1 In broad terms what is your government's policy towards business immigration?
Is Australia seeking to import talent or labour, or to
limit immigration and protect the local workforce?
Australia's Migration Program is a population and skilling programme which underpins Australia's economic prosperity. It focuses on skilled temporary and permanent workers to meet Australia's labour force needs. The employer nomination scheme (Subclass 186 and Subclass 187) (ENS) enables businesses operating in Australia to recruit skilled workers on permanent visas to fill specified highly skilled positions that cannot be filled from the Australian labour market. The business long stay (Subclass 457) visa (Subclass 457) provides for the long-term temporary entry of highly skilled persons sponsored by an Australian or overseas business to meet Australia's skill needs.
Labour agreements provide a temporary and permanent pathway to recruit overseas workers where standard Subclass 457 visa arrangements do not meet industry needs, there are skilled or semi-skilled labour shortages and access to overseas workers is demonstrably in Australia's best interests.
Are there any international legal
Australia is a signatory to the General Agreement on Tariffs and Trade 1994, which allows for the movement of persons seeking access to the employment market on a temporary basis. Australia's Revised Services Offer (2006) removed labour market testing requirements for businesses seeking to recruit skilled workers on permanent visas to meet Australia's skills needs. Australia is a signatory to a number of bilateral and regional free trade agreements that allow for the movement of persons supplying services without the need for labour market testing.
What is government policy on legislation and
The Migration Act 1958 (the Act) and the Migration Regulations 1994 (the Regulations) provide the legal and regulatory framework for the entry into, and presence in, Australia of persons who are non-citizens. All non-citizens must hold a visa that permits either travel to and entry, or the right to remain in Australia, or both. A visa can permit a limited or unlimited period of stay and may be granted subject to certain conditions. A visa can only be granted if the prescribed criteria for that particular class is met.
'Unlawful non-citizen' is a person who is in Australia who is not a citizen of Australia and does not have permission to be in Australia. An 'unlawful non-citizen' is subject to detention and removal in accordance with sections 13, 14, 189 and 198 of the Act.
The Regulations contain strict rules and technical details for the operation of the Act. It includes detailed descriptions of the strict criteria of eligibility for permanent and temporary stays in Australia. It includes detailed descriptions of some 140 visas and nine bridging visas, the criteria for the grant, the fees and procedures for making valid applications, the appeal procedures and such like.
The legislative scheme is over 3,000 pages long. It is underpinned by over 16,000 pages of policy guidelines, which provide direction and guidance to the Department of Immigration and Citizenship (the Department) officers on this complex regime and their decisionmaking powers.
The legislative scheme provides significant powers to the Department to enforce Australia's immigration laws through its monitoring, compliance, investigations and sanctions programmes. It has extensive administrative powers, which include suspending employers from participating in employer sponsorship programmes. These powers are supported by a range of civil and criminal pecuniary penalties and, in serious cases of abuse, imprisonment of those who breach the law.
The Act imposes criminal sanctions on persons who are connected with work by unlawful non-citizens or work in breach of visa conditions, or for related purposes.
'Work' is taken to mean any work, be it paid work, voluntary work and work done in return for accommodation, food or any other benefit.
The Act contains a number of criminal offences in respect of persons who commit offences relating to visas, false papers and in relation to work which may result in civil and criminal prosecution, penalties of imprisonment or a substantial pecuniary penalty.
A significant amount of the A$1.37 billion raised by the Department from visa application fees in the 2010/2011 financial year is expended on the enforcement of immigration law.
2 In what circumstances is a visa necessary for short-term travellers? How are short-term visas obtained?
Business visitor visas allow holders to enter Australia to engage in business activities. Eligible passport holders may apply online or through an approved ETA travel agent for a business visitor Electronic Travel Authority (ETA):
- ETA (business entry – long validity) visa (Subclass 956); and
- ETA (business entry – short validity) visa (Subclass 977);
The eVisitor visa, which is applied for online and is for tourists or business people from certain European countries who wish to visit Australia for up to three months at a time over a 12-month period.
Otherwise, a paper-based application can be made for:
- business visitor (short stay) visa (Subclass 456); and
- sponsored business visitor (short stay) visa (Subclass 459).
3 What are the main restrictions on a business visitor?
Business visitor visas are granted permitting a stay of up to three months and can allow for single or multiple travel to Australia within the specified period (not to exceed 12 months) from the date the ETA was granted.
