Applying for a visa can be a daunting and complex task. While some applications can be relatively straightforward, such as a holiday visa, others can be very complicated and require an in-depth knowledge of the specific country’s laws and visa processes.

The Migration Act 1958 and Migration Regulations 1994 provide pathways allowing eligible people to migrate to Australia. Identifying the most appropriate pathway and visa type is the first step in preparing a valid visa application. Obtaining professional immigration advice before applying for a visa helps to ensure the most appropriate pathway is chosen and your application is properly made.

Save time and money

By working with an immigration lawyer, you can often save time and money by minimising mistakes to obtain a faster result.

Sometimes small things can have a huge impact on your visa outcome. If you are submitting an application for a visa by yourself or making your application based on what a friend did in their case, you could make a costly mistake. And some mistakes can have terrible consequences, such as a refusal or a considerably lengthy delay.

Form filling is only one aspect of the visa application process. If you don’t meet the requirements set by the visa type you wish to apply for, you may be just filling in applications with no chance of obtaining a visa.

Avoid mistakes and traps

An immigration lawyer understands the precise documents required for your visa type, which will help to minimise mistakes and streamline your application. Providing the Department of Home Affairs with all the forms and supporting documents required is referred to as a decision-ready application. These applications are processed faster without unnecessary delay.

Even a small error in terminology or incorrect interpretation can have a significant effect on the validity of a visa application. It is not the job of the Department to check and assist a visa applicant in their visa application. One error, however small, could leave you with an invalid application which will be returned to you without being considered by the Department, or refused.

It is important to remember that immigration laws and policies change frequently, which can mean that you may meet the requirements for a successful visa application on one day and not be eligible for the same visa the next.

Receive objective assessment

An applicant cannot always be expected to have comprehensive knowledge of particular migration laws, policies or visa processes and requirements. Individual circumstances such as education, age, health, family, character and more are taken into consideration by the Department.

By consulting an expert, you will receive objective visa assessment advice, a tested visa strategy, and clear instructions about what documents are needed. The required material can be forwarded to your immigration lawyer who will prepare your application, lodge it, and follow up with the Department on your behalf.

Skill and strategies

By using an experienced immigration lawyer, you will benefit from in-depth knowledge and strategies based on the professional’s experience working with visa applications, as well as access to legislation databases and resources.

An immigration lawyer can assist you and guide you through the different types of visas that may suit your circumstances and provide you with up-to-date information on immigration requirements and laws.

In addition to providing details of the visa requirements, immigration lawyers can complete the required paperwork on your behalf and lodge the application which can streamline the entire process.

If your circumstances mean that you are unable to obtain the visa you want, an immigration lawyer may be able to provide you with other avenues or bridging visa options that you may wish to consider, which could provide a pathway to obtaining the desired visa at a later time.

Conclusion

Australia’s migration laws and policies are constantly evolving. Getting the right information and advice from the outset can avoid costly mistakes and delays in processing your visa application. Using an experienced immigration lawyer with a sound knowledge and understanding of migration laws and procedures can make a big difference when preparing your visa application.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

A visa is a form of permission for a non-citizen to enter, transit or remain in a particular country. In Australia, a partner visa offers a pathway for individuals to join their partners and establish a life together in this country. This visa category recognises and supports genuine relationships, enabling partners to live, work, and study in Australia. However, before embarking on an application for a partner visa, it is crucial to understand the eligibility criteria and the factors used to assess the genuineness of a relationship. By understanding the requirements, individuals can navigate the partner visa process with confidence and increase their chances of a successful application.

What Can a Visa Partner Allow You to Do?

Obtaining a partner visa opens up numerous opportunities. With a partner visa, you can live in Australia for an indefinite period, work and study, access Medicare (Australia’s healthcare system), and even apply for Australian citizenship if you meet the requirements. This visa provides a solid foundation for building a life with your partner in this country.

Types of Partner Visas

There are different types of partner visas available in Australia, depending on the circumstances of the relationship. The most common ones include the “prospective marriage” visa and the “partner” visa.

A prospective marriage visa (also known as a “fiancé” visa) is for individuals who are engaged to an Australian citizen, permanent resident, or eligible New Zealand citizen. It allows the visa holder to enter Australia and marry their partner within the validity period of the visa.

