Sydney public hearings for skilled worker programme inquiry

Federal Parliament’s Joint Standing Committee on Migration is set to hold public hearings in Sydney as part of its inquiry into the Business Innovation and Investment Programme (BIIP).

NSW also nominated 175 migrants for the Significant Investor Visa programme, which will represent a minimum of $262 million in new investment into the state if all are approved. The number of skilled migrants sponsored by NSW doubled in the past financial year.

The BIIP is designed to increase entrepreneurial talent and diversify business expertise in Australia.

Committee Chair Louise Markus said the Business Innovation and Investment Programme has the potential to generate a significant economic benefit to Australia.

“It is important that we encourage the creation of genuine and sustainable business opportunities benefiting both the Australian economy and workforce,” she said.

Details of the public hearings are as follows:

Date: Thursday, 12 June 2014

Location: Corinthian Room, SMC Conference and Function Centre, 66 Goulburn Street, Sydney

Program

9.00 am           Chambers of Commerce: roundtable

11.15 am          Migration Alliance Inc

1.00 pm           Mr John Findley

1.45 pm           Mr Christopher Levingston

2.45 pm           Financial Services and Funds Management Sector: roundtable

Date: Friday, 13 June 2014

Location: Corinthian Room, SMC Conference and Function Centre, 66 Goulburn Street, Sydney

Program

9.00 am           Migration Institute of Australia

9.45 am           Managing Global Migration Research Group

10.45 am          Australian Private Equity and Venture Capital Association

11.30 am          Immigration Solutions Lawyers

Members of the public are welcome to attend. For more details, visit the Committee’s website: http://www.aph.gov.au/mig

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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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Corporate Immigration Services

Nevett Ford Corporate Immigration provides a range of services designed to support business users of the 457 Visa Programme and other temporary and permanent employer sponsored visas. These services include applying for Business Sponsorship, establishing systems and processes to meet the Sponsorship Obligations, audit, compliance, risk management, training and advisory services and assistance negotiation and preparing on-hire labour agreement submissions.

We can also liaise with the Department of Immigration on behalf of businesses in relation to requests for information, monitoring activities, ‘Notices of Intention to Take Action’ or other requests.

Business Sponsorships

Nevett Ford can assist your business to apply for Business Sponsorship approval with the Department of Immigration

Becoming a sponsor is the first step to engaging overseas staff to work in Australia. In order to become registered as a sponsor, businesses must meet a number of criteria and agree to meet certain obligations for the duration of their sponsorship and beyond.

Our experienced team can advise on the Sponsorship Obligations your business must meet as a sponsor and provide expert assistance in establishing the necessary systems to manage the process.

Employer Sponsored Visas

Nevett Ford specialises in the delivery of all aspects of Employer Sponsored migration including Temporary Work (Skilled) Subclass 457 visas, Employer Nomination Scheme 186 Permanent Residency, and Regional Skilled Migration Scheme 187 Permanent Residency visas.

Compliance

We can provide guidance on how to ensure your business is complying with the on-going Sponsor Obligations which are imposed on all 457 Business Sponsors. Our experienced immigration lawyers who are all registered migration agents have conducted audits and reviews for numerous national and international businesses to ensure full compliance with immigration laws and regulations.

Training

We can provide tailored training on all aspects of Australian Immigration to meet your business needs. We can deliver training programs for Human Resource staff, line managers and visa holders. Nevett Ford Immigration is able to deliver face-to-face and online training programs to meet your business’s needs.

Risk Management

Our immigration lawyers can provide industry best-practice guidance on how to manage risk in the use of all Employer Sponsored visa programs. Our legal expertise and experience means that we have the knowledge to help your business identify and effectively manage all aspects of risk associated with use of the 457 visa program and other visa matters.

Audit

We provide Audit services for employers to ensure that all aspects of the ‘Business Sponsorship Obligations’ are being met, identify and advise on potential breaches and liaise with the Department of Immigration on behalf of the business where necessary.

Nevett Ford Immigration can complete one-off or regular audits of the visa holder population to minimise risk and eliminate potential issues.

