457 to 186 Permanent Visa Pathway – Where is it at?

457 to 186 Permanent Visa Pathway

Changes to 457 to 186 permanent visa pathway from April 2017 to March 2018 have continued as planned by the Australian government.

However, a number of important questions are yet to be resolved.

One issue creating confusion is eligibility for existing 457 visa holders and applicants to transition to permanent residency.

Questions remain as to who remains eligible and when is the effective cut off date for eligibility.

Confusion surrounding 457 to 186 permanent visa pathway caused many applicants to withdraw applications or employers to cancel hiring plans.

For some, this may have been premature. So called ‘grandfathering provisions’ allow for a transition period.

Grandfathering, for those readers unaware of the phrase, refers to a transition period where the old rules remain in force whilst new rules apply to future cases from a set date.

In the 457 to 186 permanent visa pathway legislative change, it remains unclear as to when an absolute cut off date for the grandfathering will be.

Genuine Position Writing Service – ENS, RSMS, 457 Nominations

The planned March 2018 abolition of 457 visa, to be replaced by short term strategic and long term visas will certainly see the restriction of permanent visa pathway for many applicants, but the details on this are yet to be fully released as well.

During this transition period, existing 457 visa holders and applicants may still be eligible up until March 2018, however this is likely to impact 457 visa holders who have changed nominating employers.

As the reader can see, the only certainty in all this is the lack of certainty.

To reduce risk of refusal in nomination and visa application under the transition stream of 457 to 186 permanent visa pathway, is essential to ensure your representative reviews regulation and legislative instruments at the time of lodging.

Where greater uncertainty exists, it is also advisable to seek Departmental guidance through the agents portal. Consult your representative or contact us if you require assistance.

 

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Training Benchmark Changes

Training Benchmark Changes for Employer Sponsors from 1 July 2017

Standard Business Sponsor applications in the 457 Program are subject to Training Benchmark changes.




Training benchmarks are relevant also for applications for Employer Nomination Scheme (ENS) and Regional Sponsored Migration Scheme (RSMS).

On 1 July 2017, critical changes were made to rules surrounding training benchmarks.

NOTE: THERE ARE SEPARATE RULES FOR TRAINING OBLIGATION FOR 186 DIRECT ENTRY, AND 457, 186 TEMPORARY RESIDENCE TRANSITION STREAMS. 

Benchmark A – Payments to a Training Fund

Benchmark A requires 2% of payroll to be paid into an industry training fund. Since the changes were introduced, employers now need to demonstrate:

  • Industry training fund
  • Fund managed by recognised Industry Body
  • Scholarship fund operated by Australian TAFE or University

Expenditures previously accepted that are now removed include:

  • Funds operated by RTOs or private individuals
  • Funds paying commissions or offering refunds if application fails

Private training providers can not longer accept payments for Benchmark.

Auditable Training Plan Compilation Service

Benchmark B – Expenditure on Training Australians in the Business

Benchmark B involves 1% of payroll to be paid on training Australian employees in the business.

Training benchmark changes now include the following:

  • Formal courses of study + associated costs (eg travel)
  • RTOs delivering face-to-face training which contributes to formal qualification
  • eLearning or training software
  • Apprentices, trainees or recent graduates
  • Training officers – must be sole role
  • Attending conferences for CPD

The following expenditures are no longer acceptable:

  • On-the-job training – previously, structured on-the-job training could be counted in some circumstances
  • Training not relevant to business’ industry – it is not clear how closely related the training must be to the industry
  • Training of principals or family members – previously, training of family members could be counted providing it was also made available to other employees
  • Induction training
  • Salaries of staff attending training
  • Membership fees – previously allowable
  • Books, journals or magazine subscriptions – previously allowable
  • Conferences for purposes other than CPD
  • Hiring a booth at trade show, conference or expo

The above changes to Benchmark B will affect many employers in ways that had not previously impacted.




For expenditures made to external providers, payments are only eligible where the program or course leads to a formal qualification. This is likely to impact most businesses that previously relied on a wide range of in house and external training for meeting the benchmark requirement.

