Under the Global Talent Independent Program, launching this year, Home Affairs staff will be located on the ground in Germany, the US, Singapore, China, Chile and Dubai. The government is deploying recruitment officers overseas to bring thousands of the best and brightest workers to Australia. Their task is to recruit 5,000 professionals at the top of their fields in target industries, particularly the tech sector. The government has set aside 5,000 of the 160,000 places in the permanent migration stream for the new program. According to the Home Affairs website, the global talent officers will work with local industries to identify talented people and “attend key industry events and expos, and promote life in Australia”. Highly-skilled workers identified by Home Affairs will be encouraged to apply for existing permanent visas including the distinguished talent and skilled independent visa. The announcement follows the government’s decision to entrench a pilot visa scheme designed to make it easier for the tech industry to recruit highly-skilled workers despite a low take up. Of the 23 businesses that have signed up, just five are startups, with the majority being established businesses including Coles Supermarkets and Rio Tinto.
The recent case of Nguyen v Minister for Immigration establishes that when assessing the criteria set out under reg 1.15AA (1)(e) in conjunction with reg 1.15AA (1)(b)(iv) of Migration Regulations 1994 with respect to Carer (subclass 836) visa, the decision-maker needs to not only take into account the assistance required temporarily but also the ongoing assistance required for at least two (2) years. Reg 1.15AA(1)(b)(iv) …………… (b) according to a certificate that meets the requirements of subregulation (2): (iv) because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; ……. Reg 1.15AA(1)(e) (e) the assistance cannot reasonably be: (i) provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or (ii) obtained from welfare, hospital, nursing or community services in Australia Background The applicant, Ms Nguyen applied for a Carer (Subclass 836) visa to enable her to provide assistance to her mother, Ms Ton (sponsor) who is an Australian citizen. The sponsor, Ms Ton had a medical condition that was the subject of a Carer Visa Assessment Certificate provided by Dr Lim who diagnosed her as suffering from chronic bilateral weakness of the lower limbs and atrial fibrillation. Ms Ton met the requirements for a carer, as she had “the need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years”. The Department refused to grant Ms Nguyen a carer visa, and the Tribunal affirmed the same on the basis that Ms Ton shared a household with her son, her youngest daughter, Anh including Anh’s husband and their daughter, and that they could reasonably provide the direct assistance that Ms Ton required. The applicant sought judicial review in the Federal Circuit Court of Australia (FCCA) which was unsuccessful, and appealed to the Federal Court. Issues The main issue at hand was the Tribunal’s findings regarding the direct care that Ms Ton’s Australian relatives could provide, in that, it had not undertaken any realistic assessment of Ms Ton’s relatives’ future capacity or availability to provide her with the direct assistance she would require. In the applicant’s application for judicial review, she relied on a single ground: “The Tribunal’s decision was affected by jurisdictional error, in that, when considering whether “the assistance” for which the applicant’s mother had a need could reasonably be provided by a relative, the Tribunal misconstrued reg. 1.15AA (1)(e), in that the Tribunal treated the “assistance” as being only required at the time of decision, when on the proper construction of reg. 1.15AA(1)(e), “the assistance” was that for which the applicant’s mother had a need at the time of the assistance and for a period of at least two years from the date the Certificate”. Counter-arguments That two years is not linked to the “assistance” but is instead linked to the “medical condition”. The assistance to be given is assessed against the medical condition rather than any temporal criteria for which the assistance could be provided. To the above, the appellant argued the following: The “assistance” is “direct assistance in attending to the practical aspects of daily life” for which the resident “has, and will continue for at least 2 years to have, a “need”. (In other words, the “assistance” is that which is “needed” by the resident and will continue to be the subject of such a “need” for at least 2 years from the date of certificate). Therefore, the reasonable capacity of another relative or relatives to provide the assistance – the matter dealt in subpar (e)(i) – is to be assessed by reference to the “need” of the resident for assistance over the whole of the period of at least two years from the date of certificate. Federal Court’s decision The “assistance” referred to reg 1.15AA (1)(e) must be a reference to the assistance the person to be cared for needs. The Court rejected the analysis that the word “two years” were not linked to “the assistance” but were instead linked to the “medical condition” on the basis that the medical assessor is required to certify that because of their medical condition a person will need to have a need for assistance for a continuing period of at least two years. The condition a person suffers from and the nature of the direct assistance that the person will require, its quality and quantity, over a period of not less than two years, are not independent variables. The Tribunal must take the assessor’s opinion as to what that person’s need for direct assistance will be over that period to be correct for the purposes of reg 1.15AA(1)(e). For these reasons, the Court is satisfied that the primary judge erred in accepting the submissions of the Minister that there is no link between the “assistance” and the period of at least two years for which the direct assistance will be required. Getting Assistance If you require assistance in understanding the specific requirements or in the preparation of a Carer visa, it is worthwhile to seek immigration legal advice as to whether your case would have a reasonable prospect of success. At Mckkrs, we are well-trained to handle highly complex matters. Book one of our agents for professional advice by calling 02 4626 1002 or email us at admin@mckkrs.com.au
