18 April Announcement – Skilled Occupations (457 Visa Changes)

 

Nilesh Nandan’s 457 Video Transcript

Hi! You’ll agree the changes to 457 visa laws are confusing and if you are scratching your head, you are not the only one.

I’ll share with you what simple steps you now must take because of the 457 Visa announcements.

It’s a simple 3 step process to get you confident about where you stand right now. Sound interesting?

First – FIND your occupation on one of the new lists.

Second – WORK out if your occupation attracts a red flag.

Third – MAKE SURE you can overcome any red flag hurdles.

I’ll take you through some scenarios in a moment and I’m sure that one of these scenarios will be relevant to you. But first, let’s take a look at what has changed.

The NEW employer-sponsored program is best understood if you think of the change as SIMPLY the introduction of three NEW lists.

I’ve given each new list a nickname because the names given by Immigration are horrendous. Even as an Immigration lawyer, I find them confusing and I’m certain you’ll agree.

Also, I’ve included all the lists at the bottom of this post.

So here are the lists you need to know about:

The Medium & Long Term  Strategic Skills List (MLT-SSL) – I call this the good list.

The Short Term Skilled Occupations List  (ST-SOL) – I call this the bad list

The List of occupations to which caveats applyI call this the red flag list.

The good list allows a pathway to permanent residence and that is exactly why I call it the good list.

The Bad List might get you a visa but it offers no permanent residence pathway and it is only renewable once.

And the red flag list is the list of occupations that the Department of Immigration has special rules for.

Take a moment to look at these lists now below or on our website myvisa.com.au.

In a perfect world, your occupation will be on the good list.

But it’s not a perfect world and if your occupation is not on any list, remember that you are not alone.

However, if your occupation is not on any list, then you have a real problem and you’ll need to seek advice about your options FAST because the employer-sponsored program is no longer the problem for you.

If your occupation IS on a list, then you’ll need to check if your occupation is “red-flagged”.

If your occupation is on the RED FLAG list then you’ll need to overcome ADDITIONAL hurdles and address the extra concerns which the Department has with you REG FLAGGED occupation.

Ok. Let’s take a look at some scenarios:

Do you currently hold a 457 visa?

The good news is that nothing has changed with your 457 visa validity. Therefore, the scope and duration of the 457 visa already granted to you remain unchanged by these announcements.

If you are looking to lodge an ENS application, but you have NOT done so then you should lodge an ENS visa application SOONER rather than later.

Why? Because it seems from the announcement that things will only get tougher.

If you are looking to lodge another 457 visa then you’ll need to understand the new lists. Additionally, you should also be on the look-out for any other changes that might soon be announced.

Already lodged a 457 visa or Nomination and a decision has NOT yet been made? As a result, you’ll need to act quickly. You’ll need to make sure that what you have lodged complies with the new rules because the announcement applies to all PENDING applications, pending after 19 April 2017.

If you have appealed a 457 visa or Nomination refusal already then be aware that the AAT will apply the NEW rules to their review of your case:

In most cases, you might be better off by withdrawing your pending 457 visa application or any pending application for REVIEW that you may have filed in the AAT or to the federal circuit court.

Let me now give you some tips on what you should be doing now to get a better employer-sponsored visa outcome:

If you’d like to be proactive at this time:

– Get hold of all your work experience documents because this will be crucial going forward.

– Get a police clearance because these will soon be mandatory.

– Improve your English because higher results will be required for all occupations soon.

– Withdraw any pending applications if they are doomed for refusal.

– Get a strategy together for getting your skills assessed

In summary here are the three things you must do:

First – FIND your occupation on one of the new lists.

Second – WORK out if your occupation attracts a red flag.

Third – MAKE SURE you can overcome any red flag hurdles.

I’m Nilesh Nandan. I practice as an Immigration Lawyer at MyVisa® Australia. So, if you feel you need further help due to these changes then please call me. You can book a consult to meet with me at any of our offices in Sydney, Melbourne, Brisbane or Perth.

457 Visas Abolished? – Turnbull Raises More Questions Than answers!

“Gutsy move by Turnbull provided he can cut through the red tape”.
Nilesh Nandan, Immigration Lawyer, MyVisa Australia.

“The armoury for this 457 visa onslaught is already in legislation. A new visa mechanism for slashing and burning entire visa classes without having to wait for normal visa expiry or individual cancellation notifications was introduced by stealth over Christmas 2016 under cover of a “re-validation of visa” power.”

“It is unclear from Turnbull’s video press release whether a re-validation process will be imposed on existing 457 visa holders and their sponsors.”

What we do know:

  • The 457 subclass will go!
  • The DIBP will introduce a new visa subclass
  • New target applicant is for the “best and brightest”
  • English requirement will be tougher
  • The DIBP will favour Regional Australia 
  • Increased work experience requirement
  • Labour market testing to continue

What don’t we know?

