Changes to Enduring Power of Attorney and Advance Health Directive Forms in Queensland

Changes to Enduring Power of Attorney and Advance Health Directive Forms in Queensland

From 30 November 2020, the Enduring Power of Attorney (EPA) and Advance Health Directive (AHD) forms that have been used for nearly 20 years in Queensland will be replaced by new versions. These changes accompany the amendments to the Powers of Attorney Act 1998 (Qld) that were brought in by the Guardianship and Administration and Other Legislation Amendment Act 2019 (Qld) (Amendment Act), which include:

  • Explanatory guides to accompany the new forms
  • Capacity assessment guidelines
  • Changes to general principles and health care principles
  • Conflict transactions
  • Further eligibility requirements for attorneys
  • Recognising interstate or New Zealand enduring powers of attorney

New Forms and Explanatory Guides

The new forms are arguably more user friendly, and the explanatory guides help users to complete these forms correctly.

Some notable inclusions in the new forms are:

  • A dedicated section in which the principal may record their views, wishes and preferences, which are to be considered by the attorneys but are not considered instructions.
  • A dedicated section in which the principal may express who the attorney(s) must notify when exercising their powers, what kind of notification must be made and when.
  • (For an AHD) A dedicated section in which the principal may give specific instructions about blood transfusions.

Capacity Assessment Guidelines

The capacity assessment guidelines are designed to assist witnesses to an EPA/AHD when witnessing a principal’s signature and family members, health professionals and financial institution workers when determining whether or not attorneys should be making decisions on behalf of a principal.

The guidelines emphasise the presumption that an adult has capacity and that attorneys should take into account the human rights of the principal.

The guidelines also include a 6-step checklist to assist in conducting a capacity assessment and details on the different legal tests that are applied for different kinds of forms and decisions.

Changes to General Principles and Health Care Principles

While the relevant legislation prior to the Amendment Act contained general principles and health care principles in relation to enduring documents, these have been given more prominence under the new legislation and have been updated to be more consistent with human rights in respect to adults with impaired capacity participating in decision-making.

Updated general principles include:

  • An additional focus on the fundamental freedoms of the individual, including respect for their inherent dignity, worth, autonomy and independence, and their right to non-discrimination, equality and accessibility;
  • An obligation on attorneys to perform their duties in a way that promotes and safeguards the individual’s rights, interests and opportunities and is least restrictive of those rights, interests and opportunities;
  • A 4-step process that attorneys should undertake in making decisions for an individual.

Health care principles assist attorneys in making decisions regarding the principal’s health matters and special health matters.

Updated health principles include:

  • An obligation on attorneys to adopt both the general principles and the health principles when performing a function or exercising a power in relation to health care or special health care;
  • A similar additional focus on fundamental freedoms of the individual as is found in the updated general principles;
  • An expansion of the factors that need to be taken into account when performing a function or exercising a power in relation to health care or special health care.

Attorneys need to be aware of all of these principles as they must apply them when performing their duties as attorney.

Conflict Transactions

The changes specify that an attorney for a financial matter may only enter into a conflict transaction (for example, a transaction between themselves in their individual capacity and in their capacity as attorney for the principal) if the principal, or the Supreme Court, has authorised the transaction.

While this authorisation should be obtained in advance, retrospective authorisation may be granted by either the principal (if they have capacity) or the Court; however, until such authorisation is obtained the attorney is taken to have acted in breach of their obligation to obtain authorisation.

Further Eligibility Requirements

In addition to current requirements, the new legislation provides that an eligible attorney under an EPA:

  • must have capacity for a matter; and
  • must not have been a paid carer for the principal in the previous 3 years before their appointment.

In addition to current requirements, the new legislation provides that an eligible attorney under an AHD must not be a service provider for a residential service where the principal resides.

Recognising Interstate or New Zealand Enduring Powers of Attorney

Under the changes, an EPA may be made by an adult principal outside Queensland so that, where the person lives interstate or overseas and makes an EPA under Queensland legislation, the instrument will be effective in Queensland.

EPAs made in another state or made in another jurisdiction including New Zealand will also be recognised in Queensland.

If you have any queries about the upcoming changes or would like to discuss any aspect of your estate plan, please don’t hesitate to contact us.

Australian Migration Program 2020-2021

Australian Migration Program 2020-2021

The Migration Program for 2020-2021 was finally “announced” on the night of the Federal Budget on 6 October 2020.

Traditionally, the program for the next fiscal year is usually announced in the April of the preceding fiscal year. But with the mayhem of the Covid-19 pandemic the Migration Program for 2020-21 was announced on Federal Budget night on 6 October 2020.

Even then the full migration program was not revealed until 2 days after the Budget night announcement.

This article proposes to do the following:
A. Provide the 2020-21 Migration Program;
B. Give a commentary on the proposed migration program; and
C. Discuss the programs that will be given priority.

A. Migration Program 2020-21

The Migration Program normally comprises two main programs: Family and the Skilled Programs. Traditionally the ratio has been one third Family and two thirds Skilled.

On Budget night this ratio was abandoned and the total Migration Planning Program for 2020-21 is similar to the Planning Program for the year before, 2019-20: 160,000 visas:

Family Program                                                                                                                                                77,300

  • Partner                                                 72,300
  • Parent                                                                   4,500
  • Other Family       500
  • Child (* Estimated – Not subject to ceiling)   3,000 *

Skilled Program                                                                                                                                               79,600

  • Employer Sponsored                                                                 22,000
  • General Skilled Migration                                                 28,900
  • Skill Independent                   6,500
  • State/Terr Nominated 11,200
  • Regional 11,200
  • Global Talent Independent                                                15,000
  • Business Innovation & Investment Visas 13,500
  • Distinguished Talent       200

Special Eligibility                                                                                                                                                    100

Total Migration Planning Program                                                                                                           160,000

Humanitarian Program (separate to the Migration Program)                                                          13,750

B. Commentary On Proposed Program

We will only comment on the Migration Planning Program.

Over the past few months the government has been indicating that migration numbers for 2021 will fall significantly.  Indeed on 1 May 2020 the Prime Minister said that Australia’s overseas migration intake will shrink by more than 85 per cent from the 2018-19 levels as a result of the coronavirus.

Was this mere political hype?  Perhaps he meant this more holistically when including other programs like Visitor, Student and Temporary Residence programs because the program as announced does not reflect those sentiments.

As mentioned already the overall migration planning level for 2019-20 is exactly the same as that proposed for 2020-21 even though the actual visas issued in 2019-20 was 140,366 and the program composition is different.  Hence, the suggestion that the “overseas migration intake” will shrink by more than 85% was probably an exaggeration.

But then the Treasurer Josh Frydenberg in his post-Budget address to the National Press Club on  7 October 2020 flagged that the Budget was premised on the assumption that Australia’s international borders would probably remain closed throughout 2021 when it was also assumed that a vaccine for Covid-19 would be available by that time.

How do we then reconcile that Australia would be able to achieve a migration program of 160,000?

The answer to this can be given in three parts:  firstly, this is only a planning level and as occurred in 2019-20 the actual program delivered could be considerably less than 160,000.  Secondly, many applicants for permanent residency are already in Australia on Student or other Temporary Residence visas; and thirdly, the Government can always provide exemptions and permit approved visa holders to enter Australia as exempt people, such as the recent relaxation for holders of provisional Business Innovation & Investment Visas.