What can be constituted as having a previous relationship has recently been cleared up by the Federal Court of Australia. According to the case of Larney v Minister for Home Affairs, the Tribunal erred in finding that the applicant had previously been in a de facto relationship and had provided information that was false or misleading that triggered Public Interest Criteria 4020. Background The appellant, Mr Larney, a citizen of Ghana who arrived to Australia on a 457 visa (work visa) established a de facto relationship with an Australian citizen. In the appellant’s application for a Partner visa, he answered ‘No’ to the question, “Has the applicant been in any previous relationships with persons other than the sponsor?” This contradicted his response to having had two non-migrating children in his application. The Department questioned the contradicting response to which the appellant’s lawyer confirmed that he had never been married or been in a de facto relationship, and although he has two children, he never lived together or got engaged to the mother of the children. The Department held it to be untrue based on the note in reference to a phone call made by Mr Larney’s former wok visa sponsor who provided that Mr Larney informed him that he has a wife and a two year old son in Ghana. Accordingly, the Department provided Mr Larney a “procedural fairness letter” stating that he has failed to satisfy PIC 4020 and asked him to comment on the discrepancies. The Department went on to refuse his Partner visa application. The appellant exercised his right to seek merits review of the decision in the Tribunal to which the Tribunal affirmed the decision of the delegate not to grant Mr Larney a Partner visa. Tribunal’s reasoning The Tribunal held that even though Mr Larney claimed that he was never legally married and that the mother of his children is now in another marriage, it does not imply that there was no spouse-like or de facto relationship between them previously. Therefore, the absence of cohabitation is not conclusive. Additionally, it was also held that the birth of the two children over three years implies, in the Tribunal’s view, a considerable degree of commitment rather than a quick interaction resulting in the birth of a child. The appellant sought judicial review of the Tribunal’s decision to affirm the decision of the Delegate in the Federal Circuit Court of Australia (FCCA). The FCCA found no jurisdictional error and dismissed the application. The Appellant eventually appealed the FCCA’s decision to the Federal Court. Grounds of Appeal The Appeal involved four (4) important questions: Does the question “has the applicant been in any previous relationships” contained in the partner visa application form refer to relationships in general or only to married or de facto relationships? If that question refers to relationships in general, was it a material error in the sense of Hossain for the AAT to have asked about the existence of previous de facto relationships? Can administrative decision-makers assume the existence of a previous de facto relationship even if s 5CB is not satisfied? If a person provides information about whether they have previously been in a de facto relationship and a decision maker is trying to determine whether that information is false or misleading, does it matter that, at the time the information was given, the FCCA interpreted s 5CB in a way that was subsequently rejected by the FCA? Breakdown of the Federal Court’s Consideration Main Issue: Whether the applicant met PIC 4020 as required for the grant of the visa he had applied for? PIC 4020: “….information must be false and misleading…” – There is no express statement by the Tribunal that permits the Court to identify that information with precision. The Tribunal did not focus on the applicant’s actual answer (to the question whether he had been married previously or in a de facto relationship) but whether his imputed answer was relevantly false and misleading. S 5CB De Facto partner: The Court agrees that a couple might be in a de facto relationship despite not having previously lived together, provided they share a mutual intention, in the future, not to live separately and apart on a permanent basis – The evidence before the Tribunal was wholly inconsistent with the applicant and the mother of the children having formed such a mutual intention. As such, the applicant’s relationship with the mother (of their children) objectively was never capable of being comprehended by the term “de facto relationship”, and as such could not have been false or misleading on the applicant’s part to have disowned his having had such a relationship. The Tribunal asked itself a wrong question: It should have asked whether the answer “No” on the visa application form constituted false or misleading information. Therefore, the Tribunal fell into legal error by failing to address the proper question (Craig v South Australia). Key Takeaways This case reveals the propensity of decision makers to apply a lesser standard of proof as to what might be properly characterised as a spousal or a de facto relationship, especially when that characterisation is likely to be adverse o your client. Therefore, it is important to point out or challenge a decision maker if a departure is made from the one and only standard: the statutory scheme itself.
