ByLawyers News and Updates

Visa subclasses – FED

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There have been changes to a number of visa subclasses. These changes create new conditions and affect the expiration dates and cancellation grounds across various visa subclasses.

The Migration Amendment (2022 Measures No. 2) Regulations 2022 introduce the following three migration law changes.

  1. Visa holders in the 482 temporary skill shortage visa subclass can apply for a further 482 visa without leaving Australia. Applicants must have been in Australia between 1 February 2020 and 14 December 2021, when international borders were shut. This only applies to 482 visas in the short-term stream. Applicants will be able to make a further 482 visa application onshore from 1 July 2022 to 1 July 2023.
  2. Holders of skilled graduate visa subclass 476 who were affected by the COVID-19 pandemic have now had their visas extended to 14 April 2024. The extension commenced retrospectively on 31 January 2022, and includes secondary visa holders.
  3. Tourists who hold an Electronic Travel Authority eligible passport can now apply for a tourist visa subclass 601 through the new Australian ETA digital app, in addition to the existing Electronic Travel Authority website.

The Migration Amendment (Protecting Australia’s Critical Technology) Regulations 2022 introduces concepts of public interest criterion in granting and cancelling visas. These changes impact student visa subclass 500, and a postgraduate research course will satisfy the public interest criterion. However, the Minister may cancel any visa class where there is an unreasonable risk of any unwanted transfer of critical technology by a visa holder.

The By Lawyers Immigration commentary for both LEAP and website subscribers has been updated with these amendments. The commentary summarises the new conditions and dates for each affected visa subclass neatly within existing coverage of those visa subclasses.

Immigration work – FED

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Immigration publication substantially enhanced

Practitioners doing immigration work will find the By Lawyers Immigration publication has been substantially reviewed and expanded. The new content includes significant new commentary on reviews, appeals and ministerial intervention.

Lawyers doing immigration work

Practitioners will be aware that barriers to lawyers doing immigration work were lifted from 22 March 2021. Amendments to the Migration Act 1958 (Cth) removed the requirement for lawyers with an unrestricted practising certificate to also be registered as migration agents before doing immigration work for their clients. See the previous By Lawyers Obiter post Lawyers doing immigration work for more information.

The resultant opportunity has seen By Lawyers Immigration publication expanded to assist practitioners acting for clients in immigration matters.

Review, appeals and ministerial intervention

The existing section of the By Lawyers Immigration publication has had new commentary and precedents added. This new content will assist practitioners acting for an applicant who seeks to review a decision concerning an existing visa or a visa application. The publication now covers all possible review options up to and including High Court appeals.

New commentary and precedents

Enhancements include the addition of the following precedents and the expansion of the related commentary to provide highly practical resources on the review and appeals process:

Administrative Appeals Tribunal

  • Letter to client with costs agreement explaining the tribunal process
  • Letter to client re invitation to provide information from tribunal
  • Letter instructing expert witness to prepare report and attend tribunal hearing
  • Statement of Issues, facts and contentions
  • Draft minutes for consent order – Administrative Appeals Tribunal
  • Letter to client – Application for review of tribunal decision successful
  • Letter to client advising of tribunal refusal and attaching decision

Immigration Assessment Authority

  • Letter to client – Application for review of authority decision successful
  • Letter to client advising of authority refusal and attaching decision
  • Example content – Statutory declaration by applicant – Submission accurately and completely presents claim

Judicial review

  • Letter to client with costs agreement explaining the court process
  • Brief to Counsel
  • Example content – Grounds for application for judicial review
  • Example content – Affidavit to accompany application for judicial review
  • Example content – Final orders sought by the applicant
  • Example content – Affidavit for filing or tendering evidence
  • Example content – Affidavit in support of application for extension of time to lodge application for judicial review
  • Letter to client after decision – Application granted
  • Letter to client after decision – Application refused

The enhancement of this publication assists practitioners to do immigration work for clients in all type of Migration Act matters.

Lawyers doing immigration work – FED

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Removal of dual registration requirement

Barriers to lawyers doing immigration work have finally been lifted. From 22 March 2021 amendments to the Migration Act 1958 (Cth) remove the requirement for lawyers to also be registered as migration agents before doing immigration work for their clients.

Amendments to the Migration Act

Australian legal practitioners who hold an unrestricted practising certificate, as defined in the Migration Act, can now conduct immigration matters as part of their usual practice, with no requirement to register as migration agents under the Act.

