8th April 2011

Introduction
New 457 SOL - effective 15 February 2011
Increased 457 Salary Level for English Language Exemption – effective 15 February 2011
New Fraud Public Interest Criterion (PIC 4020) - effective 2 April 2011
Flood damage clean-up work and eligibility for second Working Holiday (Subclass 417) visas (WHV)
ENS/RSMS - Policy Update from 2 April 2011
Student Visa Program Review – Discussion Paper
Reduction of certain Student visa assessment levels - effective 2 April 2011
Subclass 573 for student studying Higher Education and Advanced Diplomas – 1 January 2011
GSM / New Points Test – no further news
Tips Corner - For 856 visa applicants

Introduction

In our December 2010 Visa Alert, we discussed the likely negative impacts of the 2010 GSM legislative changes on onshore overseas students, which have prevented many students from applying for general skilled migration upon completion of their study. As a result, we have seen a dramatic shift to application for other visa categories by these students, e.g. Spouse visa applications, as well as the subclass 457 and 856/857 visa applications.

The rapid influx of applications for other visa categories naturally has its consequences – in this case, increased processing time and the associated integrity issues!

The processing time for a spouse visa application is now 12 months or more!

As discussed previously, the Government's intention is to encourage graduating students to use the employer sponsored pathway. It is in reality extremely difficult for these students to find employers who are 'willing and able' to sponsor them. Barriers which deter potential employers include the requirements for: paying market salary rates (MSR), meeting the related sponsorship obligations requirements etc. The current TSMIT salary threshold is $47,480 for non ICT occupations. Often with little work experience, coupled with the associated language and cultural difficulties, few students are able to find employers/sponsors.

Under these circumstances, it is not surprising to hear rumours that some students attempt to purchase businesses to circumvent these barriers. There is nothing wrong with the purchase of a business. Indeed there is nothing in the legislation to prevent the purchase or establishment of a business by students, as long as they do not breach their student visa conditions in doing so. However, these transactions must be genuine in nature and capable of meeting all the legal requirements governing these visa subclasses. It must also provide a 'genuine' career pathway for the visa applicants. Having said that, discriminating between genuine and spurious sponsors arrangements is not easy.

No doubt, DIAC is aware of these issues. In response, DIAC has introduced a new fraud Public Interest Criterion 4020 clause in the Migration Regulations to be effective from 2 April 2011. (Please see discussion below).

It is important to note that this new law does not only affect onshore students, but applies to all visa applicants applying for certain subclasses of visas, including the 457 and 856 employer sponsored visas!

Prior to the introduction of the 4020, an applicant who has a visa application refused and become unlawful (e.g. bridging visa holders!), s48 of the Migration Act may prevent the applicant from lodging a further application inside Australia. They must lodge any future visa applications outside Australia. This is called a s48 bar.

From 2 April 2011, a visa application which is refused against PIC 4020 (ie a visa refused on the ground of fraud) will lead to a 3 year bar for all future visa applications. The barred person cannot apply for any visa on or offshore during the banned period. Importantly it is a 'one fails all fails' provision, which means that all persons included in the refused application will also be subject to this bar. E.g. the spouse will not be able to apply for a further visa, even if he/she can meet the requirement of another subclass of visa!!

I therefore cannot emphasise the importance of this new law, and ask all our readers to gain an understanding of and strictly comply with the requirements of this law – by providing correct and truthful information/documents to the DIAC for their visa applications. Inadvertent errors and ignorance of the law is NO cure.

At the conclusion of this Alert, I will discuss some of the issues relating to a 856 ENS visa – as this is now one of the most popular and common permanent residence visa.

New 457 SOL - effective 15 February 2011

Seven occupations have been removed:

1. Hospitality, Retail and Service Managers (ANZSCO 149999)
2. Private Investigator (442214)
3. Beauty Therapist (451111)
4. Bookmaker (552311)
5. Insurance Consultant (552312)
6. Production Assistant (Film, Television, Radio or Stage) (599912)
7. Motion Picture Projectionist (711912)

Four occupations have been added:

1. Sugar Cane Grower (121217)
2. Small Engine Mechanic (321214)
3. Real Estate Agency Principal (612113)
4. Wool Buyer (639212)

Important to note: some occupations now have 'excluded or restricted' categories:

1. Café or Restaurant Manager (141111)
   (Excluding positions in Fast Food or Takeaway Food Services)
2. University Lecturer (242111)
   (Suitable for the position of Research Associate or Research Fellow in a university)
3. Butcher or Smallgoods Maker (351211)
   (Excluding the activity of slaughtering animals, or primarily boning, slicing or packaging meat in a non-retail setting)

See: New 457 SOL

Increased 457 Salary Level for English Language Exemption – effective 15 February 2011

The Base Salary level for a 457 applicant seeking English language exemption has been increased to $85,090.

Note: For current 457 visa holders under English exemption – their employers must ensure that their Base salary meets this new level from 15 February 2011 to avoid a breach of their visa condition.

New Fraud Public Interest Criterion (PIC 4020) - effective 2 April 2011

From 2 April 2011, the Migration Regulations 1994 are amended to introduce a new Public Interest Criterion 4020.

Where an applicant is found to have supplied false, misleading or bogus documentation to DIAC, the visa application will be refused and the applicant will be subject to a 3 year bar, which may prevent the grant of a further visa that is subject to assessment under the Fraud PIC 4020.

The Fraud PIC 4020 is a 'one fails all fails' criterion. This means that where an application is refused against PIC 4020, all persons included in the application is subject to fraud, will be refused.

PIC 4020 applies to applications lodged on or after 2 April 2011, and applications already lodged and not yet decided.

