Information below are from the VETASSESS website and also received via email.
Far North Queensland is looking to attract more skilled migrants with an update of its Designated Area Migration Agreement (DAMA) Occupation List.
There are a range of new occupations on the DAMA list, with a focus on the agribusiness, food production, hospitality and tourism sectors.
There have also been changes to the skills, qualifications and experience requirements of some occupations. These changes applied from 18 June 2021.
For more information, you can access their latest brochure here: Queensland DAMA Occupation List and FAQs
Below is the Administrative Appeals Tribunal's (AAT) news update on the changes on their application fees starting July 1:
Link to the original news article: https://www.aat.gov.au/news/changes-to-our-application-fees-on-1-july-2021-1
Application fees in the Administrative Appeals Tribunal will increase on 1 July 2021.
General, Freedom of Information, security, taxation and commercial and small business taxation
From 1 July 2021, application fees for the review of a decision, where a fee is payable, will increase in accordance with reg 27(1) of the Administrative Appeals Tribunal Regulations 2015 (Cth):
These fee increases will apply where an application fee is paid on or after 1 July 2021, even if the application was lodged before that date.
Migration
From 1 July 2021, application fees for the review of most migration decisions will increase. Review of migration decisions under Part 5 of the Migration Act 1958 will increase to $3,000.
In cases where a 50% fee reduction is granted, the reduced fee payable will be $1,500.
The application fee payable is based on when the application was lodged.
The decision to increase this fee was announced by the Government in the Federal Budget for 2021–22.
Refugee
The fee for the review of a protection visa decision under Part 7 of the Migration Act 1958 will increase to $1,846.
This fee is payable if the review is not successful. The application fee payable is based on when the application was lodged.
This fee was increased in accordance with changes in the Consumer Price Index under Regulation 4.31BA of the Migration Regulations 1994.
The Department of Home Affairs have released an update to the Australian Citizenship Application Fees that will be implemented on 1 July 2021.
The following message is from the Department of Home Affairs:
On 24 June, the Government announced that, from 1 July 2021, the Department of Home Affairs will update citizenship application fees to more accurately reflect the cost of delivering the citizenship program.
This is the first fee increase in more than five years and has been determined by citizenship application processing costs. Current fees recover only about 50 per cent of the cost of processing applications. The new fees reflect inflation costs, staffing costs and the increased complexity of applications, which take longer to process. Even with the increase, Australia’s citizenship application fees remain comparable to application fees in other, similar countries. Concessional citizenship application fees will still be available at a much reduced rate for people who meet relevant criteria.
The changes to citizenship fees apply from 12.00am, 1 July 2021 (Australian Eastern Standard Time). The new fees apply for any application received by the Department on or after this time. For further information, please refer to the Department’s website - news article
In addition, from 1 July 2021, applicants approved for Australian citizenship by descent or Australian citizenship by adoption will receive an Australian citizenship certificate. This is instead of an Australian citizenship extract. An Australian citizenship extract is an informal document that can be used to access limited government services. An Australian citizenship certificate is an official document that provides formal evidence of Australian citizenship.
Further information is available on the Department’s website at the link provided above.
The year 2020 was a challenging year, to say the least. Ushering in new norms and being dubbed a Global Pandemic Year due to COVID-19. Health fears caused governments to react without sufficient information and economic environments also felt the impact of changes in consumer behaviour caused by numerous factors that sent the world into chaos.
One of the effects of the Pandemic is the disruption of Australia’s Partner Visa program. Couples that were lucky enough to be onshore were largely unaffected if they were able to lodge an onshore Partner Visa. However, for couples separated by international borders, they have been left confused and ignored by the system.
Global border restrictions have prevented couples from re-uniting and despite the Australian government’s Travel Exemption criteria, Immigration has turned down most overseas applicants who wish to reunite with their Australian partners in Australia.
Below is a case study of a common Offshore Partner Visa (Subclass 309) case, with possible solutions to consider.
Subclass: 309
Situation: Overseas applicant located outside of Australia, whilst their Australian partner is located in Australia.
Problem: Partners are separated and unable to reunite due to travel and border restrictions caused by the Global COVID-19 Pandemic.