Business visitor visas are granted subject to Condition 8112 which allows limited work if, for example, it is highly specialised and non-ongoing (generally less than 6 weeks) and it cannot be done by an Australian permanent resident or citizen.
4 Is immigration permission needed to give or receive short-term training?
Business visitor visas allow for attendance at specialised 'one-off' training courses or to provide training or give lectures on a specific occasion. Tourist Subclass 676 visas are granted subject to the mandatory Conditions 8101 'no work' and 8201 'no study over three months'.
If the primary purpose for the visa is to obtain an approved degree or qualification a student visa may be appropriate.
The special program visa (Subclass 416) enables visa holders to include a work placement or traineeship related to their qualifications and career aims.
The Subclass 419 (visiting academic) visa caters for persons seeking to observe or participate in Australian research projects at a sponsoring Australian tertiary or research institute.
The Subclass 442 (occupational trainee) visa allows people to complete occupational workplace-based training with an employer which is required to obtain registration to be employed in the occupation or enhance existing skills in an eligible occupation.
Where participation in schoolroom-based training for professionals or managers is the primary purpose, a professional development (Subclass 470) visa may be appropriate.
5 Are transit visas required to travel through your country? How are these obtained?
The transit visa (Subclass 771) allows people who wish to transit through Australia and who do not qualify for transit without a visa, or people travelling to Australia to join a vessel as crew, to transit through Australia.
It is free of charge and permits entry for up to 72 hours. Citizens from prescribed countries who hold relevant travel documents do not need a transit visa if they depart Australia by air within 8 hours of the scheduled time of their arrival and remain in the transit lounge at the airport.
6 What are the main immigration permission categories used by companies to transfer skilled staff?
The Subclass 457 visa enables Australian and overseas businesses to sponsor skilled overseas workers to fill prescribed positions on a temporary basis.
7 What are the procedures for obtaining these permissions?
There are three main steps in the approval process under the Subclass 457 Program, namely:
- Sponsorship application, which is lodged by the company and:
- it(the company)is actively andlawfullyoperating thebusiness;
- the employment of the nominee will benefit Australia;
- it is able to comply with sponsorship obligations;
- it will be the direct employer or 'related to' the direct employer of the nominee;
- there is no adverse information regarding the sponsor;
- it has a strong record of, or commitment to, employing local labour and non-discriminatory employment practices; and
- it meets the training benchmark as part of its commitment to the ongoing training of their Australian citizen and permanent resident staff.
- Nomination application, which is lodged by the company andmeets the following requirements:
- the position is on the Consolidated Sponsored Occupation List (CSOL);
- the position meets the minimum skills threshold for that occupation;
- the base salary meets or exceeds the Temporary Skilled Migration Income Threshold (TSMIT) (currently A$51,400 gross per annum) in addition to superannuation for a 38-hour week;
- the terms and conditions of employment are no less favourable than those provided to Australian staff in the same position and at the same workplace ('the Market Salary Rate');
- the details of the nominee are provided.
- Visa application, which is lodged by the person nominated to fillthe position, who must:
- demonstrate they have the requisite skills and experience for that position;
- be offered employment at the relevant Market Salary Rate which cannot be below the TSMIT);
- if necessary, provide evidence that they have vocational English; and
- if necessary, provide a skill assessment.
8 What are the general maximum and minimum periods of stay granted under the main categories for company transfers?
The Subclass 457 visa can be granted for a period up to four years.
9 How long does it typically take to process the main categories?
Fully documented 'low risk' Subclass 457 visas may be granted within days or weeks. 'High risk' 457 visas may take several months to process.
10 Is it necessary to obtain any benefits or facilities for staff tosecure a work permit?
No. All Subclass 457 visa holders are required by Condition 8501 to maintain adequate health insurance for the length of their visa.
11 Do the immigration authorities follow objective criteria, or do they exercise discretion according to subjective criteria?
The Act and the Regulations contain strict rules and set out the criteria for the granting of visas, the fees and procedures for making valid applications and such like. A visa will only be granted if the applicant meets all of the criteria for that particular class. Officers are guided by the Department's policy guidelines in exercising their decision-making powers.