  • The name of the new visa class will be?
  • What will the new application fees be?
  • Whether there will be a credit for 457 fees paid?
  • When will the new visa be introduced into law?
  • Whether existing 457 visas will require any re-validation?
  • Whether Business Sponsorship will also be abolished?
  • Will there be a pathway to permanent residency?
  • What about 457 visa decisions still pending or on appeal at the AAT?

Do something now

>>Get a fresh English test done
>>Pull out your CV and evidence of qualifications
>>Get detailed reference letters for all work experience
>>Stay tuned for the regulation itself – the devil is in the detail 😉

Latest Skilled Occupation List revision expected to be announced soon.

If only we had some certainty about which occupations were to be included in the next list of preferred occupations, right?

Any student already studying in Australia or hoping to get a student visa to study in Australia will certainly want to know if their intended occupation is on the skilled occupation list or the CSOL – the consolidated skilled occupation list.

From the chatter, at the two recent immigration law conferences, I attended in the last 6 weeks, including the Law Council of Australia’s National Law Conference in electing an announcement of the new list of occupations in May 2017.

I’d expect the last to be effective for all skilled migration applications lodged after any announcement and not later than 1 July 2017.

What skilled occupations do you think will be struck off the new list? And which do you think will be added?

485 Visa Requirements – Time Of Application Criteria – Quick Tip

Time Of Application Criteria For A 485 Visa

It is important to make sure that you provide all required documents at the time of your 485 Visa application. Remember to upload the documents to your online IMMI account immediately after lodging the application.

What If I Don’t Upload At The Time Of The 485 Visa Lodgment

The DIBP would probably refuse your application.

Firstly, most 485 Visa Applicants are unaware that evidence of health insurance and evidence of an application for an AFP certificate within 12 months of the application date must be provided at the time of lodgement, or a refusal will result. Secondly, remember that you must provide the following documents to the DIBP:

* Evidence of English Language Ability;
* Evidence that you meet the Australian Study Requirement; and
* A valid Skills Assessment from a Skills Assessing Authority.

If the DIBP refuses your visa then you may have limited options in terms of what further visas you are able to lodge onshore.

If your visa application is invalid it is as if no application was made and if your visa has since expired, you could be unlawful. So, a bridging visa will only be granted to you if you make a valid application and you are onshore.

For assistance, please contact us for a consultation or fill out a form and we will call you back.

Bridging Visa – Do I Have One Or Don’t I?

Bridging Visa Grant

Do you think that as soon as you have applied for a visa onshore, your existing visa is automatically replaced? Well – it is very dangerous to assume this!

Bridging visas “bridge” you from when an existing visa ceases to be “in effect” till the decision on any new visa you may have applied for. Usually, the visa will run for a period of up to 28 days after the decision of the Department. Allowing you to make an appeal if you are unsuccessful.

The DIBP can issue these visas for a fixed period. For example, you might be without a visa and need a week or so to get things in order before you can exit Australia – Immigration will often grant you this type of visa for a fixed term which will allow you time to exit the country or lodge another application.

Bridging Visa “In Effect”

Although your bridging visa may be granted (and you may have received a letter from Immigration saying that you have been granted this visa) take care to note that this visa will usually only come “into effect” when your existing visa expires and will remain in place while your new visa application is being considered.

For example, suppose you are a holder of a Subclass 600 Visitor Visa. And you apply for a Subclass 457 Temporary Skilled Work Visa while onshore. You will not automatically become the holder of a BV as soon as you make that 457 visa application. You will still be on your Subclass 600 until it expires. Your bridging visa will usually kick in, if at all, immediately upon the expiry of your Subclass 600 Visitor Visa.

Bridging Visa “Never In Effect”

It is very possible that the DIBP decides your 457 Visa Application while your Subclass 600 Visa is still in effect. This means the bridging visa granted to you in association with your Subclass 457 Visa Application will be extinguished and never come into effect.

Bridging Visa – Practice Tip!

Stay onshore if your bridging visa is not yet in effect. Exiting Australia will usually extinguish this visa and you may well find yourself stuck offshore.

 

Genuine Position – Marketing Specialist – Case Study

Marketing Specialist Refused Because Of Genuine Position

Our client X came to us after her nomination for the occupation of Marketing Specialist was lodged and refused because it failed to meet the genuine position requirement.

A real estate agency initially employed X as an Executive Assistant. At the time she was on a subclass 417 Working Holiday Visa.
The agency quickly offered X a full-time position as Marketing Specialist. She held a bachelor’s degree and had some experience in marketing.

The reason noted in the nomination refusal decision record referred to the fact that there were only 3 employees. In particular, that the nominated position was not a genuine position.

