2018 UPDATE

Important changes affecting Queensland, Victoria and South Australia State Sponsorship for 190, 489 and 187 visas as migration year nears end!

How to increase your points for Employer Sponsored Visas (Subclass 187)

How the new Skilling Australia Fund Levy Will Affect RSMS 187

The Regional Sponsored Migration Scheme visa (subclass 187), popularly referred to as the “RSMS visa” is an attractive Australian visa for professionals being sponsored to work in the regional areas of Australia. The RSMS visa grants you and your family members permanent residency in Australia. Here is an overview of what the RSMS visa allows you (and your family – partner and children) to do in Australia:

• Live in Australia indefinitely
• Work for the sponsoring company for at least 2 years
• Travel in and out of Australia repeatedly for a period of 5 years
• Study in Australia as a domestic student
• Enjoy benefits such as Medicare, First Home Buyer’s Grant, Family Tax Benefits, etc.

While it sounds very attractive, especially in comparison to the temporary work 457 visa, it is important to note that the requirements to apply for the RSMS are very different from the 457 visa application. Here are the 10 things you need to know about applying for a RSMS visa.

No. 1 – What are the regional areas in Australia for the purposes of the RSMS visa?

The regional areas of Australia include all parts of Australia except Brisbane, Gold Coast, Newcastle, Sydney, Wollongong and Melbourne.

No. 2 - The 3 streams of the RSMS

There are 3 application pathways or streams for the Regional Sponsored Migration Scheme visa (subclass 187). The 3 streams available are:

(i) Temporary Residence Transition stream

This stream is available for Temporary Work (Skilled) visa (subclass 457) holders who have worked for the sponsoring employer for at least 2 years. You will also need to meet vocational English requirements unless you are exempt. No skills assessment is required.

(ii) Direct Entry stream

This is available for applicants who:

• have never, or only briefly worked in Australia
• hold a Temporary Work (Skilled) visa (subclass 457) but do not qualify under the Temporary Residence Transition Stream
• are applying directly from outside Australia

You will need to meet competent English requirements (unless exempted) and also meet the skills requirements, which are explained in more details below.

(iii) Agreement stream

This stream is only applicable if you are being sponsored by an employer through a tailored and negotiated labour agreement. The age, skills and English requirements will be stated in the labour agreement.

No. 3 - Offer of employment in skilled position on a relevant list from an Australian business

The employer is an important part of the application process. You must have an Australian employer who is willing to sponsor you for an occupation that is on the appropriate occupation list.

For the Temporary Residence Transition stream you will need to refer to the Consolidated Sponsored Occupations List. The nominated occupation for the RSMS subclass 187 visa must have the same four-digit occupation unit group code as the occupation being carried out by the employee.

For the Direct Entry stream you will need to refer to a special legislative instrument for the list of occupations suitable for nomination. The occupations are specified in the legislative instruments IMMI 15/083 and IMMI 15/109. You will also need to seek Regional Certifying Body (RCB) approval before being able to nominate a position. More details about the RCB are explained below.

For the Labour Agreement stream you will need to check if an agreement is in place for the occupation being nominated. The occupation must have a Labour Agreement in place to be suitable for nomination.

If you need help with the position being nominated, please seek the help and advice of Work Visa Lawyers.

No. 4 – Visa applicant requirements for the RSMS Direct Entry

Applicants applying for the RSMS Direct Entry visa need to meet English, skills and age requirements.

For English applicants will need to demonstrate Competent English, which is shown by obtaining English test scores of IELTS 6.0 in all components, or equivalent alternative test scores. You will meet the English requirements if you are a holder of a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland.

You may be exempt from the English requirement if you command a very high salary for the position or are nominated for a select group of occupations.

The visa applicant must meet the skills and qualifications requirement for the nominated occupation. The skills and qualifications required for each occupation can be found at the ANZSCO list from the Australian Bureau of Statistics. Trade occupation applicants will need to obtain a skills assessment if the relevant qualifications were obtained outside of Australia.

Professions such as medical practitioners and nurses will need to obtain full practising registration in Australia before they can apply. As such many candidates from such professions will apply for a 457 visa first to work and obtain registration in Australia, before applying for permanent residence via the Temporary Transition stream later.

All Direct Entry 187 RSMS visa applicants need to be under the age of 50, unless exemptions apply.

No. 5 – Employer requirements for the RSMS Direct Entry

The employer will need to offer a position that is available for at least two years from the time the RSMS visa is granted. The occupation needs to be on one of the occupation lists relevant for the RSMS visa. Prior to the RSMS nomination and visa application the employer needs to apply for a Regional Certifying Body (RCB) certification. The RCB certification requires the employer to:

- advertise the position to show that the employer was unable to find a local Australian citizen or permanent resident to work in the position

- demonstrate genuine need for the position

Without a RCB approval your RSMS visa is likely to be refused by the DIBP.

No. 6 – Advantages of the RSMS Direct Entry subclass 187 visa

There are two advantages to the RSMS visa application. Firstly the nominated position is not subject to the Temporary Skilled Migration Income Threshold (TSMIT) which is $53,900. This means that unlike the 457 Temporary Work Visa the RSMS visa is suitable for occupations which have an annual market salary lower than $53,900 (such as cooks or restaurant and café managers). Secondly the RSMS occupation list has more occupations than the Consolidated Skilled Occupation List (CSOL) used for the 457 visa. A good example is Hotel Service Managers which are available for sponsorship under the RSMS visa but not for the 457 Temporary Work Visa.

