as the DIBP undoubtedly works through an unprecedented backlog of applications, however as a whole, we view today as a good day for migrants in this country!

For more information please see here and here.

Residence Requirement PDF

To help readers better understand the Residence Requirement to be eligible for Citizenship, we have put together a 7 page eBook PDF with visual examples of when migrants are or are not eligible for Citizenship depending on the amount of time spent inside or outside of the country. To get a copy of our PDF, click on the 'Send to Messenger' button below to be sent a copy directly to your Facebook Messenger.

Need Help?

Anyone that requires assistance with the preparation of their Citizenship application is welcome to contact our office in the form below. We will respond within 24 hours​ of any enquiry.

For your reference, our Professional Charges to prepare Citizenship applications is currently fixed at $1500 (plus GST) per applicant. Please note, this does not include the application charge currently set at $285 per applicant.

​Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma  

As pre-warned in our blog and video published following the first round of dramatic visa changes in April,  1 July 2017 brought about a new wave of changes impacting on many key visa types and pathways to Australia. As a summary, these can be defined as:

• Occupational list changes which will impact Sponsored (457, ENS and GSM visas)
• Changes to Age limits for ENS, RSMS and GSM Visas
• Changes to English requirements for ENS and RSMS visas
• Adjustments to Caveats which now apply to both 186 and 457 applications
• Removal of English and Skills exemptions for those earning above $180k for both ENS and RSMS applications
• Tightening of what can and cannot be counted towards training benchmarks for both 457 and ENS applications
• Increase of countries which will require mandatory skills assessments when applying for a Subclass 457 visa
• Introduction of NZ pathway for the Subclass 189 visa
• Future changes hinted at being specifically on the 1 March 2017

If you would like to know more about the changes specific to each visa type mentioned above, click on the 'SEND TO MESSENGER' button below to be sent easy to follow information straight to your Facebook Messenger (Opt-Out at Any Time). 

​Also, do you have Australian immigration/visa questions? Feel free to join our free private Facebook group Salvo Migration Community. In this group our team will provide visa information, let members know of important visa updates as well as answer members visa related questions (as quickly as we can!). It’s also a great place for people to share visa stories, tips and help each other. If you would like to join, please click here – its FREE!

Otherwise, if you require the representation of a Migration Agent in Brisbane City today, then feel free to contact us on 1300 644 788 or send your questions here.

Also, click here for more informative blogs by our Immigration Lawyers.

Otherwise you can find us at the following address:

Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma  

From 19 April 2017 – the occupation of Cook (ANZSCO 351411) was placed on the 'BAD LIST' of occupation lists, meaning that new Subclass 457 visa applicants in this occupation would not have a clear transition pathway to permanent residency. To be specific, the occupation of Cook now only appears on the Short-term Skilled Occupation List (‘STSOL’) and NOT on the Medium and Long-term Strategic Skills List (‘MLTSSL’).
 
The big difference is that occupations, such as Cook, listed in STSOL are only permitted to work temporarily in Australia and without a pathway to Permanent Residency.
 
Importantly however, the  occupation of Chef (ANZSCO 351311) is still available on the MLTSSL, which does offer a Permanent Residency Pathway through both the existing Subclass 457 Temporary Transition Streams to Permanent Employer Sponsored visas, and through the upcoming new Temporary Skills Shortage (‘TSS’) visa. Accordingly then, given the very close relation between the occupation of Cook and Chef, we thought it would be useful to write a blog which explained the differences from both the employers requirements and the employees (visa applicants) requirements.
 
So what does this mean for Cooks?
 
Cooks who are currently on existing Subclass 457 visas will be encouraged to apply for the Permanent Residency as soon as they are eligible. Please keep in mind what has been mentioned in our previous blog with regards to the recent visa changes and how current 457 visa holders applying for PR in future may be affected.
 
Otherwise, for those applicants who will have their Subclass 457 visas granted as a Cook after the 18th of April 2017, the DIBP have advised that you will not have a transition pathway to permanent residency . Unfortunately, this means that you have the following remaining options to qualify for PR in your trade:

1. Apply under the Direct Entry stream of the ENS (186) visa explained here
2. Apply under the Direct Entry stream of the RSMS (187) visa explained here
3. Become skilled and qualified as a Chef and look to sponsored for either the 457, ENS or RSMS visa under that occupation (discussed below).

 
 
IMPORTANT QUESTION #1 – What type of Employer can Sponsor a Chef?
 
Employers will be able to sponsor a qualified chef, provided the workplace and nature of work to be completed in the nominated position has certain characteristics. To be employed as a chef, the work required to be completed must be above the normal duties and responsibilities that are required of a cook.
 
The difference between the occupations of chefs and cooks is made based on 2 main elements:

1. the specific tasks of the nominated position and corresponding skill level; and
2. the work environment

Differentiation based on Specific Tasks and Skill Level

Specific Tasks
 
The basic distinction is that the role of chef will only be required within an organisational structure if there is at least a cook who will be supervised by that chef. If an organisation has only a single person performing the “cooking" function, the relevant occupation is likely to be that of a cook. This is because in these circumstances, it is likely that the person will spend most of their time on cooking, rather than managerial tasks. If the Employer believes that a stand-alone cooking role is that of a chef, the onus is on them to provide justification.

The role of chef would generally relate to a restaurant environment and would include managerial tasks such as the following:

• planning menus
• estimating cost
• managing and monitoring stocks
• supervision of preparation and presentation of food
• discussing food preparation issues with Managers, Dietitians and Kitchen and waiting staff
• preparing a number of signature dishes
• demonstration of cooking techniques
• recruiting and training staff
• explaining and enforcing hygiene regulations.

 
Fundamentally, the primary role of a cook is one of cooking, whereas that of a chef is managing the kitchen with some limited, specialised cooking tasks.

Skills Level
 
Chefs and cooks are also differentiated on skill level under the ANZSCO framework. The occupation of chef is at skill level 2 (requiring a diploma or higher qualification) whereas the occupation of cook requires only an AQF Certificate IV or an AQF Certificate III including 2 years of on-the-job training.

Furthermore, depending on the relevant assessing authority (for the Skills Assessment), they may allow a lower qualification for both occupations provided you have sufficient work experience as well. See below for more information on ‘How do I become qualified as a Chef?’.

Differentiation based on Work Environment (including fast-food cook)

The environment in which the tasks are performed may be an indicator as to whether the occupation is actually that of a chef, cook or fast-food cook.

The occupation of chef will generally relate to a restaurant environment. It is unlikely that the tasks relating to this occupation will need to be performed in an environment such as a take away establishment or an establishment operating in a food court. Establishments providing catering services may employ chefs, depending on the nature and size of their operations.

The occupation of cook may be relevant in the case of smaller restaurants. The Department of Immigration case officers will need to assess on a case by case basis whether the tasks performed in the particular environment would require the skills of a cook.

Restaurants - ARE commonly associated with Chefs

A restaurant is defined as a food services establishment:

• that serves customers with food typically prepared by chefs and
• that has table service and seating and
• where service is generally for eating on premises and
• that covers a diversity of styles of cuisine.

 
Categories of restaurants include the following three:

• family style restaurants serve moderately priced food with fixed or a la carte menus; table service is usually provided and customers sit at bench-style communal tables or share dishes amongst themselves
• casual dining restaurants serve moderately priced food in a casual atmosphere; these establishments typically offer table service or buffet-style dining
• fine dining restaurants are full service establishments with menus that generally feature high quality ingredients with elaborate preparation; orders are individually prepared with attention to detail and are artistically presented on the plate

Casual dining outlets - ARE NOT commonly associated with Chefs

Casual dining outlets are food outlets that are located in shopping strips and within food courts in shopping centres. Table service is not generally provided, though some outlets may have limited seating or shared seating with other outlets (in food courts).

Some such outlets offer food items from a pre-cooked display at their counters. The food served may be cooked on the premises or brought in from a different location where the food is cooked. The range of food offered is a factor that needs to be considered, in assessing whether the preparation would involve the services of a cook. In assessing whether the business would require a cook in such an environment, DIBP case officers would ascertain who cooks the food offered and where it is cooked. If the food sold at the outlet is purchased from a supplier, the business would not be able to substantiate the need for a cook.

Some casual dining outlets may have a menu offering food items that are cooked on the premises. The range of food offered on the menu and the relative complexity of preparation of the food should be considered in assessing whether the services of a cook would be warranted.

Fast-food outlets - ARE NOT commonly associated with Chefs

Fast-food outlets typically offer items that are simple and quick to prepare.

Typically, these outlets:

• operate in chains or as franchises and
• are heavily advertised and
• offer limited menus and
• offer speed, convenience, and familiarity to diners who may eat in the outlet or take their food away and
• do not generally employ qualified chefs and
• prepare food according to a standardised format for distribution from a central location and
• serve food in a packaged form (although some outlets may provide cutlery and crockery for customers dining in the establishment) and
• do not offer table service.