In assessing all the information relevant to this decision, including documents provided by the applicant, while I am satisfied that the nominated position exists, I am not satisfied that it is what it purports to be – that is, I am not satisfied that the position nominated is a Marketing Specialist (ANZSCO code 225113), as per the ANZSCO description of this occupation.

Also, this is because the size and/or turnover of the business would not appear to support such a position. I have taken into account the additional information provided in support of the application, including the Business Activity Statements, but I am not satisfied that the sponsoring business would be in a position to support the nominated position, in addition to other staff already employed – as indicated in the business plan.

As a position in the nominated occupation of Marketing Specialist is not consistent with the nature of the business operated by the applicant, I do not consider the position associated with the nominated occupation to be genuine, and consequently, the applicant does not satisfy paragraph 2.72(10)(f).

Action Taken in Response to Genuine Position Refusal for Marketing Specialist

My office re-lodged the Nomination with submissions. We included the fact that the business required a Marketing Specialist to help with business expansion. And the need for a manager to manage marketing strategies in a fast-changing and competitive real estate market.

X also submitted examples of marketing research activities and several marketing proposals compiled by X.

The DIBP approved the second 457 Nomination Application for the occupation of Marketing Specialist.

Genuine Position – 457 Nomination Refusal Followed By 457 Visa Refusal

Looking for help with understanding the genuine position criteria for a 457 visa?

Top 3 Things You Must Know About The Genuine Position Criteria

In my experience, I’ve found the 
”Genuine Position” criteria the most problematic criteria to meet when lodging any 457 Nomination Application.

If you don’t get this criterion right from the outset, you should expect a difficult time ahead because it’s quite challenging to change the position metrics, after you’ve already lodged. The result will be a 457 Nomination refusal and what will follow almost in every case is a 457 visa refusal.

One important decision you’ll need to make early if you encounter a 457 Nomination refusal, is whether to withdraw the 457 Visa Application before it also gets refused. BE CAREFUL! It may be more advantageous for you not to withdraw, because appealing may give you a right to a bridging visa, which you may find extremely convenient.

#1 Increased 457 Nomination Refusal Rate For Non – Genuine Positions

Since the introduction of 457 visa reforms in July 2015 there has been a substantial increase in Nomination refusals. The DIBP will likely refuse your application if there is not sufficient evidence provided in relation to the genuineness of a nominated position.

#2 Expect Genuine Position Problem With Certain Occupations

You should expect more Departmental scrutiny if:

1. The proposed occupation is of a managerial nature, however the proposed salary is at the lower end of a market salary band.
2. The proposed occupation is of a general nature such as Marketing Specialist, Program or Project Administrator or Specialist Manager NEC.
3. The proposed occupation is one of the often-abused occupations in the past – these include Customer Service Manager and Restaurant Manager.

#3 The Biggest Success Factor For Establishing A Position Is Genuine

Well prepared submissions and appropriate evidence will always help you in achieving more successful outcomes. In your submissions you might consider comprehensive, not just cursory information about:

– Business structure
– Evidence that the position existed in the past, and has become vacant
– Any evidence of increase in business activities, customers and profits
– Evidence that the position is consistent with the nature of the business
– A very detailed position description

Help With Genuine Position Submissions

So if you are serious about your 457 Visa application then call us today. Our team will help you arrange a meeting or phone conference to advise you fully, whatever your circumstances.

 Although, if you prefer to communicate online, use the red icon on the right-hand corner of your screen.

Also, see our case note example relating to a genuine position for a 457 visa nomination for a marketing specialist.

Visa Rejection – Has Your Visa Application Been Rejected?

Looking for help after your Australian visa rejection? So, if the DIBP has rejected your visa, you need to know what type of rejection it is.

Visa Rejection Because Of Invalid Application

This is perhaps the worst type of rejection because you may now be unlawful. Invalid applications mean that any bridging visa you thought you held (as a result of having made a valid application) does not exist.

You should discuss this with your advisor immediately. You can call me for assistance.

Visa Rejection – You Don’t Meet The Criteria

If you have a rejection, it’s most like to be a visa refusal. Additionally, you will receive a notification of the decision and attached decision record which explains why the visa has been refused.

If you are in Australia, it’s most likely that you have a right to appeal the refusal decision. In other cases, you may be able to lodge a fresh application. In the worst case scenario, you won’t have any appeal rights.

Visa Rejection – Advice

Please call me to discuss what is possible after your visa application has been rejected. There is no one answer which fits all situations.

Refugee Looking To Make A Protection Visa Application?

Are you a refugee or asylum seeker in Australia?

Refugee Visa or Protection Visa?

In Australia, refugee visas for those seeking asylum or Australian government protection are known as protection visas.