A partner visa is for individuals who are already in Australia and are in a genuine and committed relationship with an Australian citizen, permanent resident, or eligible New Zealand citizen. Both the applicant and their partner must be at least 18 years old, and the applicant and their dependents must meet certain health and character requirements. To obtain a partner visa, evidence must be provided to demonstrate the genuineness of the relationship.

What is a Genuine Relationship?

A genuine relationship is the cornerstone of a successful partner visa application. The Department of Home Affairs assesses the genuineness of the relationship based on specific factors, but it is important to note that this assessment is not limited to these factors alone. Each case is unique, and the Department of Home Affairs evaluates the overall circumstances to determine the genuineness of the relationship.

The first step of proving a genuine relationship is each person describing their commitment and emotional support for their partner, along with evidence of communication, such as emails, letters, or phone records. Another significant factor in establishing a genuine relationship is evidence of joint financial commitments, such as shared bank accounts, joint ownership of property, or joint liabilities. Proof of cohabitation is often also provided, which can be demonstrated by joint leases or rental agreements, utility bills in both names, or correspondence addressed to both partners at the same address.

Parties applying for a partner visa will often also show evidence of a shared social life, such as joint invitations to family events, travel documents showing joint travel, or photographs and testimonies from friends and family. Applicants may also produce documentation showing joint future plans, such as wills, joint investments, or joint participation in long-term commitments, like purchasing property together.

Refusal

If your application for a partner visa has been refused, you should read your refusal notice carefully because each decision is different. This letter should advise:

• if you have the right to appeal your decision
• the timeframe available to lodge an appeal
• the relevant body your appeal should be directed to.

If you are already in Australia, you will probably be granted the right to appeal the refusal to an Australian tribunal or a court. Alternatively, if your partner visa application was lodged offshore, your Australian citizen partner may be able to lodge the appeal.

The most common place to appeal a partner visa refusal decision is to the Administrative Appeals Tribunal (AAT). There are strict time limits when appealing to the AAT, so it is very important to read the appeal deadline in your visa refusal letter carefully. Unfortunately, AAT appeal deadlines cannot be extended, and we recommend obtaining legal advice to assist with a proposed appeal.

Conclusion

A partner visa supports genuine relationships by allowing partners to live, work, and study in Australia. Immigration laws, however, are complex and it is important to understand the eligibility criteria and potential issues before making an application. An experienced immigration lawyer can guide you through the process to ensure your application meets the necessary conditions to give you the best possible chance of having a visa granted.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au

If you’re running a small or medium sized business and struggling to fill certain roles with quality employees, you may have considered looking overseas to help grow your enterprise. Employer sponsored visas address genuine skills shortages in the labour market by allowing employers to bring qualified workers to Australia to fill positions that they cannot fill locally.

Becoming a business sponsor is a prerequisite to hiring overseas workers on certain visas, namely the Temporary Skill Shortage visa (subclass 482) and Skilled Employer Sponsored Regional (Provisional) visa (subclass 494). Generally, the role to be filled must appear on a relevant skilled occupations list. These lists are updated regularly to ensure they reflect shortages at a given time and may change with little or no notice.

Approved business sponsors have ongoing obligations, and non-compliance can result in penalties such as fines, barring from further nominations and cancellation of sponsorship status.

This information is for general purposes only. Immigration laws are complex and can change frequently and we recommend working with an immigration lawyer with the expertise and knowledge required to help your business secure a skilled workforce.

Becoming a business sponsor

Approval as a standard business sponsor lasts for five years and may be renewed on a continuing basis provided the employer continues to meet the relevant criteria. Once approved, a business may apply for accredited status which provides additional benefits such as priority processing.

Eligibility and process

Applications for approval as a business sponsor are made through the Department of Home Affairs and must be accompanied by the relevant fee. These costs must not be passed onto a prospective employee / visa applicant.

The proposed sponsor must lawfully operate a business within or outside of Australia and nominate the number of positions required over the term of approval. The business must be legally established and currently operating, whether that be through a sole proprietorship, partnership, trust, company or other structure.

Applications must be supported by appropriate evidence such as:

• an Australian Business Number (ABN) registration certificate;
• an Australian Registered Body Number (ARBN) registration certificate for overseas entities registered to operate in Australia;
• a company extract from the Australian Securities and Investment Commission (ASIC);
• an extract from the ASIC business name register;
• an Australian Stock Exchange (ASX) listing registration;
• profit and loss statements / financial reports;
• joint venture agreements, partnership agreements, franchise agreements;
• if the business is operating under a trust arrangement, details of the trustee, name and ABN of the trust.