12 Is there a special route for high net worth individuals or investors?
High net worth individuals or investors can establish a business or invest in a business which can sponsor them for the Subclass 457 visa, on the basis of their skills and the role that they will undertake in that business.
The Business Skills Scheme includes the business talent (migrant) (Subclass 132) permanent visa which is for high calibre business owners or part owners of a business who have a genuine and realistic commitment to managing new or existing business in Australia or entrepreneurs with high potential business ideas.
The business innovation and investment (provisional) (Subclass 188) visa is a state or territory nominated provisional visa with two streams namely business innovation stream and investor stream. The permanent business innovation and investment (Subclass 888) visa is for holders of a Subclass 188) visa who maintain their business or investment activity in Australia and qualify for residency.
13 Is there a special route for highly skilled individuals?
The Subclass 858 – distinguished talent visa is for applicants who have an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research, are still prominent in the area, would be an asset to the Australian community and would have no difficulty in obtaining employment, or in becoming established independently in Australia in their field. Applicants who meet the distinguished talent requirements are granted permanent residency.
14 Is there a minimum salary requirement for the main categories for company transfers?
All Subclass 457 visa holders must receive the same remuneration and conditions as an equivalent Australian worker doing the same work at the same location ('the Market Salary Rate'), which cannot be less than the TSMIT (currently A$51,400 gross base per annum in addition to superannuation).
Where the nominated salary is above the high income threshold of A$180,000, the equivalent 'terms and conditions assessment' do not apply.
For English language exemptions for trade occupations, which are to the 'benefit of Australia' or a waiver of the English language requirements is met, the minimum gross annual salary is A$92,000 per annum.
All employers who sponsor overseas workers must comply with Australian industrial laws.
15 Is there a quota system or resident labour market test?
The Subclass 457 Program caters for prescribed occupations in short supply. It is demand driven and there is no labour market testing. Please see question 7 for further details.
16 What is the process for third-party contractors obtaining work permission?
The recruitment or hire of labour for supply to other unrelated businesses does not come within the 'direct employer' requirements and is not permitted under the standard Subclass 457 Program.
Only workers recruited under the On Hire Labour Agreement can be on-hired to unrelated businesses. Labour Agreements are formal arrangements between the Department and the on-hire business.
17 Is assessment or recognition of skills and qualifications required to obtain immigration permission?
The assessment or recognition of skills and qualifications is mandatory in cases where the sponsored worker must hold a licence or registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body in order to work in Australia in that occupation.
A skills assessment may be requested if there are concerns relating to the application or there is doubt as to whether the applicant has suitable skills for the position. Whether a 457 visa skills assessment is required depends on the nominated occupation and the passport country of the visa applicant.
Extensions and variations
18 How can short-term visas be converted into longer-term authorisations?
Persons in Australia generally must hold or have recently held a 'substantive' visa in order to be able to make a further visa application onshore.
The Regulations set out the visa system and contain schedules which detail the requirements to be met.
Each visa subclass contains the criteria to be met by the applicant and any accompanying family members for an application to be valid. If the criteria of the visa subclass are met, the applicant (and the accompanying family members) are granted that visa.
Some visas can only be applied for from offshore, others can only be applied for in Australia and others again may be applied for either offshore or in Australia in accordance with the relevant rules.
All Schedule 2 criteria contained in the Regulations must be met for the visa to be granted.
There are a number of conditions which bar the visa holder from making a further application while the person remains onshore. For example, if a Subclass 676 tourist visa is granted subject to Condition 8503 'no further stay', then this condition precludes the person from applying for most visas while the person is in Australia unless that condition is waived.
Otherwise, visitor and business visitor holders may be sponsored for the Subclass 457 visa. Subclass 457 visas may be nominated by the employer for permanent residence under the ENS.
From 1 July 2012 there are three streams under the ENS Program namely:
- Subclass 457 Visa Stream;
- Direct Stream; and
- Labour Agreement Stream.
The ENS process has two steps:
Step 1 – Nomination of an 'approved appointment' requires the employer to show that:
- the business is lawfully operating in Australia and is of goodstanding;
- it has the need to fill a full-time nominated position;
- it meets the training benchmark as part of its commitment to theongoing training of its Australian citizen and p e r m a n e n t resident staff;
- the terms and conditions of employment and salary is at least thesalary specified in the legislative instrument and accords with the relevant Market Salary Rate for that position;
- the position is on the CSOL.
