Australian Immigration Law Update – Citizenship

Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Alan Tudge has announced that from 15 November 2020, there will an updated ‘Australian Citizenship Test’ with a clear focus on Australian values.

The Acting Minister stated “The updated Citizenship Test will have new and more meaningful questions that require potential citizens to understand and commit to our values like freedom of speech, mutual respect, equality of opportunity, the importance of democracy and the rule of law.”

The updated Citizenship Test will comprise of 20 multiple-choice questions, including five questions on Australian values. A person will be required to correctly answer all five of the questions on Australian values, with a mark of at least 75 per cent overall, to pass the test. There will be no changes to the English language or residency requirements for citizenship.

From 30 October 2020, most new visa and citizenship applicants will be required to affirm the updated Australian Values Statement (AVS). The updated AVS will better reflect the shared values of Australian society, including the rule of law, freedom of religion, freedom of speech, freedom of association and equality of opportunity for all people in Australia.

📌 Contact Nevett Ford Lawyers today if you require any Australian immigration assistance

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Australian Immigration Law Update: Do You Have A Need To Travel From Or To Australia?

Do you have a need to travel from or to Australia? Here is an update on the current travel restrictions.

Travelling from Australia

If you are an Australian citizen or permanent resident, you are still prohibited to travel outside of Australia unless you are exempt or have applied for an exemption and received approval. The restriction is in place until 24 October 2020 but most likely to be extended.

As we have previously posted in our blog in July, in these circumstances you need to apply for a request to travel:

  • Your travel is as part of the response to the COVID-19 outbreak, including the provision of aid
  • Your travel is essential for the conduct of critical industries and business (including export and import industries)
  • You are travelling to receive urgent medical treatment that is not available in australia
  • You are travelling on urgent and unavoidable personal business
  • You are travelling on compassionate or humanitarian grounds
  • Your travel is in the national interest.

Processing of the requests are quicker than a few months ago but may still take two weeks or more. Detailed evidence is required or you may receive a refusal citing ‘insufficient evidence’ after a couple of weeks, further delaying your travel plans.

If you are a temporary visa holder in Australia, you may leave Australia any time provided that there are flights and your destination country allows you to enter. You should note that you will not be allowed to return to Australia while travel restrictions remain in place unless you are exempt (details below).

Travelling into Australia

If you are an Australian citizen or permanent resident, you are automatically exempt from the travel ban and can enter Australia.

If you are not an Australian citizen or permanent resident, you must have a valid visa to enter Australia, no matter whether you are exempted from the travel restrictions or not.

You are exempted from the travel restrictions if you are:

  • An immediate family member (spouse*, de facto partner*, dependent children, legal guardian) of an Australian citizen or permanent resident
  • A New Zealand citizen usually resident in Australia and their immediate family members
  • A diplomat accredited to Australia (holding a subclass 995 visa)
  • A traveller transiting Australia for 72 hours or less
  • Airline crew
  • Maritime crew including marine pilots
  • Recruited under the Government approved Seasonal Worker Program or Pacific Labour Scheme

*As a spouse/de facto partner of an Australian citizen/permanent resident, if you do not already hold a Partner Visa, you still need to provide detailed evidence of your relationship and await the Department’s approval before you travel to Australia.

Temporary Visa Holders that do not fit under any of the above exempt categories could only come to Australia on the following grounds:

  • Travelling at the invitation of the Australian Government or a state or territory government authority for the purpose of assisting in the COVID-19 response
  • Providing critical or specialist medical services, including air ambulance, medical evacuations and delivering critical medical supplies
  • Having critical skills or working in a critical sector in Australia
  • Entry would be in the national interest, supported by the Australian Government or a state or territory government authority
  • Military personnel, including those who form part of the Status of Forces Agreement, Commonwealth Armed Forces, Asia Pacific Forces and Status of Armed Forces Agreement
  • Travelling for compassionate and compelling reasons.

Again, requests to travel may take at least two weeks to process and require detailed evidence including a supporting statement. You will not be permitted to board a flight to Australia before the Australian government grants you an approval to travel.