For all the talk about a decimation of the migration program, the reality is Australia is a migration accepting country and there will always be cogent and strong reasons why Australia will need migration for some years yet to supplement the Australian population.  There are many factors for this reliance but the three key reasons are:

  • The low birth rate: In 2018, Australia’s birth rate fell to an all-time low of 1.740 babies per female of childbearing age.  This low fertility rate means Australia is not replacing its population.  According to the UN Population Division, a total fertility rate (TFR) of about 2.1 children per woman is considered the replacement-level fertility.
  • Ageing population: The Australian population is ageing.  In 2017 it was estimated that 15% of Australians (3.8 million) were aged 65 and over and the projection was that this proportion will grow steadily over the coming decades.  This can be attributed in part to a low fertility rate, but also that older Australians are increasing their life expectancy.  If the problem of an ageing population is not addressed, such as through an increased population, the consequences of the nation’s lower productivity will mean the burden of increased health and social security costs will fall on the younger population; and
  • Economic growth: Importantly, despite a recession, the consensus view among Economists is that migration does impact positively on economic growth.   Australia needs migration to grow its economy.

For all these and other reasons, Australia will have a migration program for some years yet!  Australia’s demography, fertility and economics will see to that.  The issue is the extent and composition of that migration program.

The total for this year’s Planning Program is no different from that of last year:  160,000, except that the program focus and priorities have changed quite significantly as the useful table below, sourced from Immigration Law News website, will show.

The traditional one-third Family and two-third Skilled Migration formula has disappeared, and the main program casualties are the General Skilled Migration (GSM) (subclass 189, 190 and 491) program and the suite of different Parent visas.

What is surprising was the significant increase in the Partner visa allocation which has grown by nearly 82% from the previous year, with the sting that applicants from July 2021 will need to demonstrate that they and their sponsors have functional English language skills.  The test applies equally to the Sponsor unless they are Australian citizens.

This increased Partner allocation can be due to Australian sponsors complaining about the long processing times for both onshore and offshore applications of up to 27 months!  Given the Partner Visa Application Charge is $7,715 (more if there are accompanying dependent family members), this is not an unreasonable complaint for the exorbitant fees paid.

Migration Planning Levels 2020-21 Analysis

Source: https://immigrationlawnews.com.au/migration-planning-levels-detailed-comparison-shows-major-cuts-in-many-migration-categories/

What is the impact of the drop in the Parent and GSM allocations?

For Parent visas, undoubtedly the queue for finalising these applications will get longer.  The Department has stopped providing processing times for Parent visas, but anecdotally the processing time for Parent visas can now extend to more than 4 years.

The applicants and sponsors are understandably angry about this, especially when the exorbitant second Visa Application Charge of $43,600 per parent is applicable to Contributory Parent visas.  They are by far the largest group of applicants in the suite of Parent visas.

The above table will show the GSM allocation shrinking by more than 55% from 2019-20.  Inevitably this will mean that getting invitations will be even more competitive.  To receive an invitation for the Skill Independent visa in 2019-20 a minimum score of 95 points or higher was expected.  This could now be higher as the overall GSM allocations have shrunk considerably.

It is my prediction that the Medium and Short Term Lists of occupations will be reviewed, and the occupations there will shrink in view of the smaller GSM allocation.  The points test for GSM applicants will remain very competitive.  The role of nominating States and Territories will likely be reviewed too with a view to ensuring that their nominations are more targeted to the needs of their respective jurisdictions.

Given the high unemployment levels that have resulted from Covid-19, it is not surprising that Employer Sponsored Visas have also been reduced by nearly 27% from the Planning Level in 2019-20.  With this reduction, it can be expected that Immigration Case Officers will be assessing these Employer Sponsored cases critically to ensure that the market testing and the employer’s need for staff are rigorously assessed.

Clearly from the table, apart from the Partner Program, the other big winners are the Global Talent Independent (GTI) Program which has tripled in size (15,000), and the Business Innovation and Investment Program (BIIP) which has nearly doubled in size (13,500).  We will discuss this next.

C. Migration programs that will be given priority

The Covid pandemic has wrought much damage to the national economy.  It is therefore not surprising that the government has turned to the Global Talent Independent (GTI), and Business Innovation and Investment Programs (BIIB) to revitalise and spur the economy.

The purpose of the GTI is to seek highly-skilled migrants with exceptional, transferrable skills from around the world to work in a spectrum of future focused technological fields which can contribute to the development of an Australian technological future oriented economy.

This program was only announced by the government in August 2019 and by the end of June 2020 4,109 visas were granted.  The vision and success of this program has seen the government tripling the planning level for GTI in 2020-21 at the expense of the GSM allocation which has fallen by more than half because of Covid and the rising high unemployment.

If you are not familiar with the GTI, you might want to read two articles that we have written in our website – here are the links for them:

The eligibility criteria for GTI is simple but difficult to achieve.  For starters the applicant has to come from one of the following seven tech oriented sectors:

  • AgTech
  • Space and Advanced Manufacturing
  • FinTech
  • Energy and Mining Technology
  • MedTech
  • Cyber Security
  • Quantum Information, Advanced Digital, Data Science and IT

Then the applicant must show they have the talent, namely, they are:

  • internationally recognised with exceptional and outstanding achievements
  • still prominent in their field
  • an asset to Australia in their area of expertise
  • having no difficulty in obtaining employment or be established in their field in Australia
  • able to have a relevant organisation or individual in Australia who can endorse their attributes; and
  • having the potential or the ability to attract an annual Fair Work High Income Threshold (FWHIT) salary of AUD153,600.

Interestingly for relevant and exceptional Masters or PhD students in Australia who can demonstrate this talent and international recognition, the government has announced that there are places for such students in the program.

Our law firm has experience in assisting applicants for this program:  not only has our client received the invitation within a short time but her application was granted 11 days after its lodgement.

Even though the program has grown three fold, we expect that competition for these places will be more intense and assessments will be more difficult.  So candidates considering this should seek professional support in their bid for a GTI.

The other winner in the migration program is the Business Innovation and Investment Visa (BIIV) Program (13,500) which has nearly doubled in size from 2019-20.  This stance has been our assessment for some time and it is not surprising that our predictions have proven true.  It is a no- brainer for this initiative given the havoc that Covid has done to the economy.  The BIIV Program will not only bring new business and create much needed new employment, but it will also inject much needed new investment into the economy.

The government has considered this subject so important that it will establish a new whole-of-government Global Business and Talent Attraction Taskforce that will be established to attract international businesses and exceptional talent to Australia to support the post-COVID recovery and to create employment.

The backdrop to this is that the department had already undertaken a review of the BIIV in conjunction with Austrade in 2017.  As a continuation of that review the department has more recently initiated a public consultation on the BIIV process, and had requested input before 14 February 2020 on whether:

  • there are opportunities to streamline the Business Innovation and Investment program (BIIP) to maximise the value the program generates; and
  • increased investment thresholds and different investment types could provide better economic benefits to Australia compared to the current settings used for the Investor visa (IV) and Significant Investor visa (SIV).

This is code for announcing that there will be changes to the BIIV Program.  It was expected that these announcements will have been made when the 2020-21 Program was announced on 6 October 2020, but it was not.

But it can be safely assumed that the Government will soon introduce changes to BIIV along the lines of its public consultations brief in ensuring a more targeted approach to business proposals and a new focus on investments will be initiated to improve the economic outcomes of the BIIV Program (BIIP).