What is a “refugee visa”?

Also known as a “protection visa” or “asylum visa” or “asylum application” or “asylum-seeker visa”, a refugee visa provides refugees protection in Australia, by allowing a temporary or permanent residence visa for asylum-seekers and those who fall within complementary protection provisions.

An international convention defines what a refugee is and determines whether or not someone is a refugee. However, the convention definition of refugee has been re-scoped by legislation and court decisions to include other applicants seeking protection. These are known as the complementary protection provisions.

How do I get a refugee visa?

A Refugee visa application is made to the Australian Department of Immigration (DIBP) or a Government agency either onshore or offshore.

Refugees need to prove that they are genuine refugees. The DIBP officer determines whether the applicant meets the DIBP’s criteria for a protection visa. To do this, the DIBP officer relies on your home country information research and your submissions.

Many desperate visa applicants lodge protection visa applications onshore as a last resort to remain in Australia. Therefore, our practice assists only genuine asylum seekers and refugees to effectively present their case for protection.

What does it cost?

Refugee visas attract a small fee or no fee upon lodgement of the application with the DIBP.

A schedule of fees and charges applicable to applications lodged at the DIBP is published regularly.

If you use an Immigration Advisor or Registered Australian Migration Agent, additional fees are payable.

Although, the pricing of fees charged by Immigration lawyers and migration agents depends on the skill level of the Immigration Law Specialist, the complexity of the applications, and the urgency of the application.

Bogus Documents Fixing The PIC 4020 Problem

This bogus document problem is that a DIBP Case Officer believes that you have deliberately tried to mislead them. For example by using fake documents or fake paperwork. Immigration is aware that false documents or false paperwork are often provided to them. Visa applicants do this with the intention to secure a more favourable immigration outcome.

Bogus Documents, Types of PIC 4020 Problems

There are two types of bogus documents that result in a Public Interest Criteria 4020 problem.

The first type relates to deception in terms of “identity”, and the second type relates to the deception of other facts like skills, health, character and most commonly, work experience.

Bogus Document Definition

A bogus document is a false document.

A bogus document is one that looks as though its been issued by someone. When in fact it hasn’t been issued by that person at all or is counterfeit or has been altered in an unauthorised way or has been obtained under false pretences.

PIC 4020 Approaches To Fixing The Problem

Did you, in fact, mislead Immigration? If the DIBP alleges that you provided false documents or statements, you can pursue two approaches.

The first approach is to challenge the allegation made by the DIBP and clarify that you in fact provided NO false documents or statements, within the meaning of PIC 4020. There are strict deadlines so must act quickly to take this approach.

The second approach is to argue that even if that was the case (i.e. you, in fact, had provided false documents or materials), the nature and extent of the circumstances are such that PIC 4020 is nevertheless met. The argument is that the fact that false documents or materials were provided should be of little or no consequence in the grander scheme of things. The interests of Australian citizens and permanent residents may also be relevant in some cases.

PIC 4020 Consequences – So What?

Those refused a visa because they are suspected of providing bogus documents or false or misleading information in the three (3) years before they lodge a visa will need to provide reasons as to why the visa they have applied for should be granted.

Especially, if they must satisfy the PIC 4020 criterion as part of the visa application. Most visas now have this criterion.

Call me to discuss your case privately. I can’t help everybody. But I can give you the support to deal proactively and confidently with the Immigration Department, whatever your circumstances.

8503 Condition Attached To Your Visa – Waiver Possible

Take a close look at your visa grant letter to see if the visa grant subject to an 8503 condition. Is yours?

8503 Condition

Look for these words on your visa label or in your visa grant letter: “No Further Stay”.

“No Further Stay” – So what?

The 8503 condition, if it applies, makes almost any visa application lodged while you are in Australia, invalid. This has the potential to cause you big problems. This is because there may be significant advantages for you if you were able to validly lodge a further application while in Australia.

Is an 8503 Condition able to be waived?

Yes! If your circumstances have changed since the visa grant, and there are compelling reasons why the 8503 prohibition should be lifted, then you should consider making an application for a waiver of condition 8503.

How is an application for a waiver made?

An application to consider that the 8503 ban against making further visa applications onshore can be made by letter (email) with detailed submissions. We make these submissions regularly. The key point is that your situation must have changed after the grant was made. Have the circumstances changed and were they unforeseen?

What are the chances of an 8503 waiver being exercised?

Slim at best, but this depends on your circumstances. We can discuss your particular case at our consult.

Can you appeal a decision not to exercise the waiver in your favour?

No. You don’t have any right to a merits review of this type of decision. Judicial review may be possible in very limited circumstances.