 
The food preparation work carried out in a fast-food outlet would generally require the skills of a fast-food cook, rather than a cook.
 
Occupational Caveats – enforced from 19 April 2017
 
In addition to the above, from 19 April 2019, occupational caveats where introduced as additional requirement for employers looking to nominate the occupations of Chef (ANZSCO 351311). Accordingly, these caveats act as follows:
 
Excludes positions involved in mass production in a factory setting or positions in a limited service restaurant; and
 
A limited service restaurant includes, but is not limited to, the following:
o   Fast food or takeaway food services
o   Fast casual restaurants
o   Drinking establishments that offer only a limited food service
o   Limited service cafes including, but not limited to, coffee shops or mall cafes
o   Limited service pizza restaurants
 
These occupational caveats confirm the DIBP policy position on some of the tasks and duties performed in Casual Dining Outlets (as mentioned above). Whilst Casual Dining Outlets have not been explicitly excluded in the ceveat, it has certainty restricted to what is defined as an acceptable work environment for Chefs.

IMPORTANT QUESTION #2 – What do I need to be sponsored as a Chef?
 
Assuming your employers restaurant fits within the description above and that the workplace is eligible to sponsor Chefs, the next question is what do you need as an applicant to apply under the occupation of Cook.
 
The answer to this question depends primarily on what visa you are trying to be applied for.
 
If Applying for Subclass 457 Visa

• You will need to meet the general visa application requirements, click here to understand the basic requirements.

 

• The occupation of chefs under the ANZSCO framework require a diploma or higher qualification. However, ANZSCO also accept at least 3 years’ relevant experience will substitute for the formal qualifications.

 

• With regards to the above, common questions we receieve are exactly what qualifications would be sufficient to be sponsored as a Chef under ANZSCO. Accordingly, looking very strictly at what ANZSCO states here, any relevant Diploma or higher qualification should be regarded as sufficient by the DIBP. Importantly however, the DIBP are not always consistent, so we researched cases appealed to the Administrative Appeals Tribunal (i.e. visas refused by the DIBP) to see how the Tribunal interpreted the qualification requirements under ANZSCO. Importantly, in several winning cases it became clear that applicants who had the following combinations were successful:
  • At least a Certificate III (or IV) plus 2 to 3 years of relevant experience (see here for example)
  • At least a Certificate III (or IV) plus a Diploma of Hospitality Management
  • Even just a Diploma of Hospitality has been stated as being sufficient by itself with no Cert III or IV when looking at the requirements of Chef under ANZSCO (see here - visa being applied for was an RSMS, however same assessment of ANZSCO requirements apply to a 457 visa).

 
In addition to above, if applying with a passport from a list of countries listed here, the DIBP will require a 457 Skills Assessment from the assessing authority TRA. Basically, the TRA will require you to go through the 457 applicant guidelines and normal process of applying for a Skills Assessment depending on how you obtained your qualifications. See below:

If you are NOT from one of those listed countries, the case officer will still require evidence of relevant work experience and qualifications outlined by ANZSCO (and in some circumstance other relevant skills assessment at their discretion).

If Applying for Subclass 186 ENS Visa

• You will need to meet the general Subclass 186 visa requirements, click here to understand the basic requirements.

 

• If applying under the TRT stream then NO Skills Assessment needed.

 

• If applying under the DE stream, you will require skills assessment + at least 3 years skilled employment + Competent English (unless an exemption applies).

 

• The process in applying for a Skills Assessment will also depend on which country you are from – for instance, if you are from any of the following countries, you would apply though:

 
Pathway #1 - Offshore Skills Assessment Program (OSAP) through VETASSESS:

Counties listed below will apply for Skills Assessment through VETASSESS.

• Brazil, China, Fiji, Hong Kong SAR, India, Iran, Ireland, Macau SAR, Papua New Guinea, Philippines, Republic of Korea, South Africa, Sri Lanka, Thailand, United Arab Emirates, United Kingdom, Vietnam and Zimbabwe.

For Chefs - VETASSESS requires Certificate IV in Commercial or Asian Cookery and have at least 5 years’ experience in your occupation at the skill level required. This may include time spent in training. Your evidence must show you have worked in your occupation in the last 3 years and must be able to be verified. 
 
After assessing your work experience and relevant qualifications, VETASSESS will be able to determine if you are suitable for a migration skills assessment as a Chef.
 
To obtain further information please see the VETASSESS fact sheets here. 

Pathway #2 – Migration Skills Assessment (MSA) through Trades Recognition Australia (TRA)

• For applicants NOT listed in the above countries please see guidelines here for the MSA Skills Assessment.

 

• For occupation of Chef – TRA requires Certificate IV in Asian Cookery or Commercial Cookery (see here) AND 3 years full-time employment AFTER qualification issue date for domestic/internationally awarded qualifications OR 6 years full-time for Australian issued RPL (where employment can be before or after qualification).

 

• The Skilled Date according to the TRA MSA Guidelines (and therefore relevant/counted experience), is from the date you gained a Recognised International or Australian Qualification.

 

• Further TRA does NOT accept work experience as a substitution for a qualification. If you do NOT have relevant qualifications, you will need to undertake ‘Recognition of Prior Learning’ (RPL) courses with a Registered Training Organisation (RTO) prior to applying to TRA.

 
If Applying for Subclass 187 RSMS Visa

• You will need to meet the general Subclass 187 visa requirements, click here to understand the basic requirements.

 

• If applying under the TRT stream then NO Skills Assessment needed.

 

• If applying under the DE stream, you will require skills assessment + at least 3 years skilled employment + Competent English (unless an exemption applies).

 

• The process in applying for a Skills Assessment will also depend on which country you are from – for instance, if you are from any of the following countries, you would apply though:

 
Pathway #1 - Offshore Skills Assessment Program (OSAP) through VETASSESS:

Counties listed below will apply for Skills Assessment through VETASSESS.

• • Brazil, China, Fiji, Hong Kong SAR, India, Iran, Ireland, Macau SAR, Papua New Guinea, Philippines, Republic of Korea, South Africa, Sri Lanka, Thailand, United Arab Emirates, United Kingdom, Vietnam and Zimbabwe.

For Chefs - VETASSESS requires Certificate IV in Commercial or Asian Cookery and have at least 5 years’ experience in your occupation at the skill level required. This may include time spent in training. Your evidence must show you have worked in your occupation in the last 3 years and must be able to be verified. 
 
After assessing your work experience and relevant qualifications, VETASSESS will be able to determine if you are suitable for a migration skills assessment as a Chef.
 
To obtain further information please see the VETASSESS fact sheets here. 

Pathway #2 – Migration Skills Assessment (MSA) through Trades Recognition Australia (TRA)

• For applicants NOT listed in the above countries please see guidelines here for the MSA Skills Assessment.

 

• For occupation of Chef – TRA requires Certificate IV in Asian Cookery or Commercial Cookery (see here) AND 3 years full-time employment AFTER qualification issue date for domestic/internationally awarded qualifications OR 6 years full-time for Australian issued RPL (where employment can be before or after qualification).

 

• The Skilled Date according to the TRA MSA Guidelines (and therefore relevant/counted experience), is from the date you gained a Recognised International or Australian Qualification.

 

• Further TRA does NOT accept work experience as a substitution for a qualification. If you do NOT have relevant qualifications, you will need to undertake ‘Recognition of Prior Learning’ (RPL) courses with a Registered Training Organisation (RTO).

This in essence sums up the main points you need to understand when considering if you and your employer are eligible to sponsor as a Chef.

​Have Australian immigration/visa questions? Feel free to join our free private Facebook group Salvo Migration Community. In this group our team will provide visa information, let members know of important visa updates as well as answer members visa related questions (as quickly as we can!). It’s also a great place for people to share visa stories, tips and help each other. If you would like to join, please click here – its FREE!

Otherwise, if you require the representation of a Migration Lawyer in Brisbane today, then get in contact on 1300 644 788 or send your questions here.

You can find us at the following address:

Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma  

On the 20 April 2017 the Australian Government made a significant announcement in relation to Strengthening the Integrity of Australian Citizenship.
 
These new Australian Citizenship reforms will be effective from 20 April 2017, and will immediately influence the criteria for applying for Australian Citizenship. These changes include:

• A new Permanent Residency requirement
• A new Competent English requirement
• New Australian Citizenship test requirements; and
• A new process for determining an applicant’s integration into the community.

 
These new changes will only affect Australian Citizenship applications made on or after 20 April 2017. DIBP assures that applications made before 20 April 2017 will still be assessed according to the old rules and regulations made before 20 April 2017 (and will not be affected by the new reforms).
 
