Remember there are changes which might affect you coming into effect on 19 November 2016

This is just a reminder that there are changes to immigration law and policy which will come into effect this Saturday, 19 November 2016. A list of changes includes:

  • Temporary activity visa framework
  • Condition 8107 change
  • Member of Family Unit (MOFU) definition
  • Associated bridging visas cease
  • Subclass 457 guidelines
  • Work and Holiday
  • Entrepreneur Visa (Subclass 888) – VAC amendment
  • Ten-year validity visitor visa stream
  • Changes for Sponsors of Partner and Prospective Marriage visa applicants

Temporary activity visa framework

The Migration Amendment (Temporary Activity Visas) Regulation 2016 (the ‘Regulation’) amends the Migration Regulations 1994 to progress the Government’s visa simplification and deregulation agendas by reforming the temporary visas that permit various types of work and activity in Australia.

The Regulation repeals five (5) visas and creates two (2) new visas. Introducing the new:

  1. Subclass 407 (Training) visa; and
  2. Subclass 408 (Temporary Activity) visa,

to replace the following temporary activity visas:

  • Subclass 401 (Temporary Work (Long Stay Activity)) visa;
  • Subclass 402 (Training and Research) visa;
  • Subclass 416 (Special Program) visa;
  • Subclass 420 (Temporary Work (Entertainment)) visa; and
  • Subclass 488 (Superyacht Crew) visa.

Subclass 408 visa

This new visa will consolidate the current Schedule 1 and Schedule 2 criteria for temporary stay in Australia for the certain activities that were permitted under the following temporary activity visas:

  • Subclass 401 (Temporary Work (Long Stay Activity)) visa;
  • Subclass 416 (Special Program) visa;
  • Subclass 420 (Temporary Work (Entertainment)) visa; and
  • Subclass 488 (Superyacht Crew) visa.

The requirement for sponsors to complete an additional nomination process has now been, this will streamline the sponsorship process and removes red tape.

Subclass 407 visa

This new visa repeals the Subclass 402 visa. Changes from previous Subclass 402 (Occupational Training stream) visa, include:

  • The sponsor must also be the employer in most cases, there are limited circumstances in which there will be more than one employer
  • Restrictions have been placed on the provision of third party training have been introduced to prevent Subclass 407 being used by sponsors as a pretext for the supply of labour to a business
  • The past conduct and likely future conduct of the applicant, including whether the applicant is likely to exploit sponsored visa holders or use those visa holders to meet labour requirements which are outside the intended scope of the visas
  • Occupational training is to be provided directly by the sponsor, except in specified circumstances
  • New restrictions have been placed on the outsourcing of the occupational training to third parties
  • Transitional arrangements for continuation of ‘legacy’ approved sponsorships from the previous visa subclasses for sponsored applications lodged before or on 17 May 2017
  • Legacy sponsors are those currently approved as Subclass 402 sponsors

Subclass 400 and 403 visas

The following existing visa subclasses will be restructured:

  1. Temporary Work (Short Stay Specialist) (subclass 400) visa; and
  2. Temporary Work (International Relations) (subclass 403) visa.

There will be a flat pricing structure to the Subclass 407, 408, 400 and 403 visas – at $275 for each Visa Application Charge (VAC).

Online lodgement will be available on and from 19 November 2016.

Condition 8107

When a subclass 457 visa is granted, the visa holder is automatically subject to a condition known as Condition 8107. Previously, the condition 8107 allowed a primary subclass 457 visa holder to remain unemployed in Australia after their employment ceases for a period of 90 consecutive days. This rule meant that if a subclass 457 visa holder leave their employer, they will have 90 days to become sponsored by another employer or their visa can be cancelled.

Strictly speaking, a subclass 457 visa holder cannot wait until the 90th day for the new employer to lodge a new nomination application because the clock does not stop when the nomination application is lodged. Under the regulation, the period during which the holder ceases employment must not exceed 90 consecutive days – meaning that the clock only stops when the new nomination application is approved, or they risk visa cancellation.

From 19 November 2016, the period that a primary subclass 457 visa holder can remain in Australia after their employment ceases will be reduced from 90 days to 60 days. This change would apply to all subclass 457 visas from 19 November 2016.

The regulation now provides:

8107 3(b)           if the holder ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days.

This effect of change is that if a subclass 457 visa holder loses their job, they will only have 60 days to locate a new employer and obtain a nomination approval. As some may know, job search and interviews can take more than 60 days, and this does not include the DIBP’s current standard processing time of 40 working days (about 56 calendar days) for nomination applications.

This policy will make it practically impossible for subclass 457 visa holders to find a new position and to stay in Australia if they lose their job.

Definition of ‘member of family unit’

The definition of ‘member of family unit’ will become harder for permanent and most temporary visa application as of 19 November 2016. The ‘members of the family unit’ definition is now limited to:

  • the spouse or de facto partner of a primary applicant, and
  • children of the primary applicant or their partner, who are dependent. Children (including step-children) can no longer be included in the visa application if they are over the age of 23 (unless they are incapacitated for work).

This amendment also removes the provision for family members outside the nuclear family from being included in the family unit. That is, relatives (including siblings and dependent parents) cannot be included in permanent visa applications and most temporary visa applications (refugee and humanitarian visas excluded).

