By Simon Delmo
Santa Fe was recently contacted by a client who had lodged a permanent Australian visa application without professional assistance. The brief summary of his situation below highlights the dangers in attempting to manage your own application, as well as the benefits of using a professional consultant. At this time the applicant is still stranded outside Australia. We are currently working towards resolution.
The visa applicant was applying for a skilled independent migration visa, subclass 189. At the time of application he was living in Australia with his partner as the holder of a visitor visa. The visa application was lodged in mid-2015. At that time the applicant was granted a bridging visa ‘A’ which has unlimited work rights. The standard processing time is 3-4 months.
Several things unfolded during the course of this application which could have been avoided if the applicant was professionally represented:
- The applicant included his elderly grandparent (who had health issues) in the application as a dependant, not understanding that this could lead to visa refusal under the ‘one fail all fail’ health provisions.
- The applicant did not know that if he wanted to travel outside Australia and have the right of return that he must obtain a bridging visa ‘B’ prior to travelling.
- The applicant did not know how to properly evidence his case to remove doubt from the case officer’s mind about his employment history.
- When the application started to go wrong, he continued to try to manage it himself, not understanding the consequences.
The applicant departed Australia to return to his home country as the holder of a bridging visa ‘A’, intending to return weeks later. Because he did not apply for a bridging visa ‘B’ before he left Australia he had no right of return – he couldn’t come back to Australia.
The applicant then applied for a visitor visa in an attempt to return to Australia. The application was refused. If he engaged a professional at this time we could have increased the chances of a successful visitor visa application by highlighting to the embassy the specific policy which supports the grant of a visitor visa in these circumstances.
The case officer assessing the application had questions about some of the documents supplied in the application, believing them to be false. The applicant was provided an opportunity to respond, which he did. However, not understanding the seriousness of the case officer’s concerns and the impact it would have on his application the response was inadequate.
The visa was then refused using a power called ‘Public Interest Criteria 4020’ (the ‘fraud’ criterion). Because of this the applicant faced a three year ban from Australia.
The good news is that because the DIBP case officer made errors in the assessment of the case, the decision has been vacated and the application re-opened. It is currently pending decision. We are hopeful of a positive outcome this month. We have also been in communication with the skilled visa processing section and confirmed on behalf of our client that the three year ban no longer applies.
The applicant is still in his home country and considering re-lodging a visitor visa to come back to Australia immediately, this time with Santa Fe’s help. He has been out of work for over one year because of this application and the errors he made in trying to manage the case himself.
Immigration can be a complex area to navigate, particularly for someone who has never been exposed to it. And while visa applicants are able to lodge their own visa application, to ensure that your application has the best chance of success and that any possible issues are identified early, it is highly recommended that you use the services of an experienced registered migration agent.
August 2016: The importance of proving “Genuine position” under the 457 visa stream
The Department of Immigration and Border Protection (‘DIBP’) has released a document addressing key statistics and trends in the subclass 457 Temporary Work (Skilled) visa programme for 2015 – 2016 to 31 March 2016. As at 31 March 2016, the size of the subclass 457 program had decreased compared to the same period last programme year. Between 2015-16 and 2014-15 there was a decrease of 1.9% of primary applications lodged. For the same period, there was a more significant decrease of 12.6% of primary visas granted.
These key figures would indicate that the DIBP are refusing to grant a greater number of 457 visas. This can be attributed to the changes in policy that were introduced across the 2015-16 period, specifically the need for a sponsoring employer to address whether the role the foreign national will be taking up is considered to be a ‘genuine position’.
Whilst the need to address the ‘genuine position’ criteria was introduced on 1 July 2015, the DIBP have only recently extended its immigration policy on the matter, effective 1 July 2016. This policy expansion was a direct result of the confusion that the initial policy wording caused across the immigration industry, within the DIBP and immigration advisory profession alike and is directly related to inconsistent decisions and to the higher rate of 457 visa refusals received.