The Minister had said as much in his 6 October 2020 Press Release:

The BIIP will also be streamlined and reformed to ensure that investments are targeted at Australian venture capitals and emerging small and medium size businesses to support the economic recovery. 

We also know from the Budget that Visa application charges for BIIV will increase by an additional 11.3% (above regular CPI indexation) from 1 July 2021.

Given how Covid has played out in Australia vis-à-vis other parts of the world, Australia can pride itself as a good destination to migrate to and start a new life.

Our law firm has been assisting clients in their business migration application for more than six years with great results, and with expected changes to occur in the near future, we intend to continue this assistance and help applicants get their visas granted and to start new lives in Australia.

Contact the Migration Team

Our team of experienced migration lawyers at Rostron Carlyle Rojas Lawyers can assess your eligibility for these and other migration programs.

We will listen to you and we will provide comprehensive advice regarding your eligibility, address the important threshold issues, and guide and assist you in obtaining the necessary nomination and  invitation, and in preparing a decision-ready application.

Please contact any one of us in the Migration Team for assistance, or call (07) 3009 8444:

What are the new COVID-19 concessions and who is eligible to apply for them?

What are the new COVID-19 concessions and who is eligible to apply for them

A large number of visa holders have been directly impacted by the restrictions imposed in response to the COVID-19 pandemic and have been facing uncertainty about their future in Australia. The COVID-19 restrictions have resulted in complex issues for these visa holders, many of whom are on the pathway to permanent residency.

The disadvantages faced by these visa holders has led to the introduction of the Migration Amendment (COVID-19 Concessions) Regulations 2020 (the Regulations) which commenced on 19 September 2020. The Regulations aim to support disadvantaged temporary and provisional visa holders impacted by the COVID-19 restrictions in the ‘concession period’ which commenced on 1 February 2020.

The new Regulations introduce amendments which provide concessions to visa requirements and/or conditions which are no longer able to be met due to the impact of the pandemic, this impact includes disruptions such as border closures, restrictions on businesses and the economic impact caused by the pandemic.

Importantly, COVID-19 concessions are currently only available to the following visa holders and applicants:

    • Subclass 887 visa
    • Subclass 888 visa
    • Subclass 188 visa
    • Subclass 790 visa
    • Subclass 485 visa
      The concessions include:

Skilled Regional Visa (Subclass 887)

During the concession period applicants for the subclass 887 visa can lodge their application offshore and be granted the visa offshore. Furthermore, applicants who lodge their applications outside of Australia during the concession period can access shorter employment requirements and shorter residency requirements.

The current requirement is to prove at least two years of residency in a regional or designated area of Australia and at least 12 months of full-time employment in this two-year period within the regional or designated area whilst holding an eligible visa.

The new concession allows applicants applying within the concession period (or no later than three months after the end of the concession period) to satisfy the requirements by proving the following:

  1. At least 9 months of full-time employment in a specific regional area; and
  2. At least 18 months of residence in a specified regional area with a concession of up to 6 months if the applicant was offshore within the concession period and made the application offshore.
    Please note, If you are lodging your application onshore in Australia, you are only entitled to the employment concession and cannot claim the residency concession available under the Regulations.

Business Innovation and Investment (Permanent) subclass 888 visas

There are concessions available to provisional subclass 188 visa holders impacted by the travel restrictions imposed due to the COVID-19 pandemic. These concessions will allow these visa holders to apply for a subclass 888 (permanent) visa if their provisional visa expired during the ‘concession period.’ This concession is only available if the application is lodged no more than three months after the end of the concession period.

Additionally, subclass 188a (innovation stream) visa holders who were granted the visa before 1 July 2019 will be able to apply for a subclass 188 extension visa as long as the application is made no more than three months after the end of the concession period. They will also be able to apply for a second extension due to the impact of the COVID-19 restrictions.

Subclass 188b (investor stream) visa holders who were granted their visa before 1 July 2019 will be able to withdraw or cancel their investments during the concession period if the holder has met the requirement to live in Australia for two years.

Subclass 188c (significant investor stream) visa holders who were granted their visa before 1 July 2019 will be able to withdraw or cancel their balancing investment during the concession period, while maintaining their investment in venture capitol and emerging companies.
These are the major concessions applicable to the permanent business innovation and investor visa program.

Subclass 485 (Temporary Graduate) visas

Former student visa holders may now apply for and be granted a subclass 485 visa from outside or inside of Australia during the concession period.
Visa applicants outside of Australia will now be able to satisfy the requirements if they met the Australian Study Requirement in the 12 months immediately before they lodge their application, rather than 6 months. This will allow offshore applicants who would otherwise be deemed ineligible due to the passage of time between their study and the lodgement of the application an opportunity to apply for the subclass 485 visa. Please note, this will only be available in circumstances where the applicant was outside Australia during all or part of the period starting on 1 February 2020 and ending on 19 September 2020.

Subclass 790 (Safe Haven Enterprise) visas

SHEV or former SHEV holders can now count periods of time during the concession period toward their 42-month regional work and study period.
This is irrespective of whether they are receiving special benefit payments, unemployed or work outside a SHEV regional area (as long as they work in an essential service as specified by the Minister).

Summary:

The intention behind the introduction of the COVID-19 concessions is to support and protect the possible migration pathways which would have been available to migrants had the restrictions imposed by the pandemic not been introduced.

The concession period commences from 1 February 2020 and is only available in the specific circumstances we have outlined.

It is important to be wary when considering your eligibility for the concessions listed, as case officers will likely assess these on a case by case basis to ensure the concessions are not utilised by applicants who were not directly impacted by the COVID-19 restrictions.

Contact us for more details about the COVID-19 concessions to determine if you are eligible now on 07 3009 8412 or at [email protected]
Shanalee Johal
Migration Lawyer and Agent (MARN: 1910236)

 

 

Hong Kong Visa Concessions

Hong Kong Visa Concessions

On 9th July 2020, the Australian Government announced special visa concessions for Hong Kong people wanting refuge in Australia from the political instability in Hong Kong (HK): https://minister.homeaffairs.gov.au/alantudge/Pages/hong-kong-visa-arrangement-20200709.aspx.

The primary objective of the policy is to provide a safe haven for those affected by the controversial new National Security Law introduced in Hong Kong. The arrangements favoured mainly HK people already in Australia and we believe legislative amendments will be required to enable the policy changes.

Concessions were less direct for people living in HK. To access the onshore concessions, HK citizens have to first get to Australia before they can access the concessions, such as coming to Australia on student visas.

The government has also announced that it would target Global Talent or Business Innovation and Investment Visa (BIIV) applicants in HK but did not disclose how it would do this. It also vaguely said that it would give Permanent Residency opportunities to Hong Kong based staff when their HK businesses were relocated to Australia.

This article will look at the concessions currently available to HK citizens presently in Australia and those in HK.

Hong Kong visa holders in Australia

There are approximate 10,000 HK Special Administrative Region (SAR) passport holders in Australia, who are on student, temporary graduate and temporary skilled visas. In summary the following are concessions currently available to them:

 For Graduate subclass 485 visa holders, Temporary Skill Shortage (TSS) subclass 482 and Temporary Work (Skilled) subclass 457 visa holders: they can extend their visas for an additional 5 years with a pathway to permanent residency (PR) at the end of that period.
 For Student subclass 500 visa holders: they will be eligible for a 5-year graduate visa when they complete their studies with a pathway to PR at the end of that period.
 For those on Skilled Work Regional (Provisional) subclass 491 and Skilled – Regional (Provisional) subclass 489 visa holders, existing arrangement will remain in place to relieve skills shortages in regional Australia, with pathways to PR after 3 years (2 years for 489 visa holders).