Change #1 – New Permanent Residency Requirement
 
Prior to the changes, applicants applying for Australian Citizenship needed to demonstrate they had resided in Australia for four (4) years (on any visa) including one (1) year as a permanent resident. However, under these new changes, all applicants will need to hold Permanent Residency status for four (4) years to be eligible to apply for Australian Citizenship.
 
Essentially, this means that non-citizens who are currently waiting to apply for Australian Citizenship will NOT be able to use their time as Temporary Residents as part of their four (4) year requirement. These new changes will only accept four (4) years of Permanent Residence.
 
Please see below for a diagram as to how the new time frames would apply to a typical international Student who comes to Australia to complete a tertiary qualification:

Change #2 – New Competent English Requirement
 
The new reforms will also require that applicants pass a stand-alone English test, involving reading, writing, listening and speaking. All applicants will need to demonstrate competent English. For example, applicants must achieve at least a 6 in each of four test components in an IELTS test (International English Language Testing System).
 
Importantly however, there are some exemptions available in relation to this English requirement, such as those who have a permanent or enduring incapacity and for those under 16 years of age or over 60 years of age.
 
Change #3 – New Australian Citizenship Test Requirements
 
Currently, there is NO limit to the number of times an applicant can fail the test. The new changes implemented on 20 April 2017, will enforce a maximum limit on the number of times an applicant can fail the Australian Citizenship test to three (3). 
 
Furthermore, there will be new rules to automatically fail applicants who cheat during the Australian Citizenship test. The test questions will also contain new and more meaningful questions that assess an applicant’s understanding of, and commitment to, the Australian shared values and responsibilities.
 
Change #4 – Determining an applicant’s integration into the community
 
As part of the new reforms, all applicants will need to demonstrate the steps they have taken to integrate into and contribute to the Australian community. For example, applicants will need to include evidence of employment, membership of community organisations and school enrolment for eligible children.
 
In addition to the integration requirement, any conduct that is inconsistent with Australian community values will be also be considered as part of this process. For example, evidence of criminal activity, involvement in gangs or organised crime, violence against women and children, will be deemed as thoroughly inconsistent with Australian values.
 
FAQ
 
With the recent changes, Salvo Migration has received many questions from the public concerning the new rules surrounding Australian Citizenship. For this reason, we have complied a short FAQ based on the information currently released by the Australian Government.
 
1.        I have already applied for Citizenship prior to 20 April 2017 – am I still affected?
 
No – you will not be affected by the new changes. DIBP has assured that these new reforms will affect Australian Citizenship applications made after 20 April 2017.
 
However, keep in mind, that DIBP may contact you for further information and you must comply with all requests made by DIBP.
         
2.       I have been a permanent resident for 12 months already, do the new rules apply to me?
         
Yes – unfortunately all the new rules, including the 4 years as a permanent resident requirement and increased IELTS of 6 in each band (i.e. competent English).
 
3.       I have previously failed the test 3 times; will I be able to apply again?
 
At this stage, the full details of these new rules have NOT been released, however, assuming that all these changes are being enforced from 20 April 2017, we can only speculate that you will be able to undertake the ‘new’ test and will be assessed under the ‘new’ Australian Citizenship rules. Your previous failed test results will relate to the old test. Make sure to check back here again – as we will update this blog when we receive further information.

If you require the representation of a Immigration Lawyer in the Brisbane CBD today, then feel free to contact us on 1300 644 788 or send your enquiry here.

Also, click here for more informative blogs by our Migration Agents.

Otherwise you can find us at the following address:

Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma  

On 18 April 2017, the Australian Government announced that the subclass 457 will be abolished, and be replaced by the new Temporary Skill Shortage (TSS) visa, which will begin in March 2018. Furthermore, changes have also been made to all Skilled Migrant and Employer Sponsored visas eligible list of occupations.
 
Given the significance of these recent announcements, we hope that this blog will help simplify what we know so far and help answer any questions you may have. For your reference, you will also find a FAQ at the end which you may find helpful.
 
Change #1 – Replacing 457 Visas with a New Visa (With 2 Streams)
 
By March 2018 the Australian Government will cease accepting applications for Subclass 457 visas. However, not all hope is lost – the Subclass 457 visas will be ‘replaced’ by a new TSS designed to better address genuine skill shortages in the work force and to safeguard and prioritize Australian workers.
 
The TSS visa will contain two (2) visa streams with the following summarized criteria:
 
Option 1 - Short-Term visa stream (up to 2-years in duration) 

• Renewal: Capacity for visa renewal onshore once only
• Occupations:
  • ​For non-regional Australia, the occupation must be on the STSOL (Schedule 2).
  • For regional Australia, the STSOL will apply, with additional occupations available to support regional employers
• English language requirements: A requirement of an International English Language Testing System (IELTS) (or equivalent test) score of 5, with a minimum of 4.5 in each test component.
• Genuine entry: A genuine temporary entrant requirement

 

Option 2 - Medium-Term visa stream (up to 4-years in duration).  

• Renewal: Capacity for visa renewal onshore and a permanent residence pathway after three years.

• Occupation lists:
  • For non-regional Australia - the occupation must be on the MLTSSL (Schedule 1).
  • For regional Australia - the MLTSSL will apply, with additional occupations available to support regional employers
• English language requirements: a requirement of a minimum of IELTS 5 (or equivalent test) in each test component.

 
Both visa streams will have new key requirements, which generally include:

• New and more targeted occupation lists which better align with skill needs in the Australian labour market
• at least two years’ work experience in their skilled occupation required by applicants
• a minimum market salary rate
• mandatory labour market testing, unless an international obligation applies
• a non-discriminatory workforce test to ensure employers are not actively discriminating against Australian workers
• strengthened requirement for employers to contribute to training Australian workers
• DIBP will collect Tax File Numbers and data, which will be matched with the Australian Tax Office’s records, and
• mandatory penal clearance certificates to be provided.

As further information on these visas becomes available we will continue to udpate this section.

Change #2 – Changes to Current Sponsored Skills Lists
 
The Australian government has also significantly condensed (reduced) the occupation lists used for Skilled Migration and Employer Sponsored Migration.
 
CSOL > STSOL
 
Essentially, the Consolidated Sponsored Occupation List (CSOL) (currently used for most sponsored visas such as ENS and 457) is being replaced by the Short Term Skilled Occupation List (STSOL).

• There has been a removal of 216 occupations from CSOL in creating the STSOL.
• The removed occupations will affect the following visas:
  • Temporary Work (Skilled) (subclass 457)
  • Employer Nomination Scheme (subclass 186) Direct Entry Stream
  • Skilled Nominated (subclass 190)
  • State and Territory Nominated stream (subclass 489)
  • Some applicants in the Training visa (subclass 407).
• Click here to see which occupations were specifically removed
• Click here to see what occupations can still be sponsored on a 457 and ENS (186) visas
• Click here for the STSOL (refer to Schedule 2)

 
 SOL > MLTSSL

The Skilled Occupation List (SOL) is being replaced by the Medium and Long Term Strategic Skills List (MLTSSL).

• Occupations currently listed in SOL will remain available for visas that use the SOL as the sole occupation list, such as:
  • Skilled Independent visa (subclass 189)
  • Temporary Graduate visa (subclass 485) (Graduate work stream)
  • Skilled Regional (Provisional) (subclass 189) Eligible Relative Nominated stream)
• Click here to see the new MLTSSL (i.e the old SOL).

 
Change #3 – Additional Requirements with Certain Occupations
 
Of the occupations which are still ‘sponsorable’ under the 457 visa, 59 occupations now have additional criteria. These additional criteria vary depending on each of the 59 occupations and are best listed here (PDF download).
 
Readers are advised to find their occupation on SCHEDULE 2 (Page 14 onwards) of the PDF download and identify if there is a ‘Note’ beside their respective occupation. If so, you can scroll down to the bottom and read that note, otherwise referred to as additional criteria applicable to 457 Nominations submitted under that occupation.  
 
For example, the occupation of Cook states ‘see note 11’ and ‘see note 24’. Scrolling to the bottom of this Legislative Instrument we see that note 11 excludes Cooks from being able to be nominated in positions of ‘mass production in a factory setting and positions in a limited service restaurant’. A ‘limited services restaurant’ is then defined to mean the following;
 
a) fast food or takeaway food services;
b) fast casual restaurants;
c) drinking establishments that offer only a limited food service;
d) limited service cafes including, but not limited to, coffee shops or mall cafes;
e) limited service pizza restaurants.
 
Note 24 then goes onto to clarify that the occupation of Cook cannot be sponsored on the ENS in Fast Food or a Takeaway Food Service.

Update!  The full list of ceveats has now been summarized by the DIBP here.
 
