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  

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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  

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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

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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  

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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  

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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  

Depending on the Australian visa which you are applying for, you may be required to provide police clearances to demonstrate that you are of good character. This is otherwise referred to as the 'character test' and is described in law here.

Importantly, applicants over the age of 16 may be required to provide a police clearance from any country they have lived in for 12 months or more (cumulatively) within the last 10 years (including Australia). For example, if you lived in Italy for 3 months between 2013-2014, and then another 9 months between 2015-2016, then you would have lived in Italy cumulatively for 12 months and be required to provide a police clearance from that  country.

Accordingly, please see below for a step-by-step breakdown on how to obtain police clearances from each respective country.

In order to determine the steps involved for each respective country, first click on this link. 

You will then need to scroll down and locate the country you are intending to apply for a police clearance from. In the example below, we are looking for 'Italy'.

You then need to scroll down to the sub-section titlted 'Police Check'. Click on this to expand that section.

The sub-section will contain the process involved in obtaining the police clearance from that specific country. Keep in mind that each country will have different processes, so please read carefully!

If you have been in Australia for longer than 12 months (at the time that your visa is eventually assessed by the DIBP), then you may also be required to provide an AFP National Police Check.

​To arrange this clearance, you can apply online here. 

Please note the following:

1. Fingerprints are not required
2. The type of clearance you are required to obtain is a full/complete disclosure document
3. It must contain all your current and previously known names (i.e maiden names)
4. If requested to provide a code, you should select '33'

If you require the representation of a Migration Lawyer in Brisbane today, then get in contact on 1300 644 788 or send your enquiry 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  

The recent scrunity on the Subclass 457 visa  does not seem to showing any signs of slowing with recent comments by Minister for Immigration, Peter Dutton, suggesting that the list of jobs eligible to be sponsored under the visa may soon be reduced. Currently, employers looking to sponsor skilled foreign workers are limited to those occupations on the Consolidated Sponsored Occupation List with certain occupations also requiring that the employers demonstrate 'labour market testing' (i.e advertising locally) before being eligible to nominate a foreign worker for the 457 visa. 

When or what these changes will be to the list remains to be seen, however once again, the Subclass 457 visa seems to be at the forefront of political debate accross the country. 

If you require the representation of a Migration Lawyer in Brisbane City today, then feel free to contact us on 1300 644 788 or send your questions here.
​
Also, click here for more useful 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  

​Original story here.

Standard Business Sponsors, or otherwise referred to as Subclass 457 Sponsors, must adhere to certain sponsorship obligations for each year that they are an approved 457 sponsor. Failure to adhere to these sponsorship obligations can lead to a variety of sanctions including:

Administrative Sanctions

• cancelling the sponsor’s approval as a sponsor
• barring the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing specified approvals for different kinds of visa (however described)
• barring the sponsor, for a specified period, from making future applications for approval as a sponsor in relation to one or more classes

Enforceable Undertaking

You could be invited to enter into an enforceable undertaking.  Enforceable undertakings require you to promise, in writing, to undertake to complete certain actions to demonstrate that the failures have been rectified and won’t happen again. 

Civil

The DIBP can issue an infringement notice of up to AUD 10,200 for a body corporate and AUD 2,040 for an individual for each failure. The DIBP can also apply to a court for a civil penalty order of up to AUD 51,000 for a corporation and AUD 10,200 for an individual for each failure.

Accordingly, 457 sponsors must:

• cooperate with inspectors
• ensure equivalent terms and conditions of employment
• keep records
• provide records and information to the Minister
• tell us when certain events occur
• ensure  the visa holder  participates in the nominated occupation, program or activity
• not recover from, transfer or charge certain costs to another person
• pay travel costs to enable sponsored people to leave Australia
• pay costs  to remove unlawful non-citizens
• provide training to Australians and permanent residents
• not engage in discriminatory recruitment practices.

For more information, download our 457 Sponsor Obligation PDF Handout here.