Interestingly, the Temporary Graduate subclass 485 visa used to be available to a primary applicant on only one occasion. But arising from the government’s announcement it appears that this rule is being amended and HK citizens with this visa may be able to obtain an extension.

Hong Kong citizens in Australia on other visas

There are still many HK people on other types of visas presently in Australia, such as Working Holiday subclass 417, Electronic Travel Authority subclass 601 (including Visitor subclass 600) visas. After the COVID-19 pandemic outbreak, many previous working holiday makers have also transferred their visas into a Temporary Activity subclass 408 visa under the COVID-19 stream.

To be favoured by the current arrangements, HK citizens can consider applying for a subclass 500 student visa. When the minimum 2 years study is completed at a University, the graduate will be eligible for a 5-year graduate subclass 485 visa with a PR pathway.

We should mention that for the Vocational Education & Training (VET) sector, to be eligible for a subclass 485 Graduate Skilled visa, the applicant who obtained a trade level qualification (such as a Vocational level Certificate or Diploma) must have their occupation on the Medium and Long-term Strategic Skills List (MLTSSL).

There is no concession on this requirement from the announcement, so student applicants in this circumstance will not be eligible for the subclass 485 concession. To access the concession HK students must choose an occupation from the MLTSSL to secure the subsequent 485 concession.

Protection Visa Options

Australia has international obligations to protect people who are refugees or who will suffer significant hard if they return to HK. However, this does not mean that all HK citizens applying for Protection Visas in Australia will be granted them. To be eligible, they need to substantiate that they qualify for these protection provisions.

ABC News has reported that there are already at least 62 onshore Protection subclass 866 visa applications from Hong Kong citizens between November 2019 and July 2020.

To support a protection visa claim, an applicant needs to provide substantial evidence to prove that they meet the refugee definition or will face significant harm if they return to HK. If they meet these high threshold requirements, Australia will consider granting them a subclass 866 Protection Visa.

If you are a Hong Kong citizen in Australia and you are likely to face persecution arising from the new HK Security Law , or from other activities that might get you into serious trouble if you returned to HK, you should contact Rostron Carlyle Rojas Lawyers on 07 3009 8444 to make an appointment with us to discuss this issue confidentially. Our lawyers have strong experience in Protection Visas, and can provide you with honest appraisals of your PV prospects.

Applying from Hong Kong

As mentioned earlier the visa concessions are not as generous for HK citizens applying for visas from outside Australia. To access most of the available concessions they have to be in Australia. Hence, for these HK citizens they can formulate the following strategies:

 HK citizens can apply for a TSS visa – provided they meet the updated skills lists and other TSS requirements, they could be granted a 5-year visa from which a pathway to a longer stay can then be developed; or
 Apply for a Student subclass 500 visa – come to Australia on that visa, and then apply for the concessions currently available, such as applying for the 5-year graduate visa when they complete their studies, or find an alternative PR pathway that may be available to them before the expiry of their visa.
 Or apply for a visa under the Global Talent or Business Innovation and Investment Visas – the Australian government has announced that such applications will be welcomed.

With a similar British education system in HK, there is already a large number of HK students who have chosen to study in Australia each year. Under the new arrangement, it is anticipated that increased student numbers from HK will continue to arrive in Australia in future.

Meanwhile, these prospective student applicants should be reminded that the General Temporary Entry (GTE) requirement for international students is still likely to be enforced. This means that anyone applying for a student visa must prove that they are genuine students who are not seeking to remain in Australia at the end of their studies. This GTE rule applies equally to HK applicants but whether they will be enforced rigorously is yet to be seen. Therefore, a visa refusal is possible if the applicant is blasé about GTE when applying for the student visa.

Australia is also always trying to attract the best and brightest through the Global Talent and Business Innovation and Investment Visa programs, and the government sees many HK citizens would be eligible for them.

In addition, the government is looking at developing new incentives to attract export-oriented Hong Kong based businesses to relocate to Australia. It is expected that they may not just be economic incentives, but it would also permit these companies with critical Hong Kong based staff to relocate with the business. Again this initiative has to be fully spelt out yet but it is possible that arising from this that there may be other pathways developed for these staff members to acquire Australian permanent residency.

Contact

As can be seen these concessions to HK citizens are still evolving and are not fully matured yet, and many of these changes are complicated.

If you are a HK citizen in Australia or in HK, and you wish to discuss your own or your family’s situation we recommend that you seek a consultation with us for an honest appraisal of options that may be available to you and your family. As lawyers, we will treat the information you give us with utmost confidence.

Our team of experienced migration lawyers at Rostron Carlyle Rojas Lawyers can assess your eligibility for the Australian government’s concessions and/or your suitability for other available migration programs. We will listen to you and we will provide comprehensive advice regarding your eligibility, address the important threshold issues, and guide and assist you in preparing a decision-ready application.

Please contact any one of us in the Migration team for assistance, or call (07) 3009 8444:

• Peter K K Lee, Special Counsel: [email protected]
• Clayton Hellen, Senior Associate: [email protected]
• Shanalee Johal, Lawyer: [email protected]

What is Australia doing for International Students?

What Is Australia doing for International Students

Benefit to Economy

There is no doubt that Australia’s intake of international students has been a significant benefit to the Australian economy for many years.

The revenue generated from overseas student fees had continued to grow substantially with no sign of slowing down. The Australian Bureau of Statistics published data for the 2017-18 period which revealed that international education was valued at $32.3 billion, this is an increase from the 2016-17 period wherein it was valued at $28.1 billion.

Australia cannot afford to lose the many benefits which come from welcoming international students onto our shores, so how has the Government dealt with the impact of COVID-19 in respect of international students?

Covid-19 Impact

The impact of COVID-19 has been felt globally with many countries restricting travel and closing their borders to ensure the safety of residents and citizens. Australia’s response to the global pandemic has been thorough with decisions made to restrict interstate travel, close the international border, and enforce social distancing guidelines. This has resulted in Australia’s international student intake reducing by more than 30%.

As Australia’s economy continues to suffer from business closures and many working from home, the acting Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs, Alan Tudge released a statement on 20 July 2020 addressing the importance of international students to the Australian economy.

Mr Tudge explained that international students contribute at least $40 billion annually to the Australian economy as well as support over 250,000 jobs. Simply put, Australia cannot afford to lose their intake of international students.

Proposed Changes for Students

Mr. Tudge has acknowledged that the international border closure has resulted in challenges for the education sector both onshore and offshore and has proposed five new visa changes to ensure international students can fast track applications and plan their travel to Australia immediately once the international border reopens.
The changes seek to do the following:
1. First, the Government aims to recommence the granting of student visa applications to ensure students will hold valid visas to travel to Australia once the international border reopens.
2. Second, international students will be able to lodge another student visa application with no expense if they are unable to complete their study within the term of their student visa.
3. Third, student visa holders who are studying online and offshore due to the pandemic can claim this study toward the Australia Study Requirement in order to obtain a Subclass 485 Visa.
4. Fourth, offshore graduates who held a student visa will be eligible to apply for a Subclass 485 Visa offshore.
5. Fifth, extensions will be provided for English test results which are delayed due to the impact of the pandemic.