Although children over the age of 23 and relatives are not permitted to be included in the temporary visa applications, the amendments do allow a visa applicant’s previous status as a ‘member of the family unit’ to apply in a specific way for specified visa subclasses to ensure that family members are not disadvantaged due to the passage of time.

For example, a child (now 24) who was included as part of his/her parent’s temporary visa application when he/she was 16, will be permitted to include in his/her parent’s subsequent related visa application (where they would otherwise no longer be eligible).

November 2016 Changes to Immigration

This change would apply to subclass 457 visa applications made on, or after, 19 November 2016.

Associated bridging visas cease

This amendment will affect the bridging visas below:

  • Subclass 010 (Bridging A)
  • Subclass 020 (Bridging B)
  • Subclass 030 (Bridging C)
  • Subclass 050 (Bridging (General)
  • Subclass 051 (Bridging (Protection Visa Applicant)

These subclasses of bridging visas associated with the lodgement of a substantive visa application will cease once a certain period of time has passed after notification of a ‘trigger event’. That is, cessation of the bridging visa will be triggered by the decision itself, instead of by the notification of a decision.

The bridging visas now cease:

  • 35 days, rather than 28 days, after the relevant event occurs; or
  • 14 working days, rather than 7 working days, after the relevant event occurs.

For example, Abby was granted a Bridging Visa A in respect to a lodged Subclass 457 visa application on 20 November 2016. Abby’s has decided to withdraw her Subclass 457 visa application as she needs to return home. She notifies the DIBP of her visa withdrawal on 30 November 2016, the DIBP responds to her request to withdraw the visa application on 3 December 2016. Previously, the ‘trigger event date’ is the date she notifies the DIBP, leaving her with 28 days from 30 November 2016 until her bridging visa expires ie. 28 December 2016. Following the amendment, the ‘trigger event date’ will be the date the DIBP notifies of the decision, which is 3 December 2016 (in this case). Abby will now have 35 days from 3 December 2016 before her bridging visa expires ie. 7 January 2016.

This removes uncertainty around whether a bridging visa has ceased where there is defective notification and therefore provide more certainty about a person’s visa status.

Subclass 457 guidelines

Changes to caseload allocation model

The DIBP’s first phase of implementing a new ‘global allocation model’ is complete – with cases now allocated across five processing centres rather than on the basis of the location of the sponsor’s head office. This will deliver a number of efficiencies, with the time taken for cases to receive an ‘initial assessment’ reducing from 50 days to 35 days.

Discretionary Skills Assessments

As you may be aware, we have raised some concerns to the DIBP about the request of discretionary skills assessment by the Subclass 457 case officers, particularly in relation to Trade Recognition Australia (TRA) Skills Assessments, when the visa applicant does have the required skills and qualifications.

We have been advised that the DIBP is now in the process of implementing in new arrangements whereby they will discuss with 457 programme management and the relevant assessing body before the discretionary request is being sent.

Work and Holiday

Work and holiday visa holders (Subclass 462) are eligible to stay for a second year working in Australia. Subclass 462 visa holders can apply for a second Subclass 462 visa if they have carried out specific work in regional Australia. The visa holders must carry out the work for at least three (3) months as a holder of the first Subclass 462 visa. These amendments are in line with the Government’s White Paper on ‘Developing Northern Australia’ where the specified work is intended to be work undertaken in the agriculture, forestry, fisheries, tourism and hospitality industries in Northern Territory and northern parts of Western Australia and Queensland. Currently the following 16 nations are able to participate in the Subclass 462 program:

  • Argentina
  • Bangladesh
  • Chile
  • China, People’s Republic of
  • Indonesia
  • Israel
  • Malaysia
  • Poland
  • Portugal
  • Slovak Republic
  • Slovenia
  • Spain
  • Thailand
  • Turkey
  • USA
  • Uruguay

Entrepreneur Visa (Subclass 888) – VAC amendment

The first VAC for the Entrepreneur Visa stream of the Subclass 888 visa will amended to:

  • Base application charge – $2,305
  • Additional applicant over 18 charge – $1,155
  • Additional applicant under 18 charge – $575

Ten-year validity visitor visa stream

This amendment creates a new Subclass 600 (Visitor) visa stream to be known as the Frequent Traveller stream for frequent travellers which permits both tourism and business visitor activities and allows up to 10 years’ validity.

The Schedule 2 criteria will be that the applicant intends to visit Australia:

(a)  as a tourist; or

(b)  to engage in a business visitor activity.

The base VAC for this visa will be $1000.

The visa will allow the visitor multiple entry with a stay of 3 months after each entry. The visitor must not stay in Australia for more than 12 months in any period of 24 months.

The visitor must undergo a medical assessment if requested by the Minister in writing to do so.

This visa stream is only available to citizens of certain countries. Initially, this visa will only be available to Chinese nationals with a view to progressively allowing nationals of other countries to apply following evaluation.

Changes for Sponsors of Partner and Prospective Marriage visa applicants

Sponsors of Partner and Prospective Marriage visa applicants who lodge a visa application, on or after 18 November 2016, will be required to:

  • Provide Australian or foreign police checks to the DIBP when requested; and
  • Consent to the DIBP disclosing their convictions for ‘relevant offences’ to the visa applicant(s).