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)

 

 

Allegations in family law proceedings could result in criminal offences

Allegations in family law proceedings could result in criminal offences

Raising children with your ex-partner following separation can be difficult and stressful and many parents find themselves embroiled in Court proceedings to determine ongoing arrangements for their children.

Often, parents will legitimately make various allegations about the other in relation to matters such as family violence, abuse or risk of abuse to the children or the capacity of their ex-partner to properly care for the children. In other cases, false allegations might be made as a parent considers it will help them “win” their case and prevent the other parent from having an ongoing relationship with the children.

There have been many cases determined by a Court where one parent has alleged the children have been abused by the other parent (or their new partner). In some of those, the allegations have been unfounded with no evidence to support the allegations and have resulted in the Court deciding it is in the best interests of the children to live with the parent against whom the allegations were made, due to the risk of or actual psychological harm to the children as a result of the other parent’s misbelief.

More recently, in the case of Huda & Huda (No.2) [2020] FCCA 1804 the Court decided documents should be forwarded to the Commonwealth Director of Public Prosecutions to consider whether the Father should be prosecuted having regard to the adverse findings made against the Father during the course of his family law proceedings. In that case, the Court found the Father had falsely accused the Mother of sexually abusing the children including that the Mother had:

  • engaged in sexual intercourse with a man in front of the children;
  • masturbated in front of one of the children; and
  • engaged in sexual relations with the children since the children were born

Such allegations are extremely serious. Ultimately, after hearing all of the evidence, the Court concluded the Father made the allegations even though they were false (and when he knew them to be false) and there was no proper basis for the allegations. The Court considered the Father may have committed criminal offences, including the giving of false testimony and fabricating evidence. The matter will now be investigated by the Commonwealth Director of Public Prosecutions.

Contact Us
If you require family law advice, please contact Renée Kinman, Senior Associate and Accredited Family Law Specialist on (07) 3009 8444 or [email protected] to arrange an initial consultation.

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]

COVID-19 and your parenting order – to breach or not to breach?

COVID-19 and your parenting order – to breach or not to breach

Family Law Courts have recently had to determine whether parents have contravened parenting orders during the COVID-19 pandemic by not making children available to spend time with the other parent, and if they did, whether there was a reasonable excuse.

Under the Family Law Act 1975 (Cth) a contravention can occur if a person intentionally fails or makes no reasonable attempt to comply with an order. However, if the contravention was necessary to protect the health or safety of a person and the period of the contravention was not longer than was necessary to do that, the person breaching the order may have a reasonable excuse.

In Kardos & Harmon [2020] FamCA 328, the Father lived in Brisbane and the Mother and 3-year-old child lived in Adelaide with the Mother’s parents. The Mother was concerned for the health of the child and her family, the impact of cross-border restrictions and interstate travel.

The Court dismissed the Father’s application as the Father was not able to establish a contravention however still considered whether the Mother had a reasonable excuse for not complying with the order, if there was a contravention. The Court determined Queensland’s cross-border travel restrictions did not prevent the Mother and child from travelling from Adelaide to Brisbane. However, the Mother’s actions were necessary to protect the health of herself and the child as they would not have been able to maintain safe social distancing while flying and there was an unacceptable risk of the child coming into close contact with a person infected by the virus, which could be catastrophic.

The Court clarified a parenting order is to “…operate in the context of the restrictions and sanctions imposed…” and “…despite the existence of the COVID-19 pandemic, it is important that all reasonable efforts are made for children to spend time with both parents consistent with taking a responsible approach in respect to mitigating against risks associated with the presence of the COVID-19 virus in the community and, specifically, the child coming into close contact with a carrier of the virus.”

Whether a parent had a reasonable excuse for contravening a parenting order was also considered by Chief Judge Alstergren in Pandell & Walburg (No.2) [2020] FCCA 1853. In that case there was no dispute the Mother had contravened parenting orders by not making the 4-year-old child available to spend time with his Father since late-March 2020. The Court had to determine whether there was a reasonable excuse for the contravention as the Mother had obtained advice from the child’s treating doctor that due to the child’s medical condition he was at risk and should remain isolated at home with the primary parent (the Mother).

Before the Court decided the matter an updated specialist medical report was ordered. That report essentially set out the child was not at high risk. The Mother continued to withhold the child following the issue of that report.

In this case the Court determined the Mother had a reasonable excuse for the contraventions until the date the specialist report was issued, however from that date she did not. To address the contravention the Court ordered the child spend some make-up time with the Father and varied the existing parenting order by increasing the time the child spends with the Father until the matter returns to the Court for Hearing in August 2020.

Contact Us
It is vital you obtain legal advice from a family lawyer if you are contemplating not complying with a parenting order or parenting plan. Our family law team at Rostron Carlyle Rojas Lawyers are here to help you navigate this unprecedented situation and answer any queries you might have.