The changes clearly aim to entice international students to Australia, support international students in and outside of Australia, and maintain the pathway to potential residency available to international students in Australia.

Contact
If you are an international student wanting to know more about the five new visa changes and how they will impact your pathway to Australia please contact us on 07 3009 8412 or [email protected]

Global Talent Independent Visas

Global Talent Visa Australia

The Covid-19 pandemic has seen the world come to a standstill – and Australia is no exception.

The Prime Minister has already foreshadowed a drop in the migration program in the next financial year (2020-2021). What is unlikely to drop however is the availability of business migration and global talent visas. Why? Because these visas are likely to assist in the recovery of the economy.

In this article we will look at the Global Talent Independent (GTI) Visa. This is a companion article to our article on Global Talent Employer Sponsored (GTES) Visa which was published in our website in 2019:  https://rcrlaw.com.au/global-talent-visa/

The companion GTI program was first announced by the government in August 2019 to attract skilled migrants in the “future-focused fields” to Australia who would create employment opportunities for Australia by transferring skills, promoting innovation, and creating job opportunities in the Australian economy.

Purpose of  The Global Talent Independent Visa(GTI)

The purpose of the program is therefore to seek highly-skilled migrants with exceptional, transferrable skills from around the world, who work/study in “future focused fields” who can contribute towards the innovative development of Australian’s growing economy.
The primary objective is to create opportunities in Australia by transferring skills & creating job opportunities.

The Global Talent Independent Visa offers permanent residence and is given priority processing by the department.

How does The Global Talent Independent Visa Program work?

The program works in two ways:
• The Australian Government has actually stationed Global Talent Officers or Scouts in 7 key locations around the world (Berlin, Dubai, New Delhi, Santiago, Shanghai, Singapore and Washington DC) to locate eligible candidates. In this process, the department is collaborating with Australian universities, industry bodies and state/territory governments to source eligible candidates.
• The other way is for candidates who fit the profile to apply to the department directly for one of these visas.
In 2019-2020 the government has allocated 5,000 visas for this program.

Global Talent Independent Visa Criteria:

The government has published the eligibility criteria for this visa. Essentially, the eligible candidates will come from one of these targeted highly-skilled fields:
o AgTech
o Space and Advanced Manufacturing
o FinTech
o Energy and Mining Technology
o MedTech
o Cyber Security
o Quantum Information, Advanced Digital, Data Science and IT
The candidates must attract a salary commensurate with the Fair Work High Income Threshold (FWHIT) of at least AUD $148,700.
Other considerations could include:
o future job offers in Australia specifying remunerations, or
o candidates are recent PHD or Masters graduates in the mentioned target sectors.
o candidates endorsed by a nominator in Australia with recognized skills. The nominator can be an Australian citizen, resident or organization or an eligible New Zealand citizen.
o examples of work done around the world (via secondary source)

Global Talent Independent Visa Application process:

Consistent with what we have said above on how the program works, an application for this visa can be done in one of two ways:

• Eligible candidates may get a referral from a Global Talent Officer or an organization with a national reputation in the same field; OR
• Eligible candidates can be considered under a range of different visa options available in the migration program: such as the Distinguished Talent, Skilled Visa, Entrepreneur Visa, and Global Talent Employer Sponsored visa. For instance, under the Distinguished Talent Visa Program they have to show that they are “internationally recognised with a record of achievement”, or under the Skilled Independent Visa stream the candidate will need to register their Expression of Interest in the department’s SkillSelect database and they will be given a Global Talent unique identifier along with their lodgment.

Note you do not have to be invited by one of the above-mentioned Global Talent Officers to be considered.

How can we help?

If you are such a highly-skilled individual in one of these top-“future focused fields”, please contact us.

Rostron Carlyle Rojas Lawyers team of Migration Lawyers will be interested to review and assess your suitability for the program. We can provide comprehensive advice regarding your eligibility, address the important issues regarding the visa, and guide you in preparing a decision-ready application.

We invite you to contact us for a consultation today, or alternatively write to any one of us in the Migration team:
• Peter K K Lee: [email protected]
• Clayton Hellen: [email protected]
• Shanalee Johal: [email protected]

VISA UPDATE: Global Talent Employer Sponsored Program

Global Talent Employer Sponsored Visa

The Minister for Immigration announced in August 2019 that the Global Talent Visa scheme is now a permanent fixture in Australia’s migration program. The Global Talent scheme comprises of two different programs: Global Talent – Employer Sponsored program and Global Talent – Independent program. This article will address the first program, the Global Talent – Employer Sponsored program (GTES).

The Global Talent Employer Sponsored Program (GTES)

The Global Talent Scheme Pilot, targeting highly skilled global talent, began in July 2018. The purpose of the program was to address concerns that highly skilled niche positions required by Australian businesses were not able to be sponsored under the rigid occupation lists of other skilled and employer sponsored visa programs.

While the program has seen some success, critics question whether it is delivering on its aim, due to the low number of applicants sponsored through GTES Agreements since its inception.

Global Talent Visa AustraliaThe Global Talent Employer Sponsored Program (GTES) allows eligible Australian businesses to sponsor highly skilled overseas applicants for up to 4 years. The program is delivered through the existing Temporary Skill Shortage (TSS) Visa. However, GTES applicants do not have to apply through the usual Short Term and Medium Term streams of the TSS visa, which requires the nominee’s occupation to be on the published skilled occupation lists. Instead, GTES allows Australian businesses to negotiate specific labour agreements directly with the Department of Home Affairs to fill highly skilled occupations that may not be on the published skilled occupation lists and may not be available under the existing industry specific labour agreements in place.

A business must demonstrate that they cannot fill vacant positions under existing skilled visa programs before applying for a GTES agreement.

The visa is split into two streams: the Established Business Stream and the Start-up Stream.

GTES (Global Talent Employer Sponsored) Streams

The Established Business Streams

This stream is only available to Australian employers who are accredited sponsors with the Department of Home Affairs. There are five categories of accredited sponsors:
1. Australian Government agencies where at least 75% of the workers are Australian
2. Australian Trusted Traders where at least 75% of the workers are Australian
3. Existing Standard Business Sponsors with a turnover of over $4million where at least 85% of the workers are Australian
4. Existing Standard Business Sponsors who have successfully nominated at least 10 workers in the last 2 years, with a turnover of over $4million, where at least 75% of the workers are Australian
5. Existing Standard Business Sponsors who have made a major investment of at least $50million into Australia

Australian Employer Criteria- The Established Business Stream

The Australian business will need to meet the following key requirements:
1. Be an accredited sponsor;
2. Be publicly listed, or have an annual turnover of at least AUD4 million for each of the past 2 years;
3. Have good standing in compliance with regulatory agencies
4. That they have tried to find an Australian to fill the role;
5. That the position will have minimum annual earnings equivalent to the Fair Work High Income Threshold (currently $148,700); and
6. That the sponsorship will support job opportunities and a skills transfer to Australian workers.

This stream will allow businesses to nominate up to 20 positions per year.

Visa Applicant Criteria -The Established Business Stream

The visa applicant will need to meet the following key requirements:
1. Qualifications to suit the highly skilled role;
2. Three years of directly relevant work experience;
3. Capacity to pass their skills on to Australian workers; and
4. No family relationship with the directors and shareholders of the employer.
Applicants will have access to a transitional pathway to permanent residence after 3 years.