Change #4 – Some Occupations Will Now Only be Allowed in Regional Areas
 
In addition, of the remaining sponsorable occupations, the below list demonstrates the occupation that will only be eligible to be sponsored on a 457 visa in a regional part of Australia as defined by the post codes below:

Regional Occupations

Regional Post Codes

Change #5 – Work Experience Requirements for Certain Occupations
 
For the 457 visa specifically, the below occupations will also require that employers confirm that a nominee requires a minimum of 2 years full time experience in the occupation (in addition to formal qualifications):

Change #6 – The Length They Will Grant the 457 Visa For
 
457 visas granted on or after the 19 April 2017 will now have the following validity period:
​

• 4 years – if the occupation is on the MLTSSL
• 2 years – if the occupation was not on the MLTSSL

 
Importantly, these changes affect even applicants who had applied before the changes and are still currently awaiting a decision.
 
 Change #7 – Changes to Permanent Sponsored Visas
 
By March 2018 it is anticipated that the following changes will be fully in force affecting both ENS and RSMS visas:
 
o   New STSOL and MLTSSL lists are force from 19 April 2017 (affects only ENS Direct Entry nominations)
o   tightened English language requirements (in place from July 2017)
o   applicants must be under the maximum age requirement of 45 (in place from July 2017)
o   a requirement for visa applicants to have at least three years’ work experience (in place from March 2018)
o   strengthened requirement for employers to contribute to training Australian workers (in place from March 2018), and
o   employers must pay the Australian market salary rate and meet the Temporary Skilled Migration Income Threshold (Set at $53,900 as at 12 April 2016) (in place from March 2018)
 
 FAQ
 
 Despite the announcement only recently having been made, Salvo Migration has received many questions from the public concerning 457 visas and permanent visa options in future. For that reason, we have compiled a short FAQ based on the information which is currently available to our office.

1. I am already on a Subclass 457 visa, will my current visa be affected?
 
For current subclass 457 holders, there are currently no announced changes. According to the announcement made on 18 April 2017 (found here), the Hon. Peter Dutton, Minister for Immigration & Border Protection, mentioned that current 457 holders can continue on with their current visa until its natural expiry date.
 
This suggests that current 457 visa holders are not at jeopardy to have their visas cancelled due to these announcements but merely lead to the closure of all new 457 applications by March 2018.

2. I have submitted a 457 Nomination & Visa which are both still pending with the DIBP, however that occupation has now been removed from the new list, will my pending application be affected?  

Salvo Migration has received policy guidance on the DIBPs approach to lodged and unfinalized 457 Nomination applications for occupations that have been removed. The DIBPs policy is that these applications will not be approved and that a refund can be sought by applicants. We unfortunately suspect that this is likely to impact many applicants who may find themselves in the precarious position of having to withdraw their Subclass 457 visa applications (to avoid a refusal and a potential Section 48 bar) and be on a Bridging Visa with a pending expiry date. We suspect these applicants will find it difficult to potentially apply for another visa, such as a Student visa, due to legal requirements preventing such visas often being applied for by holders of bridging visas.

3. I have submitted a 457 Visa and my employers Nomination has already been approved, will my pending visa application be affected?  

**Please note - the following applies to those who also have a pending 457 Nomination that is not yet approved*

Occupation is NOT on the MLTSSL

Under these circumstances if your occupation is not on the new MLTSSL then your visa will only be granted for 2 years. Furthermore, 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.

This is likely to affect applicants applying for such occupations as Cook, Restaurant Manager and other common occupations previously used regularly on 457 visas which are not on the MLTSSL. 

Occupation IS on the MLTSSL

Alternatively, if your occupation is on 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.

4. I have submitted a 457 Visa and my employers Nomination is also still pending with the DIBP,  will my pending visa application be affected? 

Similar to Question 3 above, the following will apply:

Occupation is NOT on the MLTSSL

Under these circumstances if your occupation is not on the new MLTSSL then your visa will only be granted for 2 years. Furthermore, 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.

This is likely to affect applicants applying for such occupations as Cook, Restaurant Manager and other common occupations previously used regularly on 457 visas which are not on the MLTSSL. 

Occupation IS on the MLTSSL

Alternatively, if your occupation is on 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.

5. I am on a Subclass 457 visa and have almost completed two years employment with my sponsor. Will I still be eligible after the two year mark?  

It is important for readers to understand two important points here:
​

1. Applying for residency after two years on a 457 is commonly defined as the process of applying for a Subclass 186 (ENS) visa (i.e a permanent visa). There are currently two streams that allow applicants to qualify for the ENS 186 visa. The stream 457 visa holders generally wait two years to apply for is the Temporary Transition Stream.
2. Accordingly, the changes to the occupation lists do not affect applicants applying for the ENS under the Temporary Transition Stream who had their 457 visas granted prior to 18 April 2017. The changes to the list affect only Direct Stream applicants or applicants who have their 457 visas approved after 18 April 2017.

 
In saying this, as of March 2018 it unclear if the rules of the ENS visa will also change extending the two (2) year requirement to three (3) years. Accordingly, this may mean that current 457 visa holders who have not accumulated a full two years with their current sponsors on their Subclass 457 visas by March 2018 may no longer qualify for permanent residency (as it may have been increased to three years).
 
If this is the case, we foresee complications for 457 visa holders who would not have met the 2 year requirement before March 2018 and also do not have a valid 457 for long enough to accumulate the newly required three (3) years. Such visa holders may find themselves in a position of not being able to apply for the ENS or even renew their 457 visa as the visas would have by then been abolished. 

6. I am on a Student/Working Holiday visa, how do these changes affect me?

As things stand currently, if your occupation has remained on the list then you are still able to apply for a Subclass 457 visa under the current arrangements. Keep in mind however that all new 457 visas will now be granted for a maximum of 2 or 4 years depending which new list your occupation falls into (as mentioned above). Furthermore, as also explained above, if your occupation is not on the MLTSSL then you may be unable to transition to permanent residency from your 457 visa. 

Future international students and working holiday visas however will undoubtedly find it more difficult to apply for the new TSS visas as of March 2018 given specifically what seems to be the requirement that applicants have 2 years full time work experience in their occupation. Appreciating that international students often have no post-qualification work experience in their occupation (as they have just completed their studies in Australia) we see this as directly impacting the international Student community. For those that are eligible, we foresee that Students will need to apply for a Graduate 485 visa after their studies, with the hopes of securing full time work whilst on that visa before potentially applying for the new TSS in future.

Since the changes explained in this blog were announced, we have received hundreds of enquiries from confused and concerned visa holders. Importantly, the common theme of all these questions is 'How do these changes affect me?'. For that reason, Martin Salvo (author of this blog) will be hosting free regular online Webinars titled '​457 CHANGES 2017 - IMPACTS TO YOUR ELIGIBILITY FOR PERMANENT RESIDENCY' which will walk you through everything you need to know about the changes, the timeline of future planned changes, and most importantly, whether or not your eligibility for permanent residency has been, or will be, affected. 
​
See a quick video below of Martin explaining this Webinar further.

If you would like to register to attend, please click on the button below. Please note, spots are limited per webinar so we would encourage you to secure your slot. Additionally, should you have any friends of family that might also benefit from attending the Webinar, we would encourage you to pass on the details of this blog and webinar registration page. Additionally, as a thank you for registering for this Webinar you will also recieve a free PDF document titled '457 Changes 2017 - FAQ & Answers' which is a very easy to read document listing all the commonly asked questions and answers we have received so far (pictured below):

Alternatively, if you have any questions relating to this blog and how these changes affect you, then please leave an online enquiry clicking on the link below. We will respond within ​24 hours!

​Also, click here for more useful blogs by our Immigration Lawyers.

Otherwise you can find us at the following address:

Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma  

Enjoyed the Blog? Subscribe Below!

Public Interest Criterion 4020 (‘PIC 4020’) is part of the criteria you will need to satisfy if you have applied (or thinking of applying) for one of the following Australian visas:

• Skilled Migration visas
• Business visas
• Temporary visas
• Student visas
• Family related visas

 
The intention of PIC 4020 is to reinforce the Australian migration system and discourage visa applicants from submitting bogus (fake) or misleading information or committing identity fraud.
 
You will be affected by PIC 4020 if you have provided a bogus document or information that is false or misleading in your visa application (or previous visa applications) (PIC 4020(1)). You will also be affected by PIC 4020 if the Minister for Immigration (DIBP) is not satisfied over your identity in your visa application (PIC 4020(2A)). If you fail either of the abovementioned criteria, then your visa may be refused and depending on the reasons for refusal, you may also be subject to a 3 or 10 year ban on further visa applications that contain PIC 4020.
 