Solutions:
1A. If you do not hold any Australian Visa: Lodge the partner visa from offshore (ie. Subclass 309) and adhere to the government published processing periods; whilst diligently maintaining evidence of the relationship despite the inability to reunite. Note: The criteria that you need to focus on is the criteria related to “not living separately and apart on a permanent basis”.
1B. After lodging the partner visa, consider applying for a visitor visa, with a travel exemption service to enter Australia. Please note however that the refusal rate for this is high, so there is a high level of supporting evidence required to establish compelling and compassionate circumstances to convince Immigration that you satisfy one or more of the Travel Exemption criteria in order to improve your chances of success.
2A. If you hold a current valid Australian Visa: Apply for a Travel Exemption to allow you to enter Australia. Please ensure that you carefully understand the Travel Exemption criteria in order to satisfy the evidentiary requirements in order to maximise your chances of success.
2B. If your travel exemption is approved, and you enter Australia, then you can you prepare and submit an onshore Partner Visa (Subclass 820) as long as you meet the requirements of the subclass regulations.
Understandings: It is important to note that these are unprecedented times. There can be unexpected processing delays, changes to government policies and regulatory (legislative) amendments without any advanced notice to the public. So please seek professional help to minimise your risk.
A new Legislative Instrument (LIN 20/156) was announced this week that amends LIN 18/036 to require all nominated positions to be advertised on the Government’s Jobactive website (www.jobsearch.gov.au).
The new amending provision in LIN 20/156 applies to nominations made after 28 days from the commencement of the instrument, which was 3 September 2020. Therefore, the new LMT requirement effectively applies to visa nominations made on or after 30 September 2020.
Australia will target the world's "super talent" to boost the post-COVID-19 economic recovery, with Population Minister Alan Tudge pledging to take an active role in attracting the best and brightest through skilled migration.
As the coronavirus pandemic drives the nation's migration rate to near zero for the first time since World War I, the Coalition has committed to expanding special access visas, including headhunting entrepreneurs and business leaders to settle in Australia.
Addressing the National Press Club in Canberra on Friday, Mr Tudge said he was "particularly keen" on the government's global talent visa program, which offers streamlined and priority visa pathways to high-skilled and talented individuals to work and live permanently in Australia.
"We want to make sure we're attractive for that super talent, and it's some of that super talent that are real job creators," he said.
"They create the businesses, they invest and they're the types of people particularly that I'd like to be seeing come into the country as a priority."
Mr Tudge, the acting Immigration Minister, said the government was going after Hong Kong's entrepreneurs and corporate leaders to bring their businesses and families to Australia.
Business has been pushing for a speedy restart to global talent visa programs, as the government prepares for a massive hit to GDP from stalled population growth.
Mr Tudge said the scheme deliberately marketed to the world's top talent "instead of passively waiting for good people to apply".
He said the government would revive a push for a stronger focus on Australian values in the citizenship test, pushing back on the pandemic's potential to "tear apart our social fabric".
Greens leader Adam Bandt hit out at that plan, warning arbitrary tests would not make a more cohesive society.
"Scott Morrison locks up asylum seekers, and Peter Dutton attacks African Australians," he said.
"Instead of attacking multiculturalism and democracy, Scott Morrison should value them.
"Before Scott Morrison tries to enforce this test, he should have to pass it himself. I reckon he'd come undone on questions about the right to protest or freedom from arbitrary detention."
Labor's multicultural affairs spokesman, Andrew Giles, said the opposition would work constructively with the government on a plan to improve access to free and unlimited English language classes for migrants.
An estimated 1 million citizens and residents do not have a basic English proficiency, which Mr Tudge said added to social dislocation and risk from foreign influence.
"The circumstances of the pandemic provide an opportunity to rebuild our settlement services so that they continue to be fit for purpose as a key foundation of Australia's multicultural society," Mr Giles said.
Migrant and refugee settlement agency AMES Australia said improved flexibility was needed to help people living and working in the community improve their language skills.
"We know that a lack of English can be a major barrier to people find employment and achieving social participation," chief executive Cath Scarth said.
