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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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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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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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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Delays in 457 visa processing




Delays in 457 visa processing are being experienced, according to industry analysts.

Delays in 457 visa processing are a result of combined factors of changes to 457 visa program and internal reorganisation. The Department is restructuring in readiness for the abolition of the 457 visa to be replaced by the short term and medium term visa streams.

Changes to temporary work visas, culminating in March 2018 winding down of 457 visa are a result of 457 Integrity Reviews. This has further resulted in strengthening of requirements around evidence and documentation.

Delays can be extended if documentation and supporting material provided with your application is incomplete.

In a more general shift in attitude, departmental case officers are increasingly refusing applications, either at nomination or standard business sponsorship stage, where incomplete or inaccurate supporting documents are supplied.

Applicants for Standard Business Sponsorship, 457 nomination and 457 visa applications are encouraged to ensure applications are decision ready at time of lodging.

In other cases where complete applications are lodged. You can also make a formal request to prioritise processing. Requests are often rejected where little or no supporting material of business case is supplied.

If you need to make a request for priority processing, be as exhaustive with supporting documentation as you can.




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Skilled visa applicants beware IELTS requirement




IELTS Skilled Visa

A number of review cases through the MIGRATION REVIEW TRIBUNAL (MRT) for skilled visa applicants, whose visa applications had been refused by DIBP, indicated that many applicants do not pay sufficient attention to the IELTS requirement in their applications.

Now that English language testing has been expanded to cover 5 testing systems, visit our Language Center to access resources, teachers, materials and planning assistance for your language testing.

In Australian migration law Schedule 2 criteria define the requirements for the applicant to satisfy in order to qualify for the visa, either at the time of application or prior to a ‘final determination’. English language proficiency is, in most cases, essential to the grant of visa. Whilst IELTS itself is not specified in the law, an ‘instrument in writing as specified by the Minister’ is. This invariably includes IELTS skilled visa.

Language center side 2The IELTS skilled visa score (or other testing system as specified by (DIBP) an applicant will require to qualify for the skilled visa is typically defined by the Australian Classification of Occupations (ASCO) bodies. Some occupations, for example, will require ‘Vocational English’ and others may need ‘Competent English’ as defined in r.1.15C of the Regulations.

 

  • ‘Vocational English’ is defined in r.1.15B of the Regulations. For Subclass 176 visa applications, r.1.15B(5) relevantly provides that a person has ‘vocational English’ if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:

(a) an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening; or (b) a score: (i) specified by the Minister in an instrument in writing for this sub-subparagraph; and (ii) in a language test specified by the Minister in the instrument

 

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10 year ban on re-applying for Australian visas now in place

Stronger measures to crack down on identity fraud have recently come into force in Australia’s immigration system.

From 22 March 2014, penalties under the so called Public Interest Criteria (PIC) 4020 were increased from 3 years to 10 years. Applicants will not be able to make application for an Australian visa with PIC 4020 requirement for 10 years if there were found to have provided false information about their identity.

This restriction will also apply to individuals found to have committed identity fraud when applying for a visa previously when they are included as secondary applicants on a visa application.

The one-fails-all-fails principle will thus apply so it is essential that members of the same family unit making combined applications for a visa were not previously found to have committed identity fraud. If so, the entire family unit will be barred from making application.

The 10 year ban applies only to refusals made under the new identity requirements, not to refusals made under pre-March 22 regulations.

The 10 year period operates concurrently and not cumulatively, so that persons banned under former arrangements (3 years) will be facing 3 and 10 year bans concurrently.

As a further sign of the government’s intent to crack down on identity fraud in Australia’s visa and immigration system, the power of the Minister to waive the restrictions (either for compelling or compassionate reasons) have now been removed. The Minister will no longer have the power to waive the restrictions.

The purpose of the new arrangement is to strengthen the integrity of the migration program and deter identity fraud by introducing strict consequences where a visa application is refused because the applicant, or a member of their family unit, knowingly attempted to gain entry to Australia with fake identification.

WARNING: If you have made application for Australian visa with PIC 4020 requirement but that application has not been finally determined, and you believe you may be at risk of PIC 4020 10 year ban on reapplying for another visa, you will need to submit a correction of information form to the Department.

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Where can I check for current Skills in Demand across all Australian states and territories?

LMIPThe Commonwealth Government has recently implemented its Labour Market Information Portal (LMIP).

As a work in progress, the information portal is still being consolidated with latest Australian Bureau of Statistics (ABS) data and should be fully operational by late March 2014.

The primary objective of the LMIP is to improve reporting on skills shortage by industry and geographical areas across all Australian states and territories.

This is highly beneficial for Skilled visa applicants seeking both work and sponsorship opportunities under ENS or state and territory nomination programs.

The LMIP is to be updated on a monthly basis with the latest ABS data.

Industry and Occupation data is to be updated in late March 2014 and thereafter on a quarterly basis.

The Australian Department of Employment has also replaced its earlier static maps with Google interactive maps, greatly enhancing usability of the site.

Specific queries on seeking latest data and data search functions can be answered via at lmip@deewr.gov.au.

 

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WARNING: UNAUTHORISED IMMIGRATION WEBSITE

WARNING: UNAUTHORISED IMMIGRATION WEBSITE FOUND TO BE DEFRAUDING CLIENTS

The Department of Immigration and Border Protection (DIBP) recently warned of false and unauthorised websites attempting to defraud would be migrants of money and identities.

One website in particular, www.immigovau.co, mimics the current departmental website in appearance and layout, particularly when using certain browsers.

A departmental spokesman said it was a well-camouflaged fake which should be avoided. All Australian Government websites end with the country code gov.au.

“While there is no evidence that the department’s own web presence has been compromised, we advise web users who are looking for information on the department to make sure they visit the department’s official site at www.immi.gov.au,” the spokesman said.

“This issue is not unique to our department and is a common issue for companies and organisations which use websites to communicate information to their clients.”

Web users should ensure they have the www.immi.gov.au address in their browser when they are looking for information on the department and avoid this unauthorised website.

Consumers need also be care of other types of migration fraud, namely:

– Fraudulent phone calls from persons claiming to be a case officer from the DIBP, requesting credit card payments over the phone — NOTE: DIBP NEVER CALL TO REQUEST PAYMENTS OVER THE PHONE FROM CLIENTS. PAYMENTS TO DIBP ARE HANDLED BY A COMPLETELY DIFFERENT SECTION TO DEPARTMENTAL UNITS WHERE CASE OFFICERS WORK. 

– Promises made by unregistered (and therefore NON-REGULATED) migration agents promising Permanent Residence or making claims that they know people inside DIBP and can guarantee a positive result. NOTE: DIBP employees are carefully monitored and scrutinised for signs of corruption or bribery. Heavy sentences and lengthy jail terms are imposed on government employees found to be involved in such criminal and illegal activities. Always ask for the migration agent’s Migration Agent’s Registration Number and check it for currency against the OMARA website at www.mara.gov.au.

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Beware ‘bogus documentation’ when applying for a visa to travel to or remain in Australia (Part 3)

HOW DO DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION CASE OFFICERS ASSESS FOR BOGUS DOCUMENTS?

cancelAll forms of correspondence such as email,text messaging, blogging, letters, postcards and the like are used extensively by departmental case officers to corroborate stories, accounts, claims made in applications, etc. It is important when compiling such material as documentary evidence, such as in demonstrating relationship between sponsor and applicant, that different sources and modes of communication are used. This is a form of cross-checking you can do on the case officer’s behalf.

Traditional forms of communication such as letters are carefully analysed and scrutinised for authenticity and veracity (ie. truthfulness). Envelopes are noted for origin, date of time stamp and even style.The method of postal sending and receipt is understood in order that the case officer can make an assessment of how likely or possible a form of communication can be. For example, an applicant may claim that regular mail correspondence was sent from a certain remote location in country X to country Y. In checking the operations of the postal system in both countries and the form of postal communication used, case officers can assess the claims using this sort of background analysis.

Other things to be aware of when using traditional modes of hand writing that the level of analysis used on the paper used, thicknesses, weight, colours, sealant used on envelopes (such as glue), creases and impressions on paper etc. The same applies for analysis of the hand written word, down to type and colour of pen, pressure used by hand writer and style of writing. Comparisons are made of earlier and later forms of hand written documentation evidence to ensure consistency throughout.

Communications may also take different forms according to the cultural ideosyncrasies of the region in which the applicant resides or originates. It could be worthwhile in your dealings with the departmental case officer to point such things out in order to avoid suspicion of handling and submitting bogus documentation.

The hints, tips and tricks above are a guide only and not a definitive discussion of all methods used by the Department in checking the authenticity and validity of documentation. If unsure, seek professional advice from a MARA registered migration agent or lawyer.

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Beware ‘bogus documentation’ when applying for a visa to travel to or remain in Australia (Part 2)

HOW DO DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION CASE OFFICERS ASSESS FOR BOGUS DOCUMENTS?

cancelAs Mentioned in Part 1 of this series, heavy penalties are now being introduced by DIBP for people found to have submitted — knowingly or otherwise — false or misleading documents or proven to have filled in forms with incorrect information. PIC 4020 rules now allow for restrictions on making further visa applications of up to 10 years to be applied to individuals caught out submitting false or fraudulent — and in some cases just plain wrong — information and documentation.

The following are insights into how departmental case officers assess documents and information for falseness.

Documents such as Notice of Intended Marriage (NOIM) and Statutory Declarations are used extensively in partner visa applications in particular. These are legal documents so they need to be treated carefully and with a view to ensuring that no false or misleading information is contained within. Signatures are rigorously checked by assessing officers and cross matched with databases within the DIBP and in some cases cross departmental databases in Australia and overseas.

Forms are also checked for how many different hands have written information into individual questions. Recurring signatories are flagged for further investigation and could be the trigger for an eventual refusal.

Registraiton of notaries are also checked for current status ‘at time of application’. Unregistered notaries, agents or service providers, such as Marriage Celebrants, could render the document INVALID.

Be sure to check the current state of registration of any service provider you engage for your visa application.

If unsure, as always, seek professional migration advice from a MARA registered migration agent.

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Beware of ‘bogus documentation’ when applying for a visa to travel to or remain in Australia (Part 1)

HOW DO DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION CASE OFFICERS ASSESS FOR BOGUS DOCUMENTS?

cancelBogus documentation is dealt with in s97 of the Migration Act (1954). Bogus documents are defined as being false in a material particular, which basically means documentation that is telling a lie or hiding the truth.

The Act defines a bogus document thus

‘in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a) purports to have been, but was not, issued in respect of the person; or

(b) is counterfeit or has been altered by a person who does not have authority to do so; or

(c) was obtained because of a false or misleading statement, whether or not made knowingly’

The Australian government is presently stepping up efforts to crackdown on all types of migration fraud, such as fake passports and personal identification documents. Cutting edge fraud detection technology and data matching across government departments and with international agencies is further assisting the Department with this aim of reducing, if not eliminating, all forms of migration fraud.

Aside from measures to detect fraudulent visa applications, the Australian government also announced recently the increase in penalties for persons found to be submitting bogus documentation (under the PIC 4020 rule) to dis-allow an individual from applying for another substantive visa for 10 years.

It is also important to note, that ignorance is no protection under the law.

Whether you knowingly or unwittingly submitted information or documents that were false, you can still be liable for this 10 year exclusion penalty.

It is therefore CRITICAL that when you are making application for an Australian visa that all documents (including questions you answer on application forms) submitted to the Department in support of applications are true, genuine and accurate.

If you are not sure, consult a professional migration agent or lawyer.

The following are some simple insights into the way DIBP officers deal with supporting documents and evidence when reviewing your application.

NOTE: Recent MSI (Migration Series Instruction) 292 states that there is no power in migration legislation to refuse an application because the applicant ‘may not be who they say they are or may have presented a bogus document’.

1. Rules in preparing and handling official documents – Birth, Death, Marriage Divorce Certificates – There are local ideosyncrasies and peculiarities with uch official documents. When submitting your application it will help to point this out and explain the differences that may exist. This will help to remove doubts about authenticity of documents and avoid suspicion that you are giving ‘a bogus document’.

Think of other corroborating evidence such as baptismal certificates, local religious or government registries. Be aware that the Department is aware that corruption is a problem in many local official offices. There are limits upon case officers over how deeply they can delve into your past, so if you feel the Department is breaching your privacy rights, consult a legal professional.

Like with any type of visa application, and more generally in your dealings with the Department, it is important to think outside the box and to try to pre-empt the moves of the case officer before they make a decision not favorable to you. It is a good idea to consult with a good migration agent or lawyer on this point if you do not already have an appointed representative.

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ENS Nomination Refusal




ENS Nomination Refusal  — How to Manage the Risk for Visa Applicant

Applications for Employer Nomination Scheme (ENS) visas (186) are subject to requirements to demonstrate a genuine need for the position being nominated. ENS nomination refusal is largely due to inadequacy of statement of genuine need.

The requirement to provide evidence of genuine need of position was introduced into the Migration Regulations in July 2016. However, case officers are now under strict policy instruction to scrutinize applications for genuineness of position criteria.

July 1, 2017 changes to Regulation 5.19(3)(i), state the nominator must show how the position is a paid one and under the nominator’s direct control. The interpretation of the meaning of under direct control is yet to be fully explained by the department and has raised concerns that this vague terminology can be grounds for refusals.

To strengthen applications, there are a number of important things to consider when drafting the statement of genuine need.

  • The position fits the scope of the activities of the business.
  • The business can provide evidence demonstrating need for the position (whether new or existing).
  • The tasks of the nominated role are detailed in the employment contract and ‘substantially’ align with tasks on the ANZSCO occupation description for the nominated role.
  • The inability to hire a suitable employee for the nominated occupation from the local labor force.
  • Reasons why the nominated employee is selected as the best and most appropriate nominee.

 




Genuine Position Writing Service – ENS, RSMS, 457 Nominations

When making nomination application, consider the following issues that can be grounds for application refusals.

  • Broader economic factors surrounding the business, such as whether the industry in which it operates is in decline.
  • Average or above-average unemployment in the nominated occupation.
  • The business has recently laid off employees in the nominated or similar roles.
  • The business has recently reduced hours of operations.
  • Other employees in the business have experienced a reduction in pay and conditions (note, the ATO and DIBP databases are increasingly linked to cross check business activities).
  • The business is small and employs a number of 457 visa holders or other temporary visa holders, and there are no, or few, Australian employees.
  • Management positions nominated at the lower end of the market salary rate according to industry standards.
  • The nominated occupation is generic in nature (the department identifies Marketing Specialist, Program or Project Administrator, Specialist Manager NEC).
  • The business is an overseas entity sponsoring a visa holder through an associated entity.
  • The business sponsor is an overseas entity with newly established branch in Australia but nominated role is not suited to establishing the Australian business and to be responsible for operations of the business in the short to medium term.
  • Inconsistent information about tasks performed in the role and those on the nominated occupation as defined by ANZSCO description.
  • The list of tasks provided in the application form has been substantially copied from the ANZSCO dictionary into the application form or job description.
  • The business wishes to nominate a General Manager and is an import/export business with no employers other than directors.
  • The business relies on rental income from domestic properties (for example, renting rooms to overseas students).

 

Nomination applications exposed to any of the risks above will not automatically be refused. Rather, a robust defence of the requirement for the nominated role to be approved is even more essential.

 

 




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