Amendments to the Act by the Migration Amendment (Regulation of Migration Agents) Act 2020 effectively define an ‘unrestricted’ Australian legal practitioner as one who has completed their compulsory period of supervised practice after first being admitted. Those who hold an ‘unrestricted’ practising certificate are permitted to give immigration assistance in connection with legal practice without being registered as migration agents. They will no longer be able to be registered migration agents: s 276 of the Act.

Newly admitted Australian legal practitioners still within their supervision period may still become registered migration agents. In fact those practitioners may not provide immigration assistance to their clients unless they are registered migration agents. Their dual registration may continue for up to 4 years. This is intended to facilitate such lawyers doing immigration work while completing their supervision period.

The definition of Australian legal practitioner in s 275 of the Act, as amended, excludes lawyers who are admitted but who do not hold a practising certificate. It also excludes lawyers who are eligible to practice under the law of a country other than Australia or New Zealand. Those practitioners will need to register as a migration agent to be able to give immigration assistance in Australia.

Regulation

‘Unrestricted’ Australian legal practitioners are not subject to regulation by the Office of the Migration Agents Registration Authority (OMARA), whereas registered migration agents – including those who are ‘restricted’ Australian legal practitioners – are.

To be registered as a migration agent, an eligible ‘restricted’ Australian legal practitioner must satisfy the requirements of s 289A of the Act.

A registered migration agent must notify OMARA in writing within 28 days of becoming a legal practitioner, with a penalty of 100 penalty units for failure to do so: see s 312 of the Act. They will then be de-registered by OMARA.

Forms

From 22 March 2021 a legal practitioner who wishes to commence providing immigration assistance and has never been issued a Migration Agent Registration Number (MARN), will
need to complete the Australian Legal Practitioner Number (LPN) form from the Department of Home Affairs website. Al link to this form is available on the Immigration matter plan.

Appointment of a Registered Migration Agent, Legal Practitioner or Exempt Person, form 956 allows the holder of an Australian Legal Practising Certificate to advise the Department of Home Affairs that they have been appointed by a client to provide immigration assistance under the Migration Act 1958 and, if applicable, to receive documents on their behalf.

The By Lawyers Immigration Guide has been updated accordingly. This publication is available to assist lawyers doing immigration work for their clients.

Immigration – FED

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Two important changes to Australian immigration law commence on 16 November 2019.

  • The Skilled Employer Sponsored Regional (Provisional) visa 494 is replacing the Regional Sponsored Migration Scheme visa 187.
  • The Skilled Work Regional (Provisional) visa 491 is replacing the Skilled Regional (Provisional) visa 489.

The new visas allow skilled workers to work in regional Australia. They can be a pathway to permanent residency, via the Permanent Residence (Skilled Regional) visa 191, which commences in November 2022.

Applicants for the Skilled Employer Sponsored (Regional) visa 494 must be under the age of 45 at the time of application, have competent English and at least three years full-time relevant work experience in the nominated occupation, or a related field, at the same level of skill. The visa is for a five-year period.

Applicants for the Skilled Work Regional (Provisional) visa 491 must be under the age of 45 at the time of application, complete a positive skills assessment, be nominated by an Australian state or territory government agency, or be sponsored by an eligible family member residing in the regional area and be invited to apply for the visa after the submission of an expression of interest through SkillSelect. The visa is also for a five-year period.

The By Lawyers Immigration publication will be updated accordingly.

New sponsored parent visa – Immigration – FED

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A new Sponsored Parent (Temporary) visa (subclass 870)has been created.

Applications for the new visa will open on 1 July 2019.

This visa allows biological parents, adoptive parents, step-parents or parents-in-law of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen to visit Australia for periods of 3 or 5 years at a time, but with a maximum combined period of 10 years.

Applications for the new visa can only be made outside Australia and online through ImmiAccount.

An applicant must be sponsored by an ‘approved parent sponsor’.

The application must be lodged within 6 months of approval of the applicant’s sponsor as an approved parent sponsor. The criteria for an approved parent sponsor is set out in Division 2.13A – Criteria for approval of family sponsor, of the Migration Regulations 1994.

The sponsored parent visa will only be granted to maximum of 15,000 applicants each year.

Because of the advance warning regarding the commencement date for the new visa, practitioners might expect to commence receiving enquiries about it now, so the commentary in the By Lawyers Immigration guide has been updated accordingly. The expected average processing times for the new sponsored parent visa are currently unknown.