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

Also, click here for more useful 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  

Important changes to both the Subclass 457 and Subclass 462 (Work and Holiday) visa streams are set to be implemented from the 19 November 2016.

With regards to the Subclass 457 visa scheme, changes will be made to the maximum amount of days a Subclass 457 visa holder can go without working for an approved sponsor from 90 days to 60 days. Essentially, this means that any 457 visa holder who ceases to work for their approved sponsor (including leaving voluntarily or having their employment terminated), must find a new employer and apply to transfer their 457 visa, or apply for another visa, within 60 days or risk having their Subclass 457 visa cancelled due to being in breach of Condition 8107. 

On a more positive note, Subclass 462 (Work and Holiday) visa holders will now be eligible for a second year visa if they complete 'specified work' in regions spanning Northern Australia. The specified work is intended to be work undertaken in the agriculture, forestry, fisheries, tourism and hospitality industries in the Northern Territory and northern parts of Western Australia and Queensland. Although this is not exactly in line or as flexible with similar provisions allowing Working Holiday (Subclass 417) visa holders to obtain a second year visa, it does at least provide an option for 462 visa holders looking to secure another year in the country without needing to apply for a Student or some other type of temporary visa.

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

Also, click here for more informative 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  

Do you need help in understanding visas to Australia? Find it hard to find a single location that helps explain the requirements needed to have a visa granted? Or do you just want to keep up to date with any important changes in Australian migration? Well, Salvo Migration is proud to launch the Resources section on our website. 

In the Resources page you will find our industry leading blogs, visa diagrams (downloadable), visa tutorial videos and news section to keep in the loop of any breaking immigration related news - and its all for FREE. 

Make sure you check back in often as will be working hard to keep updating our content and be the only place you need to go for Australian immigration resources. Click below to access.

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

Also, click here for more useful 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  ​

You know someone must have done a good job for a client to give a written testimonial, but, how good of a job would it take for someone to give a VIDEO testimonial? Ask yourself this - what would it take for YOU to take the time out of your day to film yourself saying something nice about a service you used? How satisfied would YOU have to be to overcome the rational fear and hesitation to get in front of a camera and speak publicly? They aren't really common are they? Would have to be a pretty good service - right? 

Well, we would encourage you to ask yourself these questions  while watching our client video testimonials ​available by clicking here or the image above.

​Importantly, if you want to become another happy Salvo Migration client, then feel free to contact us on 1300 644 788  or leave an enquiry here - we will try and get back to you within 24 hours.

Also, click here for more great 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  

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​In a welcome statement, the Australian Government has announced plans to introduce a new 5 year temporary visa for parents of Australian Citizens sometime in 2017.

The specifics of this new visa are yet to be finally determined, however the implementation of any additional visa options for parents of Australians is a step in the right direction. The current visa framework only provides for very limited long term visas for parents of Australians, with applicants having to choose between visas that can take 30+ years to be processed, or pay thousands in Visa Application charges associated to Contributory Parent visas (see here for a summary of Parent visas to Australia).

What Does This Mean Long Term?

What remains to be seen is just how flexible this new visa will be. For instance, for applicants who traditionally find it difficult to obtain short term tourist visas to enter Australia, this new visa may open up a pathway for them to enter Australia, and if above the age of 65, apply to continue their stay through what we have coined the 'Parent Visa Loophole' saving thousands and avoiding the need to apply for a Contributory Parent visa. 

Similarly, the new visa may be able to be used by applicants who are not yet 65 years of age, to enter the country and wait until their 65th birthday before applying through the Parent Visa Loophole for a permanent stay in the country.

Unfortunately at this stage we are purely speculating. What will be critical are the conditions that can or must be imposed on these new parent visas, especially if the dreaded 'No Further Stay' condition will be a mandatory condition, essentially negating the ability to apply for another visa from inside the country.

In saying all this, at least there is now hope of more flexible arrangements as the Australian Government has started to recognize the benefits of allowing ageing migrants to be with their families in Australia!

Any Questions?

If you require the help of a Migration Agent in Brisbane City today, then give us a call on 1300 644 788 or leave an enquiry here.