An ‘occupation ceiling’ might be applied to invitations issued under the independent, skilled regional (provisional) visas. This means there will be a limit on how many EOIs can be selected for skilled migration from an occupation group. This ensures that the skilled migration program is not dominated by a small number of occupations. Once this limit is reached, no further invitations for that particular occupation group will be issued for that program year. Occupation ceilings do not apply to State or Territory Nominated, Employer Sponsored or Business Innovation and Investment visa subclasses. Occupation ceilings for the 2019-20 program year. Occupation ID Description Occupation Ceiling Value 2019-20 Invitations to 11/07/2019 1213 Livestock Farmers 5,934 0 1331 Construction Managers 4,983 0 1332 Engineering Managers 1,000 0 1341 Child Care Centre Managers 1,000 0 1342 Health and Welfare Services Managers 1,785 0 1399 Other Specialist Managers 3,044 0 2111 Actors, Dancers and Other Entertainers 1,000 0 2112 Music Professionals 1,000 0 2121 Artistic Directors, and Media Producers and Presenters 1,098 0 2211 Accountants* 2,746 83 2212 Auditors, Company Secretaries and Corporate Treasurers* 1,552 47 2241 Actuaries, Mathematicians and Statisticians 1,000 6 2243 Economists 1,000 <5 1399 Other Specialist Managers 3,044 0 2111 Actors, Dancers and Other Entertainers 1,000 0 2112 Music Professionals 1,000 0 2121 Artistic Directors, and Media Producers and Presenters 1,098 0 2211 Accountants* 2,746 83 2212 Auditors, Company Secretaries and Corporate Treasurers* 1,552 47 2241 Actuaries, Mathematicians and Statisticians 1,000 6 2243 Economists 1,000 <5 2245 Land Economists and Valuers 1,000 <5 2247 Management consultant 5,269 5 2321 Architects and Landscape Architects 2,171 124 2322 Cartographers and Surveyors 1,000 <5 2331 Chemical and Materials Engineers 1,000 13 2332 Civil Engineering Professionals 3,772 26 2333 Electrical Engineers 1,000 20 2334 Electronics Engineers* 1,000 30 2335 Industrial, Mechanical and Production Engineers* 1,600 49 2336 Mining Engineers 1,000 5 2339 Other Engineering Professionals* 1,000 30 2341 Agricultural and Forestry Scientists 1,000 <5 2342 Chemists, and Food and Wine Scientists 1,000 6 2343 Environmental Scientists 1,472 <5 2344 Geologists, Geophysicists and Hydrogeologists 1,000 <5 2345 Life Scientists 1,000 11 2346 Medical Laboratory Scientists 1,505 <5 2347 Veterinarians 1,000 0 2349 Other Natural and Physical Science Professionals 1,000 <5 2411 Early Childhood (Pre-primary School) Teachers 2,294 5 2414 Secondary School Teachers 8,052 5 2415 Special Education Teachers 1,111 0 2421 University Lecturers and Tutors 3,407 <5 2512 Medical Imaging Professionals 1,203 0 2514 Optometrists and Orthoptists 1,000 0 2519 Other Health Diagnostic and Promotion Professionals 1,000 0 2521 Chiropractors and Osteopaths 1,000 0 2524 Occupational Therapists 1,082 0 2525 Physiotherapists 1,784 <5 2526 Podiatrists 1,000 0 2527 Speech Professionals and Audiologists 1,000 <5 2531 General Practitioners and Resident Medical officers 3,550 14 2533 Internal Medicine Specialists 1,000 0 2534 Psychiatrists 1,000 0 2535 Surgeons 1,000 0 2539 Other Medical Practitioners 1,250 11 2541 Midwives 1,218 0 2544 Registered Nurses 17,509 52 2611 ICT Business and Systems Analysts* 2,587 79 2612 Multimedia Specialists and Web Developers 1,000 7 2613 Software and Applications Programmers* 8,748 265 2621 Database and Systems Administrators and ICT Security Specialists 2,887 34 2631 Computer Network Professionals* 2,553 77 2633 Telecommunications Engineering Professionals 1,000 22 2711 Barristers 1,000 0 2713 Solicitors 4,650 <5 2723 Psychologists 1,832 0 2725 Social Workers 2,128 37 3122 Civil Engineering Draftspersons and Technicians 1,000 8 3123 Electrical