If you have a need to come into Australia due to any of the above grounds, but do not have a valid Australian visa as yet, please contact us to explore your visa options and/or assistance to demonstrate you qualify for the exemption(s).

📌 Contact Nevett Ford Lawyers today if you require any Australian immigration assistance

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Australian Immigration Law Update: The ‘Health’ Test Criteria

Almost all Australian visas carry with them ‘health’ criteria requirements. You can check to see if a visa carries a health requirement by looking at the Public Interest Criteria (PIC) associated with the visa.

Public Interest Criteria (PIC)

All Australian visas are subject to PIC 4005, and/or 4007. ETAs and E-visitor visas are subject to 8527 – Free from TB

  • PIC 4005: General health requirement
  • PIC 4007: Health requirement and waiver.

Applicants are assessed against significant cost to the Australian community – i.e. health care and community services. Also, if prejudice will be caused to Australia citizens and permanent residents if you access health care or community services.

Significant Cost:

A Government Medical Officer of the Commonwealth (MOC) will assess any health issue or condition against a hypothetical person with the same condition. They will then assess likely cost or impact on services. If the cost of treatment is over $AUD49,000 over five (5) years (if a permanent visa) or for the life of the visa for a temporary residency visa, then there will be a failure of the health test.

Likewise, if the medical condition requires access to services which would deprive Australian citizens and permanent residents access to services (e.g. transplants), then a failure will occur. For applicants over 75 years of age, assessment is made across a three (3) year period.

If the MOC assesses that a potential failure is likely you will be given the opportunity to respond and produce further medical evidence showing that the cost threshold will not be exceeded.  You should seek professional legal advice from Immigration Lawyers & Registered Migration Agents.

Waiver

A waiver of the health criteria is available on some visas under 4007(2) where the Minister is satisfied there will not be ‘undue cost’ or ‘prejudice’. In these circumstances you will be able to provide further evidence to support your claim. For instance, you could show that due costs are offset by assets or income and will not impact the Australia community.

It is always important to disclose potential medical conditions at the earliest with your Immigration Lawyer / Registered Migration Agent to assess likely outcomes.

📌 Contact Nevett Ford Lawyers today if you require any Australian immigration assistance

Nevett Ford Lawyers Melbourne

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How to Remain Immigration Compliant During COVID-19

COVID-19 and the current climate has forced significant changes in many businesses which include downsizing, redundancies, standing down workers, and changing employees’ duties due to work from home arrangements. Companies are making rapid decisions, but need to remember the fundamentals of immigration compliance to avoid a breach of migration law and sponsorship obligations

If compliance is not monitored carefully, your business could jeopardise its eligibility to sponsor future workers and may lead to legal ramifications for your company’s immigration program.

Have you complied with all sponsorship obligations during the pandemic?

Specific sponsorship obligations may vary depending on the visas your employees hold. However, there are general guidelines that apply to all types of Australian work visas. For example, you need to be aware of the following obligations that apply to employees on sponsored visas:

  • Keeping records: Record keeping is crucial for a sponsoring employer since it creates a paper trail of your compliance. Some of the events and items that need to be recorded include Department notifications, a log of tasks performed by the sponsored person along with their compensation for the work, documents related to their training, receipts for return travel costs, a log of non-monetary benefits paid to sponsored people, a record of the terms and conditions of their employment and copies of employment contracts. Sponsors may be audited at any time for compliance with this obligation and must provide any information requested by the Department.
  • Equivalent employment terms: Employers must offer equivalent working conditions to all their employees regardless of their visa or citizenship status. These terms have to be consistent with what the Department approved for the sponsored person. Changes to a sponsored person’s work hours, role or salary requires approval – depending on the circumstances, this may involve notification to the Department, or, in some cases, a new TSS nomination application must be lodged and approved before the change can take effect.
  • Non-discriminatory recruitment practices: Australian law does not permit discriminatory hiring tactics. Standard business sponsors are not allowed to discriminate on the basis of a person’s visa or citizenship status. For example, a company cannot only hire or refrain from hiring people with certain citizenship status, or advertise specifically for people with particular visas. Similarly, companies need to ensure procedural fairness when reviewing roles for redundancy.
  • Paying return travel costs: When requested in writing, sponsors are obligated to pay “reasonable” travel costs for sponsored employees and their families to leave Australia. This includes costs from the person’s place of residence to their port of departure and travel by economy class by air (or the equivalent for other forms of transportation) from Australia to their home country.
  • Costs of locating and removing unlawful employees: If a sponsored person or one of their family members doesn’t hold a valid visa, a sponsor may be required to cover the expenses of locating and removing them from Australia – so it is crucial to ensure that sponsors keep track of their visa holder population particularly departing employees.
  • Cooperating with inspectors: Sponsoring companies must work with inspectors to give access to records, work premises and anything else requested under the law. This is a requirement even if you’re in compliance with immigration rules. 
  • Reporting changes: The Department has to be made aware of certain events in writing within 28 days of the event occurring. This includes changes to your business name, changes in owners or stakeholders, alterations to the business structure, a closure of the business, bankruptcy, and even a change of address. What you’re obligated to report varies depending on your type of entity.
  • Working in nominated occupation: Sponsored employees have to work in the occupation for which they were approved. To change the occupation, employers have to seek approval by lodging a new nomination for the new occupation approved by the Department before the person switches roles.
  • No recovery of costs: Sponsors aren’t allowed to take any action, or seek to take any action, to recover costs incurred through the recruitment of the sponsored person, the process of becoming a sponsoring business or the costs of using a migration agent even if an employee ceases employment. Companies are solely responsible for those expenses.
  • Paying for visa sponsorship conduct: It’s illegal to ask for, receive or give a benefit in exchange for visa sponsorship or employment in Australia.

Keeping track of your obligations with a compliance checklist 

As a sponsor, there are numerous requirements to be aware of. This practical checklist contains the major points of compliance that should be tracked over time:

  • Keep records of immigration status for all employees
  • Keep records of visa type, conditions, and expiry dates 
  • Keep copies of VEVO checks
  • Audit sponsored workers for any changes to the role and duties of their nominated occupation 
  • Keep copies of notifications made to the Department notifying changes to the business or employment of sponsored visa holders
  • Ensure sponsored workers continue to be paid the nominated earnings and at the current market salary rate
  • Keep records of return travel costs paid to sponsored visa holders
  • Ensure contracts with recruiters and suppliers address immigration compliance 

Could I be liable for non-compliance during the pandemic? 

There are possible consequences if you are not meeting your sponsorship obligations, and regulators are still actively ensuring employers are complying with their sponsorship responsibilities. Whilst regulators may not be conducting site inspections due to the Coronavirus, they are still taking complaints and can compel businesses to hand over information about their compliance if requested. Regulators are also monitoring employers to ensure they do not abuse their new flexible-working options.

If companies fail to meet their compliance obligations, they may lose their approved sponsorship status and the ability to sponsor workers, jeopardise their existing sponsored visa holders, face financial penalties, and lose current sponsored staff, not to mention brand or reputational damage – so it is essential to stay up-to-date with your compliance.

For example, business decisions made on the run which may seem innocuous – like standing employees down due to reduced staffing needs, or having a sponsored person perform alternate duties due to COVID-19 restrictions – could put your sponsorship status at risk if not informed to the Department.

Do you need help determining if you are compliant with your sponsorship requirements? 

Managing your business sponsorship compliance does not have to be overly complex, particularly when you can outsource your immigration compliance.

Our team is currently supporting clients with a fully outsourced compliance solution for employers, including for standard business sponsors and employers of other temporary visa holders. 

If you need assistance reviewing your immigration compliance or a compliance solution that is in line with government regulations and best practices, please contact us today. Our knowledgeable immigration lawyers are ready to assist

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Australian Visa Update – Australian State and Territory Nominated Visa Subclasses 190/491 Update

A small number of places have been allocated to the States and Territories for Subclasses 190 and 491 nominations and the Business Innovation and Investment classes. Below is an update on these programs for each of the state and territories.