"The extra hours of English will be really valuable, as will the removal of the five-year limit. This will really benefit professionally qualified refugees who need more than 510 hours to get to the stage where they can prepare to requalify in their professions.
"Some migrants, however, would benefit from better access and flexibility. Someone who is working nine to five may not be able to attend traditional English classes."
Author: Tom McIlroy
Once you have been granted a permanent visa it has an initial five (5) year validity period. This validity period is essentially a travel facility. If you remain in Australia beyond the five years your permanent residence does not expire, only your ability to depart and then re-enter Australia as a permanent resident is affected.
To obtain a new five (5) year travel facility (called a resident return visa, or RRV) the basic criteria is that you have spent at least two (2) years out of the last five (5) physically present in Australia as the holder of a permanent visa.
If you cannot meet the ‘2 in 5’ requirement you may be eligible for a resident return visa with one year travel validity. As noted above, if you remain in Australia beyond the one year validity period your permanent residence does not expire, only your ability to depart and then re-enter Australia as a permanent resident is affected.
To meet the requirements for the one year RRV you must demonstrate that you have substantial ties to Australia that are of benefit to Australia. Substantial ties can be under any of the following:
Permanent residents who have less than 2 years’ physical presence in Australia and who have not yet established substantial ties of benefit to Australia may be eligible for a three month RRV. For example, you may have settled in Australia when nearing the end of your migrant travel facility and need to travel overseas before you have established substantial ties.
As above, if you remain in Australia beyond the 3 month validity period your permanent residence does not expire, only your ability to depart and then re-enter Australia as a permanent resident is affected.
You can apply online right now, without providing any documents, if:
Or, read information about:
| STREAM | 75 PER CENT OF APPLICATIONS PROCESSED | 90 PER CENT OF APPLICATIONS PROCESSED |
| 155 | 4 Days | 21 Days |
| 157 | Unavailable due to low volume of applications. | Unavailable due to low volume of applications. |
Processing times vary.
You must be:
You must have a valid passport.
You must meet our character requirement.
You are not eligible for this visa if your last permanent visa was cancelled.
We will not accept an application if you have received a notice that your permanent business visa might be cancelled.
You should not apply for this visa if you hold:
Both the 155 and 157 visas are permanent visas. They let you undertake all of the activities that your original permanent visa let you undertake:
The difference between the visas is the length of the travel facility:
The visa you are granted depends on the information you provide in your application.
You might be granted a subclass 155 visa if you either:
You might be granted a subclass 157 visa if all of the following apply to you:
If you have been outside Australia for more than three continuous months immediately before you apply, you must have a compelling and compassionate reason for the absence.
AUD 405.
If you apply on paper, you need to pay an additional $80.
While they usually do not occur, if there are any additional costs associated with this visa, you are responsible for them.
The visa pricing estimator is an online tool that calculates the total cost of your visa.
If you are in Australia and the travel facility on your current visa has, or is, about to expire, you need to apply for, and be granted, an RRV before you leave Australia.
You can apply for the visa outside Australia, but it must be granted before you enter Australia.
How long the visas last
The subclass 155 and 157 visas are permanent visas, however, this does not mean that the visa always lasts indefinitely.
The length of the travel facility attached to your visa depends on information in your application and the visa subclass you are granted.
What to do when the travel facility ends.
There is important information for New Zealand passport holders.
You cannot include family members in your application. Each family member must complete their own application.
You and your family members must comply with Australian laws.
Schedule 3 criteria permits unlawful non-citizens to apply for a visa in Australia on compassionate or compelling grounds, instead of being required to depart Australia and apply offshore.
The purpose of the Schedule 3 criteria is to:
There are situations in which non-citizens remain in Australia without a substantive visa through circumstances over which they have no control and situations where there are compelling reasons for granting them a visa to remain. Unfortunately, there is not a set of “examples” for compassionate and compelling grounds however, the ground must be in relation to an Australian citizen or permanent resident, as an individual or a business.
Partner visa, due to Migration Act s.48 and its assessment criteria, has been the best option to those who had been unlawful in Australia and would not (or unable to) return to their home country to apply for an Australian visa. Yet, applications refused based on the applicant unable to satisfy Schedule 3 criteria has been high, hinting unless you have a strong and touching reason to lodge the visa application onshore, you are likely to get your application refused.