Sponsors must attest to having a commitment to utilising local labour and that they will not undertake discriminatory recruitment practices. Existing Australian businesses must show that they have made genuine efforts to recruit for the occupation locally.

Start-ups and businesses operating outside of Australia

Proposed sponsors that do not presently operate in Australia should provide evidence of registration in the country in which they operate and proof that they intend to establish a business entity in Australia. This may include copies of a company or business expansion plan, joint venture agreement or contract with an Australian entity.

New businesses should provide business plans, bank statements, tax returns for the most recent year/s, business activity statements (BAS), service contracts, lease agreements, and wage records (as relevant).

Adverse information

There must be no adverse information known to the Department about the business or business owner – this is information regarding an event or situation that has occurred within the past three years and which may raise doubts about the applicant’s suitability as a sponsor. Adverse circumstances include:

• insolvency under the Bankruptcy Act 1966 or Corporations Act 2001;

• that the organisation or business owner has been found guilty of certain offences (relating to discrimination, immigration, industrial relations, occupational health and safety, people smuggling / trafficking, slavery, sexual servitude, deceptive recruiting, taxation or terrorism);

• that the organisation is being investigated, has been subject to disciplinary proceedings or legal action, or has been the subject of administrative action.

Sponsorship obligations

Business sponsors have specific reporting requirements and obligations to their workers, which may continue after the employment relationship ends.

As with all Australian employers, sponsors must comply with relevant workplace and health and safety laws and provide workers with the same terms and conditions of employment as would be provided to Australian citizens.

The employer must pay the visa holder a market salary rate and meet the Temporary Skilled Migration Income Threshold (TSMIT) to ensure that overseas workers are not exploited, and Australian workers are not cut out of a position.

The visa holder must only work in the approved occupation.

A sponsor must notify the Department in writing of certain events including:

• termination of the visa holder’s employment
• if the visa holder did not start work with the sponsor
• a change in the visa holder’s work duties
• the bankruptcy or insolvency of the sponsor
• changes in the business structure, trading name, legal name, address, owners/directors/partners, etc.
• cessation of the business

Conclusion

Finding skilled workers can be challenging and businesses may need to look overseas to fill certain roles. Becoming a standard business sponsor enables employers to hire workers under certain visas to fill specified occupations.

We recommend businesses work with an immigration professional to ensure they stay abreast of changes in regulations and policy, so they can find continued opportunities to fill skills shortages.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Although Australia’s immigration laws are complex, there are many visas providing eligible applicants an opportunity to live, study, and / or work in Australia. Many visas provide pathways to permanent residency and allow the visa holder to bring eligible family members.

Understanding different visa categories and working with an immigration professional can help identify the most appropriate visa type, and implement strategies towards achieving your immigration goals.

Choosing the right visa – working with an immigration professional

Immigration lawyers use knowledge of the legal system and their understanding of immigration processes and policies to find the most appropriate visa type suited to their clients’ skills, qualifications, and personal circumstances.

Essentially, visas are grouped into categories or classes that share common factors and have specific eligibility criteria applicable to each subclass. All visas have conditions attached which must not be breached by a visa holder. An immigration lawyer can assist in determining your eligibility for a visa and explain the relevant conditions.

Information provided by a potential visa applicant is cross referenced with the criteria required for various classes to narrow down options and identify the most suitable pathway. Often, a number of pathways are explored before determining the most appropriate.

If the criteria for a desired visa type cannot immediately be met, a strategy may be implemented so the applicant can meet the criteria in the future. In the meantime, it may be possible to apply for a different visa type or a bridging visa with the objective of applying for the required visa once the eligibility criteria can be met.

Popular visa types

Following is an overview of popular visa categories demonstrating the range of visas that may allow migration to Australia. Each visa type is subject to change and everybody’s circumstances are unique, so it is advantageous to work with an immigration specialist to find the most feasible pathway.

Skilled Visas – employer sponsored

If you want to work in Australia and have the necessary skills and qualifications, a range of work visas may be appropriate for temporary or permanent residency.

The Australian Government recognises the economic value that skilled individuals bring to the country and has implemented programs to address skills shortages and assist employers fill genuine vacancies. In some cases, the grant of a provisional (temporary) visa may lead to eligibility for permanent residency.