Also, click here for more informative 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  

From the 19 November 2016 changes to the Temporary Activity Visa Framework will come into effect closing certain visas from future applications and the introduction of new subclasses as replacements. 

Visas Closed from 19 November 2016

• Subclass 401 Temporary Work (Long Stay Activity) visa
• Subclass 402 Training and Research visa
• Subclass 416 Special Program visa  
• Subclass 420 Temporary Work (Entertainment) visa
• Subclass 488 Superyacht Crew visa

Visas Introduced from 19 November 2016

Subclass 400 Temporary Work (Short Stay Specialist) visa

A temporary visa to allow short term, highly specialized non-ongoing work.

Subclass 403 Temporary Work (International Relations) visa

A temporary visa for people wishing to come to Australia as part of a bilateral agreement,  to represent a foreign government or to teach a foreign language in an Australian school, to undertake full-time domestic work for a diplomat, as a person with statutory privileges and immunities, to participate in the Seasonal Worker Programme.​

Subclass 407 Training visa

A temporary visa to allow individuals to undertake occupational training or participate in classroom based professional development activities.

Subclass 408 Temporary Activity visa

This visa is for individuals looking to come to Australia for any of the following reasons:

1. work in the entertainment industry
2. participate in a non-ongoing cultural or social activities at the invitation of an Australian organisation
3. observe or participate as an academic in a research project
4. undertake full-time religious work
5. participate in a special programme to enhance international relations and cultural exchange
6. participate in high-level sports (including training)
7. work in a skilled position under a staff exchange arrangement
8. participate in an Australian government endorsed event
9. work as a superyacht crew member
10. undertake full-time domestic work in the household of certain senior foreign executives

For more information see here. 

If you require the representation of a Immigration Lawyer in Brisbane City today, then get in contact on 1300 MIGR8TE (644 788) or leave an enquiry 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  

The Australian Government recently announced changes to the Skilled Migration scheme which now allows international graduates in certain fields to gain an additional 5 points towards their points test score. Importantly, students of Australian institutions will be able to get these five extra points by completing Doctoral or Masters by research level qualifications in science, technology, engineering or mathematics (STEM) or specified information and communication technology (ICT).

Specifically, graduates of the following skilled fields will qualify for the additional 5 points from the 10th of September 2016 onwards: 

Biological sciences, earth sciences, chemical sciences, mathematics, physics and astronomy, computer science, information technology, aerospace engineering and technology, civil engineering, geomatic engineering, electrical engineering and technology, manufacturing engineering, maritime engineering and process and resources engineering.

The diagram above now reflects the current state of the Points Test system for Skilled Visas.

Original Source: https://goo.gl/CCj60Q

Introduction of the Entrepreneur Visa

The Australian Government has also announced plans to introduce a new Entrepeneur Visa within the Business Innovation and Investment Programme.

To be eligible, applicants will need to be able to satisfy the following criteria:

• Have a competent level of English
• Have an agreement in place for at least $200,000 to grow your entrepreneurial venture in Australia
• Hold at least 30% interest in that entrepreneurial venture
• Be nominated by a state or territory government

Funding can be secured by Commonwealth agencies, state, and territory government, publically funded research organisations, investors registered as a venture capital limited partnerships or early stage venture capital limited partnerships or any combination of these.

The hope is that these new change will encourage innovative minds from around the world to migrate to Australia with the expectation of a positive impact on the Australian economy and job creation. 

Original Source: https://goo.gl/SOjAkw

If you require the representation of a Migration Lawyer in Brisbane today, then give us a call on 1300 MIGR8TE (644 788) or email your questions to enquiry@salvomigration.com.au and we hope you learnt something valuable by visiting our website.

Also, click here for more informative 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  

Parents of Australian Citizens are able to migrate to Australia and be with their Australian children/child by applying for certain Parent visa options. The purpose of this blog is to better explain the process, timeline and costs involved in applying for a Contributory Parent Visa for applicants who are currently outside of Australia.

