Government investigating 457 visa fraud

The Coalition government has announced a crackdown on 457 visa fraud, with up to 100 employers to be investigated over allegations they sponsored applications in return for payment, Assistant Immigration Minister Michaelia Cash announced yesterday.

Senator Cash said the compliance campaign involved an "initial assessment" of the 100 sponsors, but also had an educational component — Work visa scams. Don't pay the price — targeting both employers and visa holders.

The Minister said sponsors identified as having failed to meet their obligations could face administrative sanctions, infringement notices, enforceable undertakings or Federal Court civil penalty applications.

"A business that sponsors a visa holder under false pretences may also be committing other offences, such as providing false or misleading information or engaging in misleading or deceptive conduct," she said.

"Visa holders who enter into contrived employment relationships for migration purposes may also be guilty of fraud related offences and/or not meet immigration requirements, including the genuineness criterion."

The Minister said a "small minority" of those involved in migration programs attempted to defraud them or did not abide by their obligations.

The immigration department already has a dob-in service that enables the public to report in person, online, or by phone, fax or mail.

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Significant Investor Visa (SIV) - Update

The table below shows statistics since commencement of the SIV on 24 November 2012 until 31 August 2014.

Item	Total
Expressions of Interest (EOI) submitted through SkillSelect	1650
Invitations to apply for a SIV issued as a result of applicants being nominated by a state or territory government	1382
Primary applications lodged	1172
Primary visas granted	386

As of 31 August 2014:

·         45.8 per cent of primary visa applications have been on hand for less than three months

·         AUD1.930 billion has been invested in Complying Investments

·         AUD3.055 billion is proposed to be invested in Complying Investments.

The table below shows the state and territory distribution of the SIV.

Significant Investor visa: State and territory distribution - 24 November 2012 - 31 August 2014

State	EOIs submitted	Invitations	Applications lodged	Visas granted
Any	39	N/A	N/A	N/A
ACT	4	0	0	0
NSW	550	431	380	146
NT	1	0	0	0
Qld	105	82	64	22
SA	41	35	24	9
Tas.	3	1	1	0
Vic.	846	783	663	193
WA	61	50	40	16
Total	1650	1382	1172	386

The table below shows the distribution of primary visa applications and visa grants for the top five source countries for the SIV.

Applicants for top five source countries	Percentage of total visa applications	Grants for top five source countries	Percentage of total visas granted
China	90.9	China	87.6
Hong Kong	3.1	Hong Kong	3.1
Malaysia	1.0	South Africa	1.6
South Africa	0.6	Japan	1.3
Taiwan	0.6	Malaysia	1.3

The table below shows the state and territory distribution of SIV for the 2013-2014 financial year.

Significant Investor Visa: State/territory distribution - 1 July 2013 – 30 June 2014

State	EOIs submitted	Invitations	Applications lodged	Visas granted
ANY	13	N/A	N/A	N/A
ACT	1	0	0	0
NSW	287	209	198	101
NT	0	0	0	0
Qld	54	36	33	19
SA	25	28	20	8
Tas.	1	1	1	0
Vic.	582	517	452	140
WA	29	24	18	14
Total	992	815	722	282

Last reviewed Friday 19 September 2014

Source: DIBP

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Trans-Tasman Visa Arrangement for 2015 Cricket World Cup

People travelling to Australia and New Zealand for the 2015 Cricket World Cup will only need to apply for one visa, as agreed by the Prime Ministers of Australia and New Zealand. This visa will be issued in accordance with Australia’s existing visa framework and will streamline procedures for genuine Cricket World Cup spectators and participants.​​​

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In February and March 2015, Australia and New Zealand will co-host the Cricket Worl​​​d Cup.​
Australia and New Zealand are working together closely to implement this new visa arrangement.

In the meantime, if you are planning to visit Australia and New Zealand now, or wish to apply now for visas to travel at a later date, you will still need to apply for two visas, one for each country.

If you are transiting through Australia, you may need to apply for a 'transit visa. Or, if you are transiting through New Zealand to reach your destination, you may need to apply for a New Zealand transit visa.

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Visas for offshore resources activities - (such as Oil, Gas and Mining industry)

On 16 July 2014, the Offshore Resources Activity (ORA) regulations were disallowed in the Senate. The ORA regulations prescribed the temporary visas that a non-citizen needed to engage in an offshore resources activity. They were:

• the Maritime Crew Visa (MCV) for a member of the crew of a non-military ship
• the subclass 400 visa or subclass 457 visa for non-citizens undertaking highly specialised work.