The Temporary Skill Shortage (subclass 482) visa allows employers to bring skilled workers into Australia to fill vacancies that cannot be filled locally. Applicants must have the skills, qualifications and experience specified for a selected occupation on one of the skilled occupations lists. These lists are regularly reviewed. The employer must be an approved business sponsor and employ the visa holder in the nominated position. There are presently three streams:

• The short-term stream grants a visa for a maximum two-year duration (or 4 years under International Trade Obligations) with a once-only renewal option.
• The medium-term stream targets long-term skills gaps and grants a visa for up to four years with an opportunity to renew indefinitely whilst the occupation remains on the list. This visa offers a potential pathway for permanent residency after three years provided the visa holder meets the eligibility criteria and has complied with all visa conditions.
• The labour agreement stream applies to employers who have entered into a labour agreement, and grants a visa for up to four years, with an opportunity to renew and to seek permanent residency, subject to eligibility, after three years.

The Employer Nomination Scheme (subclass 186) visa allows skilled workers who are nominated by an Australian business for an eligible occupation, to live and work in Australia permanently. Visa holders may enter under a Temporary Residence Transition stream, Direct Entry stream, or Agreement stream.

The Regional Sponsored Migration Scheme (subclass 187) visa allows skilled workers who are nominated by an approved Australian business operating in a regional area to live and work in Australia permanently under a Temporary Residence Transition stream or Direct Entry stream.

Business Innovation and Investment Visas

The Business Innovation and Investment (subclass visa 188) provides opportunities for experienced business operators, entrepreneurs or investors with significant assets to establish and operate a business or manage investment activity in Australia. These visas are very complex and only those invited by a state or territory government, after the successful submission of an expression of interest, may apply.

Business innovation visas may be appropriate for those with good business skills wishing to operate an existing business or establish a new business in Australia. Applicants should have sound business experience, adequate financial resources and assets and the business must be considered to be of economic benefit by the nominating state or territory. Holders of business innovation visas can live in Australia and operate their business for four years and may be eligible for a permanent visa afterwards provided the business is viable, has achieved specific targets related to growth and performance and all other criteria is met.

Investor visas require visa holders to invest in complying Australian investments of substantial amounts (from $1.5 million to $15 million) for a minimum of four years. The terms and types of investments are very specific, and applicants must have a genuine intention to reside in the state or territory in which the nominating agency is located.

Partner Migration

Partner visas allow married or de facto partners of an Australian citizen, permanent resident or eligible New Zealand citizen to travel to and live in Australia. Successful applicants are initially granted a temporary visa and, provided there is a continuing long-standing relationship (and other criteria are met) the grant of a permanent visa follows, usually after two years of the initial application. Applicants for partner visas must be sponsored and meet health and character requirements.

For partners intending on marrying, a prospective marriage visa may be granted. This is a temporary visa remaining valid for up to nine months. Once granted the applicant should enter Australia and marry within that time. After marriage, the applicant may apply for a partner visa.

Student Visas

Student visas are available for people wishing to study in Australia. These include Vocational Education and Training Sector, Higher Education Sector and Post-Graduate Research Sector visas allowing students to stay in Australia whilst studying fulltime.

Conclusion

The Australian immigration system is constantly changing with numerous visa types and various eligibility criteria to work through when lodging an application.

Immigration matters can be complex, and it is important to have a good relationship with an experienced professional who will assess your circumstances and provide advice and guidance to find a workable pathway towards your immigration goals.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Having a visa application refused can be extremely disappointing, particularly after spending considerable time completing forms, gathering documents and having paid the relevant fee, which is generally only refundable in limited circumstances.

Visa applications in Australia are processed and considered by the Department of Home Affairs. A decision not to grant a visa may be made for a number of reasons including:

• applying for the wrong visa type, which is quite common and may occur more frequently when applications are lodged without legal assistance;
• failing to meet the conditions required of a previous or existing visa;
• failing to meet eligibility criteria such as health and character requirements;
• incomplete information or inconsistencies in the application and / or supporting documents;
• insufficient funding.

If your visa application has been refused, you may be able to have the decision reviewed. The visa notification letter should state the reasons for refusal and whether the decision is reviewable. Not all decisions can be reviewed, and it is important to act quickly to determine your rights and lodge the appropriate application.

The review process for visa refusals

The Administrative Appeals Tribunal, Migration and Refugee Division deals with the review of visa refusals. The Tribunal is required to make decisions which are fair, just and economical and takes an informal approach to the review process.