In another blog, we discussed the 'Parent Visa Loophole' that some parents are fortunate enough to have as an option, however for parents that hold passports from countries that find it difficult to obtain Visitor visas, or are not above the age of 65, often an offshore Parent visa application is the only realistic option to migrate to Australia.

Accordingly, there are currently two different types of offshore parent visas. The contributory and non-contributory. The issue is that the non-contributory offshore parent visa (being the Subclass 103), currently has a processing/waiting time of approximately 30+ years. Although there are some benefits in having a pending 103 visa with the DIBP (in that they may be eligible for a longer term tourist visa), applying for the 103 visa will not lead to any long term visa solution in the foreseeable future.

Alternatively, there are the contributory parent visas (Subclass 173 and Subclass 143) available to those families that can afford significant 2nd Visa Application Charges (VAC) associated with these subclasses. Importantly, applicants can choose to apply directly for the Subclass 143 and obtain permanent residency, however in doing so, in addition to the initial VAC, they will be liable to pay a 2nd VAC when the visa is ready to be decided (currently set at $43600!). 

A silver lining to all this however is that applicants can also choose to 'split' the 2nd VAC by applying for a Subclass 173 first and then eventually transitioning to the Subclass 143 once they are inside the country. The diagram above is reflective of this "splitting" process, by which an applicant applies for the 173 first, only pays a portion the 2nd VAC, and then only once the Subclass 143 has been applied for and ready for approval, do they pay the remainder of the 2nd VAC.

This approach does in fact increase the 2nd VAC total ($43600 compared to $48550), however, as the diagram above demonstrates, it allows applicants and their family approximately 4+ years from when the initial 173 is applied for before all remaining charges would be due for the grant of the 143. 

If you find any of this confusing (we wouldn't blame you) and are looking to migrate as a parent or bring your parents to Australia, then get in contact on 1300 MIGR8TE (644 788) or send your enquiry to enquiry@salvomigration.com.au.

Also, click here for more useful 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  

A heavily litigated area of migration law has recently been the question of when the Administrative Appeals Tribunal (AAT) will have the jurisdiction to hear an appeal of a Subclass 457 visa refusal. Firstly, as a starting point, readers should familiarize themselves with the three stages of the Subclass 457 and understand that all three stages must be approved in order for the 457 visa to be eventually granted. In this blog, we explore the relationship between an associated Nomination submitted by an approved 457 Sponsor and a 457 Visa refusal appealed to the AAT. 

Accordingly, several recent cases have begun clarifying when the AAT does or does not have jurisdiction to hear a 457 visa appeal. Firstly, in the case of Minister for Immigration v Lee & Ors (2014) FCCA 2881 (10 December 2014), the court held that where an approved Nomination had expired before the appeal of the visa is lodged, then the AAT would not have jurisdiction to hear the appeal of the visa. Considering that 457 Nominations are valid for 12 months from their approval, this suggests that any 457 visa appeal must be lodged within the 12 months validity period of the associated Nomination.

Secondly, the case of Kandel v Minister for Immigration & Anor (2015) FCCA 2013 (7 August 2015) clarified that as long as there was a pending Nomination with the DIBP at the time than an appeal of a 457 refusal was lodged to the AAT then that this would be sufficient. Interestingly, this may suggest that even if an original 457 Nomination and Visa are refused by the DIBP, that as long as a second Nomination is submitted to the DIBP 'identifying' the applicant, then this may be sufficient for the AAT to have the jurisdiction hear the visa appeal.

​Thirdly, the case of Ahmad v Minister for Immigration and Border Protection (2015) FCAFC 2167 confirmed that even in the case of a refused 457 Nomination, as long as the Nomination refusal is also appealed to the AAT, then the AAT would have the jurisdiction to hear a subsequent Visa appeal. Importantly, this was further supported by the recent decision in Dyankov & Ors v Minister for Immigration & Anor (2016) FCCA 2167 (24 August 2016) in which it was concluded that in a case where a 457 Nomination is not appealed to the AAT, then the AAT will not have the jurisdiction to assess the associated 457 Visa refusal.

