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’.

MANDATORY CHARACTER CANCELLATION HERE TO STAY

If you have been following our blog posts, you will recall that we have previously written about the "mandatory cancellation power" introduced into the Migration Act in December 2014.  Specifically, section 501(3A) states that the Minister must cancel a person's visa if they fail the character test.

The High Court recently heard legal arguments to the effect that the introduction of s 501(3A) was unconstitutional because (among other arguments) it was punitive in nature and purported to confer judicial power on the Minister.  The case was brought by Mr Falzon, who was a 61 year old Maltese citizen who had lived in Australia since the age of 3.  His visa was mandatorily cancelled because he had been convicted of trafficking a large amount of cannabis and received a lengthy term of imprisonment as a result. 

If successful, Mr Falzon's High Court application would mean that hundreds of visas had been unlawfully cancelled over the last three years.  However, on 7 February 2018 the High Court delivered its judgement in Falzon v Minister for Immigration and Border Protection [2018] HCA 2 and unanimously concluded that s 501(3A) was here to stay.

In reaching its decision, the High Court made the following observations:

➤ "the power to remove or deport [non-citizens] from a country is executive in nature and it is non-punitive"

➤ "deportation may be burdensome and severe for a non-citizen [...] but s 501(3A) [...] does not increase the punishment for the crime or crimes of which the non-citizen has been convicted or found guilty"

➤ "a person's nationality is not changed by length of residence or an intention permanently to remain in a country of which he or she is not a national"

➤ "as a sovereign nation, Australia has the sole right to decide which non-citizens shall be permitted to enter and remain in this country"

➤ "whilst a [non-citizen] present in this country enjoys the protection of our law, his or her status, rights and immunities under the law differ from those of an Australian citizen in a number of important respects. Relevantly, the most important difference lies in the vulnerability [...] of a [non-citizen] to exclusion or deportation."

If your visa is cancelled under section 501(3A) we suggest that you contact us urgently to discuss.  There is no right of appeal but you can have the decision overturned, if you lodge a revocation application within 28 days.  Putt Legal specialises in "revocation submissions" to the National Character Consideration Centre. 

March 2018 Overhaul of Subclass 457 Programme

The implementation of the Temporary Skills Shortage (TSS) scheme to replace the subclass 457 programme is fast approaching. So what will this mean for applicants and employers?

1. On 1 March 2018, the subclass 457 scheme will be abolished completely and replaced with the TSS visa.

The TSS visa will essentially have 2 streams –

  • Short-term stream visas which will be valid for up to 2 years. This stream will apply to any occupation on the Short-term Skilled Occupation List (STSOL)*
  • Medium-term stream visas which will be valid for up to 4 years. This stream will apply to any occupation on Medium and Long-term Strategic Skills List (MLTSSL)* * employers in regional Australia will have access to a broader range of occupations.

Applicants with occupations on the STSOL will only be able to apply for one onshore renewal, for a further 2 years. There is no pathway to permanent residency through this stream. Applicants with  occupations on the MLTSSL will have a pathway to permanent residence after three years’ work on their TSS visa, subject to meeting other eligibility criteria.

The application process will still require employers to become Standard Business Sponsors if they do not hold SBS approval already, and ‘nominate’ the relevant occupation.

 

2. The visa application cost will increase

While the TSS cost of sponsorship and nomination will remain the same ($420 and $330, respectively), the primary application fees for the TSS visa are more expensive than the current subclass 457 fees –

Short-term stream

  • Primary Applicant – $1,150
  • Adult Dependent – $1,150
  • Child Dependent – $290

Medium-term stream

  • Primary Applicant – $2,400
  • Adult Dependent – $2,400
  • Child Dependent – $290

 

3. The Department will introduce the Skilled Australia Fund levy (SAF)

The SAF will be managed by the Department of Education and Training, and will replace the current training benchmarks – currently, employers are required to spend at least 1% of their annual gross payroll towards the training of Australian employees or pay over 2% towards an approved training fund.

From March 2018, sponsoring employers will instead be required to pay the SAF levy ‘up front’ as part of each nomination per applicant, for every year that they wish to sponsor that applicant.

The SAF levy costs will be as follows:

Small business (annual turnover less than 10 million)

  • TSS visa – $1,200 per year/part thereof
  • ENS/RSMS – $3,000 one-off

Other businesses

  • TSS visa – $1,800 per year/part thereof
  • ENS/RSMS – $5,000 one-off

The SAF will not apply to employers that received SBS approval prior to March 2018, unless they are renewing their sponsorship after that date.

 

4. Employers will be required to undertake compulsory Labour Market Testing (LMT)

LMT will be a mandatory requirement for the TSS visa unless an international trade obligation applies – occupation exemptions will no longer apply. Employers will need to demonstrate their efforts to find a suitably qualified Australian citizen before they can seek to employ an overseas worker.

 

5. Applicants will be subject to more stringent requirements

Applicants for the TSS visa will need to demonstrate –

  • At least 2 years’ relevant work experience
  • Good character (through mandatory police clearances)
  • English language (IELTS or equivalent testing) results with a minimum score of 5 in each testing component and an overall score of 5 (Medium-term stream applicants only)

 

If your subclass 457 nomination and visa applications were both lodged prior to TSS implementation, they will be processed under the current framework. However, employers and applicants should note that subclass 457 nominations cannot be linked to TSS visa applications, so if you have lodged a nomination without an associated application, the nomination will become redundant after 1 March 2018 (even if it is already approved). Employers and applicants are encouraged to complete and lodge all outstanding nominations and applications together before the end of February, and to become Standard Business Sponsors before the levy is implemented.

Contact Putt Legal if you require urgent lodgement of subclass 457 SBS, nominations and visa applications.

What do changes to the definition of Marriage mean for same sex partner visas?

On 7 December 2017, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 was passed through Federal Parliament. It changed the definition of Marriage under the Marriage Act 1961 from a union of ‘a man and a woman’ to a union of ‘2 people’. This change came into effect on 9 December 2017, allowing same sex couples to marry in Australia (subject to some other conditions, see https://www.ag.gov.au/FamiliesAndMarriage/Marriage/Pages/Getting-married.aspx).

The Migration Act 1958 (Cth) has also changed the definition of Spouse in line with changes to the Marriage Act, to allow for a spouse to be of the same or different sex.

A person in a relationship with an Australian citizen, permanent resident or an eligible New Zealander can apply for an onshore partner visa (subclass 820/801) or offshore partner visa (subclass 309/100), or a prospective marriage visa (subclass 300, if you are outside of Australia). You can find more information on partner visas here: http://www.puttlegal.com.au/partner-visas/.

Previously same sex couples could only apply for a partner visa on the basis that they could demonstrate they had been in a de facto relationship for at least 12 months (rather than a spousal relationship). Now, same sex couples who are married can circumvent this 12-month de facto requirement. There are still substantial requirements as to proving a relationship, but same sex couples can now marry to demonstrate their commitment.

Further same sex couples with plans to marry in Australia can now apply for a prospective marriage visa. It may be the case that a couple is in a genuine relationship and want to get married and set up a life in Australia, but the sponsor is in Australia and applicant is overseas (so they may not meet the criteria of a de facto relationship as required for a partner visa). It is a condition of the prospective marriage visa that the applicant travels to Australia and marries their partner within 9 months. They are then eligible to apply for a partner visa onshore.

Putt Legal looks forward to assisting same sex couples looking to marry in Australia, with a prospective marriage visa application, and has experience with lodging same sex partner visa applications (both onshore and offshore), and appealing refusals to the Administrative Appeals Tribunal.