When reviewing a case, the Tribunal has the power to reconsider the case in its entirety and make a new decision based on the relevant facts and circumstances.

The types of decisions reviewable by the Tribunal, who is entitled to apply for a review (which may be the visa applicant, a sponsor or close relative), the fees and time limits are set out in the Migration Act 1958 (Cth) and Regulations. The relevant timeframe within which to lodge a review application will be stated in the Department’s notification letter. The Tribunal is not authorised to make exceptions, so it is imperative to lodge the application on time.

The application for review may be completed and lodged online, by post, fax, in person or by email, and the relevant fee must be paid at the time of lodgement.

Preparing for your case

Following is an overview, and some information regarding the Tribunal’s review process.

• After an application for review is lodged, confirmation is given to the applicant and the Department of Home Affairs. The Minister for Immigration or the Department are not represented during the review process, however they must provide the Tribunal with all relevant documents concerning the case.
• The case is allocated to a Tribunal member who reviews the documents.
• A hearing date is usually set, and the applicant invited to attend and / or provide further details or respond to information.
• An applicant may nominate a representative to run the case, prepare submissions and evidence, and attend any meeting or hearing arranged by the Tribunal. The representative may be invited to comment on matters raised during the review process.
• Preparing good written submissions and evidence to support a case, and planning for the hearing is critical for an applicant to have every chance of achieving the best possible outcome of the review.

Submissions should provide background information concerning the applicant and respond specifically to the matters raised by the Department. The submissions must directly address the reasons for refusing to grant the visa.

• The Tribunal is required to inform an applicant of certain information that could result in an adverse outcome of the review and provide an opportunity for the applicant to respond within a specified time. It is important to respond timely and appropriately so the opportunity to put forward a case is not lost.

The decision

The Tribunal may:

• affirm the decision;
• vary the decision;
• substitute the decision for a new one;
• send the case back to the Department to make a new decision.

The timeframe for the Tribunal to determine a case will depend on the circumstances and complexity of the matter, noting that some cases will be given priority in accordance with legislation and policy directions.

In most cases, a decision will not be made at the hearing and the Tribunal member will send the applicant and Department a written determination afterwards.

Occasionally, a decision may be made at the end of the hearing and the Tribunal member will announce this verbally and may provide written reasons for the decision within the following 14 days. Alternatively, the member may announce the decision and reasons at the end of the hearing. In such cases, an applicant may request in writing within 14 days, to be provided with a written version of the determination.

Applicants who are not happy with the Tribunal’s decision may have a further opportunity to appeal to the Federal Circuit Court, but only on a question of law. This is a complex area and visa applicants should obtain legal advice regarding their eligibility to appeal Tribunal decisions.

Conclusion

Many factors may cause a visa application to be refused. No matter what the reason, it is important to act quickly to protect your rights and to make sure that all avenues are explored to achieve the best possible outcome under the circumstances. Obtaining timely advice from an experienced immigration specialist is vital.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

To be granted a visa, an applicant must meet the prescribed eligibility criteria for the relevant subclass and submit a valid visa application in accordance with Australia’s immigration laws. An invalid application cannot be considered and will be returned by the Department of Home Affairs to the applicant (or representative), even if that person might otherwise meet the required criteria.

Submitting an invalid visa application can waste thousands in preparation costs, extend wait times by months, and cause great inconvenience as the applicant remains in a state of limbo. An invalid application is particularly detrimental when timing is a critical element in the application process.

While it’s true that some applicants do not meet the criteria required for the grant of a certain visa type, many applications are unsuccessful because of procedural errors rather than actual ineligibility.

Navigating a complex immigration system and being familiar with the Department’s policies and procedures is essential for submitting a valid application. This article looks at some common pitfalls which can lead to costly visa application mistakes. The article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.

Applying for the wrong visa type

Australia’s immigration system provides pathways for temporary and permanent residency. With around 100 visa subclasses available, each prescribing very specific eligibility criteria, making the right choice from the outset is essential to avoid wasting time and money and to increase the prospects of being granted residency.

Applying for the wrong type of visa can also be detrimental to a successful grant down the track. For example, if a person who proposes staying in Australia long term applies for, and is granted a tourist visa, then the visa holder’s real intention (to stay longer) may be seen as a breach of a condition attached to that visa and jeopardise the grant of a further long-term visa.

