Posted on May 24, 2013 by Anne O'Donoghue (Director of News)

Anne O'Donoghue appears before the Senate Legal and Constitutional Affairs: 457 visa inquiry


ParliamentHouse_day.jpgThe Senate Legal and Constitutional Affairs conducted a Public Inquiry in regards to the role of 457 visas in the Australian workforce. The focus of the inquiry included, but was not limited to the following:

  1. Effectiveness of the current program in identifying skills shortages and whether there was a causal relationship with a decline in Australia’s national training effort
  2. Their accessibility and the criteria against which applications are assessed
  3. The process of listing occupations on the Consolidated Sponsored Occupations List and the monitoring of such processes
  4. Process of granting such visas and the monitoring of these processes, including the transparency and rigour of the processes
  5. Economic benefits of these visas
  6. Impact of the recent changes accounted by the Government
  7. Capacity of the system to ensure the enforcement of workplace rights

Immigration Solutions’ Principal Lawyer, Anne O’Donoghue, was invited, as one of three  epresentatives for the Law Council of Australia, to comment on the 457 visa and her particular expertise of the program in practice in front of the Senate committee yesterday (23rd May 2013). She appeared in conjunction with various leaders of industry in Australia, including representatives from the Australian Chamber of Commerce and Industry, various leading union members as well as representatives from the Department of Immigration and Citizenship.

This opportunity gave Immigration Solutions and Mrs O’Donoghue to present practical examples to the current benefits and limitations of the system in assisting the government with its current intention to refine the 457 program. There was general recognition regarding the importance of the 457 program in filling a targeted shortage of short-time skills in the Australian labour force with many leading industry representatives highlighting the many benefits of the current scheme.

This was an important instance in which the public discussion for the 457 program included practitioners, such as Mrs O’Donoghue, to contribute knowledge as to the practical realities of how the 457 program operates, to the debate in Canberra.

The Committee is due to report on its findings in early June.

 

The full transcript of the hearing  here. 

Posted on April 04, 2013 by Anne O'Donoghue (Director of News)

ISL Newsletter - April: The Target of Changes to the 457 Program sets 01 July 2013 as the Deadline

Much has been said, both by media commentators and by Parliamentarians, about the announcement in February by the Labor Government that a comprehensive “crackdown” on the 457 program will be implemented. The Government’s rhetoric stating that foreign workers are “stealing” Aussie jobs has been rampant in the media, drawing uncomfortable comparisons with the Australian Workers’ Union’s statements about the influx of migrants at the turn of the 20th century, when Australia was amidst the cornucopia of the White Australia Policy. Whatever view point one holds about the economic viability of such changes, the Government has since escaped providing concrete evidence supporting their claims.

The rhetoric, imagery and opinions surrounding this topic remain strongly versed. Recently however, it seems that the announcement of change has been cemented by the stipulation of definite changes to be introduced from the 01 July 2013, two and a half months before the Federal elections. These changes notably include:

  1. Change in the fee structure: from the 01 July 2013, changes to the processing fee of the 457 visa application will be introduced. Further, dependents that are included in the application will need to pay an additional charge for processing of their visa. 
  2. A requirement that the nominated position be a result of a genuine vacancy within the business.
  3. Heightened investigative powers delegated to case officers
  4. Clarifying that 457 workers may not be engaged in unintended employment relationships by requiring workers to be engaged on an employment contract (as opposed to a business contract for services) and not on-hired to an unrelated entity unless they are sponsored under a labour agreement, or in an exempt occupation. 
  5. Alignment of the English language requirement with the permanent Employer Nomination Scheme. Strengthening the English language requirements by removing exemptions for applicants from non-English speaking backgrounds who are nominated with a salary less than $92,000.   
    1. Imposing the new English requirement to those who have already been granted a visa if they choose to change employers or when applying for a new 457
    2.  Strengthening sponsor’s obligations to train Australian by introducing an ongoing and binding requirement to meet training requirements for the duration of their sponsorship
    3. Powers given to the Department to take action against sponsors who engage in discriminatory recruitment practices
    4. The Department has also proposed a new relationship with the Fair Work Ombudsman (FWO). The Department quotes that currently, there are only 34 inspectors to investigate sponsor’s compliance with their sponsorship obligations, both in terms of their treatment of their employees as well as in satisfying their obligation to train Australian workers. With the proposed involvement of the FWO, the number of inspectors will be raised to over 300. The Department notes that this “will send a strong signal to sponsors doing the wrong thing”.

