by Paul Cutler | Feb 24, 2016 | Uncategorized
Compare the following:
The DIBP policy manual (called PAMS3) was updated in November 2015 to try and preclude applicants from applying for “self sponsored” 457 visas.
Position created to secure a migration outcome (PAM3: Genuine Position)
The intent of the 457 program is to enable Australian businesses to temporarily fill short term skill shortages with overseas workers when they cannot find a suitably qualified or experienced Australian citizen or permanent resident to fill the position. The program is not intended to be used for non-citizens to establish a business in Australia and self-sponsor themselves; there are other visa pathways available for such purposes
and on the other hand
The comments of Vasta J in He v Minister [2015] FCCA 2915 at [30]:
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The real question is whether the policy itself goes beyond what is in the statute.
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To my mind, the policy does go beyond what is in the clause. There are no qualifications upon the term “assets”. There are no qualifications upon the term “in the main business”. While the policy may spell out how the Department wishes to interpret this clause, such is not reflected in the plain words of the cause itself.
So what we have here is change in policy, but not a change in the law. It will be interesting to see if any self-sponsorship cases make it to the courts.
by Paul Cutler | Dec 10, 2015 | Uncategorized
This week the government released its National Innovation and Science Agenda Report.
One of the recommendations includes:
We will bring entrepreneurs and other innovative talent to Australia by:
- Introducing a new Entrepreneurs Visa for up and coming entrepreneurial talent;
- Actively seeking out and encouraging talented individuals to come to Australia, using existing Government overseas networks; and
- Enhancing pathways to permanent residency for high quality STEM and ICT post-graduate students.
Apparently changes are 12 months away….but watch this space.
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by Paul Cutler | Nov 30, 2015 | Uncategorized
The Migration Amendment (Charging for a Migration Outcome) Act 2015 came into effect today (30 Nov 2015).
The legislation introduces a new criminal and civil penalty regime that will make it unlawful for a person to ask for, receive, offer or provide payment or other benefits in return for a range of sponsorship-related events.
The Bill also allows visa cancellation to be considered where the visa holder has engaged ‘Payment for Visas’ conduct.
It will be a criminal offence for a sponsor or other third party to ask for or receive a benefit from a sponsorship related event and will be punishable by a maximum of 2 years imprisonment or a fine equivalent to $64,000 for an individual person or $324,000 for a body corporate.
Civil penalties applicable to the sponsor, visa applicant or other third party who received or provides or offers a benefit related to a sponsorship related offence will equate to $43,200 for an individual person or $216.000 for a body corporate.
A discretionary power to consider cancellation of visas where any person who engages in this conduct will also be introduced.
I acknowledge the assistance of the MIA for providing this information in their notice to members today.
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by Paul Cutler | Oct 7, 2015 | Uncategorized
On 22 September 2015 the Assistant Minister set a cap for offshore General Skilled Migration (GSM) visas. The following offshore General Skilled Migration (GSM) visas are affected:
- Skilled Independent (subclass 175)
- Skilled Sponsored (subclass 176)
- Skilled Regional Sponsored (subclass 475).
The cap sets the maximum number of places that can be granted in the 2015–16 financial year for these visa subclasses. This total has already been reached. Therefore, applications for these visas that were not finalised before 22 September 2015 are taken not to have been made and the relevant visa application charge will be repaid to affected applicants.
This means that applicants who have been waiting for years are only entitled to a refund. The MIA has corresponded with DIBP and received the following response:
It is understandable that many offshore clients will be unhappy with the outcome. The Government has determined that it is unfair to keep them waiting in the queue and we have taken action accordingly.
Having taken into account the High Court’s judgment in Plaintiff S297/2013 v Minister for Immigration and Border Protection & Anor [2014] HCA 24 and Plaintiff M150 v Minister for Immigration and Border Protection & Anor [2014] HCA 26 we remain of the view that Ministerial Determination IMMI 15/112 is validly made.
….now there’s customer service for you.
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by Paul Cutler | Aug 24, 2015 | Uncategorized
A recent Full Federal Court case has clarified whether living together is required as a pre-requisite to be being a de facto relationship. The answer is that living together is not necessary.In SZOXP v Minister for Immigration and Border Protection
[2015] FCAFC 69 the court looked at the meaning of Migration Regulation 5CB(2)(c) which provides a definition of de facto which includes:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
The case is quite interesting to read because it sets out a lot of legislative and other history about the requirements of a relationship. The conclusion reached was:
- The appellant’s construction of s 5CB of the Migration Act, which does not require that the parties physically reside in the same premises prior to the application, is supported by the plain meaning of the section. It is consistent with other provisions of the Migration Act, notably the definition of spouse in s 5F. It avoids the ambiguities and the difficulties associated with an implication of the additional words into s 5CB(2)(c)(ii) sought by the Minister. It is supported by the section’s legislative history. And it is supported by the well hallowed meaning of the phrase “living separately and apart” as that phrase had been established at the time the section and its predecessors were enacted.
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by Paul Cutler | Jul 2, 2015 | Uncategorized
There were a number of major changes to migration related matters which occurred on 1 July 2015. Two of the most significant were:
BORDER FORCE
As part of the amalgamation of the Department of Customs and the Department of Immigration and Border Protection which came into effect on 1 July. Amongst other things, this means that the DIBP has a new website: www.border.gov.au (which will replace the old immi.gov.au site which has been around for as long as I can remember)
REVIEW TRIBUNALS
The amalgamation of the Administrative Appeals Tribunal, the Social Security Appeals Tribunal and the Migration Review Tribunal Refugee Review Tribunal was merged into a single body, the Administrative Appeals Tribunal.The amalgamated Tribunal promotes accessibility of review by simplifying the merits review system and providing a single point of contact for Tribunal users. Key services of each of the amalgamated tribunals will be retained, while allowing for greater sharing and utilisation of members’ specialist expertise. See the press release for more information.
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