Assessing the most appropriate pathway based on an applicant’s skills, qualifications, personal circumstances and visa history requires a considered approach, usually with the assistance of an immigration lawyer.

Lack of supporting documents

The Department assesses thousands of visa applications and must be satisfied that an applicant meets the required eligibility for the class of visa sought.

In addition to verifying an applicant’s personal identity through birth certificates, passports, etc, various visa types require proof of other matters such as:

• Relationship status – documents to prove a genuine de facto relationship exists such as joint bank account statements, and testimonials from friends and family regarding the nature and length of the relationship.
• Business activities – evidence of company trading history such as financial reports and accounting records, which may need to be audited and verified.
• Personal assets and resources – complex personal wealth, company and trust structures need to be analysed and presented in a manner consistent with Departmental requirements.
• Qualifications, trades and skills – credentials gained overseas need to be matched with the relevant Australian standards and validated through skills assessments.
• Employment records and experience – tax returns, payslips and work references.

Immigration lawyers understand the documentation required to authenticate this information and often draw on experience in other areas such as corporate law and trusts to ensure an application is properly supported.

Mistakes in the application

The correct and most recent visa application form must be completed in accordance with the instructions. Common mistakes include failing to complete separate applications for additional applicants (such as a dependent child over 18 years), application forms not being signed by all applicants, and using a post office box rather than a residential address. These simple mistakes can be avoided by carefully reading and checking forms and instructions.

Inconsistencies

Information provided to the Department is scrutinised for inconsistencies. Details may be checked against a range of sources including previous visa applications, supporting documents, government records and even social media profiles. Information provided to the Department that is contradicted through Facebook posts can be a problem.

It is important to triple check everything before lodging the application, paying particular attention to inconsistent dates which can raise legitimate questions. Transparency is essential and copies of all information submitted should be retained by a visa applicant.

Innocent irregularities can usually be explained, however identifying issues before they are queried at Department level is preferable. Working with an immigration lawyer to understand and address any matters that could raise concern is wise.

Bad timing

Delays in meeting eligibility criteria and obtaining documents within prescribed timelines can impact significantly on the application outcome. Generally, little flexibility is permitted when it comes to non-compliance, even if a deadline is only marginally missed.

The validity of some visa applications can be affected by the applicant’s location at the time the application is made. Attention to timing requirements for submission with respect to whether an applicant must be on-shore or off-shore when an application is lodged is critical.

Processing times for applications vary, and it is important to plan strategically to ensure that eligibility criteria can be met and supporting documents provided as prescribed.

Conclusion

Many visa refusals are based on procedural issues rather than an applicant’s inability to meet the required criteria. In many cases, an application will not even be considered and be returned to the applicant as invalid. In some cases, an invalid visa application may be relodged, and a visa refusal reviewed. Of course, it is preferable to avoid this situation in the first place by submitting a valid and supported visa application.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

To be granted entry to Australia whether temporarily or permanently, whether you are a main applicant or an additional applicant, you will need to pass the character test set out in section 501 of the Migration Act 1958.

This character requirement attaches itself to the type of visas which are applied through the Public Interest Criterion (PIC) 4001. The onus is on the applicant to demonstrate that they are of good character. Applicants who fail the character requirement will have their visa refused or cancelled by either the Minister for Immigration and Citizenship, or the Department of Immigration and Citizenship (DIAC).

Consequently, the DIAC will consider your past and any present criminal conduct along with your conduct in general, in determining whether you are of good character. This means you will be required to disclose information about your past conduct including criminal convictions or charges, and the refusal or cancellation of any previous visas.

According to recent news reports, following recent amendments made to the legislation late last year, the Minister has cancelled as many Visas over the last 3 months as were previously cancelled over the past three years!

What constitutes failure of the character test?

 The Applicant will fail the character test if:

• They have a substantial criminal record
• They have been convicted of an offence while in immigration detention, escape from immigration detention, during the period of escape from immigration detention or have been convicted of an offence of escaping from immigration detention
• There is a significant risk that the person will engage in criminal conduct (such as harassing, molesting, intimidating or stalking another person, or vilifying, inciting discord against a segment of the Australian community) or the person represents a danger to the Australian community.
• Having regard to the person’s past and present general criminal conduct, the person is judged not to be of good character.