If you are serious about applying for a further visa while in Australia, and you feel you have compelling reasons for asking for the ban to be lifted in your case, let’s meet to discuss. Please contact me as early as possible as the application for the waiver must usually be made and decided before the normal expiry of any current visa.

Schedule 3 – Delayed Applications For Onshore Visas

Have you failed to meet schedule 3 requirements?

The Schedule 3 Problem

You must satisfy the additional criteria set out in the Schedule when you lodge a visa application in Australia and you are not the holder of a substantive visa at the time of grant. The applicant will usually be on a bridging visa in Australia or unlawful when the application is made in Australia and is also in Australia when the decision is made.

Faster Schedule 3 Refusals

Immigration Case Officers are now quickly refusing visas based solely on a failure to meet Schedule 3 criteria. They are not necessarily looking at other substantive criteria. So if you have lodged an application while holding a bridging visa, don’t expect that your case will remain un-opened for the usually long period. However, its more likely the case officers will quickly refuse your case.

Harsher Schedule 3 Decisions

Immigration Case Officers are not required to ask you to make submissions for failing to meet Schedule 3 criteria or why the criteria should be waived. They can simply refuse the application without referring back to you. This means you should seek to address the criteria in detailed submissions as quickly as possible.

Confusing Schedule 3 Terminology

The wording of the Schedule can be confusing to most people. This has caused many to fail to address the issues correctly, leading to certain refusal. So, be clear about what to do. On the one hand, your submission is to argue that the criteria are in fact satisfied, or on the other hand, whether you are seeking a waiver of the criteria or both!

Help

Call me to discuss how to respond in your case and book now for a consultation!

4020 – Public Interest Criteria 4020 – Fixing The 4020 Problem

I’m an immigration lawyer that looks at lots and lots of PIC 4020 “invitation to comment” letters and “4020 visa refusals” each week.

Public Interest Criteria 4020: You Are Not Alone

There are many many visa applicants that are affected by PIC 4020. It’s because it’s an easy shot for the Minister or Minister’s Delegate (aka case officer) to take. It’s potentially fatal for you. The PIC 4020 card can be dealt against you even if you are innocent or negligent (or simply stupid) in providing information about your visa application.

But as they say, “its not all over until its over”. If you’ve let yourself down, or you’ve been let down by someone who’s lodged the wrong documents on your behalf, then talk with me.

I can’t help everyone that is affected by PIC 4020. I’ll explain whether it’s possible to turn any actual or likely PIC 4020 decision around. We’ll discuss how to make the best of a bad situation.

Many immigration lawyers or so-called experts will offer to tackle this problem for you. But be careful! It’s not a problem for the faint-hearted. (You know this already because of the bad feeling in your stomach since being contacted by Immigration recently about your case).

…And it may need more than simple legal skills to properly resolve. You’ll need a good problem solver on your side, who understands the depth and breadth of the PIC 4020 clause. That person must be someone who can explain what has happened in your case, in a clear and logical way.

Most of all – your immigration lawyer’s explanation needs to be credible.

You may find it very useful to enquire of your next immigration lawyer whether they have actually been successful with a PIC 4020 case.

This is where I can help. I handle many cases, and I get to consider many many “invitation to comment letters” and PIC 4020 refusals. I’ll help you avoid a further negative decision if it’s possible.

Public Interest Criteria 4020: Expert Help

Has your case already been flagged by your case officer as being affected by PIC 4020?

Have you already received a notice disguised as an “invitation to comment”? This is a wolf in sheep’s clothing. Tread carefully!

Call me to discuss how we can help.

501 Visa Cancellation – Criminal Record & Character Test

Worried about your criminal record leading to a section 501 visa cancellation?

Section 501 is the scariest visa issue of 2016?

If you have a criminal record, things look grim since 2015. MANDATORY CANCELLATION applies when you have conviction terms (sentences) if added together, totalling more than 12 months.

Immigration laws change faster than almost every other field of law. Immigration lawyers advising people with criminal records need to be very familiar with recent changes and policies.
Visa cancellations under section 501 of the Migration Act are now, by far, the scariest issue facing visa applicants who have a criminal record.

New Criminal Deportation Focus

Criminal deportation appears to be a big focus for the present government and the current Minister.

Many visas have been cancelled since Ministerial Direction (Direction 65) was re-issued in December 2014. In the 2015 year and so far in 2016, we’ve seen record numbers of visa cancellation cases because of criminal records.

When  s501 Visa Cancellation Kicks In

Once the total of all of your criminal convictions equals or exceeds 12 months, this triggers the power under section 501 for the Minister to cancel your visa. It is just a matter of time that you’ll be served with a notice asking you why your visa should not be cancelled.

I can help with submissions as to why a visa that has been cancelled by a delegate of the Minister should be revoked.