Bogus Document or False or Misleading Information
 
Your visa application may be refused if you or anyone else included in your application has:

• provided a bogus document or information that is false or misleading as part of your current visa application; or
• previously provided a bogus document that is false or misleading in relation to a visa that you held in the 12 months before making your application.

 
It is important to note the case officer can look at previously lodged visa applications in the past (with regards to visas you held within the last 12 months) and in the event that there were previously submitted bogus documents or false or misleading information, it may be grounds to refuse your current visa application. The bogus documents or false or misleading information can include (but not limited to) your birth certificate, your criminal or health history, your skills assessment, your employer’s information, your work experience, your English test results and your education qualifications. 

Importantly, the bogus document or misleading information must be false or misleading in a material particular, meaning that it should relate to the visa criteria which you are being assessed under for the DIBP to refuse the application under 4020.. Importantly, if the document or misleading information provided is not related to the visa criteria, there may be grounds to argue that you do not fail PIC4020. 
 
Non-Grant Period
 
If you fail to meet this PIC 4020 requirement, your visa may be refused and you will be prevented from being granted further visas for three (3) years, on visas that include PIC 4020 as part of the criteria.
 
Can I get this requirement waived?
 
If your visa is refused due to a bogus document or false or misleading information, you may seek to have this requirement waived. However, in order to do this, you must provide reasons why the visa should be granted based on the one of the following:

• compelling circumstances affecting Australia; or
• compelling or compassionate reasons affecting an Australian citizen, permanent resident or eligible New Zealand citizen.

 
Common examples of compelling and compassionate reasons
 
The Department Procedures and Advice Manual (PAM) contains guidance on some of the reasons where this PIC 4020 may be waived. This includes:

• minor children who is an Australian citizen, permanent resident or eligible New Zealand citizen residing in Australia who would be adversely affected by the decision not to waive this requirement;
• whether there are any significant health or welfare issues affecting an Australian citizen, permanent resident or eligible New Zealand citizen residing in Australia;
• continued separation of immediate family members, due to the inability of affected Australians residing in the applicant’s home country because of war or Australia’s protection obligations;
• the nature and extent of the fraud (such as the amount of misleading information and any history of attempting fraud against Australia’s migration program).

 
It is also important to note that when seeking to waive this requirement, the interests of the applicant are not relevant when addressing the compelling or compassionate circumstances, and it only affects Australian citizens, permanent residents or eligible New Zealand citizens residing in Australia.
 
Failing to Satisfy the Identity Requirement
 
If the DIBP are not satisfied over your identity then your visa may be refused. This includes evidence of identity relating to:

• your biographical information such as name and date of birth;
• identity information contained in your visa application; and
• biometric evidence concerning your physical attributes, facial images and fingerprints.

 
This PIC 4020 provision applies to visa applications lodged on or after 22 March 2014, and all visa applications made, but not finally determined before 22 March 2014.
 
If DIBP suspects that you (or any other person included in the application) are not the person you are claiming to be or have changed some aspects of your identity in the visa application, then they may refuse your visa application.
 
Non-grant period
 
If your visa is refused under this PIC 4020 requirement, it is because you did not satisfy DIBP of your identity, then you may be prevented from a further visa grant for ten (10) years, on visas that include PIC 4020 as part of the criteria.
 
Can I get this requirement waived?
 
If you are affected by this PIC 4020 identity provision then there is NO waiver available, or for the 10-year non-grant period. You will be offered to comment and a chance to reply (natural justice) before the visa is refused, however if you are unable to satisfy DIBP as to your identity then your application will be refused, and no waiver will be accepted.
 
Examples of Failing to Satisfy the Identity Requirement
 
Example 1
 
You have lodged a skilled independent visa (subclass 189) with documents that appear to be genuine. You provided your date of birth, indicating that you are 31 years of age in your skills assessment and visa application. In fact, you are 33 years of age, and your intent was to score enough skill points to be eligible for the skilled visa. The case officer discovers that you have lied about your age, and then forms the opinion that you have provided false information about your identity. The case officer may then refuse your visa application and you may then be subject to a ten (10) year ban on further visa grants, because you have failed to satisfy the identity requirement in PIC 4020(2A).
 
Example 2
 
You have provided a ‘bogus document’ or ‘information that is false or misleading’ in relation to your identity, such as your brothers passport, instead of your own, because you did not have a valid one at the time of the application. Your intent was to submit your new passport once it was ready. However, when the case officer discovers this identity issue, they give you the chance to comment on the document, and you admit to providing your brother’s passport. You provide the real passport to the case officer, and they may be satisfied with the identity requirement (PIC 4020(2A)), however, you would still fail to meet PIC 4020(1), by providing a bogus document or information that is false or misleading. Consequently, you could be prevented from being granted further visas for three (3) years, on visas that include PIC 4020 as part of the criteria.
 
If you have been affected by PIC 4020 please feel free to in get in contact on 1300 644 788 or leave your questions here.

Also, click here for more great blogs by our Migration Agents.

Otherwise you can contact us at the following address:

Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma  

Enjoyed the Blog? Subscribe Below!

If you are currently holding or are intending to apply for a Subclass 457 visa, and wish to include your partner as a secondary applicant – the following information will assist in making sure you meet the secondary application requirements.
 
Deciding to add your partner as a secondary applicant to a Subclass 457 is a convenient way for your partner to secure an Australian visa with unrestricted work and study rights in a relatively inexpensive manner.
 
Definition of a Partner
 
Your partner can be married to you or they can be your de facto partner. De facto partners can be the same or opposite sex. In either case, you must prove:

• the relationship is genuine and continuing;
• your partner is at least 18 years of age when the application is lodged;
• you are not related by family;
• you and your partner have a mutual commitment to a shared life to the exclusion of all others; and
• you live together, or do not live separately on a permanent basis.

 
 
When can my Partner be included in the Subclass 457 visa?

In your initial Subclass 457 visa application  

When you are first applying for the 457 visa, you will be able to include your partner as a secondary applicant.

After you have already been granted your Subclass 457 visa  

To include your partner after you have already been granted a 457 visa, you will need to make a separate visa application to attach your partner to your current 457 visa. The separate visa application is a specific process designed to allow primary applicants who did not initially include family members into their initial 457 visa application. It also provides a pathway for the partners of the 457 visa holders who have since married or entered into a de facto relationship, after the visa application has been granted.
 
What evidence do I need to provide?
 
If you are married you will need provide evidence of your marriage (such as a copy of your marriage certificate). Keep in mind that, your marriage must be legal under Australian law. For example, if you and your same sex partner were married under the New Zealand marriage laws, it will not be recognised as a legal marriage under Australian law.
 
If you are in a de facto relationship, you and your partner will need to prove that you have been living as a de facto couple for at least 6 months prior to the application. Your evidence can include joint financial documents, joint utility bills, correspondences going to the same address and any joint assets or liabilities.
 
Importantly, if you are intending to attach your partner after your subclass 457 visa has been granted – you will also need written consent from your sponsoring employer, confirming that they allow their sponsorship obligations to extend to your spouse or de facto partner.
 
Other requirements (secondary criteria)
 
In addition to the abovementioned requirements, your partner must:

• not have any adverse information known to DIBP;
• hold adequate private health insurance;
• meet health requirements; and
• meet character requirements.

 
If you have any further questions about adding your partner to your Subclass 457 visa please feel free to contact our office.
 
If you require the representation of a Migration Agent in the Brisbane CBD today, then give us a call on 1300 644 788 or send your enquiry here.
 
Also, click here for more great blogs by our Migration Agents.
 
Otherwise you can find us at the following address:
 
Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma

Enjoyed the Blog? Subscribe Below! 

The Australian Government accept de facto relationships for the purposes of Australian visas. Accordingly, this applies to both Australian Partner visas specifically (Subclass 820/801, 309/100) as well as other visas that allow migrants to attach their partners as secondary dependents. 
 
Importantly, in accordance with Reg 2.03A of the Migration Regulations 1994 (Cth), de facto couples will need to demonstrate that they have been in a de facto relationship for at least 12 months prior to the lodgment of a visa.
 
Specifically, the 12-month requirement applies not only to Australian Partner visas, but also to applicants intending to attach their partners to the following visa types:

• Permanent visas
• Business Skills visas (Provisional)
• Student visas
• General Skills Migration visas

 
Accordingly, if you are unable to meet the 12-month requirement, you may be exempt from the 12 month rule if you register your relationship in the Australian State or Territory you are currently residing in with your partner.
 
Currently Relationship Registration is only available in:

• Victoria
• New South Wales
• Queensland
• Tasmania
• Australian Capital Territory (ACT)

Importantly, the abovementioned State’s (and Territory) currently have laws in place allowing for a relationship to be registered in accordance with the Acts Interpretation (Registration Relationships) Regulations 2008, meaning that the registration will be recognized for Australian migration purposes and exempting the relationship from the 12 month rule.
 
