Bridging Visa B (BVB)

This article explains the need for making Bridging Visa B applications if you have applied for a visa in Australia, or are applying a visa refusal/cancellation to the Administrative Appeals Tribunal (AAT), and need to travel overseas briefly.

If you have applied for a visa in Australia, and are on a bridging visa A (i.e. it is in effect), or are awaiting an AAT hearing or judicial review of a decision to refuse to grant that visa, do not forget to apply for a bridging visa B if you wish to travel outside of Australia for a substantial reason. This is because other bridging visas expire as soon as you depart Australia, and it may not be a straightforward process getting another visa to re enter Australia.

As a recent example, we had a Canadian national call Putt Legal from Bali a few days ago. She had applied for a partner visa in Australia late last year, and her bridging visa A was in effect as her working holiday visa had expired. Her Australian partner suggested a short notice holiday in Bali, and she received advice (including from Immigration officials at Perth airport) that it would be easy to get an Electronic Travel Authority (ETA) via the Internet after arrival in Bali i.e. without being granted a bridging visa B before departure. That did not prove to be the case. She sought Putt’s Legal assistance, and we facilitated an application for a separate visitors visa in Indonesia.

A bridging visa B must be applied for, and granted, before you leave Australia. You will not be able to get one after you depart Australia.

How to do you apply for an Australian visa in Bali?

Visa applications in Bali are dealt with by an Australian Visa Application Centre (AVAC), not the Australian Consulate General that provides consular and other services.

You will need to make an appointment as soon as possible – see http://www.vfsglobal.com/Australia/Indonesia/english/schedule-an-appointment.html on how to make an appointment

The general information page on applying for a visa in Indonesia can be found here - http://indonesia.embassy.gov.au/jakt/Visas_and_Migration.html

Where is the AVAC located in Bali?

AVAC in Bali is located at -

Benoa Square 3rd floor No. 7-9.3/A
Jalan Bypass I Gusti Ngurah Rai No. 21A
Kedonganan, Kuta, Bali – 80361 Indonesia

Opening Hours: 
Monday to Friday : 08.30 to 16.00
(Except on Public Holidays)

If you need more detailed advice on bridging visas or further assistance in relation to your particular circumstances, please contact Putt Legal.

 

 

Win for Putt Legal client in the Federal Court – meaning of ‘dependent child’

We are delighted to report a recent win in the Federal Court in relation to a longstanding client, Jodie Cole.

Jodie arrived in Australia in February 2013 on a Working Holiday Visa. In February 2014, she lodged an onshore application for a Child visa, sponsored by her father. At the time of the application, Jodie was aged 20, and therefore had to establish that she was dependent on her parents or incapacitated for work.

She made the application as a “disabled child”, disclosing on the application form that she was reliant on her parents for all needs, including accommodation, money, food and clothing. The application was supported by medical letters stating that Jodie suffered from depression, anxiety and post-traumatic stress disorder due to a serious childhood trauma.

In July 2014, the Department of Immigration requested further medical information and a health examination. The family complied with the request, including providing a letter from a registered clinical psychologist as to the nature of Jodie’s condition. In August 2014, a Medical Officer of the Commonwealth (‘MOC’) determined that Jodie met the visa’s health requirements.

In October 2014, Jodie’s visa application was refused essentially because ‘the MOC found the Appellant was not incapacitated for work’. The Delegate did not accept that Jodie had a medical condition which met the definition of being ‘incapacitated for work due to the total or partial loss of the child’s bodily of mental functions’ as required by the Migration Regulations.

Jodie’s family then lodged a merits review application in the Administrative Appeals Tribunal. The Tribunal was provided with evidence that Jodie was incapacitated for work due to her PTSD and severe depression, and was totally dependent on her parents for financial support. The Tribunal was informed that Jodie had been employed from time to time but was presented with evidence which indicated that that she was unable to work full time until she had addressed her mental health concerns.

The Tribunal took the view that the legislative definition of “dependent child” meant that Jodie had to be completely (as opposed to partially) incapacitated from all work, in order to be eligible for the visa.  Accordingly, it concluded that she was not a “dependent child” as there was evidence she had been able to work on a part time basis.  The Tribunal therefore affirmed the refusal decision.

An appeal to the Federal Circuit Court failed, with the Court adopting the view that a person must be completely incapacitated from work in order to meet the definition.

Federal Court Appeal

Putt Legal assisted Jodie with an appeal to the Full Court of the Federal Court. The appeal raised two grounds –

  1. That the Tribunal misconstrued the definition of “incapacity” and the legislative intention did not preclude a statutory interpretation of being “wholly or substantially” incapacitated for work; and
  2. That the Tribunal failed to apply the correct test in determining incapacity to work.

