CLIENT ALERT
“Keep Calm, and Carry On. It is nearly the Christmas Holidays!”
— Unknown
Despite the myriad of changes and uncertainty within the portfolio, The Australian Government and Department of Immigration and Border Protection (the Department) has released another set of changes to the Australian Immigration program.
These changes include:
- Partner and Prospective Marriage visas;
- Parent visas;
- Review of the Short-term Skilled Occupation List (STSOL) and Medium and Long-term Strategic Skills List (MLTSSL);
- Subclass 457 Labour market testing;
- Subclass 457 Health insurance requirements;
- Clarification on the new Health Debt visa condition;
- 187 Regional Sponsored Migration Scheme and 186 Employer Nomination Scheme Processing times; and
- Bridging Visa E.
Partner and Prospective Marriage visas
From 18 November 2017 all new Partner and Prospective Marriage Visa (PMV) applications:
- must be lodged online; and
- Paper applications received after close of business 17 November 2017 at any office of the Department, Service Delivery Partner, overseas embassy or High Commission will be invalid.
For Partner and PMV applications lodged before but not finalised or lodged after 18 November 2017:
- Undocumented or poorly documented applications lodged by Registered Migration Agents (‘RMA’) – e.g. applications that only meet the basic Schedule 1 requirements for lodging a valid application – may be refused without notice and without requests for further information.
- Where natural justice letters have been sent, no follow up or subsequent reminders will be sent. The Department will decide the application on the information before it, unless an extension of time has been requested and granted.
- For applications lodged prior to 18 November 2017, the Department will provide only ONE opportunity to submit additional information and/or documents or respond to a natural justice letter.
And finally, some good news…
- The Department has indicated that it will prioritise well documented and low risk applications in 2017 – 2018.
- AAT applications will also be remitted to one central office to speed up processing.
What this means for you?
This highlights the importance of lodging complete and ‘decision-ready’ applications, which necessitates that all required documents are provided at the time of lodgement. This may result in your application being put in the priority processing queue, thereby resulting in shorter processing times and lower chances of receiving a ‘request for further information’.
Furthermore, it signals the Department’s intention to close or at least more closely police the loophole where applicants submit Partner and PMV applications with the bare minimum documentation required for lodgement under the expectation that it can take 1 – 2 years for the Department to allocate the application to a case officer who will then request the outstanding documentation. This can be for a number of reasons: to extend the applicant’s stay in Australia before an upcoming visa expiry; to obtain work rights in Australia; and to wind down the clock of the lengthy processing times while gathering documents and evidence.
Even prior to this announcement, there have been reported cases where incomplete applications were refused by the Department without prior notice. Furthermore, there is a chance that the Department (although we are not suggesting this is Departmental policy or practice) may even review applications that are obviously incomplete much earlier than expected to refuse these applications and clear out their application backlog.
Therefore, it is important to lodge complete and decision-ready applications, and if not possible, to be super vigilant in providing the outstanding documents as soon as possible.
Furthermore, the removal of reminders for natural justice letters highlights the importance for RMAs and applicants to be on top of the relevant deadlines to ensure that all requested information and documents are provided on time.
Parent visa
From 18 November 2017, Parent visas:
- Can no longer be lodged in person at any office of the Department; and
- Must be posted or couriered.
What this means for you?
Although it may seem like a minor change, it is important to be aware of the legal requirement for lodgement as it can mean the difference between a valid and invalid application. This will not only save you time but may have other implications for your current visa status or future visa applications, such as whether you will be granted a Bridging Visa to remain in Australia while your application is being processed.
Short-term Skilled Occupation List (STSOL) and Medium and Long-term Strategic Skills List (MLTSSL)
As you may be aware, in April 2017, the Australian government announced changes to the occupations lists. This was split between the Short-term Skilled Occupation List (STSOL) and Medium and Long-term Strategic Skills List (MLTSSL). The government indicated that these lists would be reviewed every 6 months, with the first review being in July 2017.
With the expected next review date in December 2017 fast approaching, the Australian government has announced that due to substantial changes to the occupation lists in April and July 2017, there will be no proposed changes to the MLTSSL at this time.