Please contact us on (07) 3009 8444 or the following email addresses:

Tuskeen Jacobs, Partner & Accredited Family Law Specialist – [email protected]
Renee Kinman, Senior Associate & Accredited Family Law Specialist – [email protected]
Alana Pointon, Lawyer – [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]

 

5 months jail for possessing $228,815 cash at the airport

5 months jail for possessing $228,815 cash at the airport

In October 2018, our client and his co-accused were found to be in possession of $228,815 cash in their luggage at the Brisbane Domestic Airport.

Our client and his co-accused arrived at the Brisbane Domestic Airport from Melbourne. CCTV had depicted our client and the co-accused arriving in Brisbane and hiring a car. They left the airport and returned later that day.
Staff at the airport became suspicious of our client as he had repeatedly purchased tickets for flights in cash on a weekly basis over a number of months. They notified police who detained our client for questioning.

Police then searched our client’s carry on luggage revealing a Victorian Licence, other bank cards and the hire car receipt in his name and boarding passes and baggage receipts in other names. The joint baggage of our client and the co-accused contained a total of $228,815 in Australian currency.

As a result, our client was charged that by joint agreement, he dealt with money or property reasonably suspected of being proceeds of crime over $100,000.00 contrary to sections 11.2A and 400.9(1) of the Criminal Code Act 1995 (Cth).

The co-accused was sentenced and received a head sentence of 12 months imprisonment and was required to serve 8.5 months actual imprisonment.

Our client’s charges proceeded to sentence before the Brisbane District Court. Alan Phillips of our office appeared instructing Robert Gordon of Counsel. The Presiding Judge sentenced our client to a head sentence of 12 months imprisonment to serve 5 months actual imprisonment.

Our client was very grateful for the result particularly as he was required to serve less time than his co-accused.

If you are interested in our criminal lawyers acting on your behalf, please call Alan Phillips on 3009 8469/0403846238.

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.

$136,000 Fraud Dropped as a Result of Successful Basha Hearing

criminal law

In late 2017 our client was charged with the offence Fraud to the value of $30,000.00 or more pursuant to section 408C(1)(b)(2)(d) of the Criminal Code 1899 (Qld). The Crown alleged that our client created a scheme with an associate, involving the associate’s wife making a life insurance claim, pretending she had multiple sclerosis (MS).
Our client’s ex-wife had previously suffered from multiple sclerosis and had received an insurance payout in 1998 of between $110,000 and 120,000.

Our client’s associate’s wife took out a life insurance policy in 2000, her financial adviser had assisted her in taking out the policy with the insurance company. It was alleged that the associate’s wife had attended upon a number of doctors making false complaints of symptoms consistent with multiple sclerosis. Further the associate’s wife and our client’s ex-wife were said to have attended an MRI appointment where our client’s ex-wife posed as the associate’s wife resulting in the test results coming back indicating a diagnosis of MS.

The associate’s wife then proceeded to make a false trauma claim through her financial adviser which was lodged with the complainant insurance company. As a result of the claim, the associate’s wife received a pay out of $300,258.00. The Crown alleged that our client received $136,000.00 from the associate for his role in the scheme.
In 2012, the associate of our client sent an email to his wife’s financial adviser telling him that his wife had made a false insurance claim. The following day, the associate committed suicide. The complainant insurance company was notified by the financial adviser and an investigation was commenced by police.

Our client’s ex-wife participated in a record of interview in 2015 making full admissions to her involvement, she was ultimately criminally charged and convicted of fraud. The associate’s wife was also charged. She contested her matter and was convicted by a jury after a two-week trial.

Our client was previously represented by another law firm. Upon being recommended to Alan Phillips, our office took over carriage of his matter.

Our client was provided advice that the main witnesses in the matter could be cross examined in a Basha hearing, in order to test their evidence. Alan Phillips of our office appeared before the Ipswich District Court instructing Scott Lynch of Counsel in the hearing. Two witnesses gave evidence and were cross examined.

Both witnesses performed poorly. As a result of the hearing, the charge against our client was discontinued.

Out of 3 people charged with this offence, only our client was not convicted.

Our client was grateful for the outcome achieved by Mr Phillips and Mr Lynch.

If you are interested in our criminal lawyers acting on your behalf, please call Alan Phillips on 3009 8469.

Visa cancellations can make you unlawful in Australia, but what happens when you already had a pending visa application?

visa cancellations

Immigration law can be complex, confusing and intimidating for visa applicants and visa holders, particularly the regulations surrounding visa cancellations.

There are many circumstances in which a visa can be cancelled, some of which may feel as if they are outside of the visa holders’ control. Once your visa has been cancelled, stabilizing your legal status in Australia can be difficult.

I breached my visa conditions… now what?

In some situations, visa holders may be aware of an impending visa cancellation before it occurs. This may be the case when visa holders have voluntarily breached the conditions of their visa for circumstances outside of their control, such as leaving your employer whilst on an employer sponsored visa due to mistreatment and unfair working conditions.