Urgent revocation submissions are possible if the Minister has not acted personally to cancel the visa.

If the revocation of a visa cancellation is not allowed (eg. if the Minister decides to exercise the section 501 visa cancellation power personally) then it may be possible to make an application to the Federal Court of Australia to have the decision quashed for being legally unreasonable.

Only legally unreasonable decisions of the Minister will be struck down by the courts…And the courts have had a lot of opportunities recently to explore what is “within” the Minister’s power and “outside” his power.

The Minister must act “legally reasonably” when cancelling a visa. What is a ‘legally reasonable’ decision was considered in the case of Mas Eden v The Minister for Immigration in 2015 and on appeal in 2016. I represented Mas Eden on both occasions.

I was successful in the visa cancellation appeal of Amoorthum v Minister for Immigration. Clarel Amoorthum had his visa refused personally by the Minister after failing the character test. The decision to cancel was found to be legally unreasonable by His Honour Justice Tracey in the Federal Court of Australia in 2016.

Another case in which I am representing a visa applicant who has had their visa cancelled under the section 501 power is The Minister for Immigration v Tam Thi Le. My win in this case before the Federal Court of Australia was appealed by the Minister. A decision was handed down in 2016 by the Full Court of the Federal Court of Australia and is of particular interest to anyone who was ever granted residence on the basis of being a refugee.

Section 501 Visa Cancellation Tips

# 1 – Make sure that your submissions are well presented if your visa has been cancelled under Section 501 – you have one big chance to make a difference to any cancellation decision.

#2 – The best time to act is early – ideally when you receive a notice of intention to consider cancellation of your visa. If this is not possible, you’ll need to know whether an application for revocation of a visa that has already been cancelled, is possible.

#3 – If you have run out of time, as Mas Eden, Clarel Amoorthum and Tam Thi Le all did, there may still be scope to lodge an application out of time. I’ve done this in all three of these 501 visa cancellation cases but you must have an arguable case, a reasonable explanation for the delay and show there is no prejudice to the Minister.

Call me to discuss your circumstances and what options you have.

Health Requirement & Health Waivers

There is little point in meeting specific visa criteria unless you first consider the applicable health requirement and whether any health waiver is available, if the health criteria is not satisfied.

To meet the health requirement, Australian visa applicants must do two things:

Firstly, the visa applicant must complete any requested immigration health examinations.

Secondly, the visa applicant must not be assessed by a Medical Officer of the Commonwealth (“MOC”) as having either: active Tuberculosis (TB); or a condition that may result in them being a threat to public health or a danger to the community; or
a condition that is likely to result in a significant cost to the Australian community in the areas of health care and community services.

If your health condition falls into any of these three categories, then you’ll need to explore whether an opportunity to seek a health waiver is open to you.

Meaning of “Significant Cost”

Significant Cost is one which is likely to require health care and community services which are estimated to cost more than the significant cost threshold of AUD $40 000; or is a condition that would prejudice the access of Australian citizens or permanent residents to services that are considered to be in short supply such as dialysis or organ transplants; or both.

Health Undertaking

A MOC may request that an applicant sign an undertaking in order to meet the health requirement. For example, you may need to undertake to rock up for medicals at regular intervals.

Visas For Which A Health Waiver Must Be Considered

For a list of visas for which a health waiver must be considered, refer to the Border website Visas that have a health waiver provision page.

PIC 4007

A health waiver can be exercised in accordance with PIC 4007(2) if the visa applicant (or non-migrating family member) has failed to meet the health requirement. This is because, in accordance with PIC 4007(1)(c), a MOC has assessed them as having a disease or condition that is (a) likely to result in significant health care and community service costs; or (b) prejudice the access of Australian citizens or permanent residents to such services;
and (c) visa applicant(s) satisfies all other criteria for the grant of the visa; and (d) the visa decision maker is satisfied that the granting of the visa would be unlikely to result in (e) undue cost to the Australian community; or (f) undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.

Meaning of “undue”

The courts have indicated that a broad range of discretionary considerations can be taken into account in determining whether costs or prejudice to access are “undue”. Discretionary considerations may include mitigation of costs or services or consideration of compelling and compassionate circumstances. Close family links to Australia and reasons why the family would find it difficult to return to their home country, or both, may be relevant.

Non-migrating members of the family unit

Thinking not to include a person with a health condition in any family application as a non-migration partner? You’ll need to think this through carefully.

If the person who has failed to meet the health requirement is a non-migrating family unit member, you’ll need to detail the arrangements in place for the person’s care and welfare and the likelihood of their future migration.

If it is assessed that it is very unlikely or impossible that the non-migrating family unit member will ever migrate to Australia, this may add weight to arguments in favour of exercising the waiver.