A non-citizen who was engaged in an offshore resources activity but did not hold one of the prescribed visas, or a permanent visa, would be in breach of their visa conditions.

The effect of the disallowance was that a non-citizen engaged in an offshore resources activity, or working on a resources installation, would be in breach of their visa conditions even if they held one of the three previously prescribed visas, and could not hold any other temporary visa.

This meant that that there was no longer a visa available to anyone seeking to work temporarily in Australia’s offshore oil and gas industry.

On 17 July 2014, the Assistant Minister for Immigration and Border Protection made a Determination under section 9A(6) of the Migration Act 1958 (“the Act"). The Determination exempts certain activities from the definition of “offshore resources activity” as provided by the Act.

The Determination means that non-citizens working on resources installations attached to the Australian seabed – which were already in the migration zone prior to 29 June 2014 – can continue to work in Australia in accordance with the conditions of their visa.

Non-citizens working on fixed structures – i.e. that cannot be moved as an entity from one place to another and are attached to the Australian seabed, cannot hold MCVs, as this is only valid for a member of the crew of a non-military ship. They may hold an appropriate temporary work visa, such as the subclass 457 visa or subclass 400 visa, or a permanent visa.

The Determination means that non-citizens aboard vessels (such as supply, heavy lift, dive support, pipe laying and seismic vessels) who were previously granted an MCV to engage in an offshore resources activity are not in breach of their visa conditions as a result of the disallowance.

Non-citizens aboard these vessels are now considered to be outside the migration zone, and do not need visas. For example, non-citizens aboard a vessel attaching an oil or gas pipeline to the Australian seabed do not need visas.

Non-citizens working aboard these vessels need valid visas if they enter the migration zone another way. For example, a non-citizen flying into an Australian airport en route to or from their vessel will need a valid visa to be immigration cleared.

Non-citizens aboard vessels that are considered to be resources installations when attached to the Australian seabed, such as floating production facilities, will also need valid visas.

The ORA regulations also amended the ceasing provisions of the MCV to prevent the work rights and validity of the MCV from ceasing if the vessel was deemed to be imported or entered for home consumption under the Customs Act 1901 but the vessel was not entered on the Australian International Shipping Register and the visa holder was engaged in an offshore resources activity.

As the ORA regulations have been disallowed, this no longer applies, and the previous ceasing provisions for the MCV have been restored.

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HIGH COURT decision - refusal of protection visa where "serious reasons for considering" applicant had committed serious non-political crimes

In FTZK v Minister for Immigration & Border Protection [2014] HCA 26 (27 June 2014) Article
1F(b) of the Refugees Convention excluded from the grant of refugee status a person of whom there were "serious reasons for considering" had committed serious non-political crimes.  In reviewing a decision to refuse a visa the Administrative Appeals Tribunal (AAT) referred to various factors that combined to satisfy it that there were serious reasons for considering the applicant had committed a crime in China.

An appeal to the Full Federal Court was dismissed but the appeal to the High Court allowed: French CJ with Gageler J; Hayne J; Crennan with Bell JJ.  The members generally concluded that most of the factors referred to were actions in Australia and had been referred to by the AAT as showing "consciousness of guilt" but were not logically probative of what had happened in China.

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HIGH COURT decision - whether designation of overseas processing centre 'proportional'

In Plaintiff v Minister for Immigration & Border Protection [2014] HCA 22 (18 June 2014) the High Court held s198AB of the Migration Act 1958 (Cth) (that authorised the Minister to designate another country as a regional processing centre for unauthorised maritime arrivals) was supported under the aliens power (Constitution s51(xix)).

The Court rejected a submission that legislation needed to satisfy a "proportionality test" to be supported by a power and be valid: French CJ, Hayne, Crennan, Kiefel, Bell and Kreane JJ jointly.  The Court observed it was not necessary to consider any other head of power. 

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Additional countries able to apply online for Subclass 600 visas (Tourist, Sponsored Family or Business visitor stream)

The Migration Regulations have been amended so the classes of people eligible to make online applications for Subclass 600 (Visitor) visas in the Tourist, Sponsored Family or Business visitor stream.