On the 27th of July 2016, Santa Fe Immigration team members attended the NSW DIBP 457 Roadshow at which senior DIBP officials presented. The DIBP officials acknowledged the training that was being carried out for all their 457 assessment staff on the new policy surrounding the ‘genuine position’ criteria and to reinforce that the intention of the 457 programme is only used to address temporary skills shortages. The new policy allows the DIBP the ability to refuse a nomination if there are indicators that a semi-skilled position had been ‘dressed up’ to appear more skilled in order to facilitate a visa for a person or if it appears that the position has been created for the purposes of a migration outcome only. The requirement is not that the position itself is ‘genuine’ or ‘needed’ rather that the position exists and also is what it purports to be.
Given the expansion in immigration policy, it will become even more necessary for sponsoring employers to lodge complete applications including submission that address the ‘genuine position’ criteria upfront. The Santa Fe Immigration Services team will be guiding its clients on the more detailed requirements and what is required to satisfy this criteria. If you have any questions about how the new immigration policy may affect your applications, please feel free to contact Santa Fe Immigration Services.
General Manager, Immigration Services
Registered Migration Agent No. 9253612
Santa Fe Immigration Services
T: +61 2 9262 4477
Article prepared by Allanah Maguire (Senior Consultant)Immigration Update: China now a full Signatory of the Washington Accord
China now a full Signatory of the Washington Accord –Engineers from China applying for residence Australia to benefit from this announcement.
China is now a full signatory of the Washington Accord. As a result, qualified engineers from China will have a more straightforward process when applying for a skills assessment through Engineers Australia.
The Washington Accord, signed in 1989, is an international agreement among bodies responsible for accrediting engineering degree programs. It recognises the substantial equivalency of programs accredited by those bodies and recommends that graduates of programs accredited by any of the signatory bodies be recognised by the other bodies as having met the academic requirements for entry to the practice of engineering
It is important to note that this development will only benefit the skills assessment process through Engineers Australia. There has been no change to the Australian immigration application process after receiving a positive skills assessment from Engineers Australia. As such applicants are still required to meet all other Immigration criteria including English language competency.
The Australian Immigration Categories for which a positive skills assessment from Engineers Australia is required include the skilled independent visa category (Subclass 189), skilled nominated visa category (Subclass 190) as well as the Employer Nomination and in certain situations the 457 visa category.
For further information or assistance please contact Ivan Chait, details below:
General Manager, Immigration Services
Registered Migration Agent No. 9253612
Santa Fe Immigration Services
T: +61 2 9262 4477
Skilled Migrant Category
This summary is designed to provide basic information about migrating to New Zealand under the Skilled Migrant Category (SMC).
The Skilled Migrant Category is structured to attract applicants (under the age of 56) to New Zealand who are highly skilled with certain specific managerial, professional and/or technical skills. Spouses and children of applicants can be included in one application.
The actual process of applying for residence under this category is points based and involves a two stage process.
Expression of Interest (EOI) – Stage 1
The first stage of the application process involves lodging an Expression of Interest with Immigration New Zealand (INZ) which allows the applicant to accrue points by selecting a number of different criteria on which their application will be assessed.
These areas include:
- the applicant’s age
- their recognised qualifications
- work experience
- job offer from a New Zealand employer
- having a close family member who is a New Zealand resident/citizen
- qualifications and/or skilled employment for partners.
Bonus points may also be available based on additional factors such as whether their skilled employment is in an identified future growth area or in an area of absolute skills shortage.
All Expressions of Interest, once lodged, go into a pool and there are fortnightly draws from this pool. Those who have between 100 and 140 points, including points for a job offer or current skilled employment in New Zealand will generally be selected, while applicants with 140 points or more are selected automatically.
An applicant without a job offer or current skilled work in New Zealand can still potentially apply provided they can claim at least 140 points, however this process will be more difficult. Work experience or qualifications in a shortage area may mean that they are awarded sufficient points, however, without a skilled job offer or current skilled employment they can only claim work experience undertaken in a country with a “comparable labour market” to New Zealand. The exception is if the work experience was gained while working for a multinational entity.
No supporting documents needs to be provided during the first stage and the EOI simply outlines the number of points claimed and acts as a screening process for INZ.