The second step of the ENS process depends on whether the applicantapplies under the Subclass 457 Stream or the Direct Stream.
An applicant for an ENS under the Subclass 457 Stream must meet the following:
Step 2 – Visa application is made by the nominee to fill the position, who must:
- have the skills; and
- have two years' relevant work experience; and
- have worked in Australia for at least the last 2 years as a primarySubclass 457 visa holder in the nominated occupation with the nominating employer prior to the lodgement of the nomination application; and
- unless the applicant and/or nominated position falls within aspecified exemption, the person:
- is under 50 years of age;
- has vocational English (at least 5.0 on each component of reading, writing, listening and speaking) under the International English Language Testing System (IELTS).
An applicant for an ENS under the Direct Stream must meet the following:
Step 2 – Visa application is made by the nominee to fill the position, who must:
- have the skills(and, if necessary, a skills assessment from therelevant authority); and
- have three years' relevant work experience; and
- unless the applicant and/or the nominated position falls within aspecified exemption, the person:
- is under 50 years of age; and
- has competent English (at least 6.0 on each component of reading, writing, listening and speaking) under the IELTS.
For both the Subclass 457 Stream and the Direct Stream unless the applicant and/or the nominated position fall within a specified exemption, the person:
- must have Functional English (at least 4.5 overall under the IELTS otherwise a second instalment visa charge is payable which is currently:
- A$8,520 for the primary applicant; and
- A$4,250 for each dependant 18 years or over
19 Can long-term immigration permission be extended?
Under the Subclass 457 Program a company can sponsor the 457 visa holder any number of times provided that the legal and policy criteria are met. Once the visa holder ceases employment with the company it would be expected that they would depart Australia unless they are eligible to apply for another visa.
20 What are the rules on and implications of exit and re-entry for work permits?
The Subclass 457 visa is granted with multiple travel rights which enables the holder to depart and return to Australia at any time during the visa validity period provided that they remain in the employ of the sponsor. Holiday leave overseas of up to three months may be acceptable, if the 457 visa holder departs Australia; however, more extensive absences may be in breach of Condition 8107.
21 How can immigrants qualify for permanent residency or citizenship?
Subclass 457 visa holders can be sponsored for permanent residency by their employer as detailed under question 18.
Applicants seeking to qualify for permanent residency who are not employer sponsored can apply under the General Skilled Migration Program if they have certain skills and experience and the appropriate level of English.
A permanent resident of Australia who resides in Australia for the relevant period can apply for Australian citizenship. The residence requirements depend on when the person became an Australian permanent resident. Applicants for Australian citizenship from 1 October 2007 must meet the following criteria.
The applicant must have been physically present in Australia:
- lawfully (that is, holding a visa whether permanent ortemporary)for four years immediately before the date of the citizenship application unless they were born in Australia or were formerly an Australian citizen (absences from Australia totalling 12 months or less during this period are permissible); and
- as a permanentresident of at least 12 monthsimmediately beforeapplying (absences from Australia totalling three months or less during this period are permissible).
Generally, to become an Australian citizen a permanent resident must:
- satisfy the residence requirements;
- be aged 18 or over;
- unless exempted, satisfactorily complete the citizenship test;
- if granted citizenship, intend to live in Australia or to maintain aclose and continuing association with Australia.
A person who has been granted Australian citizenship can apply for an Australian passport.
22 Must immigration permission be cancelled at the end of employment in your jurisdiction?
On approval of a Subclass 457 sponsorship, the approved standard business sponsor must meet its sponsorship obligations relating to sponsored workers who hold 457 visas. These obligations include an obligation to provide information to the Department when certain events occur. Under Regulation 2.84(3)(a) of the Regulations, the sponsor must notify the Department of the primary sponsored person's cessation, or expected cessation, of employment within 10 working days of the 457 visa holder ceasing employment with them.
The sponsorship obligations include the obligation to pay travel costs to enable sponsored persons to leave Australia.
Where the visa holder changes occupations with the sponsor to a position which is inconsistent with the terms of the nomination approval, then a new nomination application may be required.
23 Are there any specific restrictions on a holder of employment permission?
Condition 8501 is a mandatory condition for all 457 visa holders. It requires the visa holder to maintain adequate arrangements for health insurance while the holder is in Australia.