Calculation of Payroll

Payroll generally includes:

  • wages and salaries as per state payroll legislation, and
  • payments made to contractors or subcontractors if the work completed is related to services or products provided by sponsor

In the absence of payroll figures, directors’ fees, salaries and profits of the business can be used.

Timing of Training Activities

Payroll and training expenditure must be made in the period.

Previously, businesses operating for 12 months or more were required to demonstrate this expenditure in the 12 month period prior to lodgement. From July 2017, this expenditure may be for the 12 months prior to lodgement, or previous full financial year – this should help employers to gather relevant information and documentation.

Start-up businesses operating for less than 12 months are required to provide an auditable training plan to meet these benchmarks.

 




NOTE: There are changes to the occupation lists that will adversely impact a significant number of nominations.

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Work Rights Bridging Visa




Work rights bridging visas are  possible through application, as under a number of conditions, work rights are not automatically granted.

Bridging visas are granted to provide interim residence status.

The status is required when applications are made for visas from within Australia.

Bridging visas are not granted for applications made outside of Australia.

Bridging visas are granted for a range of reasons and in a range of scenarios. Detailed information is available on the Department’s website.

Work rights on bridging visa A are granted when valid application is made from another substantive visa. (Note, a substantive visa is a typical visa with exception of bridging visas and special purpose visas).

The work rights will carry on from the previous substantive visa held.

Bridging visa C may be granted work rights. This will depend on the visa conditions of the last substantive visa held.

For bridging visa C holders without work rights, application will need to be made. This is called Permission to Work application.

Permission to WorkThe same will apply for bridging visa E holders.

Bridging visa E is the least favoured bridging visa. This means it has the most restrictions of the bridging visas (no work, travel or study rights).

To change this, application also needs to be made.

Work rights on bridging visa E are usually difficult to obtain. To be successful in application, there will need to be ‘grounds’ for applying. That is, you will need a good reason to be making the application.

It is only natural that you need to work to support yourself. However, the Department sees this differently.

The Department operates on the principle, that if you are on a ‘least favoured’ bridging visa, your migration history has had some problems. These problems may be your doing, or may be simple administrative error.

Writing your Permission to Work Application 

If you need to make application for your work rights on a bridging visa, consider the following.

  • Address reasons you are on a bridging visa.
  • Describe your financial support scenario prior to this application.
  • Describe your current financial hardship.
  • Describe how you intend to support yourself with work rights.
  • Provide a time frame you expect to need the work rights.
  • Provide as much supporting evidence with your application as possible.

Feel free to contact us and request our Permission To Work application service. We charge $99 and will draft a comprehensive permission to work application to reflect your personal situation. We will guide you through the application and strive to get the outcome you desire.




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Genuine Temporary Entrant requirement Student Visas




Student Visa Refusal #1 Genuine Temporary Entrant Requirement

 

Genuine Temporary Entrant requirement student visas- What is it?

The Genuine Temporary Entrant (GTE) Requirement is defined by the administrative guideline called Direction Number 69.

The Direction is a rule book for case officers deciding on student visa applications.

Continue Reading →

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Student Visa Cancellation





Student visa cancellationStudent Visa Cancellation is highly distressing for people involved. Even worse, it is often very sudden. 

If you receive a NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC), or notice of AUTOMATIC CANCELLATION you need to act fast. Note the  following.

  • Note the time to response. The statutory time frame is usually 28 days.
  • The type of decision to cancel will be MANDATORY or DISCRETIONARY.
  • The decision to cancel is most often due to breach of visa conditions.
  • Conditions such as 8202 are discretionary and can be REVOKED.
  • Other conditions, such as breach of work restrictions, are mandatory and cannot be revoked. (There may be avenues of appeal depending on individual circumstances.)
  • Student visa cancellations can either be revoked or reviewed, such as by merits review (Tribunal) or judicial review (the courts).
  • Revocation is most often easier and the most appropriate response to NOICC.
  • Judicial review needs a clear error in law to succeed. Revocation can take into consideration compassionate grounds that tribunals and courts cannot.
  • Migration law provides for revocation requests to be made whilst the visa holder is off shore, or onshore BUT NOT IN IMMIGRATION CLEARANCE (that is, not once you pass out through customs and prior to departure from Australia).