The Invitation to Apply – Stage 2
After INZ has scrutinised the Expressions of Interest and made their selection, an applicant may then be invited to apply for residence based on the points they claimed.
After an applicant receives their Invitation to Apply for Residence they have four months from the date of the Invitation letter within which to provide all the supporting documentation including:
- police reports (which are valid for 6 months from date of issue)
- medical and X-ray reports (which are valid for 3 months from date of issue)
- all other documents which prove the claims made in the EOI (e.g. reference letters, qualifications, birth certificates, employment contracts and so forth).
The application and documents will then be verified by INZ and if the application meets all requirements, a resident visa will usually be granted.
The reality is that in most cases offshore applicants will not yet have a New Zealand job offer and accordingly they will require at least 140 points in order to be able to lodge an EOI. It is also likely that they will require qualifications and/or work experience in the identified shortage areas.
Another important point for potential offshore applicants is that anyone with over 140 points may be granted residence outright, in which case they can then travel to New Zealand and find employment and settle down.
In some cases INZ may decide to issue a Job Search visa rather than outright residence which will entitle the applicant to travel to New Zealand and try to find work. This open work visa is usually granted for 9 months and if the applicant finds skilled employment during that time, they can then move to secure residence. Unfortunately, if they are unable to find skilled employment, they cannot finalise their application. Some offshore residence applications may also be required to attend an interview with INZ to assess whether they are likely to settle well in New Zealand prior to granting residence.
Advice for Applicants
There are clear opportunities for migrants with certain skills to secure residence in New Zealand under the SMC. If you would like to know more about migrating to New Zealand under the SMC or any other category, please contact the writer on Isabel.firstname.lastname@example.org Please note that this information does not constitute legal advice but is information of a general nature.Immigration Update – Changes to NSW State Taxes
Changes to NSW state taxes for foreigners purchasing residential land in NSW
The NSW Treasurer has announced in the state budget an introduction of a 4 percent surcharge purchaser duty on the purchase of residential real estate by foreign persons. The surcharge is in addition to duty payable on the purchase of residential property.
Foreigners will also no longer be entitled to a 12 month deferral for the payment of stamp duty on off-the-plan purchases for residential property.
Also introduced in the NSW budget is a 0.75% land tax surcharge of the taxable value of residential land owned by a foreign person at midnight on 31 December in any year commencing in 2016.
The tax is separately assessed in relation to each parcel of land and is payable in addition to any land tax that otherwise would be payable by a foreign person.
Other factors to consider for foreign persons are:
- there is no tax threshold to exempt land below the specified value
- no exemption for land occupied by a foreign person as a principal place of residence
More details in relation to the above can be found on www.osr.nsw.gov.auImmigration Update – Accredited Sponsor Requirements
Changes to Accredited Sponsor requirements under Australia’s 457 visa program
The Department of Immigration and Border Protection (DIBP) has announced new requirements (effective 1 July 2016) to become an accredited sponsor under the subclass 457 visa program.
The benefits include that the sponsorship is valid for six instead of five years and that nomination and visa applications lodged under that sponsorship will receive priority processing.
In order to qualify for Accredited Status a sponsor must have a history of good standing with DIBP, satisfy all the requirements for standard business sponsorship and also meet the following additional criteria:
- be a government agency, a publicly-listed company or a private company with at least AUD four million annual turnover for the last three years;
- have been an active 457 sponsor for at least three years (with no more than a six month break in the past 36 months), with no adverse information (based on monitoring, including formal warnings and sanctions);
- have sponsored at least ten primary 457 visa holders in the 24 months prior to the application for accreditation;
- have lodged an agreed level of decision-ready applications over the previous two years;
- have a non-approval rate of less than 3% for the previous three years;
- have Australian workers comprising at least 75% of their workforce in Australia;
- engage all 457 holders as employees under a written contract of employment that includes at least the minimum employment entitlements as required under the National Employment Standards (unless their occupation is exempt from this requirement);
- have all Australian employees paid in accordance with an Enterprise Agreement or an internal salary table that reflects the current market salary rates for all occupations in their business;
- have provided details of all business activities undertaken by their business to DIBP;
- have provided details of all Principals / Directors of their business to DIBP.