Accordingly, the current position with the courts (and what will be followed by the AAT) seems to be that in order for a 457 visa refusal to be 'appeal-able', that there must be either a pending Subclass 457 Nomination not yet determined by the DIBP, an approved 457 Nomination by the DIBP, or if a Nomination has been refused by the DIBP, that an appeal of that Nomination refusal has also been submitted to the AAT.

If you require the representation of a Immigration Lawyer in Brisbane today, then feel free to contact us on 1300 644 788 or email your questions to enquiry@salvomigration.com.au.

Also, click here for more useful 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 

Source: http://migrationalliance.com.au

In addition to satisfying all visa criteria, applicants for the Regional Sponsored Migration Scheme (Subclass 187) (RSMS) will need to first find suitable employment in a regional area of Australia. Importantly, only specific Australian post codes constitute as being 'regional' which we will copy below!

Australian Capital Territory

Entire Territory

New South Wales

Except Sydney, Newcastle and Wollongong

• 2250 to 2251 - Central Coast
• 2256 to 2263 - Central Coast
• 2311 to 2312
• 2328 to 2411
• 2420 to 2490
• 2536 to 2551
• 2575 to 2594
• 2618 to 2739
• 2787 to 2898

Northern Territory

Entire Territory

Queensland

Except the greater Brisbane area and the Gold Coast

• 4124 to 4125
• 4133
• 4211
• 4270 to 4272
• 4275
• 4280
• 4285
• 4287
• 4307 to 4499
• 4515
• 4517 to 4519
• 4522 to 4899

South Australia

Entire State

Tasmania

Entire State

Victoria

Except Melbourne metropolitan area.

• 3211 to 3334
• 3340 to 3424
• 3430 to 3649
• 3658 to 3749
• 3753
• 3756
• 3758
• 3762
• 3764
• 3778 to 3781
• 3783
• 3797
• 3799
• 3816 to 3909
• 3921 to 3925
• 3945 to 3974
• 3979
• 3981 to 3996

Western Australia

Entire state

If you require the assistance of a Migration Agent in the Brisbane CBD today, then feel free to contact us on 1300 MIGR8TE (644 788) or email your questions to enquiry@salvomigration.com.au and thank you for visiting Salvo Migration.

Also, click here for more great 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

Applicants of visas from inside Australia often find themselves on a 'Bridging Visa' awaiting the outcome of their respective visa application. Due to the processing times of some Australian visas, applicants can be on these temporary bridging visas for several months, and sometimes, even years! (See our blog on the Parent Visa Loophole as an example). Despite being in this period of 'limbo', those who hold a Bridging Visa A (Subclass 010) may be eligible for a Bridging Visa B (Subclass 020), otherwise known as a 'travel bridging visa' allowing holders to leave Australia and return to continue awaiting the outcome of their pending Australian visa.

Accordingly, a common question we receive is 'how long can I travel on a BVB'?

In order to answer this question we must turn to Government Policy, being what is used by Departmental case officers when assessing the application for a BVB.

Importantly, policy does not necessarily specify a limit as to how long a BVB can be granted for.

Specifically, the policy states:

​Except for providing that the travel facility period cannot exceed the period that the BVB is in effect ...BVB regulations do not prescribe a length of time for the travel facility period.

and:

It is up to the visa processing officer to specify an appropriate length of time for which to grant a travel facility period to an applicant for a BVB. Officers should exercise judgment, on a case by case basis, in deciding the length of time during which the BVB holder can leave and (re) enter Australia...