The Federal Government has pointed to the significant growth in applications recorded in the 2011-2012 financial year, many from working holiday visa holders and those on student visas. The question was raised as to whether this was driven by a genuine skill shortage, that is, the purpose of the 457 visa, or by those that sought to take advantage of the system to ensure that they could remain in Australia. The Federal Government has stated that the purpose of the 457 is to meet the demands of the market. In order for the program to legitimately meet these ends, the existing ‘loopholes’ in the system must be rectified.

At present, it seems that the Federal Government wishes to retract the 457 system, curtailing its potential in the global market of talent, to a focus on its “true” purpose. In introducing a higher threshold for sponsors and a greater burden of proof to show that the nominated position is “genuine”, it is unclear whether this is for the benefit of the Australian market or targets the supposed parochial mandate of producing a truly Australian workforce. 

For further information regarding Visas as well as any general immigration queries, please feel free to contact Immigration Solutions Lawyers at (02) 9264 6432. 

Posted on April 04, 2013 by Anne O'Donoghue (Director of News)

Student Visas: Replacement of Automatic Cancellation with Discretionary System

The Department of Immigration is currently working towards replacing the automatic cancellation of student visas with a discretionary system that seeks to be fairer to individuals on student visas. Previously, the automatic cancellation of student visas (under s. 137J of the Migration Act) occurred when students failed to achieve the attendance or academic requirements in relation to their studies. The proposed discretionary system, which is intended to be implemented by the Department on the 13 April 2013, will take into consideration the context and student of each student before any decision regarding the cancellation of the impugned visa is reached.

The Department, in attempting to achieve this fairer process, intends to strengthen its collaboration with various education regulators in order to improve the communication of information and identify common priorities. The benefit of this new system will allow the Department to distinguish between those that came to Australia with no genuine intention to study and those students who do have a genuine desire to study in Australia but are struggling with their studies.

For further information regarding the above matter as well as any general immigration queries, please feel free to contact Immigration Solutions Lawyers at (02) 9264 6432. 

Posted on March 15, 2013 by Anne O'Donoghue (Director of News)

The 457 Debate

457 article pic.jpg

(Courtesy of smh.com.au)

On the 23rd of February 2013, the Labor Government’s newly appointed Minister for Immigration, Mr Brendan O’Connor announced proposed changes to the 457 program. Since his announcement, the purported merits and limitations of the program have dominated public discussion and debate. The Government’s proposed ‘crackdown’ of the system comes in a sudden fashion and is currently, clouded with uncertainty with the Minister failing to specify what areas of the program will be affected.

The Government is contending that the 457 program is becoming ‘rorted’, allowing foreign workers to be placed “at the front of the queue”. Gillard and Mr. O’Connor have perpetuated a “Aussie jobs first” mantra, mirroring the demands put forward by Union leaders, in their recent excursions to Western Sydney as part of the campaign trail.

In response, the Opposition has highlighted how the Government has not supported its claims with any evidence. Scott Morrison, the Opposition immigration spokesman has highlighted the fact that the high number of 457 grants Labor is attempting to curtail is a result of their own policy.

Academics and notable demographers have continued to support the merits of the 457 program. Whilst conceding that at the margins, the system may be subject to abuse, ANU Professor, Peter McDonald, has pointed out that the 457 scheme is the “centrepiece” of our skilled migration program. Professor McDonald sits on the government’s Ministerial Advisory Council on Skilled Migration and has rejected the Government’s contention that the 457 system is “out of control”; warning that the rhetoric perpetuated recently by the Government has the potential to undermine the integrity of the whole system.

It is important to identify that the discussion of the 457 program has become tangled in the rhetoric regarding asylum seekers, despite both raising substantially different issues. For example, the Healthcare system is one industry where 457s provide an important source of skilled labour for critical services. The Productivity Commission has noted that there are currently shortages of GPs in rural and regional areas. Given the importance of the 457 in filling this temporary skilled shortage, essential services, such as health care, will be severely impacted.