Make sure you lodge the right visa application at the right time in the right place. It not only assists in your application assessment but also lowers the risks of refusals. Partner visa can be very complicated and, if not in good hands, it could become a disaster.
Please be advised that on 01 July 2014, Department of Home Affairs (DHA) has changed its policy in relation to Schedule 3 – Criteria 3004. These changes have affected Partner visa (subclass 820/801) for applicants who made/make your application when your substantive has ceased or you were/are the holder of a bridging visa or you were/are an unlawful citizen or the last substantive visa you held contained the Condition 8503 ‘No Further Stay’, at the time of the application.
The policy states:
Criterion 3004 requires that, if an application was made within 28 days after your substantive visa ceasing, you must meet ALL of the following provisions:
If you are unable to demonstrate that you meet Criteria 3004, the Migration Regulations state that the Schedule 3 criteria may be waived where there are compelling reasons for not applying those criteria. The Migration Regulations do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist to not to apply Schedule 3 criteria. Circumstances are therefore considered on a case by case basis pursuant to policy. The law provides firstly that policy must be applied flexibly, and secondly that the Regulations cannot be limited by a too narrow policy.
Both the visa applicant and the sponsor should be invited to put forward any claims for DHA to consider when assessing if compelling grounds exist.
The visa applicant should explain in detail the circumstances that led you to become the person who is not the holder of substantive visa and provide information relating to any compelling reasons you may feel apply to your case.
You will need to provide relevant documents to support your claims.
You will also need to provide documents and information in relation to Regulation 1.09A and 1.15A, which address all matters regarding the relationship between you and your sponsor such as Financial Aspect, Nature of the Household, Social Aspect and the Nature of Commitment to Each Other.
As mentioned at the beginning of this blog, if applicants cannot satisfy Schedule 3 (3001, 3003 and 3004), then they must be able to demonstrate there are compelling reasons to ‘waive’ the application of Schedule 3 against them. Unfortunately, there is no way to apply for this ‘waiver’ before the Partner visa is applied for and it is simply assessed in conjunction with all other visa criteria. So, the case could be that the Partner visa could otherwise be granted, except that Schedule 3 is not satisfied and an applicant is unable to demonstrate compelling circumstances to have it waived.
Unfortunately, there are no clear guidelines that suggest what will constitute compelling circumstances in the eyes of the DHA, however, Government policy does provide some guidance on how strictly they will approach this tricky area of Migration Law.
The Government Policy (what is used by DHA case officers to help interpret the law and guide case officer decision making), states the following:
The Migration Regulations do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist to not apply Schedule 3 criteria 3001, 3003 and 3004. As such, officers should consider circumstances on a case by case basis.
In doing so, however, officers should be mindful that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status. The provisions are not intended to give, or be perceived to give, an unfair advantage to persons who:
An example of where the circumstances may not be compelling to waive the Schedule 3 requirements may be where an applicant has remained unlawful for a number of years, made little or no effort to regularise their status and claims compelling circumstances on the basis of a long term relationship with their sponsoring partner and/or hardship caused by separation if they were to apply outside Australia for the visa.
With the intent of the waiver provisions in mind, it is generally reasonable to expect that compelling reasons to exercise the waiver provision exist where an applicant’s circumstances happened beyond their control. That is, circumstances beyond the applicant’s control had led them to become unlawful and/or prevented them from regularising their status through means other than the Partner visa application for which they seek the waiver.
For example, in the scenario given earlier, it is reasonable to accept that compelling circumstances exist to waive the Schedule 3 criteria if, for reasons beyond the applicant’s control – such as severe illness or incapacity – the applicant was prevented from regularising their status in the years they had been unlawful.
As a general rule, the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa, outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria. This is because a genuine relationship forms the basis of all Partner visa applications, and hardship caused by separation, whilst it differs in degree from one case to another, is common in the Partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.
Policy intends that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a Partner visa. This not only ensures fairness and equity to other applicants and discourages deliberate non-compliance, but also preserves the integrity of the Partner visa program in general and the waiver provisions in specific.