There will also be additional benefits for accredited sponsors in relation to certain nomination applications that meet other occupation and salary requirements in the form of streamlined processing of these nomination applications.
Should you require further information or would like to discuss becoming an accredited sponsor in Australia please do not hesitate to contact Santa Fe Immigration Services on +612 92624477 or email email@example.com
National Immigration Service Delivery Manager
Registered Migration Agent No. 0742398
Santa Fe Immigration ServicesImmigration Update – Australian Visa Applications made in South Africa
9 June, 2016
Update on Biometric Data Collection for all Australian Visa applications lodged in South Africa
The Australian High Commission in Pretoria, South Africa, have advised that effective 8 June 2016, all applicants for an Australian visa who are in South Africa at the time of lodgement, regardless of their nationality, must at the time of making a visa application provide their biometrics along with their application, unless otherwise excluded or exempted from doing so under Australian Government policy. Those applicants exempted are detailed further below.
Biometric data is collected through a quick, discreet and a non-intrusive process that captures a facial image using a digital camera and a 10-digit fingerprint scan on a dry scanner machine. This process will be familiar to applicants who have travelled to other countries requiring biometric data collection. Australian visa applicants will need to attend in person any one of the four (4) Australian Visa Application Centres (AVACs) to provide their biometrics. These AVACs managed by the Australian Government’s Service Deliver Partner TLS contact, are located in Cape Town, Durban, Johannesburg and Pretoria.
Applicants will still be able to lodge their visa application through any one of the AVACs located across South Africa, where they will also be able to provide biometrics at the same time. Alternatively, visa applicants who send their application by mail or lodge online, including visas lodged online under the General Skilled Migration, Temporary Work (Skilled), Employer Nomination and Business Skills and Parent Categories, will be sent a letter requiring them to attend an AVAC to provide their biometrics. Applicants will need to take this letter with them to an AVAC when providing biometrics so the AVAC is able to match their application with the biometrics collected.
Some applicants may be fully or partially exempt from providing biometrics under Australian Government policy. Applicants fully exempt from providing biometrics include diplomatic representatives and their dependants, and government officials acting as a representative of a foreign government. Applicants who may be partially exempt from biometric collection include minors less than 5 years old (photo only required) and mentally or physically incapable persons (photo only required).
Currently, Australia is collecting biometric data from visa applicants in 33 countries across Africa, Asia, Europe, the Pacific, the Middle East and the Americas and will continue to expand globally in the future. The collecting of biometrics from visa applicants will improve visa integrity, reduce identity fraud and improve security and safety for travellers and the Australian community.
The fees for acceptance of visa applications, or to only have the biometrics taken, are as follows and are over and above the visa application charges:
Service Fees are payable in addition to the Visa Application Charges at time of application submission.
Please note that only cash payment in ZAR will be accepted in the Visa Application Centre.
|PRIMARY SERVICE FEES
Application lodgement – Primary Applicant
Resident Return visa applications
|SECONDARY SERVICE FEES
Application lodgement – Additional applicant on the same form as the Primary applicant
Citizenship by Descent and Australian Declaratory Visa applications
Additional Document Drop*
|BIOMETRIC SERVICE FEE
For applicants who are required by DIBP to enroll biometrics following application through the e-lodgement application route.
This will cause some delays in the processing of applications if clients cannot provide their biometrics as soon as possible after the visa applications are lodged. It also has a financial impact in that it will now cost more regardless of whether the application is lodged online or sent to the Australian High Commission via courier. It may also create a problem for applicants who do not live close to the major cities where biometric data can be taken.
For further information and assistance please contact:
Charmaine de Lange
Outbound Migration Manager – South Africa
Santa Fe Immigration Services
Ground Floor, 457 Rodericks Avenue, Lynnwood, 0081, Pretoria
(PO Box 72325, Lynnwood Ridge, 0040)
T: +27 12 348 2910/1587
M: +27 82 6080 324
F: +27 12 365 2109
Santa Fe Immigration Services
Tel: +44 (0)20 8961 4141
Mob: +44 (0)7469 853208
Email: firstname.lastname@example.orgImmigration Update | State of Israel added to Work & Holiday Visa list
Posted: 10/05/2016 Author: Tara Ende
On 6 May 2016 the State of Israel has been added to Australia’s list of eligible Work and Holiday (subclass 462) visa countries.