If, however, the care arrangements are of a recent nature or the arrangements may not be appropriate for the long-term (for example, very young child/children left in the care of elderly grandparents), it is open to the officer to assess that it is likely that the child/children will ultimately seek to migrate. If so, an assessment must be made that considers all health waiver aspects as if the non-migrating family member did migrate, that is (a) how the waiver applicant and/or their family could migrate costs, care and/or prejudice to access and (b) the strength and details of any compassionate and compelling circumstances.

Important Points

All visas have some health requirement and not all visas have a health waiver available.

It is often the case that if one member of a family unit has a health condition and fails the health requirement, all others will fail unless a waiver is available and exercised in the applicant’s favour.

Australian Citizenship

Are you eligible to apply for an Australian Citizenship?

To meet the general residence requirement you are required to have been living in Australia lawfully for a period of four (4) years and at least one (1) year as a Permanent Resident immediately before making an application.

All temporary visas, such as visitor visas, student visas, employer or partner sponsored visas and all classes of bridging visas, can be counted towards the four years lawful residence period.

What happens if a person has been absent from Australia for some time?

You may be absent from Australia for up to twelve (12) months within the four (4) years immediately before applying for citizenship. However, the absence period cannot be counted unless you were already been present in Australia before.

Furthermore, you may be absent for up to ninety (90) days within the twelve (12) months permanent residence immediately before applying providing you return to Australia as a permanent resident.

Can you apply for a Citizenship if your work requires regular travel outside Australia?

It is possible to meet a special residence requirement if you are engaged in a work that requires you to travel regularly for at least two years before applying for citizenship.

To meet this criterion you must:

  • ordinarily resident in Australia, with the last 12 months as a permanent resident of Australia
  • present in Australia for at least 480 days in total, with at least 120 days of this being during the last 12 months immediately before applying
  • not have been present in Australia as an unlawful non-citizen.

Contact us if you require any assistance with your application.

Minister For Immigration And Border Protection v Tam Thi Le

The Minister for Immigration has appealed the decision in favour of visa cancellee Ms Le, handed down by his Honour Justice Logan in the Federal Court. His Honour’s decision quashed the decision of the Minister to cancel Ms Le’s permanent residence visa, using the so-called section 501 power. The section 501 cancellation is provided for by Section 501 of the Migration Act.

This matter is now before the Full Federal Court of Australia. The Respondent’s submissions in relation to this matter were served and filed by MyVisa Lawyers on Thursday.

The Minister is to make submissions this week.

Apprehended Bias | Walk or Stay? | Royal Commission

I wish I had a dollar for every time a client suggested that a decision maker in their case was biased.

Apprehended bias is extremely difficult to establish.

This is so, not just in the AAT Migration and Refugee Division (formerly the Migration Review Tribunal and the Refugee Review Tribunal), but currently in the Royal Commission into Trade Union Governance and Corruption.

Often “apprehended bias” goes untested. This happens because a decision maker will decide to stand down themselves before someone else makes any formal determination of bias.

“The test to be applied when determining whether a judge is disqualified for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide,” explains Counsel Assisting the Commission, Jeremy Stoljar SC.

In the case of Commissioner Heydon, John Lyons points out in his article in The Australian:

“There are two separate aspects to this story: one political, one legal. Politically, Heydon clearly erred by accepting an invitation to a political function. Yes, he did withdraw, 16 months after agreeing to do it and just as the media was about to publish, but the damage was done and the commission is, for the moment at least, deeply wounded. Legally, it is not so clear that he erred.”

Lyons thinks that Commissioner Heydon will fight.

I’m not so sure. I think he’ll walk – In which case, we’ll never really know whether the Commissioner erred, and whether there was apprehended bias or not.

Decisions are guided by many reasons, not just legal ones. The Commissioner will decide on Tuesday whether he stays or walks.

Read More – See John Lyons’ article at : http://www.theaustralian.com.au/national-affairs/opinion/damned-if-he-stays-damned-if-he-goes-but-dyson-heydon-will-fight/story-e6frgd0x-1227493715920

Same-Sex Partner Visa Advisor

Same-Sex partner visa submissions will affect how fast you’ll get a visa grant. Better submissions could also make a difference to the outcome.

#1 Is There A Special Visa Category For Same-Sex Partners?

No, There is no specific visa category called a “same-sex visa”.  The visa applications available to homosexual couples are the same visa options as are available to heterosexual de facto couples.

In the past, there was a special visa class “interdependent visa” for those in a same-sex or homosexual relationship, but this class has been abolished.

#2 How Do You Qualify For A Same-Sex Visa grant?

If one partner in a same-sex, gay and lesbian relationship is an Australian citizen or an Australian permanent resident then a Partner Visa application is the commonly made application.