 

Recent Trends

There has been a sharp increase in the number of student visa cancellation enquiries at VISAFAQ.Trend in student visa cancellations

This fits with departmental statistics which show a growth trend in recent times.

The statistics do not show cancellations that were revoked.

According to Australian immigration law, revocations are as though cancellation never took place. Thus, there is no long term effect on the visa holder.

Our Successful Approach

Our success in assisting many clients to achieve revocation of cancellation is in application of Notice 61 provisions of the Migration Act.

Notice 61 provides for grounds to argue that the breach did not occur, or that it occurred for reasons exceptional or beyond one’s control.

Other grounds for successful revocation are able to be applied under Notice 61, for example, issues with defective monitoring, complaints handling, notification, counselling and appeals.




No two cases are identical, so the key to successful revocation is pin pointing the correct avenue of request.

 

Visa cancellation affecting you? For a quick assessment (within 24 hours), email your information, together with correspondence from the Department as an attachment, to info@visafaq.com.au. 

 

Note also that decision-makers must consider all of the facts in a revocation request.

This makes the process highly subjective.

The subjectivity means that some case officers are easily satisfied that the request has merit.

Others will require considerable convincing with solid arguments, law based appeals to reason and merit, and plenty of objective evidence.

Whichever case officer allocated to your request, is difficult to know whether they are easily satisfied of the merits of the case or not.

It is the luck of the draw.

As a final word of caution, it is better to win at the NOICC stage than to seek a revocation request.

It is better to win at revocation request stage than to seek remedy in the courts. To win in the courts, the error in law by the Department must be demonstrated. In most cases this is impossible.

 




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Partner Visa Interview: Extensive list of questions a case officer is likely to ask




Partner visa interview questionsPartner visa interview prepartion MUST HAVE!

The Partner Visa Interview Preparation Guide includes an extensive list of questions likely to be asked by case officers during phone or face to face interview for partner visas. Including onshore 820/801; offshore 309/100 or prospective marriage 309.

This list is extensive and exhaustive. Quite often questions will be asked in relation to statements made by yourself, your partner or witness/reference statements. A case officer may also ask general questions that are completely unexpected.

The objective of case officers conducting interviews in the way they do is to test the accuracy, reliability and credibility of your application and the claims and statements made in them.

 

More than half of Partner Visa cases lodged with Administrative Appeals Tribunal (AAT) are the direct result of information provided during case officer interviews (phone and face to face).*

 




The list featured in the Partner Visa Interview Preparation Guide is a reflection of the way interviews are conducted. A case officer may ask some questions, such as in relation to family members then switch to something completely different, then soon after switch back to asking questions about family members.

Partner Visa Interview Preparation GuideCase officer are always looking out for evidence of fake or ‘sham’ marriages that are arranged for migration purposes. This is technically termed a ‘contrivance’ and case officers seek to compile a list of anything that hints of a contrivance. This will prompt further investigation, leading case officers to assess the application as grant or refusal.

To avoid the pitfalls, be adequately prepared. Download your Partner Visa Interview Preparation Guide for only $5AUD.





* 2008 Parliamentary review into merits review process of failed partner visa applications.




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Partner Visa Refusal




Partner Visa RefusalPartner visa refusal is on the increase according to migration industry insiders.

Australian Immigration Department crackdown on fake or ‘sham’ marriages and ‘contrived relationships’ has resulted in some innocent and genuine couples being caught up in the drag net.

This is a deeply troubling consequence of recently implemented measures to clamp down on migration fraud involving de facto and spousal sponsorship for partner visas.

The three types of partner visa to Australia are Onshore (combined subclass 820/801); Offshore (combined subclass 309/100); and Prospective Marriage (subclass 309).

Across all three subclass of partner visa refusal is on the rise. Although there are different grounds for refusal for each of the three types of Partner Visa, a consistent trend across all three is lack of satisfactory evidence of relationship.

Partner Visa Interview Preparation Guide

The primary reason for partner visa refusal is inadequate evidence of genuine relationship and long term commitment.