What is a ‘substantial criminal record’

A person will be judged to have a ‘substantial criminal record’ if they have been sentenced to:

• Death or life imprisonment
• A term of imprisonment for at least 12 months
• Two or more terms of imprisonment, where the total of the terms is two years or more

You will also be judged to have a ‘substantial criminal record’ if you have been acquitted of an offence due to unsoundness of the mind, or insanity and as a result have been detained in a facility or institution.

What happens to a person who is excluded from Australia?

In plain terms it is severe. Any person, who has their visa cancelled on the grounds of substantial criminal record, past and present criminal conduct, or past and present general conduct, will be permanently excluded from entering Australia.

Why the increase in Visa Cancellations for Character Reasons?

The increase in visa cancellation numbers is a government response to national security concerns especially in the areas of organised crime and counter-terrorism.

Prime Minster Tony Abbott recently said the government aims to target “organisations and individuals blatantly spreading discord and division” and “include stronger prohibitions on vilifying, intimidating or inciting hatred” and made specific mention of the “hate preachers”.

Whilst recent visa cancellations are focused on organised crime, sex crimes and terrorism, it is possible that any person with criminal convictions outside of these offences can have their Australian visas revoked.

Recent security concerns have heightened the level of border protection, it is likely more cancellations will occur. Naturally, it is a good idea for all visa holders and applicants to stay out of trouble with the law in order to preserve your life and residence in Australia.

The importance of legal experience

If you need to complete a Visa Application or have received a notice requiring a response from the DIBP you should seek legal help.

We are experienced in assisting applicants with visa applications for Skilled Migration including Independent and State Sponsored visas, state sponsorship applications, Family Migration visas as well as employer-sponsored visas. We also assist applicants who have health or character concerns in a visa or citizenship application.

If you need more information, or if you need assistance or advice, please call us on 07 3281 6644 or email mail@powerlegal.com.au.

The Temporary Skill Shortage (subclass 482) Visa (TSS Visa) is a new stream of visa introduced as part of Australia’s reformed skilled migration scheme. The new stream is now fully operational and supersedes the Temporary Work (Skilled) Visa program (457 visa) which is now closed for new applications.

Features of the TSS Visa

The TSS visa stream is designed to assist employers address genuine skills shortages in the Australian labour market. It enables employers to bring skilled workers into Australia (by sponsorship) where they are unable to source the workers they need locally.

Each visa stream allows an applicant to include eligible family members in their application which are defined as a partner – married or de facto (same or opposite sex) or dependent child or children up to 23 years of age.

The TSS visa comprises three streams:

• The short-term stream permits employers to fill temporary skills gaps identified from a list of occupations on the Short-Term Skilled Occupations List (STSOL) for a maximum two-year duration (or 4 years under International Trade Obligations) with a once-only onshore renewal capacity.

This visa does not provide an opportunity for permanent residency and applicants must demonstrate that they genuinely do not intend to remain permanently in Australia.

• The medium-term stream targets long-term skills gaps and is designed to fill more narrowly-defined and highly-skilled occupation categories appearing on the Long-Term Strategic Skills List (MLTSSL).

Applicants may apply for up to four years with an opportunity to renew indefinitely whilst the occupation remains on the list. The medium-term stream provides a pathway for permanent residency after three years provided the visa holder meets relevant eligibility requirements and has complied with any visa conditions.

A Regional Occupation List (ROL) includes various occupations that are specifically available in regional areas and forms part of both the STSOL and MLTSSL.

• The labour agreement stream applies to employers who have entered into a labour agreement with the Department of Home Affairs. A labour agreement allows businesses who can demonstrate a specific need that cannot be met by the Australian labour market, to sponsor workers. Currently, there are four types – company-specific, industry-specific, designated area and project agreements.

Like the medium-term stream visa, applicants may apply for up to four years, apply to renew the visa, and seek permanent residency, subject to eligibility, after three years.

Some occupation categories are subject to certain ‘caveats’ meaning that there will be additional requirements relating to the business entity or occupation, for example, a pre-requisite for a business to have achieved a minimum annual turnover before obtaining sponsorship approval, minimum salary requirements, minimum number of employees or specific locality requirements.

How do I apply for a TSS visa?

Occupation

Applicants first need to check if they have the relevant qualifications or skills suited to an occupation listed on the STSOL or MLTSSL. These lists are reviewed regularly to ensure they provide an accurate picture of occupation shortages at the current time which means that categories of occupations may be added, deleted or moved between lists at any time and without notice.