The secondary 457 visa holder has unrestricted work rights. All primary 457 visa holders' visas are subject to Condition 8107. This means that the visa holder must work only for the sponsor who nominated them in the most recently approved nomination and in the nominated occupation or for a related entity of the sponsor.
A new nomination is required if the primary 457 visa holder is changing their occupation with the same employer. If the primary visa holder is found to have been working in an occupation which is inconsistent with the nomination approval, the visa holder has breached Condition 8107 and consideration may be given to cancellation of the visa. Regulation 2.86 provides that a sponsor must ensure that the primary sponsored person does not work in an occupation other than the nominated occupation. The sponsor may be in breach of their sponsorship obligation if the primary sponsored person is found to be working in an occupation other than the nominated occupation.
If the visa holder intends to change sponsors, the 'new' sponsor must be an approved sponsor and must lodge and have approved a new nomination application before a visa holder can commence work with the new sponsor. If the new nomination is not approved, the visa may be cancelled unless the visa holder remains with the earlier sponsor and continues to undertake the approved activity.
24 Who qualifies as a dependant?
Family member eligibility
Eligible family members of a temporary employee may apply for the same visa as secondary applicants where the family relationship is ongoing. 'Member of the family unit' (MOFU) is defined in Regulation 1.12 of the Regulations. Generally, a person is considered to be a MOFU of the 'family head' if they are a spouse, a dependent child or a relative who:
- has never married, or is widowed, divorced or separated; and
- is 'usually resident' in 'the family head's' household; and
- is 'dependent' on the 'family head'.
'Spouse' is defined in Regulation 1.15A and means a person who is married to the employee or is in a de facto relationship with the employee. 'Interdependent relationship' is defined in Regulation 1.09A as a same-sex partner with a mutual genuine and continuing commitment to a shared life together to the exclusion of all others. 'Dependent child' is defined in Regulation 1.03 and means a single or unattached person who has not turned 18.
If they have turned 18, the 'adult dependent child' must be wholly or substantially reliant on the 'family head' or the 'family head's spouse' or de facto partner or interdependent partner for their basic needs, or are incapacitated for work.
Regulation 1.03 defines a relative as a person who is the husband or wife (including de facto), child (including adopted child), parent, sibling (including full and half blood), grandparent, grandchild, aunt, uncle, niece or nephew. Step-relatives are also included in the definition.
Regulation 1.05A defines 'dependent'. Generally, a person is considered to be dependent on another person if they are, or have been for a substantial period (generally 12 months) immediately before the time of making the visa application, wholly or substantially reliant on the other person for financial support to meet their basic needs of food, clothing and shelter.
A dependent relative such as an aged, unmarried relative may be dependent on the employee or employee's spouse.
25 Are dependants automatically allowed to work?
All family members and de facto or interdependent partners of the primary visa holder who are granted a visa have unrestricted work rights upon the grant of the visa.
A 'dependent child' or 'adult dependent child' of the primary visa holder must continue to meet the definition of 'dependent'.
26 What social benefits are dependants entitled to?
Persons on temporary resident visas are not entitled to any social benefits or other welfare benefits in Australia under the Social Security Act 1991.
Temporary workers from the Republic of Ireland, Italy, Sweden, the United Kingdom, the Netherlands, Finland, Malta and New Zealand who are in Australia for a short stay are eligible for Medicare under reciprocal arrangements between their country and Australia. These agreements do not cover long-term stays or pre-existing or long-term illnesses.
27 Are prior criminal convictions a barrier to obtaining immigration permission?
All non-citizens, including sponsors of visa applicants and nonmigrating family members seeking to enter or stay in Australia, must be assessed against the character requirement. Section 501 of the Act defines the character requirements.
The onus is on the person to show that they are of good character. The character test also introduces discretionary powers to either refuse or cancel visas if the person does not pass the character test.
A person will fail the character test where:
- they have a substantial criminal record;
- they have or have had an association with an individual or othersinvolved in criminal conduct
- their past and present criminal or general conduct results in afinding that they are not of good character
- there is a significant risk posed by that person to the Australiancommunity or a segment of the community.
Where the person does not pass the character test, the Departmental Officer will decide whether to refuse the application or sponsorship or cancel a visa after consideration of a range of factors that are relevant to the exercise of this discretion.