The additional countries able to make online applications are Angola, Anguilla, Armenia, Benin, Bermuda, Bosnia and Herzegovina, Botswana, Burkina Faso, Burundi, Cameroon, Cape Verde, the Cayman Islands, the Central African Republic, Chad, Comoros, the Democratic Republic of the Congo, the Republic of the Congo, Côte d’Ivoire, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, the Falkland Islands, Gabon, Gambia, Ghana, Gibraltar, Guinea, Guinea-Bissau, Kenya, Kosovo, Kyrgyzstan, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mauritius, Montserrat, Mozambique, Namibia, New Zealand, Niger, Nigeria, the Philippines, the Pitcairn Islands, Rwanda, Saint Helena, Ascension and Tristan da Cunha, Sao Tome and Principe, Senegal, the Seychelles, Sierra Leone, South Africa, the Republic of South Sudan, Swaziland, Tajikistan, Tanzania, Togo, Turkmenistan, the Turks and Caicos Islands, Uganda, Uzbekistan, the Virgin Islands, Zambia, and Zimbabwe.

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Carmichael Coal Mine and Rail Project - 457 visas?

 
Adani (an India based company) is set to develop a 60 million tonne (product) per annum (Mtpa) thermal coal mine in the north Galilee Basin approximately 160 kilometres (km) north-west of the town of Clermont, Central Queensland. All coal will be railed via a privately owned rail line connecting to the existing Aurizon rail infrastructure near Moranbah, and shipped through coal terminal facilities at the Port of Abbot Point and/or the Port of Hay Point (Dudgeon Point expansion). The Carmichael Coal Mine and Rail Project (the Project) will have an operating life of approximately 90 years.

The Project is comprised of two major components:

• A green field coal mine over EPC1690 and the eastern part of EPC1080, which includes both open cut and underground mining, on mine infrastructure and associated mine processing facilities (the Mine) and offsite infrastructure.

• A green field rail line connecting the Mine to the existing Goonyella Rail System to provide for export of coal via the Port of Abbot Point and/or the Port of Hay Point (Dudgeon Point expansion).

Export coal from this project will predominantly service the Indian market.

Only time will tell whether the project requires the recruitment of skilled workers via the subclass 457 visa program but based on other similar projects it seems highly likely. 

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Significant Investor Visa – twenty months on

On 24^th November 2012 the Australian government introduced the significant investor visa (SIV) to encourage foreign investment into Australia. 

Successful applicants receive a 4 year provisional subclass 188 visa after investing AUD$5 million into 'approved' investment funds (including ASIC approved funds, state government bonds and proprietary operating companies).

If the subclass 188 visa holder spends a cumulative total of 160 days  in Australia over 4 years it is then possible to apply for a subclass 888 permanent residency visa or extend the subclass 188 visa.

After an initial slow start, interest in this visa category has been growing steadily with applications currently outstripping grants. The first successful visa was granted in September last year and since then grants have been averaging at around 30 to 35 per month. 

Statistics recently made available disclose the majority of applicants for this class of visa come from China (72%), with strong interest from other countries such as Malaysia, the United States, Canada and the UK. Because of the volume of applications from China and the need to ensure the integrity of them, processing of these applications is done by a dedicated team working out of Hong Kong. All other applications are dealt with in Adelaide. 

These visas are attractive to high net worth individuals who, because of their business and lifestyle obligations cannot commit to spending long periods of time in any particular place. Although the qualifying criteria may seem to be straightforward enough, they are not easy visas to obtain. National interest issues and source of funds (that is, where did the applicant get the $5m funds which are to be invested) figure prominently in all applications, and anyone thinking of applying for this class of visa should seek legal advice before doing so.

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Update: 2014-2015 Commonwealth Budget Announcement; Family and Skilled Migration

Further to the recent 2014-2015 budget announcement, more detailed figures for the 2014-15 Migration Programme have been added to the Department's website.  The composition of the programme remains stable with the overall number of visas to be granted steady at the 2013-14 level of 190,000 overall.  The percentage of skilled migration visas to family visas also remains unchanged at 67.7% and 32% respectively.  Key points: -There has been some minor rearrangement in partner, child and parent visa numbers. Numbers for other family visas which include aged dependent, carer and remaining relatives have been reduced. -Within the skilled migration streams, 1000 places have been reallocated from the skilled independent stream to the employer sponsored categories. -State and Territory nominated numbers remain unchanged. -Business visa numbers also remain the same as for the previous year. These statistics are available on the Department's website at Migration Programme Statistics. Any questions related to the announcement or Australian immigration, please contact our specialist immigration team.

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2014-15 Budget Overview: Australia's Migration Programme; Migration programme size

2014-15 Migration programme size

The 2014-15 Migration Programme remains the same at 190,000 places and maintains the composition of:

-128,550 Skilled Stream places

-60,885 Family Stream place, and 

-565 Special Eligibility Stream places.

Nevett Ford will provide more details of the Budget measures as they emerge.

For any queries related to Australian immigration, please contact our specialist immigration team. 

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