The following subclasses of visas are affected:

• GSM Subclasses 175, 176, 475, 476, 485, 487, 495, 496, 880, 881, 882, 883, 885, 886, 887
• Employer sponsored Subclasses 119, 121, 457, 856, 857.

Migration Regulations - Section 97. Interpretation "bogus documents" in relation to a person, means a document that the Minister reasonably suspects is a document that:

      (a) purports to have been, but was not, issued in respect of the person; or

      (b) is counterfeit or has been altered by a person who does not have authority to do so; or

      (c) was obtained because of a false or misleading statement, whether or not made knowingly;

The DIAC website has further information and frequently asked questions in Introduction of Public Interest Criterion Relating to Fraud from 2 April 2011.

Note: As a breach of PIC 4020 has serious consequences not only for the main, but also for the secondary applicants – this is an extremely important new law that all visa applicants for the above visa subclasses (including 457, 856) must be aware of when making a visa application.

Flood damage clean-up work and eligibility for second Working Holiday (Subclass 417) visas (WHV)

DIAC has confirmed that WHV holders may choose to volunteer their time helping clean up and rebuild Australia following the recent flood disaster. They may also seek paid work related to the clean up and rebuilding effort as this work becomes available.
If the clean-up work falls within the definition of "specified work", which includes work in the construction industry such as demolition work or erecting new fences, and is conducted in an 'eligible regional Australia' postcode, the work may count towards the 88 days of "specified work" that Working Holiday visa holders must undertake in order to be eligible for a second Working Holiday visa. Metropolitan Brisbane, however, is not included in the Working Holiday visa definition of regional Australia.

The "specified work" need not be paid work; volunteer work also counts towards the '"specified work" requirement.

The following types of work fall under the definition of "specified work" and may assist with flood clean-up activities in regional Australia: demolition of buildings, trench digging, land clearing and earth moving; residential and non-residential construction or renovation / repair, including of roads, footpaths, bridges, parking lots, railways, dams, irrigation systems, sewage and storm water drainage systems.

Further information see: 417 Eligibility for Flood Damage Volunteers

ENS/RSMS - Policy Update from 2 April 2011

The DIAC has updated the policy for ENS (Employer Nomination Scheme) and RSMS in the Policy Advice Manual (PAM 3) on 2 April 2011. DIAC has confirmed with the MIA that the policy update is simply a re-write of current policy to make the intention of policy clearer for case officers, and is not a legislative or policy change.

The lack of clarity in policy had been a great cause of concern in the past and such clarifications are good news. The new version of policy clarifies matters, such as: business structures, full-time employment, financial capacity of sponsors, nominated occupations/tasks, and exceptional appointments etc.

Having said that, the ENS/RSMS program is currently under review – and changes are likely to be introduced in the latter part of this year. It is anticipated that the ENS will be aligned more closely with the 457 program such as Market Salary Rate and an increase in English language requirements. We will keep our readers posted.

Student Visa Program Review – Discussion Paper

The Hon Michael Knight AO has released a discussion paper for the review. The discussion paper is a brief overview of some of the issues which have emerged from Mr Knight's first round of consultations.

Mr Knight encourages all interested parties to consider making a written submission to the review so their views can be taken into account.

See: Student Visa Program

Reduction of certain Student visa assessment levels - effective 2 April 2011

Student visa assessment levels for 38 countries, for one or more Student visa subclasses, will be reduced from 2 April 2011. All applications lodged on or after 2 April 2011 are subject to these new assessment levels.

These changes will lower the minimum evidentiary requirements needed for the grant of a Student visa for the selected countries and education sectors. However, the reductions to assessment levels do not change the likelihood of a former student in Australia obtaining permanent residence.

Of particular interest is the reduction for China and India to Assessment Level 3 (from Level 4) for Subclass 573. It reflects the intention of the Australian government to attract more students to the higher education sector.

See: Reduction of Certain Student Visa Assessment Levels

Subclass 573 for student studying Higher Education and Advanced Diplomas – 1 January 2011

From 1 January 2011, students studying for a higher education diploma or advanced diploma are assessed for a Higher Education (subclass 573) visa.

Prior to 1/1/2011, these students were assessed for VET subclass 572 visa.

See: Students - Diploma

GSM / New Points Test – no further news

The introduction of the New Points Test (discussed in Abacus December Visa Alert) which is due on 1 July 2011 is approaching fast. Thus far, there is little information regarding the release of the new laws! The MIA (Migration Institute of Australia) has approached Diac and suggested that the introduction of the points test be delayed to enable further consultation and to ensure that the changes do not give rise to unexpected consequences.

The DIAC has, however, indicated that the Government is committed to the 1 July 2011 date. Lets hope details of the new law will be released soon. Based on Diac's track record, this is unlikely to be the case.

Tips Corner - For 856 visa applicants

One of the legal requirements of an 856 visa is that the visa applicant must have been holding a qualifying visa (457 is one) and working in the 'same nominated occupation' or 'closely related occupation' listed in the 856 (ENSOL) for at least 2 years immediately before the application. In addition, the last 12 months must have been working for the nominating employer. This suggests that a 457 visa holder can change employer/sponsor whilst still being able to apply for an 856 visa.

If permanent residency is the long-term objective, when applying for your 457 visa, you should always ensure that the nominated occupation is listed both in the 457 SOL and the 856 ENSOL. For existing 457 holders who intend to change employers, you must make sure (if possible) that the nominated occupation under your new employer is the same as, or at least closely related to, your previous nominated occupation.

All prospective 856 applicants must develop a proper visa strategy as early as possible. An experienced migration agent should always take these factors into consideration when assisting clients with their 457 visa applications.

Source: DIAC/MIA