Relationship Registration is currently NOT available in:
                                                                 

• the Northern Territory (NT)
• South Australia (SA)

 
Although Western Australia (WA) does allow de facto relationship registration, it is currently NOT recognised for immigration purposes.
 
 General Requirements
 
All the Australian States and Territories have their own separate rules and costs associated to registering a relationship as detailed below:
 
Queensland (QLD)
 
To register in QLD you can visit the Queensland Government website which will direct you how to apply for a Registered Relationship (or Civil Partnership) certificate at the Brisbane Registry of Births, Deaths and Marriages. QLD requires that at least one (1) partner must have lived in Queensland for at least 6 months, and evidence must be provided. There is a 10-day cooling off period before your relationship is processed for registration, and option to withdraw the application if you change your minds.
 
New South Wales (NSW)
 
To register in NSW you can visit the NSW Government website which will direct you how to apply for a Registered Relationship (or Civil Partnership) certificate at the Registry of Births, Deaths and Marriages. NSW also requires that at least one (1) partner must live in NSW, and evidence must be provided. There is a 28-day cooling off period before your relationship is registered, and option to withdraw the application if you change your minds.
 
The Australian Capital Territory (ACT)
 
To register in the ACT you can visit the ACT Government website which will direct you how to apply for a Registered Relationship (or Civil Partnership) certificate via Access Canberra. The ACT also requires that at least 1 partner must live in the ACT, and evidence must be provided.
 
Victoria (VIC)
 
To register in VIC you can visit the VIC Government website which will direct you how to apply for a Registered Relationship (or Civil Partnership) certificate at Births, Deaths and Marriages. VIC also requires that at least 1 partner must live in VIC, and evidence must be provided. It will take a minimum of 28 days for the registration to be completed.
 
 Tasmania (TAS)
 
To register in TAS you can visit the TAS Government website which will direct you how to apply for a Registered Relationship (or Deed of Relationship) certificate at TAS Births, Deaths and Marriages. TAS also requires that both partners must live in TAS, and evidence must be provided. It will take a minimum of 28 days for the registration to be completed.

Depending on which Australian visa you are applying for, you may be required to undertake a medical examination to demonstrate that you are not a health risk to the Australian community. Section 60 of the Migration Act states that, a medical examination must be completed for the relevant visa to be granted.
 
Notably, when applying for an Australian visa, should the medical examination find that you (or any of your included dependants to the application) are a health risk/liability to the Australian community, your visa application may be refused. So, it is important to be aware that when a health or medical examination is requested, you must ensure that you comply with the request to satisfy the health criteria requirement.
 
Whether you are applying inside or outside Australia, the Department of Immigration & Border Protection will expect you to make every reasonable effort to be made available for, and attend, a medical examination when requested.
 
Keep in mind that you are NOT able to obtain a medical examination from ANY doctor or physician, but rather only from authorised medical visa services such as Bupa Medical Visa Services (if you are in Australia), or recognised overseas Panel Physicians (if you are outside Australia).
 
Accordingly, please see below a step-by-step breakdown on how to complete a medical examination:
 
A.      If you are in Australia and have already lodged your visa application

1. The assessing case officer will contact you (or your Registered Migration Agent) to determine whether you need to undergo a health examination;
2. If required, they will issue you a HAP ID (Health Identifier) and request that you undergo specific health examinations;
3. Once provided with the HAP ID, you will use this ID to log into eMedical and complete your eMedical Referral Letter;
4. Once you have completed the steps to obtain your eMedical Referral Letter, you will be able to make an online booking at Bupa Medical Visa Services which is the current visa medical services provider within Australia;
5. Make sure you bring along your eMedical Referral Letter when you see the medical health officer;
6. After you have attended the medical examination your case officer will inform you if there are any issues with your health.

 
B.      If you are in Australia and have not lodged your visa application
 

1. If you wish to request a health examination before lodging your visa application, you will need to undergo extra steps by completing a ‘My Health Declaration’ form online through your ImmiAccount (or ask your Registered Migration Agent);
2. Once you have logged into your ImmiAccount and completed a ‘My Health Declaration’ form, your online account will subsequently be updated to advise you whether a health examination is required (this may take a few minutes):
3. If you ARE NOT required to complete any health examinations, you will be notified on the ‘My Health Declaration’ homepage; however
4. If you ARE required to complete any health examinations, you will be asked to provide further medical information, and will be issued a HAP ID (Health Identifier).
5. Once provided with the HAP ID (Health Identifier), you will then be directed to eMedical to complete your eMedical Referral Letter;
6. Once you have completed the steps to obtain your eMedical Referral Letter, you will be able to make an online booking at Bupa Medical Visa Services which is the current visa medical services provider within Australia;
7. Make sure you bring along your eMedical Referral Letter when you see the medical health officer;
8. After you have attended the medical examination your case officer will not be able to provide you with the results.

 
You will then be able to log back into your ImmiAccount and lodge your visa application, making sure that you provide your HAP ID, as it will be linked to your recently completed medical examination.

Below is an example of eMedical Referral Letter with the HAP ID

C.      If you are outside Australia
 
If you are applying for a visa whilst outside Australia you will need to arrange a medical examination with a Panel Physician within your country.
 
Similar to the steps above, if you have already lodged your visa application, you will need to wait for your case officer to contact you (or your Registered Migration Agent) to determine whether you need to undergo a health examination. They will provide you with instructions on how to make an appointment with a Panel Physician within your country. You will also be provided with the HAP ID, and you will use this HAP ID to log into eMedical and complete your eMedical Referral Letter to arrange an appointment (unless you have been instructed differently from the case officer).
 
If you want to arrange a medical examination, and you are outside Australia and have not lodged your visa application, you will need to see if your country is supported with Electronic Health Processing. Otherwise, you will need to wait until AFTER you have lodged your visa application, and contacted by the case officer. Completing health examinations before lodging a visa application is not recommended for everyone and DOES NOT guarantee quicker processing.
 
How do I find an overseas Panel Physician?
 
Step 1: Visit the DIBP website
 
You will need to locate the list of overseas Panel Physicians on the Department of Immigration and Border Protection website, by clicking here.
 
Step 2: Locate your specific country
 
You will then need to scroll down and locate the country you are currently residing. We will use India as an example:

​Step 3: Locate Panel Physician
 
You then need to scroll down to the sub-section titled ‘Panel Physician’ and locate the one closest to your location or the one specifically mentioned by your case officer. 

​Step 4: Read and Follow the Instructions
 
This sub-section will contain the location and contact details of the selected Panel Physician. Keep in mind that you will need to have a HAP ID provided by the case officer before making an appointment and the correct forms or eMedical Referral Letter to arrange an appointment (unless you have been instructed differently from the case officer).

If you require the representation of a Immigration Lawyer in Brisbane today, then give us a call on 1300 644 788 or send your enquiry here.

Also, click here for more useful blogs by our Migration Lawyers.

Otherwise you can find us at the following address:

Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma  

Enjoyed the Blog? Subscribe Below!

All visa applicants and visa holders who want to enter or stay in Australia must pass the Character Test as outlined in Section 501 of the Migration Act 1958 (Cth) (‘the Act’).
 
As part of the visa application process, the Department of Immigration and Border Protection (‘DIBP’) will ask you to disclose any criminal or security related history in your visa application, and in most cases, supply police clearance certificates. This information will be used to evidence whether you pass the Character Test.
 
Furthermore, all visa holders in Australia must continue to meet the character requirements otherwise risk having their visas cancelled. In some serious cases, your visa must be cancelled due to serious and substantial criminal convictions whilst holding an Australian visa.
 
The Character Test is the same for both visa applicants and visa holders.
 
Character Test – Section 501(6) of the Act
 
The DIBP has been given delegated power from the Minister for Immigration and Border Protection (‘the Minister’), who will determine whether you pass the Character Test, which is outlined in section 501(6) of the Act. It explains circumstances where you will NOT pass the character test if:

• You have a substantial criminal record. This includes:
  • sentences to 12 months or more in prison, or multiple sentences adding up to more than 12 months in prison. A suspended sentence is considered a prison sentence;
  • acquittal of an offence on the grounds of unsoundness of mind or sanity, and as a result has been detained in a facility or institution;
  • where you have been found by a court to not be fit to plead, and nonetheless based on evidence found, that you committed the offence and resulting you being detained in a facility or institution.

 

• You have been convicted of escaping from immigration detention, or convicted for an offence that you committed:
  • while you were in immigration detention;
  • during an escape from immigration detention; or
  • after an escape, but before you were taken into immigration detention again.