The Start-up Stream

The Start-up steam is aimed at newly-established companies in STEM-related fields (science, technology, engineering, and math).

Businesses must first be endorsed by the Start-up Advisory Panel. They must also demonstrate that they have received at least $50,000 in funding from an investment fund registered as an Early Stage Venture Capital Limited Partnership, or that they have received an Accelerating Commercialisation Grant.

Australian Employer Criteria- Start-up Stream

The stream requires businesses to show the following:
1. Endorsement by the Start-up Advisory Panel;
2. That their recruitment policy provides first preference to Australian workers;
3. That they have tried to find an Australian to fill the role;
4. That the position will provide for the market salary rate for the position, which must be at least $80,000 (including a cash component of at least $53,900) and
5. That the sponsorship will result in job opportunities and a skills transfer to Australian workers.
Approved businesses can nominate up to 5 positions each year.

Visa Applicant Criteria- Start-up Stream

The visa applicant will need to meet the following key requirements:
1. Qualifications to suit the highly skilled role;
2. Three years of directly relevant work experience;
3. Capacity to pass their skills on to Australian workers; and
4. No family relationship with the directors and shareholders of the employer.

Applicants will have access to a transitional pathway to permanent residence after 3 years.

GTES agreements receive priority processing by the Department.

If you are an Australian business who is struggling to fill a high specialised role within your organisation, the GTES program may be your solution to being able to employ an appropriate candidate from overseas. Rostron Carlyle Rojas Lawyers migration team can provide advice on your eligibility, discuss the options available, and guide you through the GTES process.

If you are a highly skilled applicant who has an Australian employer interested in offering employment, and you need to discuss what visa options might be available, Rostron Carlyle Rojas Lawyers can provide comprehensive advice on the options and strategies available to you and your potential employer.

Contact us for a consultation today:
Peter Kuek-Kong Lee, Special Counsel and Registered Migration Agent MARN 0427478
[email protected]
Anna Gunning-Stevenson, Associate and Registered Migration Agent MARN 1797244
[email protected]
(07) 3009 8444

How does the coronavirus pandemic impact migrants in Australia?

How does the coronavirus pandemic impact migrants in Australia

The impact of the Coronavirus pandemic has been felt across Australia as it has effectively stalled migration to Australia for many.

The impact has caused a number of visitors to have to extend their time in Australia and many who had been preparing for migration to halt their plans.

Migrants are already amongst the most vulnerable within the Australian community and are now facing an unpredictable hindrance to their strategy for permanent residency in Australia.

Rostron Carlyle Rojas Lawyers are here to support migrants impacted by the coronavirus pandemic as they attempt to find answers for the many questions that remain unanswered by the Australia Government.

In this article we have compiled critical information to support visa holders during this difficult time. If you require further information, do not hesitate to contact us on 07 3009 8444 or write to [email protected]

If your visa has expired or is about to expire:

If your visa has expired, you should make arrangements to leave Australia within 28 days of your visa expiry date.

If this is not an option for you, you must apply for another visa to ensure you remain lawful in Australia. You may consider applying for a Bridging Visa E (BVE) to stay lawful within Australia.

It is important to be aware that whilst this visa allows you to remain lawful while preparing to depart Australia, it carries a stigma and may impact your future visa applications to Australia.

If your visa has expired over 28 days ago, there are limited options available to stabilize your status in Australia and we recommend coming to us to discuss your options.

If your visa will expire in the next 28 days or has expired and it has not been 28 days and you are unable to apply for any other visa subclass to remain lawful in Australia, you may be eligible for the new pandemic stream under the subclass 408 visa.

If you do not know your current visa expiry date you should check your visa status through VEVO to ensure that you remain lawful within Australia and can plan appropriately.

Visitor visa holders:

Visitor visa holders have been advised to return to their home country as soon as possible by the Australian Government, especially if they cannot support themselves financially.

If you are unable to return to your home country and you can prove that you have a genuine intention to remain temporarily in Australia, you may wish to apply to extend your visitor visa.

If you hold an Electronic Travel Authority (ETA), you cannot apply to extend your ETA travel facility. You must apply for a new visitor visa as a means to extend your time in Australia.

Prior to applying to extend your stay in Australia, you must check if your current visa grant letter contains any of the following No Further Stay conditions – condition 8503, condition 8534 or condition 8535. If your visa contains any of these conditions, you must apply to have these conditions waived before applying for a visa to extend your time in Australia. We can help you in this circumstance.

Student Visa holders

If you are an international student in Australia, the Australia Government has advised that you should return home if you cannot support yourself financially.
If you wish to remain in Australia, the Australian Government has taken a flexible approach to the conditions of your visa. Importantly, you should continue to ensure you comply with the conditions of your visa as best as you can to avoid a potential visa cancellation.

If your course is officially ‘out of session’ or you are studying a masters by research or a doctoral course, you may work unlimited hours on your visa. If your course has been ‘deferred’ you can work over 40 hours per fortnight.

On 7 March 2020 the Australian Government relaxed the 40-hour work limit for student visa holders working in supermarkets. Please be aware that this relaxation of hours was a temporary measure and it will cease on 1 May 2020. Following this announcement, the Australian Government announced the relaxation of hours for student visa holders working in aged care Approved Providers or Commonwealth-funded aged care services.

Finally, as of 23 April 2020, all student visa holders enrolled in relevant health care related courses and supporting the coronavirus pandemic were exempted from the 40-hour per fortnight work limitation. This exemption has also been made available to student visa holders working for registered National Disability Insurance Scheme providers.

If your student visa is about to expire, you may be eligible to apply for a visitor visa to ensure you can remain lawful in Australia, or alternatively apply for the subclass 408 visa under the pandemic stream. If you need more time to complete your study,

Under migration law you are not permitted to extend a student visa, therefore if you need more time to complete your study you must apply for a new student visa at least 6 weeks prior to the expiry of your current student visa.

Working Holiday Makers:

The Australian Government has relaxed provisions for working holiday makers in certain critical sectors. If you wish to know more about this, please contact us.

Temporary Skills Shortage Visa holders (subclass 482 and 457)

If you currently hold a work visa in Australia, and you have been formally ‘stood down’ but not laid off from work due to the coronavirus pandemic, the Australia Government will not consider this to be a breach of your visa conditions.

Your employer is also entitled to reduce your work hours without this causing a breach of your visa conditions.

However, if you are laid off due to the coronavirus you must find a new employer within 60 days or face visa cancellation.
Please be aware that temporary visa holders are not entitled to Job Keeper payments.

Job Keeper Benefit

At this time the Australia Government is only allowing Australian Citizens, Permanent Residents and Special Category visa holders the opportunity to apply for Job Keeper benefits.

All temporary and provisional visa holders are not currently eligible for Job Keeper benefits.

Section 48 Bar:

The Australian Government has advised all State and Territory Governments to cease inviting visa holders who are currently barred from applying for most visas under Australia’s Migration Program due to section 48 of the Migration Act.

This means that if you were refused a substantive visa in Australia (whilst holding a Bridging Visa) and have appealed the refusal decision, you are unable to be invited for State or Territory nomination at this time. You can confirm if you are subject to section 48 of the Migration Act by reviewing your refusal notification from the Department of Home Affairs or contacting our office for further information.