Typically in the past, evidence of shared utility bills, lease agreements, phone records and photographs, etc, would suffice. Nowadays, these forms of evidence are increasingly viewed as easy to manufacture for a contrived relationship.




Unfortunately, because of the sheer numbers of contrived relationships, otherwise known as ‘sham marriages’, the departmental officers now require a more broad-based, holistic approach to reviewing evidence. This means that traditional forms of evidence that once would have been enough to guarantee a successful grant of Partner visa, now this is less the case.

Naturally, there are exceptions to this trend. Some applicants can still see a successful grant of Partner visa on the basis of a collection of traditional documentary evidence, such as photographs, signed statements, phone bills, etc.

However, anecdotal evidence from migration industry forums of migration agents and lawyers confirm a growing trend of Partner visa refusals, even where on the the surface the applicants having a seemingly strong case.

The key thing to remember when lodging partner visa applications, is that each case is unique and individual. Case officers are also individuals so what will work for one application will not necessarily be the same for another application.

When gathering evidence of relationship, try think as broadly as possible to document the relationship from multiple angles. The key is to think outside the box.

For advice or assistance, contact us or call us on the phone number on the home page of our website.

 




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Visa Cancellation Australia




Visa Cancellation Australia – Things to know

Visa cancellationVisa cancellation under Australian immigration law can be initiated by the Department of Immigration and Border Protection (DIBP) for the following reasons:

  • Discovery of false, misleading or ‘bogus’ information during applicaiton;
  • Discovery of fake documents supplied as evidence during application;
  • Character grounds for criminal convictions or, in some cases, associating with known criminal groups;
  • Failure to pass genuine visa holder test – most commonly associated with student visas;
  • Anonymous tip offs and information provided to BIBP anyonmous tip off line that a person is acting in breach of visa conditions;
  • Breach of visa conditions.

Steps of cancellation process

The DIBP will receive adverse information about a visa holder. In the case of student visas, this is most often from the institution in which the visa holder is enrolled.

The Department then investigates the claim, or information recieved.

If satisfied that grounds for cancellation exist, a the visa holder is issued with a Notice of Intention to Consider Cancellation (NOICC).

Contact us immediately if you receive a Notice of Intention to Consider Cancellation. Send email with a copy of the Notice attached. We will then contact you for a no-obligation, confidential discussion of how we can assist. Email our migration professionals at info@visafaq.com.au

This is also known as ‘natural justice’ letter, for it provides opportunity for the visa holder to give their side of the story before cancellation proceeds.




The visa holder is given 28 days from date of NOICC letter to provide a response.

If the case holder is not satisfied with the response, and therefore believes cancellation should proceed, the visa cancellation will take place.

The visa holder will be notified of cancellation by post or email. The notice will provide information about leaving Australia and date of cessation of visa.

Can the decision to cancel a visa be reversed?

In many cases, yes. In some, no.

There are different avenues available for former visa holders who have had their visas cancelled. These include:

  • Request for Revocation;
  • Merits review through the Administrative Appeals Tribunal (AAT);
  • Judicial review through the Federal Circuit Court (FCC);
  • Formerly, Ministerial Intervention requests were possible, but access to the Minister is now restricted, however in some cases, appeal to the Minister can be allowed.

The avenue of appeal depends on the type of cancellation, the grounds of cancellation, where the visa holder is at time of cancellation (onshore or offshore); extent of breach, types of breach and many others.

Avenues of appeal can be complex, so please feel free to contact us visa email with as much detail on your case as possible. We will review and contact you back by return email or phone.

 

 




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Family Violence Partner Visa Rules




Family Violence Partner Visa Rules

Provisions in law for family violence applies to partner visas where a relationship has ended, or is ongoing, but is subject to domestic violence. However, there are specific rules governing the process of applying for visa grant on the grounds of domestic violence (otherwise known as ‘family violence’).

family violence visaThe rules govern the type of evidence to be submitted to the department when claims are made of violence by a sponsoring partner. The law also provides for dependents of a sponsored partner who have been victims of violence by a sponsor to be granted full permanent residence together with the sponsored parent.

The type of violence considered under Australian immigration law is confined largely to physical forms of violence, however, in some cases other forms of violence may be considered by the Department.

Evidence Requirement

The types of evidence required to be submitted with application for grant under domestic violence provisions include judicially or non-judicially determined evidence.

Judicially Determined Evidence 

  • court injunctions under the Family Law Act 1975;
  • court orders issued under Australian state or territory law;
  • a registered conviction (or recorded finding of guilt) for violence perpetrated the sponsored partner and/or dependants.

It is important to note that evidence needs to show the domestic violence had occured whilst the relationship was ongoing and not after the relationship had already broken down and both parties separated.




Non-Judicially Determined Evidence 

  • A joint statement made in a court by the victim and the abusive sponsor declaring that an act of violence against the partner has taken place. The statement must set out details of alleged violence, by whom, against whom and circumstances before, during and after the events took place;
  • Statutory declaration using Form 1410. As above, the statutory declaration sets out the allegation of family violence and names the person alleged to have committed it;
  • at least two documents from an acceptable the list of evidence specified by the Department (in the relevant legislative instrument – Contact Us for the current list if required).

Be aware that if evidence of family violence is insufficient there is still a chance to avoid visa refusal or cancellation. We have proven expertise in assisting clients who have suffered domestic violence and are facing visa refusal or cancellation. For a no obligation consultation contact us to find out how we can help.

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Family Sponsored Visa Composition of Family




Family sponsored visas for Australia include Parent and Child visas.

For secondary applicants as family members, there are varying definitions of composition of family. This can vary by visa category.

For certain family sponsorship, the definition of a family member will determine the applicant’s eligibility. The following relationships usually apply:

 

Close Relative a spouse, de facto partner, child, step-child, adopted child, parent, step-parent, brother, sister, step-brother, step-sister, adoptive brother or adoptive sister.
Relative Close relatives + grandparent, step-grandparent, grandchild, step-grandchild, aunt, uncle, step-aunt, step-uncle, niece, nephew, step-niece or step-nephew
Skilled regional or sponsored All relatives + first cousin
Refugee or humanitarian All relatives + First or Second cousin
Child Can be child by birth, adoption or step child (however certain Regulations will limit secondary applications for some child types under certain conditions)
Dependent Child – Child or step child not yet 18 years of age- Child or step child not yet 25, unmarried and not engaged, who is dependent upon the applicant or not able to work due to mental or physical incapacity.
Stepchild – Child of current spouse or de facto partner or- Child of former spouse or de facto but now under guardianship or custodial care by law.




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No Further Stay Condition




No Further Stay Condition – 8503

No Further Stay condition is applied to some but not all visas.

Information on No Further Stay condition can be found on the Australian Immigration website.

When applying for a waiver to the condition, it is important to understand whether the condition applied to your visa is mandatory or discretionary one.

Mandatory simply means it MUST be applied, irrespective of the applicant and the country of application.

Discretionary means it can be applied by a case officer if they believe the visa applicant is at risk of overstaying their visa.

Waiver Request

The Australian Immigration Department’s website at the link above provides grounds for requesting a waiver.

A waiver means the applicant is given permission to make an application to remain in Australia.

The Department must approve this request before the application can be made.

It is also important to remember that bridging visas are not issued against waiver requests.

If you need to remain in Australia and need to make a waiver request to remove condition 8503 from your visa, be sure to make arrangements to have your bridging visa for the time your request is with the Department.

We can help you with this.

A waiver request must also be accompanied with adequate support documentation. Strong arguments with little or no (or incorrect) documentary evidence will fail.

Finally, it deserves note that a large number of waiver requests fail. Some have zero chance of success. Others have some chance of success but may be poorly or incorrectly written. Inadequate evidence in support of arguments is also another factor why so many waiver requests fail.

 




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Visa Cancellation on the Rise

Visa Cancellation is a growing trend

Australian government reporting in the Senate in late 2015 has shown a dramatic increase in visa cancellation.

The introduction of data matching systems across government departments, including state and federal jurisdictions, has allowed compliance monitors to identify breaches of conditions by visa holders.

Student visas in particular have seen a marked increase in cancellations. This has resulted in thousands of deportations or requests to depart Australia within 28 days.

If you are subject to a Notice to Consider Cancellation, contact us for FREE ADVICE or add a comment on HOME page. 

Senate data shows 10,949 student visa cancellations took place last year. The reasons for cancellation were largely breaches of visa conditions.

Other grounds for visa cancellation were failure to pass the genuine student test.

It is worth noting that the genuine student test is applied consistently from application and throughout the period of visa validity.

Mandatory and Discretionary Visa Cancellation

Visa cancellation is either mandatory or discretionary.

Simply, mandatory means the visa MUST be cancelled. This means that request for review or to argue for a better decision is near impossible.

Discretionary means that the case officer may decide to give a warning or just proceed to cancellation. This type of cancellation can be appealed.

Appealing for reversal of cancellation can be made as a Request for Revocation.

It is also important to bear in mind that the location of the visa holder at time of issue of notice is important. If onshore (in Australia) it is possible in most cases to appeal a decision.

Where a visa holder is offshore, there are SOME circumstances where an appeal can be made.

If a visa holder is in immigration clearance, there is no chance to make such an appeal.

visafaq REMEMBER TO LEAVE A COMMENT ON THE HOME PAGE IF YOU HAVE A QUESTION OF A GENERAL NATURE. WE CAN PROVIDE FREE ADVICE THAT MAY BE OF ASSISTANCE TO OTHER PEOPLE IN A SIMILAR SITUATION.

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TSMIT 457 VISA – What is it?




TSMIT 457 VISA – What is it?

TSMIT is the Temporary Skilled Migration Income Threshold.

It is the minimum income level in Australian migration regulations for 457 visa. It is reviewed and revised every year.

The 457 visa is a temporary work visa (up to 4 years maximum validity). It is therefore the level required for 457 visa holder to have sufficient funds in Australia. This means the funds required for the cost of living whilst in Australia.

The threshold remains the same not matter how many dependents the 457 visa holder brings to Australia. If the 457 visa holder is alone, or with a family of 4, the level is the same.

How much is the TSMIT?

As of January, 2016, it is $53,900.

The Australian government announced late in 2015 that this is to be reviewed in April, 2016.

The level has remained at $53,900 for that past two fiscal years. But it is expected to be increased in 2016 to $56,000.

The Australian government relies on labor market conditions to decide whether to increase.

Can I apply for 457 visa if my job pays less than current TSMIT of $53,900?

There is no easy answer for this as the calculation of TSMIT includes the guaranteed annual earnings which includes annual base salary as well as allowances, such as car or uniform allowance.

If the threshold of $53,900 is not met, then application for the 457 visa would fail.

This is a significant limitation on sponsoring positions that are typically paid well below the TSMIT.

Ask us for a more detailed assessment of your eligibility if you are not sure.

If you are intending to apply for 186 Employer Nominated visa, the income threshold does not apply.

This does not mean however that you can drop to a lower income level once on the permanent resident visa. The contract for employment must be equal or above that of the pay and conditions enjoyed on the 457 visa.




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Visa Refusal and Rules of Evidence – The fine line between visa grant and refusal

Visa Refusal and Rules of Evidence – The fine line between visa grant and refusal

Partner Visa Refusal

But not just partner visa applications!

A recent client case has come across my desk and has reminded me of how a genuine visa applicant can be refused by the Department of Immigration and Border Protection because of a simple lack of evidence to support their claims.

They were a genuine couple, deeply in love but a long history of relationship – but with very little to show of the facts of their relationship!

Evidence in the visa assessment process is critical to a positive outcome.

So many visa refusals can occur on the flimsiest of grounds by over zealous case officers because a lack of credible evidence leads to an adverse assessment that the visa applicant is simply lying or making things up.

But in so many cases this is simply not true.

Visa applicants need to understand that visa application assessments are done by humans working through a mechanical process of pass or fail against ‘grant criteria;.

Just believing that you meet the grant criteria for the visa you are applying for is a tragic mistake so many visa applicants make. This applies generally to employment, business and investment visa applicants, but even more so for partner visa applicants.

I send out a timely reminder to all readers of this blog that if you are not sure, reach out and ask!

Blogs and hearsay on what other people say worked for them does not always result in a positive visa application outcome for some. Do not risk it!

Seek the advice of a registered migration professional, such as us here at VISAFAQ or the many registered lawyers and migration agents with the Office of Migration Agents Registration Authority (OMARA can be found at www.mara.gov.au).

Remember, it is better to be safe than sorry. Visa refusal can result in wasted money, time and emotional trauma. For onshore applicants, it can result in Section 48 bar (meaning you would need to go offshore to make another application for the visa you require).

Feel free to contact me if you have any concerns about your application (pre and post application enquiries welcome).

 

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Visa application fee refunds – Not what they seem

In all my years of dealing with the Department of Immigration and Border Protection there is one thing I have learned. THEY DON’T LIKE GIVING MONEY BACK!

Visa application fee refunds are available to visa applicants on a limited set of circumstances.

refundThe Department assessing requests for visa application fee refunds against relevant provisions in the Migration Regulations.

A number of clients have approached us to seek refunds for visa applications withdrawn for various reasons. Unfortunately, most are disappointed to learn that refunds are selectively granted in a small number of circumstances.

Refund assessments are either ‘mandatory’ or ‘discretionary’.

Refund of visa application charges are firstly assessed against mandatory provisions. If none are found to apply, then the request for refund is assessed discretionary provisions.

 

Mandatory Provisions

Regulation 2.12F(1)(a)(i) and 2.12F(2) of the Migration Regulations (1994) specify the mandatory provisions. These include the following.

  • the application wa​s ‘unnecessary’ at the time it was made;
  • the application is made because of a mistake made by the department;
  • the applicant dies before a decision is made on the application;
  • the application was made in Australia and was for a Tourist visa or for a Medical Treatment visa;
  • the application is for an employment visa but no approved nomination was made identifying the visa applicant;
  • the application was withdrawn because the applicant does not have an approved sponsor.

As the above shows, the mandatory provisions are quite limited.

 

Discretionary Provisions

Under regulations visa application charge may be refunded if the visa application is made because of a mistake made by the applicant.

This provision allows for a refund if the visa applicant mistakenly applies for the completely wrong type of visa.

This provision is intended to cover situations where the application was not ‘unnecessary at the time it was made’ but where the visa was the wrong one for their situation.

Whether a refund is made in this circumstances is solely at the absolute discretion of the departmental officer concerned.

For questions or concerns about visa application charge refunds feel free to contact us for a no obligation discussion.

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It is now a criminal offence to pay for 457 sponsorships!

Recent legislative changes introduced through the Parliament now make it a criminal offence for a sponsor to be paid by a visa applicant for a 457 visa sponsorship.

criminalThe change to the legislation was introduced as a recommendation of the recently concluded independent review of the integrity of the subclass 457 programme. The government  was very keen to adopt this measure due to the widespread nature of fraudulent applications.

The Migration Amendment (Charging for a Migration Outcome) Bill 2015 implements this recommendation and expands the application beyond the 457 visa programme to other temporary and permanent work visas.’

The permanent resident visas under the Regional Sponsored Migration Scheme (RSMS) and Employer Nomination Scheme (ENS) are likely to be drawn into the scope of this legislative crackdown.

PLEASE NOTE THAT IF YOU HAVE ANY CONCERNS ABOUT EXPOSURE TO POSSIBLE SANCTIONS, INVESTIGATION OR VISA CANCELLATION CONTACT US FOR A STRICTLY CONFIDENTIAL CONSULTATION.


Senator Michaella Cash stated in relation to this change, ‘Unlawful arrangements whereby payment, inducements or other incentives are promised or exchanged to try and achieve a migration outcome will not be tolerated by this Government.’

She went on to state that the practice of giving or receiving a benefit in return for visa sponsorship can have serious detrimental effects including possible exploitation, undermining of Australian pay and conditions and can damage the integrity of Australia’s migration programmes.

There will be a framework for criminal, civil and administrative sanctions against sponsors who actively ‘sell’ sponsorships, or seek to obtain an undue advantage in return for sponsoring a person.

The Bill also introduces a new discretionary power to allow for cancellation of a visa where the visa holder has engaged in ‘payment for visas’ activity.

Minister Cash said the new penalties will further strengthen the integrity of Australia’s migration programme, building on a number of initiatives announced over the past two years.​​​

 

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Genuine Position 457




The author has recently encountered an increase in the number of clients seeking assistance with refusals for 457 nominations on the grounds of failing the ‘genuine position 457’ test.

The genuine position test is applied to nomination applications under Regulation 2.72(10)(f) of the Migration Regulation 1994.

The test states that an application must pass the genuine position test I order to be considered a bona fide position, as opposed to one that is simply created to achieve a migration outcome.

There are a number of triggers that departmental case officers observe when they are applying the test. These include such things as whether the visa applicant is a relative of the sponsoring business’ management, a misfit of the role to the business and discrepancies in pay for work performed.

Genuine Position Writing Service – ENS, RSMS, 457 Nominations

Other ways in which the genuine position test is applied is in the emergence of the need for the role in the timeline of the business’ operations. For example, a position that is automatically required that is inconsistent with trading patterns or business history will be flagged for closer attention.

In order to minimise the risk of refusal, an application should be accompanied with a fair depth of supporting evidence of operational requirements for the role. This may include such things as evidence of increased work hours by existing staff or new contractual obligations with new or existing clients.

Nominating employers also need to be careful of incorrect occupation nominations. A genuine role in the business may attract a refusal when the role nominated has tasks and duties that apply to a different occupation classification.

The genuine position test may also risk the success of the nomination application where employment patterns of the business have changed in recent times. For example, retrenchments, changes to working hours and reduction in pay may cause a case officer to arrive at a conclusion that the position is not a genuine one.

If you have any doubts or concerns about the risks posed to your application through the application of the genuine position test, contact us to discuss your matter further.

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Strata Managers in short supply in the Australian labor market – ENS opportunities

Strata managers are experiencing increasing demand in Sydney and Melbourne as a result of an unprecedented building boom.

Strata experts internationally are now being sourced to meet the short term fall in supply of skilled workers in this industry.

For further information read a recent post on our partner website:

Strata Managers Needed – ENS Opportunities

The strata industry has undergone explosive growth in the past few years and so availability of senior strata managers is very low.

Sponsorship opportunities are now available for senior strata managers with 5 or more years experience.

Contact the team at sponsor-connect.com.au to find out more.

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ATO Data Matching Temporary Visa Holders Beware




ATO Data Matching Temporary Visa Holders Beware

The Australian Taxation Office (ATO) has recently published new protocols on data matching between Commonwealth Departments and Agencies.

ATO data matchingIntroduction of the new protocols is expected to dramatically increase fraud detection.

Possible non-compliance and fraudulent activities of up to 1 million temporary visa holders are to be scrutinized.

The period of review will cover successive financial years from 2013 and will continue to the end of 2016-17 financial year.

Details of data matching protocols for temporary visa holders available here.

Details of ATO protocols and procedures available here.




Sanctions and penalties for individuals and organisations found to be involved in activities defrauding the Commonwealth are to include visa cancellations, fines and possible jail sentences.

Information will be collected from an estimated 1 million visa holders and is likely to include:

  • Address history for visa applicants and sponsors
  • Contact history for visa applicants and sponsors
  • All visa grants
  • Visa grant status by point in time
  • Migration agents (visa application preparer who assisted or facilitated the processing of the visa)
  • Address history for migration agents
  • Contact history for migration agents
  • All international travel movements undertaken by visa holders (arrivals and departures)
  • Sponsor details (457 visa)
  • Education providers (educational institution where the student visa holder intends to undertake their study)
  • Visa subclass name.

This information will used to improve the integrity of visa program and compliance with migration and taxation laws. Efforts are expected to greatly reduce immigration fraud and assist in developing strategies to address effective operation and compliance.

If you are concerned about possible non compliance, contact us for a confidential, obligation free consultation.




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