The requirements for the visa include that the prospective applicant must be under 31 years of age, must have secondary school qualifications and have completed military service or are legally exempt from military service.
The holder of a State of Israel passport does not need to provide evidence of government support for grant of this visa.
Applications must be lodged with the Australian Embassy in Tel Aviv.
For further information or assistance regarding this visa please contact Santa Fe Immigration Services.
National Immigration Service Delivery Manager
Santa Fe Immigration Services
Australia’s Significant Investor Visa Program – Alive and Growing
Despite recent negative publicity and questions surrounding the real benefit to Australia of the Significant Investor Visa category, there is no evidence to suggest that the SIV program is about to be scrapped. As registered migration consultants who are very active in the business skills and significant investor visa categories, we continue to receive strong interest in the program.
Following the introduction of the new complying investment framework on 1 July 2015 there has been some concern from prospective applicants regarding the obligation to invest 10% of the complying investment portfolio in venture capital or growth private equity funds and 30% in small to medium cap funds (emerging companies). Having had numerous discussions with prospective clients regarding their concerns it is evident that the problem is more a lack of understanding and a need for education around the highly regulated processes adopted by fund managers involved in these particular type of investments and indeed the protection and governance imposed on fund managers in this area. It is important to note that only regulated and managed funds are available for significant investor visa applicants. In the case of venture capital funds the funds must be registered with the Australian Venture Capital Association (AVCAL). With effective management, the risk profile attached to these types of investments may not be as significant as many understand to be the case.
The significant investor visa program continues to offer significant benefits to applicants which is not offered by the other business and investment categories, including:-
- No upper age limit
- No minimum English language competency requirement
- Flexibility on residency prior to the grant of permanent residence, i.e. main applicant required to spend 40 days per year in Australia or 160 days over 4 years. Alternatively spouse will be required to spend 6 months per year in Australia in order for the family to qualify for permanent residence
- Being a provisional visa there are significant taxation advantages to the significant visa stream
For further information on the significant investor visa program please contact Ivan Chait (Registered Migration Agent 9253612).
Australian Immigration Update
457 Business Sponsors – New Disclosure Requirements:
On 20 November 2015 several changes were made to the requirements for subclass 457 sponsorship, nomination and visa online applications. The changes relating to the sponsorship application in particular should be noted as they are likely to have an impact on sponsors.
The online 457 sponsorship application now requires sponsors to provide the names of all owners, directors and major shareholders as part of the application process. This disclosure has implications on sponsors for several reasons:
1. Approved subclass 457 sponsors are subject to a number of sponsor obligations. One of these obligations relates to the requirement to advise the Department of Immigration and Border Protection (DIBP) of any change in Directors and Shareholders. Non-compliance can result in sponsorship bans and affect the company’s ability to sponsor in future.
2. It is a requirement when applying for subclass 457 sponsorship that there be no ‘adverse information’ known about the sponsor applicant or people associated with the sponsor applicant (or it is reasonable to disregard that information). Having the directors, partners and major shareholders named provides additional information to DIBP to assess this criterion.
3. In some cases the directors may be related to a visa applicant. This was previously not visible to DIBP. Having the directors named allows DIBP to identify these connections, potentially resulting in visa applications being scrutinised for genuineness.
As approved subclass 457 sponsors it is important to ensure ongoing compliance with sponsorship obligations to safeguard your ability to hire non-Australian workers. Coupled with recent changes which provide DIBP additional capability to cross check information with other government agencies (such as the Australian Taxation Office) it is clear that compliance is becoming a major focus for DIBP.
Santa Fe Immigration Services offers services to assist sponsors in ensuring that they remain compliant with their sponsorship obligations. Please contact Santa Fe Immigration Services for any assistance or information in relation to this matter. (more…)