If you have any questions regarding the information in this article, please do not hesitate to contact us on 07 3009 8444 or write to: [email protected]

Designated Area Migration Agreement (DAMA)

DAMA

In the recent past the Australian Government has actively sought to promote the settlement of migrants to regional areas away from our populated cities with its growing toll on infrastructure and pollution. We have written about the government’s strategy for promoting regional migration in the past, and the article can be found here: New Regional Visas article.

The Designated Area Migration Agreement (DAMA) is another strategy proposed by government to encourage migrants to settle in regional Australia.

 

What is DAMA?

A Designated Area Migration Agreement is a platform between specific areas of regional Australia and the federal government to permit skilled migration into the region. Specifically, it is an agreement-based framework providing regions with a flexibility to respond to their peculiar labour shortages.

DAMA is a two-tier framework between the Federal Government (Department of Immigration) and a regional or State authority in the first tier; and a second tier comprising individual labour agreements between employers and their regional authority.

Employers must first obtain the requisite permission from the Designated Area Representative before they can lodge a labour agreement request for skilled and semi-skilled occupations that have been specified in the head agreement.

DAMA is therefore a specialised kind of labour agreement which utilises the Temporary Skills Shortage platform.

This is an important change as parts of regional Australia are experiencing skill shortages and getting workers to move to regional Australia has been a challenge. Through the collaborative efforts occurring through DAMA the strategy will assist in promoting the government’s regional vision.

A key outcome of this strategy is that migrants moving to regional Australia have a job to go to and it enables employers in the approved regional area who are unable to find suitably qualified Australians to supplement their workforce with overseas workers.

 

What Visa can I get with DAMA?

Under DAMA skilled migrants will be able to apply for the Temporary Short Skilled (TSS) subclass 482 visa. The 482 visa will also provide a pathway for Visa Holders to apply for permanent residency after three years.

 

What does DAMA mean for skilled migrants?

Skilled migrants coming to regional Australia under DAMA are not reliant on the requisite occupation lists (MLTSSL, STSOL & ROL) but depending on the agreement can have occupations outside those lists, and therefore greater avenues to permanent residency. The agreement also ensures pay parity for migrants within the local community.

 

Where can you live with DAMA?

There are currently 5 active DAMA areas:

  1. Northern Territory
  2. The Goldfields, Western Australia: City of Kalgoorlie Boulder
  3. Great South Coast, Victoria
  4. Adelaide City
  5. Regional South Australia
    These areas are currently accepting applications to be endorsed for a labour agreement under their respective DAMAs.
    There are also 2 other DAMA’s currently in development:
  6. Orana, New South Wales – which should begin to accept applications for endorsed labour agreements soon; and
  7. Far North Queensland – which is the newest DAMA and is still negotiating occupations to be listed.

 

What occupations are currently listed under Designated Area Migration Agreement?

Occupations are still being added to DAMA but the agreement will have a much broader range of occupations than current regional visas. Already occupations such as bar attendant, waiter and cook (specialist ethnic cuisine) have been added despite these skilled and semi-skilled occupations not being listed in the three occupation lists.

 

What is an English proficiency concession?

Some occupations will be granted English proficiency concessions.

Through agreements reached DAMA applicants will be permitted access to permanent residency with a lower English Language Test score. This will make regional Australia more accessible to skilled migrants than ever before.

 

What does the Designated Area Migration Arrangement mean for regional businesses?

Small businesses have been identified by the government as key stake-holders in the introduction of DAMA. The new agreement will make working in regional Australia more beneficial to migrants than ever and facilitate symbiotic growth.

 

What will DAMA mean for Regional Australian workers?

DAMA will not make it harder for current residents to obtain employment. Under DAMA’s labour market testing a job cannot go to a visa holder if an Australian or resident is available, ensuring the prioritisation of Australian workers.

DAMA will require employers to prove that they have made a genuine attempt to recruit Australians prior to being eligible as sponsors.

 

How does DAMA work?

Small businesses will need to apply to their respective regional agencies to become endorsed as designated area representatives. This will require entering an endorsed labour agreement with the relevant local government body.

Businesses seeking to obtain a DAMA in Western Australia, Victoria or South Australia must:

  • Be able to demonstrate financial profitability for at least 12 months
  • Have no adverse history of not meeting their obligations to employees
  • Are looking to employ overseas workers to fill full-time positions with duties that align with occupations on the Agreement occupation lists
  • Can demonstrate they cannot fill the position locally with Australian citizens or permanent residents
  • Will provide conditions of employment to overseas workers that are in accordance with those offered to Australian workers employed in the region.

Businesses seeking to obtain a DAMA in the Northern Territory must ensure:

  • businesses have been actively operating for at least 12 months
  • all positions to be filled must be located in the NT.
  • businesses need to demonstrate they have undertaken appropriate labour market testing and are unable to employ an Australian citizen or permanent resident to fill the position
  • the standard of labour market testing including duration, content and eligible mediums of advertising, are defined by the Department of Home Affairs
  • provide evidence the terms and conditions of employment are in line with Australian workplace standards – they must be no less than what an Australian would be paid to undertake the same job in the same location.
    DAMA agreements will generally be in effect for 5-years.

 

How can I apply for a visa under DAMA?

Applicants cannot apply directly for DAMA. Instead they must be sponsored by an approved business with a valid endorsed labour agreement in a designated region for an occupation that has been agreed in the heads of agreement.

There are currently over 50 labour agreements active under DAMA within a litany of various industries. Applicants must satisfy any skill assessment, test of English proficiency, and other tests as required under DAMA before the business can lodge an application to nominate them.

All employees looking to obtain a visa under DAMA must meet all eligibility requirements of the 482 TSS visa. To be eligible you must:

  • Have at least 2 years work experience related to your intended field
  • Be nominated by an approved business for a listed occupation
  • Pass health and character tests
  • Have the relevant English skills and assessment
  • Sign an Australian value statement (for every applicant over 18)
  • Have adequate health insurance
  • Not be in debt to the Australian government

Northern Territory and Western Australian have additional requirements for occupations that are not listed (MLTSSL, STSOL or ROL), applicants must

  •  Meet the skill level as defined in ANZSCO
  • Be able to demonstrate the relevant skill, assessable by the relevant authority if required:
  • Have the appropriate qualifications, or an equivalent qualification
  • Have 2 years post qualification experience
  • The work experience will depend on the prescribed skill level of the occupation:
    (i) For ANZSCO level 1-3 occupations it will be two years;
    (ii) For ANZSCO level 4 occupations it will be between 12 months and 2 years depending on the qualification.

 

Contact Us
Please note the information provided in this article is correct at time of publication in September 2019.

If you are interested in becoming a nominator under DAMA or you are an employee seeking a visa under DAMA please contact our migration lawyer. They will be able to demystify the process, guide and assist you in this elaborate and complex process.

Please contact our migration lawyer Peter Kuek-Kong Lee of Rostron Carlyle Rojas Lawyers on (07) 3009 8444, or email: [email protected]; or Anna Gunning-Stevenson, Lawyer and Registered Migration Agent MARN 1797244 on (07) 3009 8444, or email: [email protected]

 

The LATEST NEWS about Australia’s new regional visas

New Regional Visa

 

The Australian Government has announced significant changes to the General Skilled Migration and Employer Sponsored visa programs for the 2019/2020 program year. The Department of Home Affairs has re-balanced the program to prioritise migrants willing to move to regional Australia, under the new regional visas.