 

• The Minister reasonably suspects you are or have been a member of a group or organisation, or has had or has an association with a person, group or organisation that has been or is involved in criminal conduct;

 

• The Minister reasonably suspects that you have been involved in people smuggling, people trafficking, genocide, a war crime, a crime against humanity, a crime involving torture or slavery, or a crime that is of serious international concern (whether or not you have been convicted of such offence);

 

• Your past and present criminal or general conduct shows that you are not of good character;

 

• There is a risk that while you are in Australia you would:
  • Engage in criminal conduct;
  • Harass, molest, intimidate or stalk another person;
  • Vilify a segment of the Australian community;
  • Incite disorder in the Australian community or in a part of it;
  • Be a danger to the Australian community or a part of it.

 

• You have been convicted, found guilty or had a charge proven for, one or more sexually based offences involving a child;

 

• You have been charged with war crimes or crimes against humanity etc;

 

• You are subject to an adverse security assessment by the Australian Security Intelligence Organisation;

 

• You are subject to an Interpol notice, from which it is reasonable to infer that you are a direct or indirect risk to the Australian community, or a segment of the Australian community.

 
 
How Do I Pass The Character Test?
 
You must satisfy the Minister that you are of good character and have NOT been caught by any of the section 501(6) offences.  If you are NOT caught by any of the section 501(6) offences, you are taken to have satisfied the Minister that you PASS the Character Test, and subsequently satisfying the character requirements of your visa application.
 
Conversely, if you ARE caught by the section 501(6) offences you are taken to have FAILED the Character Test, and subsequently not satisfying the character requirements of your visa application or visa holder conditions!
 
 
What Happens if I Fail The Character Test?
 
If you are a visa applicant and have failed the character test, this means that you have NOT satisfied the Minister that you are of good character, and the Minister has the ‘discretionary power’ to refuse your visa application.
 
Alternatively, if you are a visa holder the Minister has the ‘discretionary power’ to cancel your current visa.
 
 
What Does ‘Discretionary Power’ Mean?
 
If you have NOT satisfied the Minister that you are of good character, then the Minister has a discretion (discretionary power) to grant, refuse, or cancel your visa. This discretionary power only arises if the Minister is NOT satisfied that you pass the Character Test.
 
This essentially means that the Minister will now need to make a final decision according to section 501(6), that you ARE NOT of good character (since you have failed to convince the Minister that you are of good character). Before a final decision is ready to be made, the Minister has further Directions under section 499 of the Act, directing how the character provisions are to be applied.
 
Subsequently, this directs the Minister (and delegates) to Ministerial Direction No. 65 (commenced on 23 December 2014), which are directions to guide decision-makers performing functions or exercising powers under section 501 of the Act. This is significant because, it provides guidance and instructions to those decision-makers, as to when a person is NOT of good character, and the important considerations which must be considered before making a final decision on your visa application or visa status.
 
This is important for you to understand because it directs the decision-makers to consider all your relevant circumstances, especially those which relate to the protection of the Australian community, best interests of minor children in Australia and the expectations of the Australian community. Furthermore, unlike government policy (which we have mentioned in our previous blogs), Ministerial Directions have the force of the law, and therefore not only bind the DIBP decision-makers (case officers) but also Tribunal members (the decision-makers who deal with appeals at the Administrative Appeals Tribunal). It is therefore fundamental that when responding to the DIBP in relation to your character, that this Ministerial Direction be understood and applied correctly.
 
 What Are My Options If I Fail The Character Test?
 
If you find yourself in a situation where you suspect that you may not pass the Character Test, or if you have received formal notification from the DIBP relating to your character, it is worth discussing your case with our Registered Migration Agents. It will be our job to persuade the Minister (and delegates) that you are of good character, and if you have failed the Character Test, that they exercise their ‘discretionary powers’ to consider all the relevant considerations and take into account all your circumstances before making a final decision. Get in contact on 1300 644 788 or send your questions here.

Also, click here for more great blogs by our Immigration Lawyers.

Otherwise you can contact us at the following address:

Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma 

With the 15th of March closely approaching comes the expiration of thousands of Student visas accross Australia (i.e Migration D-DAY). Accordingly, we thought it would be useful to make a very quick summary of four (4) very simple things that applicants must do before applying for their Graduate 485 visa. Importantly, the things we list below may seem small and insignificant, however in our experience, it is these small yet poorly undertstood requirements that gets international Students into the most trouble!

1. Sit Your English Test

Unless you are fortunate enough to hold a passport from the UK, USA, Canada, New Zealand or Ireland, you must have sat an english test before you have made your Subclass 485 visa application. Importantly, it is acceptable if your results are issued after you have applied for your visa, so long as the date of your exam is before the date of your visa application. Keep in mind however that applying for the 485 without knowing your test scores does pose a risk. For example, if you recieve your test results after you have made your visa application and you have not scored the required score, you will be unable to have the 485 visa granted, even if you are able to achieve the required score whilst waiting for the 485 visa. The reason being is that you must meet the minimum score in a test sat before the visa has been applied for.

2. Apply For Your Australian Federal Police Clearance

It is an important requirement that your Subclass 485 visa application be accompanied with an Australian Federal Police (AFP) National Police Check certificate (‘AFP Check’) that is less than 12 months old, or evidence that you have at least applied to obtain this clearance. This means that you can include in your visa application proof that you have applied for the AFP Check (for example - by attaching the receipt number of the AFP Check and payment receipt to confirm that you, and your family, have made attempts to obtain one).

Accordingly, it is essential that you obtain an AFP Check for yourself AND each secondary applicant included in your Subclass 485 visa application, who is at least 16 years old. For example, if you are including dependents such as your partner, wife/husband or child (16+), you will need to obtain one for each. If it is just you who is applying for the visa, then only your own AFP Check is required. Failing to at least apply for an AFP for you and your family will lead to the refusal of the 485, even if you meet all other criteria! 

Keep in mind that once you obtain the AFP Check, it is only valid for 12 months. So before lodging your Subclass 485 visa application, please make sure that your AFP Check is still valid, otherwise you will need to apply for a new clearance before applying for your 485 visa - as mentioned above.
 
Please feel free to read through our blog  ‘How to Apply for Visa Police Clearances’, on information on how to apply for the correct AFP before making your 485 visa application.
 
3. Apply for Adequate Health Insurance
 
When applying for the Subclass 485 visa, you must provide evidence that you and everyone included in your application has adequate health insurance in Australia.
 
You will need to provide any one of the following:

• A signed letter from a health insurance provider outlining the level and range of health cover;
• A Medicare card or receipt of enrolment with Medicare (if eligible);
• If you are from a country with a reciprocal health care agreement with Australia and will be eligible for Medicare when you arrive here, evidence of adequate of health insurance, including travel insurance, to cover you until you enroll in Medicare.

 
If you are currently holding a valid student visa, you may provide evidence of your current Overseas Student Health Cover (‘OSHC’) policy. Please note that OSHC policies are only valid at the time of applying for the visa. So basically, this means that whilst you can apply for the Subclass 485 visa with your current OSHC, when your student visa expires OR when the case officer is ready to make a decision on your Subclass 485 visa application, your OSHC policy ceases as you are no longer classified as a student visa holder.
 
Consequently, this means that you will need to obtain non-OSHC insurance immediately to meet the health requirements of your Subclass 485 visa application, due to your OSHC no longer being valid. Non-OSHC insurance is just normal overseas visitor health cover.
 
If your student visa is still valid at the time of decision (that is, when the case officer is ready to grant your Subclass 485 visa), and you have not obtained a non-OSHC health insurance policy, the case officer will request one from you.
 
To help you understand the OSHC process from Student Visa to the Subclass 485 visa, here is an example:
 
If you are currently covered by an OSHC until 15 March (also when your student visa expires), and you lodge your Subclass 485 visa application in February (prior to the expiry date of the OSHC), you must obtain adequate non-OSHC health insurance cover that commences from 16 March when your bridging visa commences.
 
If your Subclass 485 visa is granted prior to the expiry date of your student visa (that is, 15 March), you must obtain a non-OSHC health insurance cover immediately (because you are no longer classified as a student visa holder).

In this circumstance, the case officer will contact you to request evidence (if you have not already done so) to prove that you have non-OSHC health insurance cover prior to finalising the visa application.
 
If you have not arranged adequate health insurance at this stage, we would like to refer you to BUPA Health Insurance, to obtain 5% off BUPA Health Insurance policies, which are designed to ensure that migrants meet the cover thresholds and visa conditions required by the Department of Immigration & Border Protection.
 
4. Apply Within 6 Months of Finishing Your Course
 
There has been much confusion for some recent graduates in determining when the start date begins for the deadline to ‘apply within 6 months of finishing your course’ (Australian Study Requirement).
 
To clarify on this, the start or critical date, is the date on which the results of your final exams or notice of completion of the course were made available or published. This is the date which triggers the 6 month period during which you may apply for the Subclass 485 visa.
 