Partner Visas are applied for with the Department of Immigration and Border Protection (DIBP) either onshore or offshore.

Partners need to prove that they are in a genuine and continuing relationship with their sponsor, to the exclusion of all others for a period before they lodge. The period can be as long as 12 months before lodgement, depending on whether they are married or have registered their relationship.

Prospective marriage visas are a little different and do not apply to gay and lesbian partners and sponsors. These visas allow for entry of a prospective spouse to enter Australia with a view that the prospective spouse will marry their sponsor within 9 months. However gay marriage laws are yet to be implemented in Australia.

#3 What If One Of the Same-Sex Partners Is Not An Australian Citizen Or Permanent Resident?

If you are unable to make a partner visa application then consider making applications under the other visa programs. These include:

  • General skilled migration; or
  • 457 work visa and employer-sponsored immigration; or
  • Refugee visa (also called protection visa).

At our consultations, we’ll help you to:

  • Identify the most appropriate immigration application you need to make; and
  • Prepare for and lodge your next application faster.

Call today to arrange a time to meet.

Defacto Visa Tips – Avoid A Defacto Visa Refusal

Looking to Avoid a defacto visa refusal?

Defacto Visa Tips

Here you’ll find the top reasons why your Australian defacto visa (partner visa) application will get refused (arghhhh!) and what approach you should take:

Are you applying for a defacto visa? Most people think that not having enough of a pile of documents showing joint names for a 12 month period is why they’ll get refused, right? Wrong.  It’s not the quantity of material. Rather, its the compelling and corroborative value of the documents provided.

The defacto visa seeking couples I’ve helped in the last 15 years haven’t rushed out on the very first day of their new relationship to set up new bank accounts. They haven’t rushed to execute will naming each other as beneficiaries.

Realistically, you’d only rush to do these sort of things if your most important goal was getting a visa. Chances are that in such a case your defacto visa application isn’t that legitimate, hey?

Is your defacto visa application primarily facilitating your immigration goal? If your documents suggest this, then you are on the wrong track.

Defacto Visa Refusal

If your relationship is genuine, you are far more likely to get refused on a visa law technicality rather than for a substantive reason…Like not holding the right visa at the time of application or being in the wrong location when you apply etc. Most applicants don’t get a defacto partner visa refused for not having enough supporting material.

It’s very possible to get a defacto partner visa grant if your relationship is genuine and you explain why you are light-on with supporting material. I’ve had defacto partner visas with only scant supporting material, approved, time and time again.

The real issue in partner visa cases, including defacto partner visas is credibility.

Is the case officer is provided with enough credible information in the application to support your assertion that your relationship existed, to the required level, at the time prescribed by the Regulations, and that your relationship continues to exist now, at the time of decision?

I’ve found that Immigration Case Officers want nothing more than to approve defacto partner visa applications. Why? Firstly, its a lot easier to approve a defacto visa application, then to refuse one. Writing our “reasons for decision” in a decision record where is defacto visa is refused is very time consuming, especially when compared how simple is to grant a defacto visa. DIBP officers also recognise that an appeal to the AAT may be lodged by any refused applicant.

Immigration officers will try to approve legitimate cases quickly. If you provide evidence supporting your legitimate case, this will save you (and your partner) the anguish of appealing against any adverse decision not to grant your requested visa.

I’ve also found that Immigration Case Officers are reasonable in their expectations of applicants when it comes to providing documentation. And if you have the right approach with them from the start, they will work with you to get your defacto partner visa application approved with the least amount of stress.

Give them complete material and explain why some supporting material is scant.

If a material is obviously missing, explain why and be truthful and frank with them.

Immigration officers tend to be smart, experienced and methodical. They’ll smell a rat a mile away, and you can count on them checking things thoroughly if things don’t quite to stack up for them.

Don’t try to fudge things or skim over gaps! You’ll waste a lot of time and money. Defacto visa application filing fees are now around $7000. You will suffer stress, delay and legal consequences if your visa is refused. So, address these gaps in your application head on. There are legitimate reasons why certain material could be scant or missing altogether.

My advice is to explain carefully why stuff is missing. Further, if there’s any adverse information, be the first to raise it. The credibility you will have as a result of bringing something to an Immigration Case Officer’s attention (rather than the other way around) may well be the credibility that ultimately saves your bacon if you have a border-line application in terms of supporting material.

If the material and supporting explanation you and your representative provide is credible, your application for a defacto partner visa will most likely be granted, even though there might be relatively little by way of evidence.

Is Defacto Visa Approval Guaranteed?

Absolutely not! But your chances of approval are greatly improved by following the approach above. This is one aspect of a submission system that I’ve successfully used in well over a thousand defacto partner visa applications made to the Australian Department of Immigration.

For more information contact me and book in at a time to discuss your case.