ACT

The ACT Government is the first to open its reduced State and Territory nominated program for Subclasses 190 and 491. A new ACT critical skills list has been released with the number of nominated places available by occupation. ACT residency requirements have changed.

Different criteria apply to applications lodged before and after 1 July 2020 and after 18 August 2020. Members are advised to revise the new ACT guidelines that are available on that website.

The first invitation round was held yesterday Thursday 20/08/2020, with 145 invitations made including 26 to 457/482 holders.

Business visas are still currently suspended.

South Australia

The South Australian Government has updated the information on its website with a further statement that it will publish state nomination requirements on 27 August 2020.

Skilled migration – from 31 August, South Australia will commence reviewing EOIs and invitations to submit applications made.

Business migration – from 7 September 2020 Intention to Apply submissions will be reviewed and invitations to submit applications made.

Victoria

The Victorian Government is preparing to re-open its visa nomination program with new policies and nomination criteria. It is suggested that applicants ensure their EOIs are lodged and up to date.

No announcement on the Business visa program has been made.

Tasmania

The Tasmanian Government has made no announcements on its state’s programs, other than that nominations will focus on the state’s public health system and economic recovery.

NSW

The NSW Government has made no announcement on its state’s programs.

Queensland

The Queensland Government has made no announcement of its state programs.

Northern Territory

The Northern Territory Government has not opened its state/territory nomination program for 2020-21 but is continuing to accept applications for nomination. Applications are closed to offshore applicants.

Business nomination applications are not being accepted at this time.

Western Australia

The Western Australian Government has made no announcement on its state’s programs.

📌 Need help and assistance with a visa that has been refused or cancelled? Contact us today so we can help

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Administrative Appeals Tribunal (AAT) – Migration and Refugee Division (MRD)

The Deputy President of the AAT Migration and Refugee Division, Jan Redfern, has provided updates on the operation of the Migration and Refugee Division (MRD) including:

  • In person hearings are resuming in a limited capacity across Australia except in Victoria.
  • The MRD uses its discretion in assigning cases to face to face, online or telephone format hearings
  • Applicants have the discretion to object to telephone or online hearings but this will delay the matter being heard
  • Members and/or applicants have the discretion to request that a hearing be adjourned if they feel the format  of the hearing is not in the interests of the applicant and to be reconvened face to face at a later date
  • Complex cases and those where mental health or credibility issues are involved are generally convened in face to face formats
  • There were 63,000 cases in the queue as at 30 June 2020
  • From the end of March to 30 June 2020 – 500 decisions were expedited
  • In the last financial year 1,500 cases were decided ‘on the papers’
  • 2,000 more cases than projected have been decided during the pandemic lockdown
  • Victorian cases are providing a challenge, as those case files have not been digitised and are difficult to access, particularly for overseas partner cases.
  • The number of full time equivalent tribunal members has not increased since 2015 although some recruitment is currently underway
  • 49% of the MRD’s 63,000 active cases have an Registered Migration Agent (RMA) representative
  • 3,511 RMAs are representing which is 49% of cases in the MRD.

📌 If you require advice and assistance with your AAT appeal, please contact us today so we can help

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Australian Visa Update: Hong Kong Passport Holders

Legislative Instrument – F2020L01047 – Migration Amendment (Hong Kong Passport Holders) Regulations 2020 amends the Migration Regulations to extend temporary skilled and temporary graduate visas for five years from 9 July 2020 to 8 July 2025 if the primary visa holder held a Hong Kong Special Administrative Region of the People’s Republic of China passport when the visa was granted.

Secondary family members’ visas will also be extended to 8 July 2025, regardless of the passport they hold.

Subclass 482 Temporary Skill Shortage and Subclass 485 Temporary Graduate visas granted from 9 July 2020 will also be granted with his five year validity period for Hong Kong passport holders.

The permanent residency pathways for these visa holders will be announced at a later date.