The attempt by the Gillard government to entrench the ‘Us vs Them’ mentality in Western Sydney has centred the discourse of the pre-campaign campaign as one where Labor is the defender of the Aussie Job. On the other hand, the Opposition’s attempt to highlight the intertwined relationship between Labor and the Unions circumvents the key issue at stake, that is, the economic and social consequences of undermining a system that continues to be critical to Australia’s skilled labour force.

 

Posted on March 01, 2013 by Anne O'Donoghue (Director of News)

Same Sex Relationships

 

Same-Sex Partners: Background to the Debate
The issue of same-sex relationships has become one of the key issues of the past decade in Australia and around the world. It exposes an anomaly whereby the legal framework that underpins the moral and ethical centre of a particular society, continues to support a hierarchical (and ultimately discriminatory) model of categorising relationships based on the sex of the two individuals. 
The language of ‘marriage’ in law continues to be extremely problematic given the growing question surrounding the relevance of religion in society. Many members of society, who are deeply religious, view legislative proposals in favour of recognising same-sex marriages, as posing a direct threat to the traditional ‘family’.  The strength of this opposition has been clearly demonstrated in the difficulties faced by legislators in their attempt to expand the legal definition of ‘marriage’, especially in the United States. 
In February 2013, the Australian Greens introduced the Marriage Equality Bill 2010 which is already in the Senate. However, the success of this bill has been questioned given the current Prime Minister’s opposition to same-sex marriage and Tony Abbott, the current Opposition leader’s refusal to allow a conscience vote on the matter in the House. 
The reluctance of Australia’s legislators is in stark contrast to many other countries around the world that have already legalised same-sex marriage. This includes Argentina, Belgium, Denmark, Iceland, Netherlands, Norway, Portugal, Spain, South Africa and Sweden. Notably also, President Obama in his second inaugural address highlighted the issue of same-sex marriage as a policy prerogative for his second White House term and as a defining issue of this generation. Further, a Galaxy Poll conducted late in 2012 show that an overwhelming majority, 64% of Australians surveyed support gay marriage and of Coalition supporters, 54% support gay marriage. The positioning of public opinion in this respect exacerbates the disjuncture between the legislative goals of Parliament and the constituents whom they represent. 
 
CURRENT IMMIGRATION SYSTEM: How it affects partners in a same-sex relationship
Until 1991, the only visa available to an Australian’s partner was the Spouse Visa (or Prospective Marriage Visa). The definition of ‘spouse’ actively excluded same-sex partner and it continues to do so in the present day. 
Same-sex couples however are now eligible to apply for Partner visas based on the recognition of their relationship as a ‘de facto’ relationship. This change in the migration regulations occurred on the 01 July 2009. In order to do this, the applicant needs to prove that they are in a genuine and continuing relationship with an Australian citizen or Australian permanent resident. 
Secondly, the regulatory changes have affected who can be included as a secondary applicant in the sponsored 457 Program and Employer Nomination Schemes. Previously, when one member of a family obtains a work visa or a temporary resident visa, the same-sex partner does not quality as a ‘spouse’. However, now, the same-sex partner is now capable of being included as a secondary applicant provided that they can show that their de facto relationship is genuine. 
As suggested by the term ‘genuine’, the evidentiary threshold set by the Department, whilst guided by policy, is ultimately discretionary. Therefore, in order to ensure that your application has the best chances of proving to the decision-maker that your relationship satisfies these legal requirements, it is important to consult a migration lawyer and seek clarification as to how the partner visa is granted.
Immigration Solutions has had extensive experience in issues relating to same-sex partner visas. For an illustration of our results relating to partner visas, please click visit our blog site here: http://www.immigrationsolutions.com.au/cases/820-Onshore-Spouse-and-De-Facto-Relationship/
For summaries of ISL’s cases, please visit our website here: http://www.immigrationsolutions.com.au/cases/820-Onshore-Spouse-and-De-Facto-Relationship/ 
For further information regarding Visas as well as any general immigration queries, please feel free to contact Immigration Solutions Lawyers at (02) 9264 6432. 

 

same sex.jpg

Same-Sex Partners: Background to the Debate 

The issue of same-sex relationships has become one of the key issues of the past decade in Australia and around the world. It exposes an anomaly whereby the legal framework that underpins the moral and ethical centre of a particular society, continues to support a hierarchical (and ultimately discriminatory) model of categorising relationships based on the sex of the two individuals.