Advisory services including Immigration Program Process Design & Improvement

Our extensive experience with a wide range of employers means that we can review your business’s Immigration policies and systems and ensure you comply with industry best practice. We can also provide employment law advice. Alternatively, for businesses accessing the immigration program for the first time we can prepare policies and systems to manage risk and meet the relevant obligations.

On-hire Labour Agreements

An on-hire labour agreement (OHLA) is a formal arrangement negotiated between an on-hire business (sometimes known as a labour hire business) and the Australian Government. It allows the business to

recruit skilled overseas workers on a temporary basis on Subclass 457 visas for occupations approved

under the agreement and then on-hire them to an end-user employer. Nevett Ford has extensive experience in this specialised area.

Employers requesting an OHLA are required to provide a comprehensive submission to the Australian Government, represented by the Department of Immigration. Nevett Ford can assist your business in preparing suitable submissions as well as advise you on the extensive supporting documentation that must be provided.

Businesses seeking access to an OHLA must only nominate occupations that are currently listed on the Consolidated Sponsored Occupations List (CSOL). They will also need to provide compelling and concrete evidence that there is genuine and significant demand for the nominated occupations and that this demand cannot be met from within the Australian labour market. The number of skilled overseas workers requested under the OHLA should represent a minor proportion of the business’ workforce.  The input of stakeholders in your industry is of key importance. Stakeholder consultation is a mandatory part of the labour agreement negotiation process and the Department of Immigration recommends that this is initiated as early as possible in the process of seeking access to overseas skilled workers.

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MRT - Migration Review Tribunal

The Department of Immigration and Border Protection (DIBP) does not always make the correct decision about a visa application and for many visas an appeal can be made to the Migration Review Tribunal (MRT). This is called ‘merits review’.  The MRT is able to look at the application again, including any new information or evidence in support of the application.

There are a number of reasons to recommend a review of a visa refusal by the MRT. The MRT is an independent body and separate to the DIBP.  The MRT employs an inquisitorial method of deciding applications where the tribunal member is able to take an active role in determining whether a decision to refuse a visa was correctly made. The MRT is not bound by formal rules of evidence or legal technicalities and importantly, it acts according to substantial justice and the merits of the case.

Powers of the MRT

If the MRT decides that a decision to refuse a visa was incorrect, it has the power to set the decision aside and to grant the visa application. This is relatively rare, however, and in most cases where a decision to refuse a visa was found to be incorrect the MRT will simply set aside the decision and ‘remit’ the decision back to the DIBP for reconsideration.

In making a decision with respect to the visa application the Department must take into account the directions of the MRT.

Types of decisions which are reviewable by the MRT

Decisions reviewable by the MRT include:

• If a visa application (other than an application for a protection visa) has been refused;
• The cancellation of a visa where the visa holder was in Australia;
• Refusal to revoke the cancellation of a visa if the person is in Australia;
• A determination on the points test for skilled migration visas, business sponsorships and nominations; and
• A determination on security bonds for bridging visas.

Time Limits

There are strict time limits for making applications to the MRT. The time limit will depend on the decision which is being challenged but for all decisions these time limits are relatively short. An application to the MRT can only be lodged beyond the time limit in very limited circumstances and failure to apply within the time limit may mean that the MRT will lose jurisdiction to review your case. Examples of common time limits for application to the MRT are:

• 2 days: for review of a decision to refuse a bridging visa or cancel a bridging visa or to review a decision about a security bond; and
• 7 days: for review of a decision to refuse a visa or cancel a visa or for a decision not to revoke a student visa.

The Process

After an application is lodged, the first stage of the process is that a member of the MRT will examine the documents to assess whether the Department has made an apparent mistake in refusing to grant the visa. You may be invited to provide written submissions to support your case. If there is no apparent mistake or reason for why the refusal should be overturned the member will seek further information from you or initiate any research that is deemed relevant. If there is nothing to suggest the refusal was incorrectly made the member will then move to have a hearing where the applicant will appear to give evidence and is able to tender any further written information or call witnesses. Following the hearing the member will make a decision on the application.

Legal Representation

Only a registered migration agent can represent you at the MRT. There are a number of reasons why professional assistance can increase your prospects of success. Your agent can assist with the presentation of your case and prepare written submission to support your case. 