This Instrument commenced retrospectively on 9 July 2020.

📌 If you require advice and assistance in regards to your situation as a Hong Kong passport holder, please contact us today so we can help

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PR Through Global Talent Independent Program

We previously discussed the new Global Talent Independent (GTI) program that was launched by the Department of Home Affairs (Department) on 4 November 2019.

But how can you apply?

You are able to apply for the permanent residency (PR) visa – Distinguished Talent visa (onshore or offshore) through this GTI program.

What are the key requirements?

  1. Your highly skilled professional fields is one of the following:
    • AgTech
    • Space and Advanced Manufacturing
    • FinTech
    • Energy and Mining Technology
    • MedTech
    • Cyber Security
    • Quantum Information, Advanced Digital, Data Science and ICT
  2. You must have an internationally recognised record of exceptional and outstanding achievement in your profession
  3. You must be nominated by an Australian individual or Australian organisation with a national reputation in the same field as you; the nominator needs to attest to your achievements and international standing and is not required to provide you with employment or assist you to become established in Australia
  4. You must have the ability to attract a salary at or above the Fair Work High Income Threshold, which is currently at $148,700; this figure is adjusted annually on 1 July with around 3% increase each year

What are the steps involved?

  • If you meet the key requirements, you can first express your interest for consideration under the program through the Department’s Global Talent portal.
  • If you have been assessed as meeting the program parameters, you will be given a unique identifier which provides priority processing for a Distinguished Talent visa application and receiving the invitation to apply for the Distinguished Talent visa..
  • Once you have received the invitation to apply for the Distinguished Talent visa, you can do so through the Department’s ImmiAccount portal.

What are the benefits?

Given the purpose of the program is to attract skilled migrants at the top of their fields to Australia, the Department of Home Affairs makes this an unprecedented streamlined and efficient PR process for the visa applicants. From lodging the expression of interest to visa grant, the processing times can be as short as 7 days. This will certainly depend on when the visa applicants can provide all the supporting documents as required as well as the processing times of the local posts.

📌 If you want us to assess whether you are eligible to apply for PR through this program, please contact us today so we can help

Nevett Ford Lawyers Melbourne

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Australian Visa Update: Administrative Appeals Tribunal (AAT) resumes ‘in-person’ hearing from migration matters


The AAT is mindful that hearing matters remotely is not always practical in some circumstances and where the matter may not be deferred.

The AAT is taking steps to resume limited in-person hearings in the Adelaide, Brisbane, Canberra, Hobart, Perth and Sydney registries.

The AAT will consider list in-person hearings on a case-by-case basis in accordance with the AAT’s practice directions.

In appropriate matters, in-person hearings are expected to commence within the next few weeks. Parties will be contacted by the Tribunal as to hearing arrangements.

Most AAT hearings and all AAT conferences will continue to be conducted remotely by video conference or telephone for some time.


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Australian Visa Update – Student visa arrangements for those impacted by COVID-19

The Hon Ministers Alan Tudge and Dan Tehan have released a joint media statement outlining the arrangements to be put in place for student visa applicants and student visa holders who have been impacted by the COVID-19 travel restrictions.


The release notes five (5) visa changes:

🔹 Grants of student visas in all locations lodged outside Australia will recommence, so visa holders will be ready to travel when borders reopen

🔹 Free Visa Application Charge (VACs) for international students who lodge further student visa applications, if they were unable to complete their studies within their original visa validity due to COVID-19

🔹 Current student visa holders studying online outside Australia due to COVID-19 will be have that study counted towards the Australian study requirement for a post-study work visa

🔹 Graduates who held a student visa will be eligible to apply for a post-study work visa outside Australia, if they are unable to return due to COVID-19

🔹 Additional time will be given for applicants to provide English language results where COVID-19 has disrupted access to these services


As these announcements will required legislative changes, there is no further detail available at the moment and we will update you further at that time.


Need help and assistance? Contact us today so we can help

Nevett Ford Lawyers Melbourne

📞: +61 396 147 335
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