The language of ‘marriage’ in law continues to be extremely problematic given the growing question surrounding the relevance of religion in society. Many members of society, who are deeply religious, view legislative proposals in favour of recognising same-sex marriages, as posing a direct threat to the traditional ‘family’.  The strength of this opposition has been clearly demonstrated in the difficulties faced by legislators in their attempt to expand the legal definition of ‘marriage’, especially in the United States.

In February 2013, the Australian Greens introduced the Marriage Equality Bill 2010 which is already in the Senate. However, the success of this bill has been questioned given the current Prime Minister’s opposition to same-sex marriage and Tony Abbott, the current Opposition leader’s refusal to allow a conscience vote on the matter in the House.

The reluctance of Australia’s legislators is in stark contrast to many other countries around the world that have already legalised same-sex marriage. This includes Argentina, Belgium, Denmark, Iceland, Netherlands, Norway, Portugal, Spain, South Africa and Sweden. Notably also, President Obama in his second inaugural address highlighted the issue of same-sex marriage as a policy prerogative for his second White House term and as a defining issue of this generation. Further, a Galaxy Poll conducted late in 2012 show that an overwhelming majority, 64% of Australians surveyed support gay marriage and of Coalition supporters, 54% support gay marriage. The positioning of public opinion in this respect exacerbates the disjuncture between the legislative goals of Parliament and the constituents whom they represent.

 

CURRENT IMMIGRATION SYSTEM: How it affects partners in a same-sex relationship 

Until 1991, the only visa available to an Australian’s partner was the Spouse Visa (or Prospective Marriage Visa). The definition of ‘spouse’ actively excluded same-sex partner and it continues to do so in the present day.

Same-sex couples however are now eligible to apply for Partner visas based on the recognition of their relationship as a ‘de facto’ relationship. This change in the migration regulations occurred on the 01 July 2009. In order to do this, the applicant needs to prove that they are in a genuine and continuing relationship with an Australian citizen or Australian permanent resident.

Secondly, the regulatory changes have affected who can be included as a secondary applicant in the sponsored 457 Program and Employer Nomination Schemes. Previously, when one member of a family obtains a work visa or a temporary resident visa, the same-sex partner does not quality as a ‘spouse’. However, now, the same-sex partner is now capable of being included as a secondary applicant provided that they can show that their de facto relationship is genuine.

As suggested by the term ‘genuine’, the evidentiary threshold set by the Department, whilst guided by policy, is ultimately discretionary. Therefore, in order to ensure that your application has the best chances of proving to the decision-maker that your relationship satisfies these legal requirements, it is important to consult a migration lawyer and seek clarification as to how the partner visa is granted.

 

Immigration Solutions has had extensive experience in issues relating to same-sex partner visas. For an illustration of our results relating to partner visas, please click visit our blog site here: http://www.immigrationsolutions.com.au/cases/820-Onshore-Spouse-and-De-Facto-Relationship/ 

For summaries of ISL’s cases, please visit our website here: http://www.immigrationsolutions.com.au/cases/820-Onshore-Spouse-and-De-Facto-Relationship/

For further information regarding Visas as well as any general immigration queries, please feel free to contact Immigration Solutions Lawyers at (02) 9264 6432. 

 

 

Posted on March 01, 2013 by Anne O'Donoghue (Director of News)

Unlawful Partners

partner visa.jpg

 

Australia’s migration scheme allows for partners of Australian citizens to apply for either a temporary visa or a permanent visa so that the couple is able to both reside lawfully in Australia. This includes spouses and partners who are in a de-facto relationship. Further, Australia legally recognises both heterosexual relationships and since 01 July 2009, same-sex relationships.

However, relationships between Australian citizens and non-citizens, who no longer hold a valid visa in Australia, may present significant challenges to these affected individuals. In these circumstances, often both parties are unclear as to the consequences of the partner continuing to reside in Australia and believe that there are minimal options for possible. This serves to further exacerbate the emotional sensitivities and uncertainties associated with their situation.