Engineering Draftspersons and Technicians 1,000 0 3132 Telecommunications Technical Specialists 1,000 0 3211 Automotive Electricians 1,000 0 3212 Motor Mechanics 6,399 <5 3222 Sheetmetal Trades Workers 1,000 0 3223 Structural Steel and Welding Trades Workers 3,983 0 3232 Metal Fitters and Machinists 7,007 0 3233 Precision Metal Trades Workers 1,000 0 3241 Panelbeaters 1,000 0 3311 Bricklayers and Stonemasons 1,610 0 3312 Carpenters and Joiners 8,536 0 3322 Painting Trades Workers 3,330 <5 3331 Glaziers 1,000 0 3332 Plasterers 2,100 0 3334 Wall and Floor Tilers 1,682 0 3341 Plumbers 5,060 0 3411 Electricians 8,624 <5 3421 Airconditioning and Refrigeration Mechanics 1,851 0 3422 Electrical Distribution Trades Workers 1,000 0 3423 Electronics Trades Workers 1,313 <5 3513 Chefs 2,738 <5 3611 Animal Attendants and Trainers 1,051 0 3941 Cabinetmakers 2,112 0 3991 Boat Builders and Shipwrights 1,000 0 4523 Sports Coaches, Instructors and Officials 4,071 0 4524 Sportspersons 1,000 0 *Occupations that are subject to pro rata arrangements. For Accountants (2211) the occupational ceiling also reflects volumes in other skilled visa categories.
DOHA has updated Regulation 5.19 with instructions to address transitional arrangements for 457/TSS visa holders Further to various enquires to MIA and the Department and discussions as to whether TRT applications can be lodged on the last day of validity of grandfathered two year Subclass 457/TSS visas, the Department has updated the Regulation. The Procedural Instructions have been updated at Regulation 5.19 with the following instruction to address transitional arrangements for these visa holders: 4.3.20 Transitional arrangements – in place from 18 March 2018 to march 2022 Decision-makers are reminded that the Government has provided transitional arrangements for certain cohorts of clients who held or had applied for a subclass 457 visa on 18 April 2017 which was subsequently granted. These arrangements are relevant to the TRT stream only. Where a nomination is lodged on or after 18 March 2018, and at any time until 18 March 2022, in relation to a client in this cohort, standard nomination requirements in place as of 18 March 2018 must be met with the exception that: occupation list requirements will not apply; and the minimum period an applicant is required to have been employed in their nominated occupation/position as the holder of a subclass 457 or TSS visa will remain at two years. However, decision makers can accept 23 months as having satisfied this requirement. This is to prevent inefficiencies resulting from the 457 visa expiring a few days short of applicants meeting the two-year work requirement, necessitating obtaining a further TSS visa to complete the two years of time worked. While this update to the PI will be loaded to Legend on 18 August 2019, the visa processing network have been advised that this can be applied with immediate effect. Associated legislative change to Regulation 5.19 will be updated in due course. * Thanks to MIA member Rick Gunn for being the first to get a response from the Department on this issue and sharing it with members.
Monday 29 July 2019, Victoria’s Skilled and Business Migration Program will be launching a new and improved application system for visa nomination. Any draft nomination application saved in the system, will be required to be submitted by 4.00pm on Wednesday 24 July or a new application needs to be commenced in the new system on Monday 29 July 2019. No visa nomination applications can be submitted on the Live in Melbourne website between 4.00pm Wednesday 24 July 2019 (AEST) and Monday 29 July 2019. Agents will not be able to login to the system from 4.00pm Wednesday 24 July 2019 until Monday 29 July 2019 wherein you will need to re-register your details.