In such circumstances, many visa holders attempt to counteract the visa cancellation issue by applying for another visa whilst onshore. The strategy behind this approach is that once you have applied for another substantive visa whilst in Australia, you will be granted a Bridging Visa A (BVA) allowing you to reside in Australia pending a decision on your new visa application.

The general assumption is that in this circumstance your current visa will be cancelled and your BVA will come into effect, allowing you to await your visa decision in Australia.

 

Will a visa cancellation impact the Bridging Visa I was granted before the cancellation happened?

Many are not aware of the negative ramifications a visa cancellation can have.

A visa cancellation will infect a visa holder’s legal status in Australia, their future plans in Australia and any Bridging Visas that may have been granted when the visa facing cancellation comes into effect.

If your substantive visa is cancelled, any associated Bridging Visa you hold will automatically also be cancelled.

Therefore, the visa holder will effectively become unlawful upon cancellation of their substantive visa.

This leaves applicants with two options to consider:

1.       Leave Australia and wait the decision on the yet undecided visa application offshore (if possible – some onshore applications may not permit it); or

2.       Apply for a Bridging Visa E (BVE) to keep the visa applicant lawful.

For many, the option of leaving Australia is unrealistic, given their ties to Australia or the fact that the visa can only be granted onshore for certain onshore visas.  Therefore, they must look to make an application for a Bridging Visa E to remain lawful in Australia.

What is a Bridging Visa E and what rights do I have on this visa?

The BVE option allows migrants to stabilize their unlawful status and remain in Australia pending a decision on their new visa application.

Unlike other bridging visas, which can allow applicants to work, study, and apply for travel facilities, the BVE will only assist applicants in stabilizing their legal status in Australia. The BVE does not provide study or travel rights to applicants and will only provide them the opportunity to await a visa decision onshore.

The Department of Home Affairs decision maker will also make a decision on whether to allow a BVE holder the right to work. Whether these work rights are granted will depend on the applicant’s individual circumstances.

This is obviously an extremely difficult position for many applicants, who may not have sufficient funds to support themselves in Australia and who may need to travel home to see family whilst awaiting a decision on their visa application.

This can mean lengthy periods of time away from family, an inability to attend major family events/functions offshore and if you are not granted work rights, extremely difficult living circumstances.

The limited options available to migrants in this situation reflect the strict migration laws which apply to visa cancellations, even when the cancellation was created by circumstances outside of the applicant’s control.

The inflexible criteria can create difficult and often painful living circumstances for migrants.

If you are facing a visa cancellation, it is important that you seek urgent advice as to your options.

If your visa has already been cancelled, it is important that you seek to stabilize your status is Australia as soon as possible, and minimize any unlawful periods.

Rostron Carlyle Rojas Lawyers migration team has experience in dealing with complex impending visa cancellations and visa cancellation decisions.

Contact us for a consultation today:

Shanalee Johal, Rostron Carlyle Rojas Lawyers

Lawyer and Registered Migration Agent – MARN 1910236

[email protected]

(07) 3009 8444

You might also like: The LATEST NEWS about Australia’s new regional visas

Police Prosecutions Offer No Evidence to Burglary Charge and Weapons Charges

In November of 2018, our client was charged with a string of serious offences including:
• Burglary and commit indictable offence
• Unlawful possession of weapons Category D/H/R weapon
o Smith and Wesson M66 pistol
o Beretta 92fs silver 9mm pistol
• Unlawful possession of weapons Category A, B or M
o 22 Calibre Mossberg 802 with scope rimfire rifle
o Remington 700 233 with scope centre fire rifle
o Mosin Nagant 9130 with bayonet centre fire rifle
o BSA Centre fire rifle
o John Wayne Winchester Centre fire rifle
o Winchester Model AN1873 centre fire rifle
• Unlawful use of motor vehicle
• Possessing dangerous drugs (methamphetamine)
• Authority required to possess explosives

Following a review of the QP9 material, a submission was sent to Brisbane Police Prosecutions given that the evidence for the burglary and weapon offences was merely circumstantial. As a result of the submission sent by our office, Police Prosecutions offered no evidence to the burglary charge and two charges of unlawfully possessing weapons. Following the successful negotiations, our client’s remaining charges were listed for a plea of guilty.

Our client had a lengthy criminal history of 10 pages and had battled with substance abuse throughout his life. A bed in a residential rehabilitation facility was organised for our client to assist him with his rehabilitation in the future.
Samantha O’Connor of our office appeared before the Brisbane Magistrates Court on behalf of our client for the purpose of a sentence for the remaining charges.

Submissions were made on behalf of our client and our client was sentenced to a head sentence of 12 months imprisonment with immediate parole, the 135 days pre-sentence custody our client had spent in custody prior to his sentence was declared as time served under the sentence imposed. Our client was grateful for the excellent result, which allowed him to return to the community to continue with his rehabilitation at a residential rehabilitation facility.

If you are interested in our criminal lawyers acting on your behalf, please call Samantha O’Connor on 3009 8452 or Nick Crawford on 3009 8467.