The Court accepted both grounds, ruling that the definition, correctly interpreted, did not require a person to be completely incapacitated but included situations where an applicant might be “substantially incapacitated” for work, noting that ‘to adopt the Minister’s interpretation would mean that a child with illness, who is unable to work at all and is, therefore, dependent on her parents for the necessities of life would meet the dependent child definition, that is, someone who is completely incapacitated, would meet the definition, but another child with the same condition, who has only a small working capacity of, say, ten hours per week, but cannot earn sufficient funds for rent, food, clothing etc. and is equally dependent on his or her parents, would not qualify for a visa. That would be a surprising conclusion…”


Why is this case important?

The Federal Court’s ruling provides much needed clarity to the definition of “dependent child”, where it relates to children who have turned 18 but are unable to work due to a disability.

And of course, it means that Jodie and her family are one step closer to ending the ongoing legal battle to achieve permanent residence. The Tribunal will now be required to make the decision again according to the correct interpretation of the law.

New Global Talent Scheme visa to be introduced – July 2018

The Government announced on 19 March 2018 that a new visa scheme to attract highly skilled global talent and deliver innovation to Australia will be piloted from 1 July 2018.

The Government recognises there is competition globally for high-tech skills and talent, and that attracting these people helps to transfer skills to Australian workers and grow Australian-based businesses.

The Global Talent Scheme will consist of two components:

  1. Established business stream;
  2. Start up stream.

In relation to both streams, a four year Temporary Skill Shortage visa (TSS) will be issued with permanent residence applications available after three years. The visa applicant must not have any familial relationship with directors/shareholders of the sponsor company.

If a position ceases the visa holder will have 60 days to find a new sponsor or new visa or depart Australia.

The Government will consult further on the details of the scheme over the next few months, before piloting it for 12 months, starting 1 July 2018. An industry advisory group will provide ongoing guidance for the pilot.

Established business stream

Established businesses with an annual turnover of more than $4 million (for the last 2 years), or publicly listed, will be able to sponsor highly skilled and experienced individuals (at least 3 years relevant work experience) for positions with earnings above $180,000 into Australia.

The employers will need to be able to demonstrate that they prioritise the employment of Australians and that there will be skills transfer to Australian workers as a result of the person being granted a visa. The sponsoring business must have a track record of hiring and training Australians.

·         Companies can access up to 20 positions per year

·         Labour market testing for the specific position

Start Up Stream

The Technology-based and STEM-related start-up businesses will also be able to sponsor experienced people with specialised technology skills.

STEM related fields include digital; biomedical; agtech et al.

Start-ups will need to be recognised by a start-up authority and demonstrate that they prioritise the employment of Australians.

·         Companies can access up to 5 positions per year

·         Financial criteria still to determined – possibly will relate to working capital or capital raised threshold

·         Minimum annual salary at market salary rate, but must have cash component of at least the Temporary Skilled Migration Income Threshold (currently $53,900).

Please contact Putt Legal if you wish to ascertain more details, or discuss your visa options more generally

SCAM ALERT – Putt Legal does not act for Rio Tinto re employment & Australian visa offers

Putt Legal has been approached by several people asking as to the progress of their visa applications, after having been approached by somebody offering employment and an Australia employment visa supposedly on behalf of Rio Tinto.

This is a scam. Putt Legal does not act for Rio Tinto, and cannot facilitate employment in Australia on behalf of that company.

We encourage anybody wanting advice as to their Australian visa options to carefully check the credentials of those they are dealing with, and in particular that they are registered migration agents with the Migration Agents Registration Authority – https://www.mara.gov.au/search-the-register-of-migration-agents/   

 

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TSS visa update

Current and prospective applicants for skilled visas will have been keenly awaiting the Department’s announcement of the implementation date for the TSS visa and other changes to the permanent employer-sponsored program.

The date for these changes has not yet been announced, however according to the Department they are still scheduled to take place this month.

Importantly, the Skilling Australians Fund Bill (‘the SAF Bill’) is yet to be passed by parliament. Readers will recall that the SAF Bill proposes to replace the current ‘Training Benchmarks’ with the Skilled Australia Fund levy – instead of making a contribution to an industry training fund or expending part of their gross payroll on training Australian staff, employers will have to make upfront payments into the fund as part of the nomination process (for more on this, see our blog post dated 2 February 2018).

It is unclear if, and when, the SAF Bill will be passed – the House of Representatives is not sitting again until 13 March 2018, and the Senate will not sit until 19 March 2018.

The Department has advised that this will not affect the rest of the changes, which will come into effect as soon as the remainder of the legislative and functional processes are finalised.

This means that any nominations lodged after the March implementation date but before the SAF Bill is passed will continue to require proof of expenditure towards the Training Benchmarks. Once the SAF Bill is passed and becomes law, employers will instead have to pay the levy which may well work out to be much more expensive than the Training Benchmarks. The levy payment is non-refundable, even if the nomination or visa application is refused.

Due to the uncertainty of these timeframes, visa applicants should endeavour to finalise and lodge their nominations and applications as soon as possible, so that they can be processed under the ‘old rules’.