However, the Australian government has invited stakeholders to provided evidence and feedback in relation to proposed changes to the STSOL during the public consultation open until 1 December 2017. We will be providing feedback to the Australian government on these proposed changes to assist those clients who are struggle with the labour market.
The current proposed changes to STSOL for January 2018 are:
Possible removal from STSOL:
- Accommodation and Hospitality Managers nec
- Hair or Beauty Salon Manager
- Recruitment Consultant
- Building Associate
Possible addition to STSOL:
- University Tutor
- Psychotherapist
- Property Manager
- Real Estate Agent
- Real Estate Representative
What this means for you?
This is good news for anyone who is the process of or planning to apply for a visa under an occupation on the MLTSSL as it means that there should be no changes until March 2018. However, in recent times, there has been a clear trend of the Australian Government making significant changes often unexpectedly and with no prior notice, so it is highly recommended that you put in your application as soon as possible.
Furthermore, if you believe you are affected by the proposed changes to the STSOL and/or have any evidence or input regarding the current lists, and/or wish to make a submission to the Department, please contact us for further information.
Subclass 457 Labour market testing
In October 2016, the governments of Singapore and Australia agreed to amend the Singapore and Australia Free Trade Agreement (‘SAFTA’). When the amended SAFTA comes into force (expected to be 1 December 2017), Singaporeans will be exempted from Labour market testing (LMT) under the subclass 457 visa program. The commencement date of the amended SAFTA will be available on the website of the Department of Foreign Affairs and Trade in due course.
What this means for you?
Once the amended SAFTA comes into force (expected 1 December 2017), we will be eagerly awaiting the relevant legislative instruments and Departmental policy to confirm how this change will be implemented to the 457 program.
However currently intra-company transferees from associated entities in ASEAN countries including Singapore are already exempt from LMT. Therefore it is anticipated that will be extended to all Singapore passport holders.
Subclass 457 Health insurance requirements
For subclass 457 visa applications lodged after or before and not finalized by 18 November 2017:
- documentary evidence of health insurance coverage will no longer be required; and
- Applicants will simply be required to indicate, as part of their online application form, that they have made adequate arrangements for health insurance for their intended period of stay in Australia.
This finally solves the ‘catch-22’ situation of the health insurance policy being required for the grant of the visa, but the arrival date being unknown until the 457 has been finalised (which can be anywhere from 1 week to 10 months. Some insurers provide a work-around to this by offering policies that only commence upon “arrival in Australia’ however most required pre-payment of at least one-month premium.
However please ensure that you apply for Medicare (if eligible) or obtain adequate private insurance as soon as you arrive to ensure that you abide by visa condition 8501, as a breach of visa conditions can affect your current visa status and future visa applications.
Clarification on the new Health Debt visa condition
Further to our newsletter on 16 November 2017, the Department has provided further clarity on the new visa condition 8602 which states that ‘The holder must not have an outstanding public health debt’.
The Department has clarified that:
- An ‘outstanding public health debt’ means a debt relating to public health or aged care services that has been reported to the Department as outstanding by a Commonwealth, State or Territory health authority under an agreement between the authority and the Department.
- This does not include health costs otherwise covered, such as by health insurance, Medicare (if eligible), or treatment for certain community health risks such as tuberculosis.
- If a visa holder or an applicant has an outstanding public health debt, they will be requested to contact the relevant health provider to clear the debt. The arrangements to pay the debt can only be resolved between the parties to the debt.
- Where a person breaches condition 8602, the power for visa cancellation action will be enlivened. As a result, the best outcome is for the debt to be repaid as soon as possible to prevent any visa cancellation options or delays in visa processing.
Condition 8602 will be imposed on visas granted in the subclasses below where the application was lodged on or after 18 November 2017.