A person whose visa is cancelled on the grounds that they do not meet the character requirements is permanently excluded from Australia. If the person is in Australia, they will have a right to appeal. If the person is not in Australia, a sponsor or nominator in Australia who is aggrieved by the decision may also have a right of review.
Under clause 457.224 of the Regulations all applicants must be of good character and satisfy public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014 and 4019.
The Department's Fact Sheet 79 – The Character Requirement (www.immi.gov.au/media/fact-sheets/79character.htm) provides general information on the character requirement.
28 What are the penalties for companies and individuals for noncompliance with immigration law? How are these applied in practice?
The Migration Program contains robust monitoring, compliance, enforcement and sanction provisions, which are complex. They give considerable scope to departmental officers as to the course of action to be taken in particular circumstances.
Approved sponsors are required to cooperate fully with the Department, including by providing reports and during site visits by monitoring inspectors and so as to establish that they meet Australia's industrial relations and employment laws and their sponsorship obligations generally.
Imposing sanctions is generally considered after the sponsor has been monitored or where a possible breach has been investigated.
Section 140L of the Act lists the circumstances in which sponsors may be barred or the sponsorship approval cancelled. These include cancelling the sponsorship for specified classes of visas or all classes to which the sponsor belongs, barring the sponsor for a specified period from sponsoring more people under one or all existing approvals, or barring the sponsor for a specified period from making future applications for approval as a sponsor. An authorised officer may also require and take a security (similar to a bond) or to enforce a security already taken.
Regulation 2.90 of the Regulations enables one or more of the cancelling or barring actions specified in section 140L of the Act to be taken if the sponsor has given false information in relation to the sponsorship, the sponsor's compliance with the Act and Regulations or in relation to the assessment of the sponsored person's compliance with their 457 visa conditions.
The consequences of the sponsor providing incorrect or false information in relation to an application for approval as a sponsor, the nomination approval, or in relation to any other matter relating to the sponsor, depends on the severity of the breach.
A civil penalty order can be imposed under section 140K of the Act or the sponsor may be issued with an infringement notice as an alternative to civil penalty provisions under section 140R.
If a person fails to satisfy a sponsorship obligation in the manner or within the period prescribed by the Regulations, a person contravenes a civil penalty provision under section 140Q of the Act. This imposes a maximum penalty of A$6,600 (60 penalty units) for an individual and A$33,000 (300 penalty units) for a body corporate.
The sponsored persons (and secondary visa holders) visa can be cancelled under sections 109, 116, 128 and 140 of the Act as a consequence of the cancellation of the business sponsorship or nomination or as a result of a breach of the visa conditions by the sponsored person. This includes Conditions 8107 and 8501.
Update and trends
Australia's immigration laws are a complex labyrinth of rules and policy, which continue to develop and evolve in response to the priorities of the government of the day.
As the government has increasingly realised the significant economic and social benefits of Australia's Migration Program it has continued to refine this regulatory framework so it can better select who and on what basis, can get a temporary and/or permanent visa to Australia.
There were significant changes to the law on 1 July 2012 including in regard to Subclass 457 visas and the ENS.
From 1 July 2012, the renamed Business Innovation and Investment Program aims to attract successful investors, entrepreneurs and high quality business migrants, in recognition of the benefits they contribute to Australia's increasingly global economy. The government also introduced SkillSelect – 'a new skilled migration selection register'.
SkillSelect is a major change to how Australia manages its skilled migration program. The government has stated that it will enable it 'to manage who is able to apply for skilled migration, when they are able to apply and in what numbers', and on the basis that the applicants have skills which Australia needs.
SkillSelect is an online system that enables persons 'interested in migrating to Australia to record their details to be considered for a skilled visa through an Expression of Interest (EOI)'. 'All intending migrants interested in independent skilled, family sponsored skilled, state or territory sponsored skilled, or business skills programs will be required to submit an EOI and receive an invitation in order to lodge a visa application'.
The government has strengthened measures to address concerns in regard to increasing fraud in visa applications through the recent introduction of the public interest criterion (PIC) 4020.
If invited to apply for a visa the information submitted in the EOI is used as part of the application. If false, misleading or incorrect information or a bogus document is provided in relation to an application, it may be considered fraud and the application could be refused. In that case the person would be subject to a three ban on the grant of a visa.