In particular, evidence of this completion date could be notification of final exam results:

• in a letter addressed to you;
• on the Internet;
• in a newspaper; or
• on the educational institutions bulletin board.

 
It is also extremely important to note that although a degree or certificate generally shows the date of the award or conferral, that information is not relevant to this situation. For the purposes of satisfying this Australian Study Requirement, evidence is required of the date of completion of the course, not the date of when the degree was awarded to you.
 
To highlight the importance of this point, here is an example:
 
Your transcript or certificate states:
 
“Admitted to the degree of Bachelor of Business on 18 May 2016”
 
You may mistakenly assume that your degree was completed on this date, therefore your 6 month time frame starts from this date.
 
Though, it is quite likely that your qualification was completed the preceding November/December (2015). This is usually the date when you would have completed your course, and when the critical date starts, for you to calculate your Australian Study Requirement of applying within 6 months of finishing your course.
 
However, if you have really did in fact complete your degree on 18 May 2016 (and not being conferred or awarded on that date), then you will need to provide evidence. This can occur when you were required take a supplementary exam or similar.

To confirm then, you must apply within 6 months of completing your course, not necessarily the date of your graduation or the dates listed on your qualificaiton certificate so be very careful!
 
If you require the assistance of a Migration Agent in Brisbane today, then feel free to contact us on 1300 644 788 or leave your questions here.

Also, click here for more informative blogs by our Migration Agents.

Otherwise you can contact us at the following address:

Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma  

Enjoyed the Blog? Subscribe Below!

Section 137Q of the Migration Act 1958 (Cth) can be used by the Department of Immigration and Border Protection to cancel Regional Sponsored Employment (Subclass 187) under certain circumstances.
 
Importantly, if you hold a Subclass 187 visa (or the now discontinued Subclass 119 or Subclass 857 visas) and have received a notification of an intention to cancel your visa, the following information will assist you in understanding why you might be in this position and what arguments you may be able to put forward to avoid the cancellation of your hard earnt visa, or if necessary, what you can put forward to the Tribunal should you appeal such a cancellation.
 
Besides the many other avenues a non-citizen can have their visa cancelled, there are two main cancellation powers under  s 137Q which are as follows:
 
Cancellation Power #1
 
This cancellation power activates when the visa holder fails to commence the employment referred to in the relevant nominated position, AND the visa holder is unable to demonstrate a genuine effort to commence that employment within the prescribed time frame (s 137Q(1)).
 
For instance, if you were granted a subclass 187 Regional Sponsored Employment visa to work as a Chef in Mackay QLD on 1 July 2016, and you decided to take a holiday for 7 months around Australia before you started work – this could activate the cancellation power.
 
The time frame which the Department of Immigration expects you to start working on the subclass 187 visa is within six (6) months from the date of the visa grant (if applied for the visa in Australia) or when you first arrived in Australia (if applied outside Australia).
 
However, if circumstances were different and you made genuine attempts to start your new employment, but were prevented due to factors beyond your control (such as your employer delaying your start date due to financial complications or you are unable to start work due to a medical reason) then there is scope to argue against an intention to cancel your visa.
 
Case Example

An example of a case where an applicant made genuine attempts to start the new employment can be found here.
 
This case outlines an applicant’s attempt to appeal his cancelled subclass 187 visa under section 137Q(1), due to evidence that he had not started work with his regional sponsored employer within the prescribed time frame. Through no fault of the applicant, the employer failed to provide the promised job. With the help of the applicant’s migration agent, they were able to successfully appeal the decision and prevent his visa from being cancelled. Some of the important factors that were demonstrated to show a ‘genuine attempt’ to start work included, the applicant:

1. moving a considerable distance to another city to begin his new job (from Brisbane to Mackay), expecting to start within 6 months;
2. waiting 6 months in Mackay anticipating that the promised job would eventually start;
3. was financially stretched during the wait and was forced to find alternative work driving a taxi;
4. remained in Mackay despite being financially stretched, due to the employer suggesting that the applicant was not in breach of his visa and would not be cancelled.

 
The Tribunal found that conduct of the employer was unsatisfactory and ultimately left the applicant in a very difficult and financially stringent situation. The Tribunal considered the personal circumstances of the applicant and confirmed that the grounds for cancellation were clearly beyond the applicant’s control. The actions of the employer left the applicant vulnerable as he continued to wait for the promised job, that never eventuated. As a result, the Tribunal agreed that the visa should not have been cancelled under section 137Q(1), due to the applicant’s clear and genuine attempt to start work.
 
Cancellation Power #2
 
An RSMS visa can also be cancelled if the visa holder commenced the employment but left the job within two (2) years, AND the visa holder is unable to demonstrate a genuine effort to be engaged in that employment for the required employment period (s 137Q(2)).
 
For example, if you decided you didn’t want to work as a Chef in Mackay QLD anymore, and left your regional sponsored employer after 1 year of working and then travelled to Brisbane to study – this could activate the cancellation power.
 
However, if circumstances were different and you made genuine attempts to remain in your current employment, but you were fired due to a disagreement with your employer or your employer is suffering from financial loss and is unable to keep you employed, then it is arguable that you are not in breach of s 137Q.
 
Case Example

An example of a case where an applicant did make genuine attempts to remain in their current employment for 2 years can be found here.
 
In short, this case demonstrated the applicant successfully appealing the decision to cancel his RSMS visa under section 137Q(2), even though he only worked for one (1) week in the job! The Tribunal decided that his visa should not be cancelled because he did make a genuine attempt to commence and remain in his job within the 2 year period. The facts explain that:

1. he started work on 20 November 2012 as a Welder Fabricator, and his employer terminated his employment on 27 November 2012;
2. termination was claimed to be from the applicants ‘lack of skill’ level;
3. despite the applicant having the required qualifications, passing the practical job interview, positive work references and skilled enough the find another job – termination of his job for the ‘lack of skill’ in the nominated position was NOT a reason to cancel the visa;
4. the applicant did make genuine efforts to work with the employer, and it was the employer who was ultimately unhappy with the applicant’s work, and terminated the employment agreement.

 
The Tribunal outlined that to cancel the visa under section 137Q(2) the applicant must NOT have made genuine attempts to commence and remain in the position for two (2) years. In this case, the applicant genuinely wished to be employed by the nominated business, but was just nervous and slow to making adjustment to working in Australia. The Tribunal was satisfied that the applicant did make a genuine effort to be engaged in that employment for the required period and therefore cannot be cancelled under section 137Q(2).
 
 How do they assess a ‘genuine attempt’?
 
Government Policy is used to assist in deciding what normally constitutes a genuine attempt by an RSMS visa holder.
 
Specifically, the policy states:
 
In assessing whether the visa holder has made a genuine effort, the delegate should consider:

• the visa holder’s reasons for, and/or circumstances leading to, the failure to commence work or to complete the two year employment period (family or personal considerations may be a factor under these circumstances);
• the possibility that the visa holder, in collusion with the employer, did not commence work within the six month period or resigned shortly after commencing work, as part of an arrangement to help the visa holder enter or remain in Australia;

• in the case of termination, the period of the visa holder’s employment with the employer prior to termination of the employment and;
• ·any other matter which is relevant to the commencement or termination of the employment.

 
A visa holder may be able to satisfy the delegate that they have made a genuine effort if the failure to commence or complete the two year employment period was because of a situation beyond the visa holder’s control. Examples include:

• the position was not filled or did not remain viable due to a serious downturn in business activity or
• financial loss, bankruptcy or closure of the business.

Importantly however, a situation intentionally created by the visa holder that results in termination of their employment would not be considered a genuine effort.

Still confused over cancellation powers?
 
To help you understand when a case officer can exercise the cancellation power, we again turn to Government Policy, which is used by case officers when deciding to exercise their discretion in canceling a visa under section 137Q of the Migration Act 1958 (Cth)
 
Specifically, the policy states:
 
Even if the delegate determines that grounds for cancellation do exist, there may be circumstances particular to the visa holder that need to be considered when assessing whether to exercise the discretion to cancel the visa under s137Q.

This means that even though you may be potentially subject to having your visa cancelled under Section 137Q, the case officer can also exercise their discretionary powers to consider other relevant circumstances or facts, to not cancel the visa.

 These circumstances may be addressed under the following factors:

• the purpose of the visa holder’s travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia

 

• the extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions

 

• the degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

 

• the circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the control of the visa holder

 

• the visa holder’s past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department).

 
Help is Available

If you find yourself in either one of these circumstances, and you have made genuine attempts to commence or remain in your current employment it is worth discussing your case with our Registered Migration Agents! Feel free to contact us on 1300 644 788 or send your questions here.

Also, click here for more informative blogs by our Migration Lawyers.

Otherwise you can contact us at the following address:

Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma