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Recent news and legislative changes

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Immigration risk ratings for countries and providers will be updated on 31 March 2017. These updated ratings will also be reflected in the Document checklist tool from this date. The next update to the immigration risk ratings will occur in September 2017.

Visa applications for students who receive partial or full funding under a training scheme approved by the Commonwealth government will be considered to be “Commonwealth Sponsored”. The VAC is waived. Applications that are incorrectly identified as Commonwealth sponsored will be treated as invalid. Any student identifying as “Commonwealth Sponsored” must provide evidence of their scholarship or Commonwealth funding.

New subclass 407 and its nomination eligibility types including: (a) workplace-based training for registration; (b) structured workplace based training to enhance skills in an eligible occupation and (c) training promoting capacity building overseas.

Legislative Instrument – IMMI 17/011 – F2017L00266 – Migration Regulations 1994 – Arrangements for Student Visa Applications 2017/011. This Instrument specifies the form, place and manner for lodging an Item 1222 Student (Temporary) (Class TU) visa application for subclasses 500 and 590. It revokes IMMI 16/017 (F2016L00630). It specifies form 157N for the purposes of Item 1222(1) to be provided as part of an application by applicants who are under 18 at the time of application and intend to reside with a parent, a person who has custody of the student, or a suitable relative.

Legislative Instrument – IMMI 17/012 – F2017L00267 – Migration Regulations 1994 – Evidence of financial capacity for SC 500 and 590 2017/12. This Instrument revokes IMMI 16/018 (F2016L00639) and specifies the evidence required to demonstrate sufficient funds  to meet the costs and expenses of applicants during intended stay and for each member of the family  who will be in Australia. It further specifies the following:

  • de facto partner income of Primary applicant
  • evidence of financial capacity –  to meet the costs of the nominating student’s course fees, travel expenses and living costs (SC 590)
  • pro rata amounts for annual living costs – where intended stay is less than 12 months,
  • Letter of support regarding sufficient funds from either Dept of Foreign Affairs or Dept of Defence where students are sponsored by either of these departments

Legislative Instrument – IMMI 17/013 – F2017L00269 – Migration Regulations 1994 – Migration Regulations 1994 – Evidence of Intended Course of Study for subclass 500. This Instrument revokes IMMI 16/027 (F2016L00650) and specifies the following relevant evidence for each of the applicant’s intended courses of study or activities:

  • CoE number(not cancelled or revoked) in the relevant field in the application form OR
  • Letter of offer(not cancelled or revoked) – where no CoE issued, and applicant is onshore, to be attached to the application OR
  • Letter of support (for Foreign Affairs, Defence students) OR
  • An AASES form (for secondary exchange students) OR
  • Letter from education provider (requiring applicant to remain in Australia during marking of postgraduate thesis)
27
Mar 2017
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WA Government freezes RSMS certification

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New applications to certify positions for the Regional Sponsored Migration Scheme are temporarily suspended. New information will be posted on the migration portal as it becomes available.​ ​The Western Australian skilled migration occupation list (WASMOL) is currently under review. While this review is underway intending migrants will not be invited to apply for Western Australian State nomination.

16
Mar 2017
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Global visa and citizenship processing times

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Global visa and citizenship processing times will be updated monthly, providing you with an indicative timeframe for processing applications. Processing times are available for the majority of visa subclasses and citizenship products, but will exclude a few subclasses such as those closed to new entrants, capped and queued, or which have a low volume of applications. Two processing times are displayed, indicating how long it is taking to finalise 75 and 90 per cent of applications submitted globally. Processing times are impacted each month by changes in application volumes, seasonal peaks, complex cases, and incomplete applications. Processing times include applications lodged online and by paper.

16
Mar 2017
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“Are 457 employers required to nominate full-time employment?”

This is a common question I receive from employers who nominate Temporary Work (Skilled) (subclass 457) visa holders:

“Are we required to nominate full-time employment in the employment agreement or is casual employment okay?”

The question of “fulltime vs casual employment”, raises three points for consideration:

  • What employment terms are required for the approval of a nomination for a Temporary Work (Skilled) (subclass 457) visa?
  • What employment terms are required for the approval of a nomination for an Employer Nominated (Subclass 186) visa under the “Temporary Residence Transition” stream?
  • What experience is the nominee/visa applicant required to demonstrate for the approval of a nomination for an Employer Nominated (Subclass 186) visa under the “Temporary Residence Transition” stream?

 

What employment terms are required for the approval of a nomination for a Temporary Work (Skilled) (subclass457) visa?
The Temporary Work (Skilled) (subclass457) visa does not require that the nominee/visa applicant be nominated for full-time employment. Instead, the employment terms must be consistent with Australian “market rates” (i.e. what your business and/or your industry pays Australian employees to do similar work). Both the “market rate” and the employee’s guaranteed annual earnings must be in excess of the Temporary Skilled Migration Income Threshold (TSMIT), which is currently $53,900 (reg.2.72(10)(c)). The regulations and policy, however, do not specify what work arrangements (i.e. full-time, part-time, or variable) are required for approval of the 457 Nomination.

Note: Policy states that the employer can provide, for example, a “Letter of engagement”, based on the Fair Work Ombudsman’s Template Letter, to satisfy the employment requirement. In the template, employers can nominate the required hours of work and it allows for both part-time and full-time employment arrangements. However, other work agreements are also acceptable, so long as they are consistent with employment terms for Australian employees performing similar work.

 

What employment terms are required for the approval of a nomination for an Employer Nominated (Subclass 186) visa under the “Temporary Residence Transition” stream?
Regulation 5.19(3)(d), relating to approval of a nomination for an EN186-TRT visa, states that (i) the employee will be employed on a full-time basis in the position for at least 2 years and (ii) the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment.

The relevant policy for the 186-TRT Nomination states, as follows:

Full-time employment
For the purposes of regulations 5.19(3)(d) and 5.19(4)(d), ‘full-time’ is, under policy, defined as being at least 35 hours a week. Delegates must be satisfied on the basis of the employment contract that the nominated position provides employment for at least 35 hours a week. If appropriate, officers may seek written confirmation from the nominator in this regard.

Content of the contract and commencement date

The nominator must provide a copy of the proposed employment contract to enable verification:

• that the employment is full-time and
• of the duration of employment and
• that related terms and conditions are acceptable.

Under policy, there is no requirement for the contract to specifically state that the employment will be available for a period of 2 years. A contract that provides that the position is permanent and ongoing is sufficient to satisfy the relevant regulatory requirements.

To be considered “full-time”, the Immigration Department only requires that the person be required to perform at least 35 hours of work per week. However, the combined effect of paragraphs (i) and (ii) in regulation 5.19(3)(d) mean that the employment must be both full-time (i.e. at least 35 hours a week) AND permanent and ongoing. This meaning may differ from legislative instruments for particular industries, that set out the definition of “full-time” and other types of work arrangements, for the purposes of employment in that industry.

The differences between full-time and casual employment, according to the Fair Work Ombudsman are, as follows:

A casual employee:
• has no guaranteed hours of work
• usually works irregular hours (but can work regular hours)
• doesn’t get paid sick or annual leave
• can end employment without notice, unless notice is required by a registered agreement, award or employment contract.

Full-time and part-time employees have ongoing employment (or a fixed-term contract) and can expect to work regular hours each week. They are entitled to paid sick leave and annual leave.

Accordingly, a nomination on a “casual basis” is unlikely to satisfy the 186-TRT Nomination requirements because the employment is not ongoing or permanent. In order to satisfy the EN186-TRT nomination requirements, the employment must be offered on either a (permanent) full-time or (permanent) part-time, ongoing basis, for a minimum of 35 hours per week.

 

What experience is the nominee/visa applicant required to demonstrate for the approval of a nomination for an Employer Nominated (Subclass 186) visa under the “Temporary Residence Transition” stream?

Regulation 5.19(3)(c)(i)(A)(ii) requires the Temporary Work (Skilled) (subclass 457) visa holder to have been employed in the position, in relation to which they hold the subclass 457 visa, for a total period of at least 2 years in the 3 year period immediately before the lodging of the nomination. Regulation 5.19(3)(c)(i)(B), requires that the employment experience be on a “full-time basis”.

The policy for this criterion provides, as follows:

Full-time
For the purposes of regulation 5.19(3)(c)(i)(B), under policy full-time means not less than 35 hours a week.

Note that the 12-month buffer allows the applicant to accumulate the 2 years of full-time around any unpaid leave periods and other unpaid absences, during the 3-year period leading to the lodgement of the nomination.

Summary
In summary, the regulations and policy do not require an employment contract to stipulate that employment is on a (permanent) full-time basis for approval of a nomination for a Temporary Work (Skilled) (subclass 457) visa. Instead, the policy appears to invite nominations from a range of employment types, including, for instance, casual, part-time and variable work agreements.

However, the nomination criteria for the Employer Nomination (subclass 186) visa under the “Temporary Residence Transition” stream requires that the Temporary Work (Skilled) (subclass 457) visa holder to demonstrate at least 2 years of full-time employment in the nominated occupation, with their 457-Sponsor. Policy interprets this to mean that the employment was equivalent to at least 35 hours a week. There’s nothing in the policy or regulations that precludes the use of casual, part-time or variable employment experience (by Temporary Work (Skilled) (subclass 457) visa holders) to demonstrate that they’ve completed their 2 years of work experience, if the employment hours were more than 35 hours per week.

Accordingly, to answer the question to which this advice relates, it is possible to provide different employment contracts for approval of the 457 and EN186-TRT visa nominations. The employer could potentially nominate a full-time, part-time or variable work arrangements for approval of the 457 Nomination, so long as the employment terms are consistent with TSMIT and “market rates”.

However, for approval of the EN186-TRT Nomination, the employer must provide an employment contract for a (permanent) full-time appointment and the visa applicant must demonstrate that he or she has accumulated the equivalent of at least two years of full-time employment (i.e. at least 35 hours a week) in the 3 years preceding the lodgement of the application.

Compiled by:

Brett Ruehland GCert Law VU., MLaw Griff.

Registered Migration Agent (MARA No. 0801078)

20
Feb 2017
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How to complete visa medicals BEFORE lodging a visa application

Published on Feb 12, 2017

QUESTION: “Should we arrange visa medicals before lodging a Partner visa application?”. This question came from Jess and Santi who are here I Australia. (**A hint: The answer is definitely “YES!”). In the second half of the video I explain how to arrange the health referral letter and do the medical BEFORE the application is lodged).

https://www.facebook.com/drvisabrettr…
www.brettruehland.com
Email: brett@brettruehland.com
Office Address: Level 13, 50 Cavill Ave, Surfers Paradise (Gold Coast), QLD, 4217, Australia

13
Feb 2017
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Applying for Australian Permanent Residence NOW!

Question: “Do I need to need to wait 2 years to apply for Australian Permanent Residence?” Answer: No. There is a “Direct Entry” application stream for applicants who are either offshore, in Australia or holding a 457 visa but haven’t completed two years of work with an employer. Watch for full answer and more info on Direct Entry criteria Employer Nomination (Subclass 186) visa
Regional Sponsored Migration Scheme (subclass 187) visa
Temporary Work (Skilled) visa (subclass 457)

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Feb 2017
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Successful launch of Dr Visa – Brett Ruehland on Facebook

Introducing the successful launch of the new “Dr Visa – Brett Ruehland” facebook page! To celebrate, I’m now offering streamlined video consulting packages: $60 for Quick Consult, including <15 min face-to-face (video) consult; and $330 for Comprehensive Consultation, including up to 1 hour face-to-face (video) consult, a letter of advice and the opportunity to ask follow up questions relating to the advice. Check out the first video here. and post a question!

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08
Feb 2017
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Xmas time at Vinnies!!!

Celebrating a job well done with all the volunteers for the Vinnies Migration Advice Service at the Surfers Paradise Golf Club.

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Dec 2016
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Entrepreneur (subclass 888) Visa – Fee and charges amendment

The purpose of this amendment is to remove specific provisions that had been imposed only on applicants for this stream of the Subclass 888 visa.

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For Item 1104BA(2)(a) – the first VAC instalment payable at the time the application will be:

Base application charge – $2,305
Additional applicant over 18 charge – $1,155
Additional applicant under 18 charge – $575

This amendment commences on 19 November 2016.

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Nov 2016
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Changes to when certain Bridging visas cease

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This amendment refers to the following bridging visas:

Subclass 010 (Bridging A)
Subclass 020 (Bridging B)
Subclass 030 (Bridging C)
Subclass 050 (Bridging (General)
Subclass 051 (Bridging (Protection Visa Applicant)

The effect of this amendment is that the above bridging visas will cease a fixed period after a relevant decision or purported decision is made, by the Department of Immigration and Border Protection or the relevant review authority, in relation to certain application processes.

The validity period of the above bridging visas has also been extended for various triggering cessation events. As a very extensive and varied list of these events are included in the provisions for each of these bridging visas, MIA members are encouraged to check these carefully for clients who may be affected by the changes to the cessation date.

In most cases the cessation will occur:

35 days, rather than 28 days, after the relevant event occurs; or
14 working days, rather than 7 working days, after the relevant event occurs.

The whole of this Instrument will commence on 19 November 2016.

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Nov 2016
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