The Department of Home Affairs has now introduced a new multipurpose online webform to contact various Ministers for intervention. Any ministerial intervention will now be required to be lodged by the new online webform available on the Department of Home Affairs website. The form can be used to send enquiries to Ministers: Peter Dutton, David Coleman, David Littleproud and Jason Wood.
The Morrison Government’s Population Plan to effectively manage Australia’s future population came into effect on 01 July 2019. The Plan directly affects the Australian migration scheme, in particular applicants who are overseas students or temporary residents. What initiatives are included in this Plan? The Population has four (4) main components, in the following: Easing the population pressures on Australia’s big capitals and supporting the growth of smaller cities and regions; A massive boost in infrastructure; A better planning mechanism with states and territories; and Keeping Australia together by building safe and connected communities How is the government implementing these initiatives? First initiative plans include: Cutting the permanent migration program by a cumulative 120,000 places over four years The new cap is 160,000 per annum, and below the current cap of 190,000 places per annum. Within this 160,000 places cap, there are only 23,000 places for permanent residents who chose to reside outside the four big capitals. Introducing strong incentives for new international students New $94 million scholarship program to study in the regional areas will come into effect. Destination Australia program will also provide 4,720 scholarships Students studying outside of the big capitals to receive an extra year of post-study work rights. Changes to the working holiday maker program There will be increase to the number of countries involved and places available, and allowing people who work in the regional areas to stay an extra year. Second initiative plans include: Operation of National Faster Rail Agency The Agency commenced operating from 01 July 2019, will oversee the government’s 20 years fast rail agenda which will connect satellite regional cities to our big capitals. This will allow people to reside in regional centres with its cheaper housing and regional lifestyle but will still be able to access easily the major employment centres. The first fast rail connection will be Melbourne-Geelong. Third initiative plans include: Establishing a new Centre for Population This centre is being established inside Treasury from 01 July 2019, providing detailed analysis and advice on population issues. $23.4 million has been allocated to establish this Centre. Fourth initiatives plans include: Boosting infrastructure expenditure Ensuring population growth does not outstrip infrastructure capacity Connecting communities Encouraging people out of major cities and into regional areas, helping regional communities to fill employment gaps and grow their economies Takeaways Although, we have yet to see how the above changes will make a significant difference to the migration settings, it will nonetheless support a strong economic growth in Australia. The changes will also complement the four Designated Area Migration Agreements (DAMA) which will assist employers in regional areas across NSW, Victoria, South Australia and Western Australia to find the labour and skills they need.
Visa applications obtaining 80 points (including state nomination points) on the Department of Home Affairs points test, are able to access additional occupations (special conditions and Supplementary Skilled List). As of 26 July 2019, applications submitted under the High Points category are required to have 85 points. Immigration SA has received a high volume of applications for the high points category and will be monitoring applications received over the coming weeks. Once Immigration South Australia reach the ‘high points’ category quota, the minimum points requirement will be automatically increased to 90 points. Some individual occupations like Quality Assurance Manager, Hotel or Motel Manager, ICT Sales Rep, Technical Sales Rep nec, Geologist, Occupational Health and Safety Advisor, Web Developer, ICT Support and Test Engineers nec have low nomination left for the 2019/20 program year.
Education and Training Minister for Western Australia today launched StudyPerth’s 2019 International Student Ambassador Program. This initiative is a long-term State Government strategy to attract more international students to Perth, which will help improve Western Australia’s economy, contribute to the community and create more jobs. The program intends to promote Perth as a first-choice study destination for International Students. A group of 10 international students were today named as the program’s ambassadors at the Council of International Students Australia annual conference in Perth. Each will be tasked with helping the State Government and StudyPerth to position Perth as a first-choice study destination. The ambassadors will also raise awareness about the social and economic benefits that international education brings to Western Australia. They will write blogs and social media posts; facilitate question and answer forums and attend social business events, where they will discuss the benefits of international education in Perth Australia. The development of the International Student Ambassador Program is one of 16 initiatives in StudyPerth’s Action Plan, which outlines how international students can live, learn and launch their future selves in Perth’s environment.