Matters that officers should take into consideration when assessing whether the applicant’s circumstances may be considered compelling include but are not limited to:
(Source: DHA – PAM3 – MIGRATION REGULATIONS – SCHEDULES > PAM – Sch2 Visa 820 – Partner)
Government policy shows us that the DHA will not make it easy for applicants who have purposely remained unlawful in an attempt to circumvent visa requirements to regularize their status through an Australian Partner visa. However, what readers should understand is that the waiver provisions are discretionary meaning that applicants are welcome to put forward all the facts of their relationship to help demonstrate compelling circumstances exist. Importantly, applicants must be able to show that compelling circumstances existed at the time of visa application and not necessarily what has developed after the visa has been applied for.
Some factors that may help an argument of compelling circumstances may include:
If you have recently been refused an Australian visa, and disagree with the decision, there are some steps you can take. Book a consultation with a lawyer or a registered agent to get expert legal advice.
Not all decisions are reviewable by the AAT. For example, you cannot apply to have a decision reviewed by the AAT if the Minister for Immigration and Border Protection personally decides to refuse or cancel your visa under section 501 of the Migration Act 1958.
Any type of visa (permanent or temporary) may be cancelled by the Department of Home Affairs (DHA) if you do not pass the “character test”. The character test is defined in section 501(6) of the Migration Act 1958 (the Migration Act). Applications for a visa can also be refused if you do not pass the character test.
You will not pass the character test if you:
A person will have a substantial criminal record if they have been:
If you have a substantial criminal record you fail the character test and DHA may cancel your visa.
Tip
When calculating a “period of imprisonment”, DHA will include parole periods, suspended sentences, time spent in periodic detention, or time spent in drug rehabilitation or mental health facilities if they were ordered as a sentence by a court. Sentences received for juvenile offenses can also be included.
The Department of Home Affairs (DHA) is notified that you have a substantial criminal record.
This usually happens while you are in prison. DHA will generally not start the cancellation process until the last six months of your sentence. However, DHA can consider cancelling your visa at any time either while you are in prison or after you have been released.
DHA sends you a Notice of Intention to Consider Cancellation.
This Notice means DHA is considering cancelling your visa. No final decision has been made at this stage. You will be given a chance to tell the DHA why your visa should not be cancelled.
The Minister for Immigration and Citizenship can also cancel your visa. This means the Minister makes the decision personally and not an officer of DHA. The Minister will not follow the same process described here and there is no appeal to the AAT for this type of cancellation. You should get legal advice if the Minister is considering cancelling your visa.
DHA cancels your visa and sends you a Notice of Visa Cancellation.
This means a decision has been made to cancel your visa. You need to act quickly.
Important
The section of the Department of Home Affairs that deals with visa cancellation on character grounds is the National Character Consideration Centre (NCCC).
Applying to the Administrative Appeals Tribunal (AAT) to review the decision.
If your visa has been cancelled by DHA, you can apply for a review of the decision at the AAT. There are very strict time limits. You must apply for review within 9 days. To work out the exact date you must apply to the AAT see Calculating time limits section below.
The steps you will need to take are:
1. Complete an Application for Review of Decision Form. You can ask the AAT to send you this form. You can send it to the AAT by post or fax.
2. Prepare your documents. It is best to send with your application to the AAT a copy of:
It is important that you keep copies of everything you send to the AAT.
4. Seek legal advice or assistance. It is possible to represent yourself at the AAT but you can try to get some helpful tips from a lawyer beforehand. If you are not confident speaking English, you can also ask the AAT for an interpreter.
There is a very short and strict time limit to apply for a review to the AAT (9 days).
The time limit of 9 days is from the date you were deemed to be notified of the decision. It is important to know that this is not always the date that you received your Notice of Visa Cancellation or heard about it.
The amount of time you have to lodge your application depends on how you received the Notice of Visa Cancellation. It will depend on the date you are deemed to have been notified of the decision to cancel your visa. This may be different from the date on the Notice. An example of how to calculate time limits is in “Working out time limits” section of this page.
If the Notice of Visa Cancellation was posted to you:
If you received the Notice of Visa Cancellation by hand, fax, or email:
You cannot ask for extra time to make an application for review, unless there was something wrong with the Notice of Visa Cancellation itself or the way that you received it.