It is important firstly to be aware of the conditions that the Department of Immigration may impose:

  1. The partner may not hold an eligible visa that allows them to remain in Austraila.
  2. The partner may not hold a substantive visa (that is, they are currently on a Bridging Visa).
  3. The partner’s current visa may have a condition attached to it, which does not allow a further visa application to be lodged whilst the partner is in Australia, for example: the 8503 condition.

If any of the above applies to you, it must be recognised that options for residency are available.

The most important threshold that must be met is for the applicant and their Australian citizen or permanent resident partner to establish that their relationship is genuine.

Secondly, lodging a visa application is possible for partner’s whose last substantive visa has expired within the last 28 days. After 28 days, a visa application continues to be possible provided that the applicant establish ‘compassionate or compelling circumstances’. This must also be proven if the applicant is legally barred, as part of their visa condition, to lodge a visa application whilst still remaining in Australia.

As suggested by the terms ‘genuine’ and ‘compassionate or compelling circumstances’, the evidentiary threshold set by the Department, whilst guided by policy, is ultimately discretionary. Therefore, in order to ensure that your application has the best chances of proving to the decision-maker that your relationship satisfies these legal requirements, it is important to consult a migration lawyer and seek clarification as to how the partner visa is granted.

 

Immigration Solutions has had extensive experience in issues relating to unlawful partners. For an illustration of our results relating to partner visas, please click visit our blog site here: http://www.islnews.net/partner-visas-form-part-of/ 

For summaries of ISL’s cases, please visit our website here: http://www.immigrationsolutions.com.au/cases/820-Onshore-Spouse-and-De-Facto-Relationship/

For summaries of ISL’s cases regarding the ‘No Further Stay’ Condition, please visit our website here: http://www.immigrationsolutions.com.au/cases/Waiver-of-No-Further-Stay-Condition/

 

For further information regarding Visas as well as any general immigration queries, please feel free to contact Immigration Solutions Lawyers at (02) 9264 6432.

 

Posted on February 28, 2013 by Anne O'Donoghue (Director of News)

Proposed Changes to the 457 Program

 

The Federal Labor Government has recently announced proposed changes to the 457 program. The newly appointed Minister for Immigration, Brendan O’Connor, has announced a tightening of the program, proposing to introduce a more stringent test on how a ‘genuine skills shortage’ is demonstrated in the 457 application as well as higher English level requirement. Further, a review of the Schedule 2 Occupation List will occur, which may potentially affect applicants wishing to apply under specific occupations. The construction industry has been especially identified as an industry that may be significantly affected by these changes.

The Minister’s intention is to close a loophole whereby, currently, businesses are able to sponsor foreign skilled workers to an area where it is contended that local skilled workers are available. The ostensible aim of this reform is to strengthen the Government’s protection of Australian jobs.

Following the Labor Government’s announcement on the 23rd February, considerable industry backlash has been voiced, expressing concern as to the impact these changes will affect regions where severe skill shortages are evident and small businesses struggling to attract necessary talent. The Minister’s Advisory Committee on Skilled Migration has noted that Australia’s current unemployment rate (5.5%) means that there is a very tight labour market.

The proposed changes foreshadows the indexing of the ‘Temporary Skilled Migration Income Threshold’ (TSMIT) and the possibility of an increase in the application fees for the 457 program in the new financial year on 01 July 2013. The TSMIT is expected to be raised from its current level at $51,400 and will affect all nomination applications decided on or after this date, irrespective of the time of lodgement of the nomination application. Currently, the 457 program cumulatively costs: $960 (Visa: $455, Nomination: $85; Sponsorship: $420).

As a valued client of our firm, we recommend that you plan to lodge your 457 application before the 01 July 2013 to ensure that you and your company are not adversely affected by the proposed changes.

 

If you require further information regarding the 457 program or would like to book a consultation with Ms Anne O’Donoghue, please do not hesitate to contact our offices on (02) 9264 6432.  

 

Posted on February 26, 2013 by Anne O'Donoghue (Director of News)

March 2013 Newsletter - Temporary Work (Entertainment) (Subclass 420) Visa

This visa is designed for foreign workers in the entertainment industry who wish to come to Australia to enhance our cultural appreciation for the arts.