New regional visas to Australia

This shift in focus will see both the Regional Sponsored Migration Scheme (subclass 187) Visa and the Skilled Regional (Provisional) subclass 489 Visa being replaced by two new regional focused visas, both with pathways to permanent residency after 3 years.

The two new visas are:
1. The Skilled Work Regional (Provisional) (SWR) visa or subclass 491 Visa (491 visa); and
2. The Skilled Employer Sponsored Regional (Provisional) (SESR) visa or subclass 494 Visa (494 visa).

There will be 14,000 places available for the 491 visa, and 9,000 places available for the 494 visa, which will be focused on promoting migration to designated regional areas in Australia.

This will result in a reduction in the number of places available under the current subclass 189 visa and subclass 190 visa.

What does this mean for future onshore and offshore migrants? See our frequently asked questions guide below for more information:

FAQs about the new regional visas to Australia:

 

When will the new regional visas be introduced?

The two new regional visas will be introduced from 16 November 2019.
The new Permanent Residence subclass 191 visa (191 visa) will come into effect from 16 November 2022.

 

Is the Skilled Migration Points Test changing in November 2019?

New points are being added to the General Skilled Migration Points Test from 16 November 2019.

The new points system provides additional benefits to a number of applicants including: regional applicants, applicants with a skilled partner, applicants with an English speaker partner and single applicants. Here are the new points allocations:
Skilled Migration Points Table

What is a designated regional area of Australia?

From November 2019 the definition of Regional will be replaced by a new and simplified definition.
The new definition states that ‘Regional’ includes all areas of Australia except:

• Brisbane and Gold Coast;
• Melbourne;
• Perth; and
• Sydney.

SKILLED REGIONAL VISA

When does the subclass 489 visa end?

The Government has announced that EOI applications for the subclass 489 visa will close on 10 September 2019, which is also the deadline for states to issue any invitations for the visa.

If you are invited to apply for the subclass 489 visa by 10 September 2019, you must lodge your visa application by 16 November 2019.

What is the new regional subclass 491 visa and how is it different to the subclass 489 visa?

The 491 visa, is aimed at encouraging skilled migrants to reside and work in designated regional areas of Australia.
To encourage migrants to settle in regional areas, the Department of Home Affairs has provided a number of incentives to applicants for the new 491 visa, including:

• Access to 15 points for regional nomination, as opposed to 10 points; and
• Access to priority processing.

The major differences between the new 491 visa and the old 489 visa include:
• The visa grant period will be 5 years, with an opportunity to apply for permanent residency under the new 191 visa after three years. This is a change from the original two years required under the 489 visa;
• The obligation to reside in a regional area now extends to all members of the family unit included in the application. The applicant and all family members need to live, work and study in a designated regional area.
• The applicants may be called for an interview to provide evidence to show they have been living, working or studying in a regional area for the full three-year period.

How can I apply for the new regional 491 visa?

If you meet the eligibility criteria for the 491 visa, you can then follow these steps:

Step 1: Lodge an Expression of Interest (EOI) through SkillSelect
Step 2: Apply for State or Territory Nomination, or be sponsored by an eligible family member living in a designated regional area in Australia
Step 3: Wait for State/Territory approval (if applying under this stream), and then wait for a visa invitation
Step 4: Apply for the 491 visa within 60 days of receiving your visa invitation. Rostron Carlyle Rojas Lawyers can assist you in determining your eligibility for the new 491 visa.

 

REGIONAL EMPLOYER SPONSORED VISA

When does the Regional Sponsored Migration Scheme (RSMS) (subclass 187) Visa end?

The RSMS Visa (subclass 187) Direct Entry stream will end on 15 November 2019.
The RSMS Visa (subclass 187) Temporary Residence Transition stream will continue to remain open for:

• Subclass 457 visa holders, who held or applied for their 457 visa on or before 18 April 2017; and
• Subclass 482 TSS visa holders, who held or applied for their TSS visa on or before 20 March 2019.

What is the new regional subclass 494 visa?

The new 494 visa, is aimed at encouraging migrants to commit to working and residing in designated regional areas in Australia.

The 494 visa is a regional employer sponsored visa that will involve three stages including: 1) Sponsorship; 2) Nomination; and 3) Visa application. Current Standard Business Sponsors under the TSS visa program will be given the opportunity to nominate 494 visa applicants right away and will not need to undertake the Sponsorship process.

Nominators should be aware that they must make a contribution to the Skilling Australians Fund (SAF Levy) of either $3,000 for a small business or $5,000 for larger businesses.

How can I apply for the new subclass 494 visa?

If you meet the eligibility criteria for the 494 visa, you can then follow these steps:

Step 1 – Sponsorship:
The regional business will need to apply to be a Standard Business Sponsor before nominating applicants under the new 494 visa.

Step 2 -Nomination
If you are considering nominating an applicant for the 494 visa, you must meet the following nomination requirements:
• The position must be located in a designated regional area of Australia;
• The occupation must be on the relevant occupation list or the Labour Agreement;
• The position must be genuine;
• You must undertake Labour Market Testing (no International Trade Obligation exemptions are available);
• You must meet the Annual Market Salary Rate requirements;
• The position must be full-time;
• You will require approval from the Regional Certifying Body (RCB) regarding the market salary of the position; and
• The employment conditions must not be less favourable than those of an Australian worker.

Step 3 -Visa application:
As for 494 visa applicants, you must:
• Be under 45 years of age at time of application;
• Hold a substantive visa or Bridging Visa A, B or C at time of application if applying onshore;
• Hold a successful skills assessment at time of application;
• Have a genuine intention to perform the occupation;
• Have at least three years full-time relevant work experience in the nominated occupation or a related field at the same level of skill;
• Have Competent English skills at the time of application; and
• Meet the health and character requirements of the visa.

How is the subclass 494 visa different to the subclass 187 Visa?

The major differences between the new 494 visa and the old RSMS (subclass 187) visa are:
• There is now a sponsorship process which will need to be undertaken prior to nomination;
• The RSMS visa was a permanent visa, while the new 494 visa is a provisional 5-year visa leading to permanent residency;
• Visa applicants will need to hold a successful skills assessment in their nominated occupation;
• If you wish to change employers during the 5-year period, you will need to be re-nominated by your new employer. If your position changes, you will need to obtain a new skills assessment.

 

PERMANENT RESIDENCY VISA

What is the Permanent Residence (Skilled Regional) subclass 191 visa and how can I apply for it?

The 191 visa has been established for subclass 491 and 494 visa holders as a pathway to permanent residency.
The visa will come in effect on 16 November 2022.
At time of application, eligible visa holders will need to prove the following:

• The primary applicant has held a regional provisional visa for at least 3 years;
• The primary applicant must have earned a minimum taxable income for the relevant three-year period (this income level is yet to be determined by the Department of Home Affairs);
• The applicants must have complied with the conditions of the regional provisional visa, particularly the requirement to live, work and study in a designated regional area of Australia.

Further details are yet to be released about the November 2019 changes to the Migration Program. The changes are very new and complex and applicants may require professional assistance to navigate them. Rostron Carlyle Rojas Lawyers Migration team is here to assist you to navigate these new visa changes.

Shanalee Johal, Lawyer, MARN: 1910236
To set up an initial consultation with us, please contact Shanalee Johal (MARN 1910236) at [email protected] or 07 3009 8412.