- Subclass 188 (Business Innovation and Investment)
- Subclass 300 (Prospective Marriage)
- Subclass 400 (Temporary Work (Short Stay Specialist))
- Subclass 403 (Temporary Work (International Relations)) (Domestic Worker (Diplomatic or Consular) and Seasonal Worker Program streams only)
- Subclass 405 (Investor Retirement)
- Subclass 407 (Training)
- Subclass 408 (Temporary Activity) excluding those granted on the basis of: Staff exchange – government agency; Staff exchange – foreign government agency; and Australian Government endorsed event
- Subclass 410 (Retirement)
- Subclass 417 (Working Holiday)
- Subclass 457 (Temporary Work (Skilled))
- Subclass 461 (New Zealand Citizen Family)
- Subclass 462 (Work and Holiday)
- Subclass 476 (Skilled – Recognised Graduate)
- Subclass 485 (Temporary Graduate)
- Subclass 489 (Skilled – Regional)
- Subclass 500 (Student)
- Subclass 590 (Student Guardian)
- Subclass 600 (Visitor)
- Subclass 601 (Electronic Travel Authority)
- Subclass 602 (Medical Treatment) (with the exception of persons who meet the ‘unfit to depart’ provisions)
- Subclass 651 (eVisitor)
- Subclass 676 (Tourist)
- Subclass 771 (Transit)
- Subclass 773 (Border)
- Subclass 988 (Maritime Crew)
Condition will be discretionary for the following subclasses:
- Subclass 403 (Temporary Work (International Relations)) (Government Agreement, Foreign Government Agency and Privileges and Immunities streams)
- Subclass 408 (Temporary Activity) excluding those granted on the basis of: Staff exchange – government agency; Staff exchange – foreign government agency; and Australian Government endorsed event
- Subclass 602 (Medical Treatment) (persons who meet the ‘unfit to depart’ provisions)
What this means for you?
It is even more important to repay all health debts to the Australian governments as soon as possible. If you have any issues with making the repayments, please reach out to the Government Department (debtor), the Department of Immigration and let us know as soon as possible.
187 Regional Sponsored Migration Scheme (RSMS) and 186 Employer Nomination Scheme (ENS) Processing times
The Department has advised that the RSMS and ENS processing times have been affected by a number of factors, including:
- High backlog of applications. 16,000 applications were lodged in June 2017 alone!
- Increase in incomplete applications or applications with genuineness or integrity concerns which require additional work from the Department.
As such, some applications lodged more recently such as decision-ready applications may be allocated for assessment ahead of older applications to clear the backlog and reduce processing times.
The Global visa and citizenship processing times is available at the following link: https://www.border.gov.au/about/access-accountability/service-standards/global-visa-citizenship-processing-times
This once again highlights the importance of lodging ‘decision-ready’ applications so that your application may be given priority processing and finalised quicker. However, do not be alarmed if your other applications are allocated and/or finalised before yours, as it could just be an overcapacity issue from the Department. If there any issues with your application, the Department of Immigration will generally contact you to request further information.
Bridging Visa E
Bridging Visa E (BVE) application criteria has been amended to prevent an application from a person whose last visa was cancelled due to a breach of conditions 8303 or 8564, or because they were deemed a risk to the community. The Department can still grant a BVE to such individuals without application where appropriate.
- Visa condition 8303 prohibit activities that endanger or threaten any individual, or activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community.
- Visa condition 8564 require individuals not to engage in criminal conduct. Individuals who are subject to this condition, and who receive a criminal conviction during their stay in Australia, may have their visa cancelled.
How will this affect you?
This tightening of the Bridging Visa E (BVE) criteria is in line with the Australian Government’s policy to cancel the visas of and deport foreigners who are convicted of criminal offences. However, this seems to go one step further with the general wording giving the Department greater scope to apply a wider interpretation in denying a BVE. For example, in today’s digital age, there is a risk that comments made on social media and web forums can be interpreted as ‘disruptive to’ or threatening to the Australian community.
Key takeaways
With the continual increase and flow of people into Australia, the immigration department appears to be increasing their scrutiny by introducing tougher requirements and focusing on obscure sections of law. It is now more important than even for visa applicants and holders to ensure that they disclose all relevant information, abide by all conditions of their visa, and remain up-to-date with all the Australian Immigration changes.
Any Questions?
Naturally if you have any questions or would like to discuss how these changes may affect you or your business, please do not hesitate to contact our office.