On the 24th November, the previous Media and Film Staff (Subclass 423) visa was changed into the Temporary Work (Entertainment) (Subclass 420) visa. The applicant’s proposed role must be classified into one of the following categories:

  1. Performer in a film or television production
  2. Performance in productions not related to film or television
  3. Production role other than a performer
  4. Support staff
    1. This includes performing support staff and non-performing personnel such as acting/singing coaches, hairdressers, dressers and make-up artists.

The application process for this visa is in three stages:

  1. Sponsorship
  2. Nomination
  3. Visa Application

Briefly, the process for applying for this visa is outlined below.

Sponsorship

Potential sponsors must show firstly, that they have the requisite licences necessary for the work to which the visa applicant is nominated for. The sponsor is also required to consult the relevant Australian union as to the employment or engagement of the visa applicant in Australia. Evidence of consultation must be provided in the sponsorship application. Further, the sponsor must show how the engagement of the visa applicant will assist in developing the entertainment industry in Australia.  

Nomination

The nomination application identifies the position to be filled, the skills and experience required for the position and the person who has been nominated to fill the position.

Visa Application

The visa applicant must be financially capable of supporting themselves during their stay in Australia. As well as this, the applicant must meet health and character requirements as set out by DIAC and have adequate health insurance covering the term of their stay.

 

For further information regarding Visas as well as any general immigration queries, please feel free to contact Immigration Solutions Lawyers at (02) 9264 6432.

 

Posted on February 21, 2013 by Anne O'Donoghue (Director of News)

ISL Statistics: Partner Visas

Partner Visas form part of Australia's Family Migration Stream and allow non-citizens to enter and remain in Australia on the basis of their spouse or de facto relationship (both opposite and same-sex) with an Australian citizen or an Australian permanent resident. 

All partner visas involve an assessment as to whether the relationship is 'genuine and continuing'. 

ISL is aware that partner visas are especially challenging for all parties involved. Our experience lies in handling complex matters with various extraneous circumstances such as:

1. Situations where "no further stay" conditions have been imposed on the potential applicant (This includes Conditions 8503, 8534)

2. Schedule 3 Arguments: where the applicant is uncurrently an unlawful non-citizen or the applicant is currently a Bridging Visa holder

3. Sponsorship limitation waivers

4. Character issues associated with the applicant.

 

ISL's expertise is therefore comprehensive in the area of Partner visas. Below are our statistics regarding ISL's success rates as well as our experience with complex matters, such as those enumerated above.

To view examples of notable cases handled by ISL, please click here.  

partner state.jpgBelow are ISL's success rates with various circumstantial factors that were associated with the partner visa applications. 

2012 new stat.jpg*Please note that these arguments were submitted as part of lodged partner visa applications in 2012. Currently, the outcome of these matters are still pending and are awaiting a decision from the Department. 

2011 stat.jpg2010 stat.jpg 

If you would like more information regarding partner visas, please contact Immigration Solutions Lawyers at (02) 9264 6432.

NB: For Statistical Clarity, it should be noted that Immigration Solutions is a boutique specialist immigration law firm. As such, the number of matters handled by ISL are of a much smaller volume than the Department's. 

The Department of Immigration's figures provided above was tabulated by the information released by DIAC in its Annual Reports and the statistical publications publicly available on its website. 

 

Posted on February 14, 2013 by Anne O'Donoghue (Director of News)

ISL's Statistics: Business Visas - 457 Program

The Subclass 457 Program is designed to allow foreign skilled workers to be sponsored by an Australian business to work in Australia on a temporary basis. It involves three steps: the sponsorship, nomination and application process. ISL has extensive experience in business skilled migration, with successful outcomes for both well-established business as well as start-up businesses.

To view examples of notable matters handled by ISL, please click here.

Below is a comparison of ISL's record with the Department's statistics on the rate of successful outcomes.

 

457 stat.jpg

 

If you would like more information regarding the 457 visa program, please contact Immigration Solutions Lawyers at (02) 9264 6432.

NB: It is calculated that the Department processed 60,000 457 visa applications in the last financial year alone. For statistical clarity, it should be noted that Immigration Solutions is a boutique specialist immigration law firm. As such, the number of matters handled by ISL are of a much smaller volume that the Department's.

The Department of Immigration's figures provided above was tabulated by the information released by DIAC in its Annual Reports and the statistical publications publicly available on its website.