However, policy does provide some insight as to how applicants that are in Australia awaiting the outcome of certain visa applications may be assessed. Specifically, applicants of the following visas may be able to request a 12 month travel facility/BVB:

1. Aged Parent Residence (BP-804) visa
2. Contributory Aged Parent (Temporary)(UU-884) visa
3. Contributory Aged Parent (DG-864) visa
4. SkillSelect GSM visas (SI-189, SN-190 and SP-489)

Importantly however, these applicants may also be able to request longer than 12 months if they can demonstrate exceptional circumstances, including:

1. The need to care for a terminally ill relative
2. Involvement in legal proceedings including divorce
3. Education, business or professional purposes or obligations

All in all, what this shows us is that it will generally be at the discretion of the assessing case officer in terms of how long they choose to allow a BVB visa applicant to travel for. Accordingly, applicants should ensure that when making BVB applications that they specify their desired dates of travel and provide sufficient reasons for the purposes of their departure.

If you require the help of a Migration Agent in the Brisbane CBD today, then give us a call on 1300 MIGR8TE (644 788) or send your enquiry to enquiry@salvomigration.com.au and thank you for visiting our site.

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 

• 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

 

• Schedule 3 Waiver (Addressing Compelling and Compassionate Circumstances)  - click 👉 here to read

Are you an International Student in Brisbane? Need a break from all those soul crushing hours studying and preparing assignments? Well, Salvo Migration is proud to help bring you the next event by Rumba Latina, 'I Love Colombia' on Thursday the 11th of August from 9pm! So come along, have a few cervezas or margaritas (as long as you don't have class the next morning) and shake out those brain muscles to all your favourite latin music.

For more information visit the Facebook Event Page and reserve your spot today!

​Otherwise, if you are an international student and require the assistance of a Immigration Lawyer in Brisbane today, then feel free to contact us on 1300 MIGR8TE (644 788) or send your enquiry to enquiry@salvomigration.com.au.

Also, click here for more useful 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  

A very common pathway for skilled workers to gain their permanent residency is to apply under the 'Temporary Transition Stream' of the Subclass 186 (ENS) visa or Subclass 187 (RSMS) visa. Accordingly, this stream requires that applicants have worked for their sponsors for at least two years in their skilled occupation and are then nominated by their employer for permanent residency.

However, sometimes issues arise when during this 2 year period the employer re-structures or is sold to another entity who takes control of the pre-existing business. Importantly, it used to be the case that if a consequence of this type of business restructure/sale meant that a 457 visa holder was now being employed by a entity that had a new ABN to the previous sponsor, then unless those entities were associated in law, then the 457 visa holders would have a very difficult time arguing that they had worked for the same employer for 2 years when applying for their residency. Long story short, if a new ABN took over, then it was very likely that the 2 year calculation would 'restart' with that new company.

Thankfully, the DIBP changed their policy and now apply a much more flexible and common sense approach to the issue. Accordingly, as it stands currently, when assessing whether or not an applicant meets the 2 year requirement, the DIBP will ask the following three (3) questions, and if all three can be answered 'yes', then in most cases, an applicant will meet the criteria:

1. Is the nominee still working in the same position, performs the same duties and has the same working conditions in the required 2 year period, regardless of the change of sponsor?
2. Does the nominee report to the same management structures?
3. Has the nominator retained the same business name and/or operations, but is considered to be a new legal entity?

Accordingly, the policy intention is to allow 457 visa holders to apply under the Transition Stream that 'have been affected by circumstances outside of their control, such as their employer undergoing a business restructure, takeover, sale or closure'. What this tells us is that as long as there is a direct link from the previous entity to the current sponsor (i.e a takeover or sale) then it is likely that applicants will not be assessed too harshly at the DIBP and meet the 2 year requirement.

Importantly however, 457 visa holders are advised to be aware that there is also a separate requirement that the new entity that is nominating them for their permanent residency must also be their current 457 sponsor. To clarify, this means that if Company A is bought out by Company B, then any 457 visa worker who was originally sponsored under Company A must first have their 457's transferred to Company B before Company B can sponsor them for permanent residency. 

Readers are also suggested to consider that if applicants are formally qualified in their occupation and have at least 3 years full time experience in their field after their qualifications, then they may be eligible to apply for permanent residency without having to wait 2 years on a 457 visa. This even applies to those who are already on a 457 visa and may perhaps be eligible sooner than waiting the full 2 years.