These reforms will enable the Department to better manage who/ when applies and in the number(s) needed, to refuse visa applications on integrity grounds and to better manage the overwhelming demand for migration to Australia while continuing to ensure that Australia's targeted migration policies and programs are to the economic benefit of Australia.
The Department is continuing to develop its globally integrated client services, integrated business services, IT changes and simplification and de-regulation of the visa system. SkillSelect and PIC4020 are aligned with a broader business operational model which aims to enhance the efficiency and integrity of visa processing, encourage greater use of online application systems and capabilities and to result in quicker processing times and based on real time visa information.
Ongoing reforms including IT changes and the simplification and de-regulation of the visa system will be progressively introduced and in response to the priorities of the government of the day.
Australia's immigration laws will continue to be the most complex in the world.
29 Are there any minimum language requirements for migrants?
The English language requirements depend on the visa category applied for.
A primary 457 visa applicant must have the relevant skills and experience to meet the requirements of the nominated position. English language testing is required unless the person falls within the meaning of 'exempt applicant' under sub-clause 457.223(11) of Schedule 2 of the Regulations. An 'exempt applicant' is a person who is:
- nominated for an occupation that does not require a level ofEnglish language competency for registration, licensing or membership and holds a passport from Canada, New Zealand, the Republic of Ireland, United Kingdom, or United States of America;
- nominated for an occupation as a manager, administrator,professional or associate professional and the occupation does not require English for registration, licensing or membership;
- nominated for a trade occupation and has completed at least fiveconsecutive years of full-time study in a secondary or tertiary education institution where at least 80 per cent of the instruction was delivered in English and the occupation does not require English for registration, licensing or membership; or
- nominated for a trade occupation (or for head chef or chef),unless the applicable base salary rate is A$92,000 per annum (as at 1 July 2012).
Paragraph 18 summarises the English language requirements for the ENS according to whether the applicant applies under the Subclass 457 Stream or the Direct Stream.
Prescribed Subclass 457 visa applicants must have vocational English (at least 5.0 on each component of reading, writing, listening and speaking) under the IELTS. Under the ENS Direct Stream, the applicant must have competent English and English language testing is required unless the applicant and/or the nominated position falls within a specified exemption. A second instalment visa charge is payable if the applicant cannot demonstrate that he or she has at least functional English (and the applicant is not an 'exempt applicant'). Family members 18 years or over who are included in the application must show they have functional English. If they do not have functional English, they will also need to pay the second visa application charge.
Where the nominated occupation requires the person to hold a particular licence or registration, or to be a member of a professional body, the relevant assessing body will specify the English language level required for the purposes of licensing, registration or membership for that occupation.
30 Is medical screening required for obtaining immigration permission?
Under section 60 of the Act, if the health, physical or mental condition of an applicant is relevant to the grant of a visa, the minister may require the person to be assessed as to their health status. Schedule 2 of the Regulations of each visa subclass sets out the health criteria to be met. Schedule 4 of the Regulations sets out the detail of public interest criteria (PIC). The PIC are designed to protect the Australian community from public health risks, minimise public expenditure on health and community services and safeguard access to health and community services in short supply. The PIC relevant to the grant of an employer-sponsored temporary visa is PIC 4005 and 4006A. PIC 4005 (the mandatory health criteria requirement) does not allow any waiver if the applicant fails to meet these health criteria requirements.
Under para 457.225(c) and Criterion 4006A of the Regulations, a health waiver may be granted in certain circumstances in respect of sponsored 457 applicants (provided that the disease or condition is not a risk to public health).
The PIC for employer-sponsored permanent residency is 4005 and 4007. If criterion 4005 is not met, criterion 4007 allows for a health waiver in certain circumstances.
The health assessment process depends on the visa applied for, the age of the person, the proposed length of stay, the person's medical history, the types of activities they intend to engage in while in Australia, and the relevant PIC. The applicant is required to:
- complete the health declaration in the visa application form;
- in certain cases, have a chest X-ray (radiological) examination,if 11 years or older;
- in certain cases have a medical examination;
- in certain cases, have an HIV test, hepatitis B or C test or otherspecific test (usually only if at least 15 years of age); and
- have other tests as may be requested.
All applicants and their dependants who are secondary applicants must meet the health criteria.
If an applicant or a member of their family cannot satisfy the health requirements, then under section 65(1) of the Act the application must be refused.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.