Immigration – amendments delayed – FED

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Amendments under the proposed Migration Amendment (Regulation of Migration Agents) Bill 2018 (Cth), currently before the senate, lawyers will be able to conduct immigration matters as part of their usual practice, will no longer have to register as migration agents and will not be subject to regulation by the Migration Agents Registration Authority (MARA). An implementation date of 19 November was originally set for this change.

Unfortunately the senate has not been able to find the time to consider or pass the amending legislation and the intended implementation date of 19 November 2018 will therefore no longer be possible. A new proposed implementation date will need to be determined when and if the legislation passes.

In the meantime double regulation continues and Australian Legal Practitioners must continue to register as Migration Agents with OMARA before they can conduct immigration work.

By Lawyers will keep you updated on the progress of this Bill. The By Lawyers Immigration Guide is available to assist lawyers who conduct immigration matters.

FED – Immigration – Labour Market Testing

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The recent changes to Labour Market Testing requirements for Temporary Skill Shortage visa nominations have been incorporated into the commentary in the By Lawyers Immigration Guide.

The testing time before a nomination is lodged has changed from 6 months to 4 months. At least two advertisements are still required for the nominated position, however the information that needs to be included has become:

  1. the title, or a description, of the position;
  2. the skills or experience required for the position;
  3. the name of the approved sponsor or the recruitment agency being used by the sponsor; and
  4. the annual earnings for the position unless the annual earnings will be lower than AUD96,400. It is acceptable to publish a salary range, e.g. AUD80,000 to AUD90,000.

Advertised positions must remain open for application for at least 4 weeks from first publication, regardless of the medium used. General classified sites and social media platforms are still not suitable media for Labour Market Testing purposes, however LinkedIn’s online recruitment platform is acceptable.

Alternative requirements apply for ‘select occupations’ and ‘select positions’ such as for outstanding and internationally recognised talent in sport, academia or as a top chef. Also included are changes due to business restructures, or where the annual earnings are not less than AUD250,000, or for particular medical personnel.

It is still mandatory under the Migration Act to provide evidence with the nomination application of the sponsor’s efforts to find suitably qualified and experienced Australian citizens or permanent residents to fill the position/similar positions. This entails copies of advertisements and a receipt for any advertising fees being provided and/or a written submission for ‘select’ nomination applications.

FED – Immigration – New charge

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The Migration Amendment (Skilling Australians Fund) Act 2018 introduces a new charge.

Employers who wish to sponsor employee visa applications must pay a Nomination Training Contribution charge for all nominations after 12 August 2018.

The visa subclasses that will initially be affected are 482, 186 and 187.

Commentary has been added to the By lawyers Immigration publication accordingly.

By Lawyers always keeps you up to date!

 

Fed – Immigration – Visa application fees

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A new section  has been added to commentary in the By Lawyers Immigration Guide which deals with calculating visa application fees and charges.

The new commentary includes a link to the interactive ‘Fees and charges for visas’ page produced by the Department of Home Affairs. This page contains a visa pricing estimator as well as a visa pricing table, which is divided into the following categories: visit, study, work, live, other and repealed or closed visas.

By Lawyers Immigration Guide assists practitioners with every step of the process and streamlines the work involved in acting for clients who need help with immigration matters.

Immigration work to become easier for lawyers

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With the impending removal of dual regulation, immigration practice becomes more accessible for legal practitioners.

Currently, lawyers practising in immigration law are subject to dual regulation: the regulation already applicable to Australian legal practitioners, plus the requirement to be registered as migration agents and subject to the Migration Agents Regulatory Authority (MARA).

Under the proposed Migration Amendment (Regulation of Migration Agents) Bill 2017 (Cth), currently before the senate, this barrier to lawyers conducting immigration matters will be removed. Lawyers will no longer have to register as migration agents and will not be subject to regulation by MARA.

This means lawyers will be able to conduct immigration matters as part of their usual practice, with no additional registration or regulatory requirements.

The proposed commencement date, for lawyers holding practising certificates without a supervised legal practice condition, is 19 November 2018.

Further information about the Bill, including proposed consumer education on the changes, is available on the MARA website.

By Lawyers Immigration guide allows lawyers to take advantage of these changes

By Lawyers continually reviews and updates all publications in line with legislative and procedural changes, ensuring publications are current for every matter undertaken.

Whether acting for an employer who wants to sponsor a temporary overseas worker or a family seeking to bring an older relative from another country, the By Lawyers Immigration publication assists practitioners from start to finish.

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