If you require the assistance of a Immigration Lawyer in Brisbane City today, then give us a call on 1300 MIGR8TE (644 788) or send your questions to enquiry@salvomigration.com.au.

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  

In late 2015, the Department of Immigration and Border Protection (DIBP) made changes to its policy regarding Australian businesses sponsoring family on a Subclass 457 visa as well as the self-sponsorship approach used by temporary visa holders already in the country. Below we breakdown the current status of the law and Government policy.

Self Sponsorship

Prior to these changes, it was common for overseas based skilled workers to enter Australia on a temporary visa (generally a Working Holiday or Student Visa), establish a company, begin trading and eventually employ and sponsor themselves for a Subclass 457 visa. At the time, the Governments position was that as a company is a separate legal entity to its director, that it could lawfully employ and sponsor the director as an employee of the company. 

However, it seems that the DIBP eventually caught wind of this 'loophole' and decided to insert the following into their policy when assessing the genuine need of a position being nominated for a Subclass 457 visa:

The intent of the 457 program is to enable Australian businesses to temporarily fill short term skill shortages with overseas workers when they cannot find a suitably qualified or experienced Australian citizen or permanent resident to fill the position. The program is not intended to be used for non-citizens to establish a business in Australia and self-sponsor themselves; there are other visa pathways available for such purposes.

Seems pretty cut and dry doesn't it? Read on...

Sponsoring Family

In addition to the DIBP looking to stamp our self-sponsorship style applications, there was additional policy included which also attempts to make it more difficult for Australian businesses to employ and sponsor family members of directors and officers. This is because in the eyes of the DIBP, sponsoring family is a possible indication that the position was created purely to secure a migration outcome. Accordingly, businesses looking to sponsor family members will also face an uphill battle in showing that the position either already existed (and has recently become vacant), or that the business has diversified/increased which has resulted in a new position being created. 

Analysis

As is explained above, the current Government position on self and family sponsorship's seems clear and readers should be aware that any application to the DIBP attempting either of these approaches is likely to be highly scrutinized However, it is our position that the current DIBP policy is incorrect and an over interpretation of the Migration Regulations. 

Firstly, only specific occupations are subject to the requirement that they demonstrate they have not been able to find a suitably qualified or experienced Australian citizen or permanent resident to fill the position. For a large number of occupations on the Consolidated Sponsored Occupation List, Australian employers do not need to advertise (known as Labour Market Testing) for the position before submitting their nomination, so the claim that all Subclass 457 visas are exclusively for Australian employers that could not find suitably qualified Australians if factually incorrect. 

Secondly, to suggest that a family owned and operated business does not have a genuine need for a relative to work in that business is staggering. There are thousands of Australian family operated businesses that genuinely and effectively employ relatives into key positions as a means of ensuring that the business is run and managed by a known and trusted individual. 

Similarly, a self-employed tradesman (as an example) that can demonstrate their company has been contracted to provide substantial work for the foreseeable future and who have employed other tradesmen to perform the work would logically have a genuine need for his/her position in their business especially considering there is no requirement in law that the position be needed for any specific period of time following the grant of the 457 visa, only that at the time of decision there is a need for the position.

Conclusion

Now, its important that we understand the legal framework in which Migration Law operates. To clarify, the DIBP are not empowered to create laws. That responsibility and authority lies with the Australian Executive (Parliament). Accordingly, DIBP policy is not necessarily legally binding, however, the practical reality is that the policy will guide DIBP case officers when making their decisions. So visa applicants need to expect a high level of scrutiny at the DIBP if applying for a 457 visa under self or family sponsorship and prepare for the very likely need to have to appeal to the tribunal, which we believe may have strong grounds to win...depending on your lawyer! 

If you have recently had a Subclass 457 visa refused due to family or self-sponsorship criteria and require the help of a Migration Agent in Brisbane City today, then get in contact on 1300 MIGR8TE (644 788) or email your enquiry to enquiry@salvomigration.com.au and we hope you learnt something valuable by visiting Salvo Migration.

Also, click here for more useful 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