This does not happen very often but if you think it might have happened to you get legal advice immediately.
You will be given a File Number by the AAT when you lodge your Application for review. It will have the year when you lodged your application and another number – for example; 2011/1234. You should give your file number whenever you contact the AAT. This will make it easier for them to find out about your case.
After you have lodged your application, there are very strict time limits for you to provide more evidence or information to support your appeal. It is very difficult to get extensions. This is because the AAT must make a decision within 84 days of the date you are deemed to have been notified of the decision to cancel your visa. If the AAT does not make a decision within the 84 days, the decision to cancel your visa will automatically be “affirmed”. This means that the AAT will not be able to change DHA’s decision and your visa will remain cancelled.
The first thing that will happen is a directions hearing.
At the directions hearing, an officer of the AAT will:
The directions hearing will probably be held by telephone and is usually short. Sometimes there are legal issues that also need to be dealt with at the directions hearing. DHA will be represented by a lawyer at the AAT. You should get the contact details of DHA’s lawyer so that you can send your evidence to them.
At the directions hearing it is important for you to write down:
The final hearing is where the AAT will consider all the evidence. It is advisable to attend the hearing. You might be able to do this by telephone if you cannot go in person, but it is best to attend in person.
The AAT will either:
The AAT must make its decision within 84 days of the date you are deemed to have been notified of the decision.
Important tip
The AAT can provide an interpreter for you at the hearing. If you need an interpreter, contact the AAT (or ask someone else to contact the AAT for you) a few days before your hearing to make sure an interpreter is organised for you. You can also get an interpreter for any of your witnesses.
Evidence can be in the form of documents including statements, affidavits, letters of support, medical and other reports. It can also be the information you provided to DHA when you responded to the Notice to Consider Cancellation of your visa. You might have prepared a statement at the DHA stage, so there is no need to do another statement.
You must give all your evidence to the AAT and copies to DHA. This must be done no later than 2 working days before the hearing. If you do not give your evidence to the AAT and to DHA at least 2 working days before your hearing the AAT cannot look at it and take it into account.
A statement made by you or a witness should include the facts you want to tell the AAT, signed and dated at the end. You or any witness can also give evidence at the hearing.
If you or someone else wants to give evidence at the hearing, a statement or letter must be given to the AAT and DHA within the 2-day time limit. If a witness does not give a statement they cannot give evidence at the hearing.
Important tip
You must give the AAT and DHA all your evidence at least 2 working days before the hearing.
If you do not have a valid visa, you must be “removed” or deported as soon as possible. This means that if your visa is cancelled and you have completed the custodial part of your sentence, DHA can take steps to send you back to your country of citizenship. This means the country that issued you your passport. You can be removed even if you have not finished your parole period. However, if you have applied to the AAT, you cannot be removed until the AAT makes a decision.
If you have not applied to the AAT or the AAT has “affirmed” the decision to cancel your visa, there is usually nothing else you can do to remain in Australia. Sometimes you can go to court to challenge the decision of the AAT but this is very difficult to do.
If you are removed from Australia because your visa is cancelled, you will be taken to your country of citizenship. You may be given “post return support” which means that you might be given some money, some help with accommodation, transport and/or clothing costs. However, you will owe the Australian government money for your immigration detention and for the costs of your removal. Most importantly, you will never be able to return to Australia.
If the Notice of Intention to Cancel was dated 11 January 2011
And it was posted to you
Add 7 working days starting from the next day, 12 January
12, 13, 14, 17, 18, 19, 20 January
Then
Add another 28 days
21 January to 17 February 2011
So
Your response to a Notice dated 11 January 2011 is due 17 February 2011
If the date of the letter from DHA telling you your visa is cancelled is 7 March 2011
And it was posted to you
Add 7 working days starting from the next day, 8 March
8, 9, 10, 11, 14, 15, 16 March
Then
Add another 9 days
17 to 25 March 2011
So
Your application to the AAT is due 25 March 2011
Common Visa refusal reasons
You have a limited time to respond to a “Natural Justice Letter”.