The experienced team of immigration lawyers at Nevett Ford are all registered migration agents and specialize in migration regulations and policy.

If you have any queries in relation to the above, please do not hesitate to contact us directly.

 

 

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Partner Visas where a Divorce is not an Option

Lodgement of a partner visa in Australia can be very problematic for citizens of the Philippines and other countries where no civil divorce is available, until an annulment is obtained which is generally a very time consuming and expensive process.

However, after 12 months of being ‘ordinarily residents’ of Australia with a valid temporary visa, an application for divorce can be filed under the Family Law Act. The divorce may not be recognised in the Applicant’s country of origin but it will make the person free to marry in Australia.

http://www.federalcircuitcourt.gov.au/howdoi/html/applying_divorce.html

The judicial interpretation of “ordinarily resident” is that a person must be habitually or normally resident in Australia, apart from temporary or occasional absences of short or long duration.  The definition refers not only to the place where a person is, ‘taking into account their physical residence’, but also on the person's intention ‘to make that place their home’.

 
At Nevett Ford we have Accredited Specialists (as certified by the Law Institute of Victoria) in both family law and immigration law to help you achieve your migration goals.

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Biometric testing - immigration clearance, Scott Morrison MP

Travellers entering Australia will soon be checked to see if they have undeclared criminal convictions against a biometrics database before being allowed into Australia, Federal Minister for Immigration and Border Protection Scott Morrison announced this at the Biometrics Institute Asia Pacific conference in Sydney yrecently. Morrison told delegates that the government is investing $700 million over the next six years to modernise Australia’s border management system with specific vigilance on weeding out ex-convicts and people with links to terrorist groups.

It is expected that most travellers will sail through the immigration gates as the system aims at making processing quicker and easier for legitimate travellers. The aim is to have such travellers move through the automated immigration system in ‘less than a minute”.

The future traveller, Morrison said, would provide "border clearance information" as part of the check in process, before commencing their journey.

"The data will then be passed on to Australian agencies for assessment prior to arrival, and this data will be evaluated against security criteria and existing intelligence holdings, so that any risk to Australia's security is identified before arrival,” he said. This means the data will be evaluated against risk criteria such as criminal convictions and links to terrorist groups. A decision is thus made before the traveller arrives.

"The future traveller will then pass through streamlined, automated passport control systems that examine retained biometric data that is contained in the traveller's passport against the traveller upon physical presentation on the border,” said the Minister.

Only identities that generate an alert will need intervention from border protection officials, Morrison said.

"If the person is identified as a potential criminal or terrorist, the border protection officer will intervene and take the traveller to a separate zone for manual processing. If no risks are identified, it is anticipated that visitors will move through automated systems in less than a minute," said Morrison.

He added that e-passports and the SmartGate system, which was introduced in 2005, has “moved from strength to strength” and is now operating at all eight major Australian airports.

By 2016, more than 25 per cent of the 42.9 million passengers expected to pass through major airports in Australia will use the SmartGate system, he said.

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Potential new benefits for E-3 visa holders in the US

6 May 2014

The U.S. Department of Homeland Security announced a proposed rule that will provide some added benefits for E-3 visa holders.

What is an E-3 Visa?

It is a special category available only to Australian citizens. 

There are two basic requirements;  (1) job offer from a US company to work in a professional role; and (2) must hold a bachelor’s degree in a relevant field, or the work experience equivalent.

The proposed new changes to the E-3 category include:

1. E-3 visa added to the list of visa classifications that authorise classes of aliens authorised for employment status with a specific employer. The benefit of this new change would end hassles that E-3 visa holders sometimes encounter when trying to obtain US benefits such as a Social Security Number or a driver’s license

2. Add the E-3 visa to the list of work visas that are automatically granted up to 240 days of continued work authorization beyond the expiry of status while an extension request is pending.  The benefit of this change means there would be less pressure to file the extension request months before the expiry of status.

We will continue to monitor the proposed new rule and will advise of any changes once they become available from the U.S. Department of Homeland Security.

If you have any questions about these changes or US immigration, please contact our specialist US immigration team.

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