Sponsorship

Applicants must also have an employer who is willing to employ them in the listed occupation. The employer must be an ‘approved business sponsor’. An approved business sponsor must lawfully operate a business in Australia and fulfil various other requirements.

A visa application cannot be submitted without the applicant being ‘nominated’ for the position by the approved business sponsor. Before nominating a proposed applicant, the employer must show that they have made genuine local efforts to recruit for the occupation (known as labour market testing).

The employer must pay the visa holder a market salary rate and meet the Temporary Skilled Migration Income Threshold (TSMIT) to ensure that overseas workers are not exploited, and Australian workers are not cut out of a position.

The employer must pay for all costs associated with the sponsorship and nomination application.

Eligibility criteria

Grant of a visa will be subject to the applicant meeting various eligibility criteria including skills and qualifications relevant to the occupation category, minimum work experience, health and character requirements (including police checks) English proficiency and any other requirements specific to the visa type for the stream in which they are applying.

TSS visa applicants need to demonstrate at least two years’ relevant work experience in their chosen occupation category (unless applying under a Labour Agreement Stream where the two-year requirement may not be necessary).

Family, partners and children included on the primary visa applicant’s application also need to meet certain eligibility requirements.

Visa holders must provide Tax File Numbers to the Department of Home Affairs for cross-checking with the Australian Taxation Office to ensure conformity with salary requirements.

Conclusion

Applying for a visa is a complex process with strict eligibility criteria, legislation and regulations constantly evolving and listed occupation categories subject to change at short notice.

A lawyer experienced in migration law can assist greatly in explaining the process and obtaining the extensive information necessary to support your application.

Getting your application right the first time is imperative to increase the opportunity of being granted an Australian visa.

If you or somebody you know is interested in applying for a TSS visa, or other visa type or wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Did you know you may be eligible for a partner visa if you are married to, or in a de-facto relationship with, an Australian citizen, Australian permanent resident or an eligible New Zealand citizen? If your application is successful this will result in permanent residence, in most cases after a period of about 2 years.

There are two overall types of partner visas; namely a partner visa and prospective marriage visa. The type of visa for which you should apply depends on the type of relationship you are in, but essentially visa applicants must:

• Have a mutual commitment to a shared life together, to the exclusion of all others;
• Have a genuine and continuing relationship; and
• Live together or not live separately and apart on a permanent basis.

 Your relationship type

For legally married applicants it doesn’t matter if you were married in Australia or overseas. For those married overseas, this would generally be recognised in Australia providing you were both over eighteen years of age and of the opposite sex.

For applicants in a de-facto relationship the rules would generally require you to show that you have lived together for at least 12 months. In some circumstances a shorter period may be adequate, such as having had a child together or if you were unable to live together in your country or if you have “registered” your relationship with a State or Territory in Australia.

Applying for a Prospective Marriage Visa

 For people outside Australia who intend to marry their Australian sponsoring partner after they enter Australia, a prospective marriage visa is also available. It is not available for visa applicants already in Australia.

In these cases an applicant must:

• Be at least 18 years of age
• Have met their sponsor, in person, since they both turned 18
• Be known to their sponsor
• Be able to enter into a marriage that is valid under Australian law (that is, there must be no impediment to their marriage).

A prospective marriage visa is valid for nine months from the date of grant. To convert this to a permanent visa in Australia, a prospective marriage visa holder must enter Australia, marry their sponsoring partner and apply for a partner visa in Australia within the nine month period.

Temporary Partner Visas

If you apply for a permanent partner visa, you make a combined application for both a temporary partner and a permanent partner visa at the same time.

The temporary partner visa is usually granted first. It this gives you full work and travel rights in Australia. You should also be eligible for Medicare, but would not be able to access full social security benefits. This lasts until a decision is made on the permanent partner visa and this is generally at least 2 years after lodgement of the partner visa application.

Processing Time Period

Some applications are decided quickly. But currently Partner visas are taking about 9 to 12 months or so on average. Although, this can be longer if (for example) your application necessitates difficult security clearances and this in turn will depend on your place of residence.

Conclusion

There are many rules applying to partner visas and to family migration cases generally.

With the right advice at the start you give yourself the best chance of success and you can also minimise unnecessary delays.

If you would like an experienced immigration lawyer to check your application to make sure it complies with the many rules, please call us on 07 3281 6644 or email mail@powerlegal.com.au.