Other advantages would include the exclusion from 457 visa sponsorship obligations and the fact that visa applicants (the employee and family) will receive Australian permanent residence from date of grant, with access to Medicare and international school fee waivers.

No. 7 – RSMS Temporary Transition requirements for existing 457 visa holders

The key requirements for a 457 visa holder to apply for the RSMS via Temporary Transition are:

- the applicant must have held the 457 visa and worked under the same employer for at least 2 out of the last 3 years before applying. There are very limited exceptions for this

- the employer has paid the correct salary, superannuation and withheld taxes for the work done under the 457 visa employment

- the employer meets the Training Benchmark requirements. This means that the employer has provided an acceptable amount of training for its Australian citizen and permanent resident employees, or has made a contribution to a relevant industry training fund

No. 8 – Advantages of the RSMS Temporary Transition subclass 187 visa

The required English ability for this visa application is Vocational English, which is IELTS 5.0 in all components or equivalent English test results. There is also no need for skills assessments, demonstration of skills or qualifications if the 457 visa holder has been employed in the position for at least 2 years. The Temporary Transition pathway also allows access to a health waiver, which will be helpful to a family which may have a family member who is ill. Do note that there is no guarantee that a health waiver will be granted.

No. 9 – Obligations to be met by the Employer and Employee under the RSMS visa

The most recent focus is on the “Payment for Visas” conduct where visa applicants have paid employers in return for a RSMS sponsorship. Recently passed legislation now allows both the employer and employee to be subjected to civil and criminal penalties, which include fines and imprisonment. The Department can also cancel the RSMS visa of the employee who engaged in such illegal conduct.

Additionally the Migration Act also allows the Department to cancel the RSMS visa of an employee if:

1) the employee does not start working for the employer within 6 months of arriving in Australia

2) the employee does not make a genuine effort to stay and work with the employer for at least 2 years

No.10 – Do I need help with a RSMS subclass 187 visa?

The RSMS involves multiple stages and can be a complex application for both the employer and employee. In 2014 73.8% of RSMS applications submitted were prepared by Registered Migration Agents.

More importantly using the services of a Registered Migration Agent provides accountability, consumer protection and expertise required to submit a strong application on your behalf.

At Work Visa Lawyers we have a team of Immigration Lawyers and Registered Migration Agents who can assist you with RSMS applications regardless of the industry.

Time stamps

0:44 - #1 What are the Regional Areas in Australia?

1:30 - #2 The streams to an RSMS - Direct Entry, Temporary Transition and Labour Agreement

2:21 - #3 Offer of employment in skilled position on a relevant list from an Australian business

4:29 - #4 RSMS Direct Entry requirements for the visa applicant

6:10 - #5 RSMS Direct Entry requirements for the employer/business sponsor

7:09 - #6 Advantages of the RSMS Direct Entry pathway

8:16 - #7 RSMS Temporary Transition requirements for the visa applicant

8:58 - #8 Advantages of the RSMS Temporary Transition pathway

9:53 - #9 Obligations of the RSMS visa for visa applicant and employer sponsors

10:55 - #10 Do I need help with a RSMS subclass 187 visa

Hope you found the video helpful! Remember to subscribe to the Work Visa Lawyers channel for more videos.

You can find more information about the RSMS visa from the Work Visa Lawyers blog articles:

http://www.workvisalawyers.com.au/new...

http://www.workvisalawyers.com.au/new...

http://www.workvisalawyers.com.au/new...

Work Visa Lawyers is experienced in a variety of Australian visa application, including:
Employer Sponsored Visas | 457 visas | RSMS 187 visas | ENS 186 visas | Standard Business Sponsorship | Meeting Training Benchmarks and Creating Training Plans | RCB certification | Labour Market Testing | Market Salary Research | General Skilled Migration | State Nomination | Partner visas | Parent visas | Business Migration visas | and others.

Contact Work Visa Lawyers today if you need help with an Australian visa application.

This information is accurate on 21 October 2016

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or This email address is being protected from spambots. You need JavaScript enabled to view it.

A new Temporary Activity Visa Framework for Australia will commence on 19 November 2016. With effect from 19 November 2016 there will only be four temporary activity visas, namely:

- Subclass 400 Temporary Work (Short Stay Specialist)

- Subclass 403 Temporary Work (International Relations)

- Subclass 407 Training

- Subclass 408 Temporary Activity

The new framework will also remove the following visa subclasses:

- Subclass 401 Temporary Work (Long Stay Activity)

- Subclass 402 Training and Research

- Subclass 416 Special Program

- Subclass 420 Temporary Work (Entertainment)

- Subclass 488 Superyacht Crew

The streamlining of the temporary activity visa programme is part of the Australian Government’s plan to improve the efficiency of processing visas.

While the regulations have not been officially released by the Department of Immigration and Border Protection (DIBP), the following information has been provided in briefings:

- Visa application charge (VAC) for all four subclasses will be A$ 275.00

- All applications should be lodged online. Paper applications are only available for the Subclass 403 visa

Further descriptions about the four visas are available from the DIBP website:

Subclass 400 Temporary Work (Short Stay Specialist) visa

This visa would be for people who want to come to Australia on a temporary basis to:

• undertake short-term, highly specialised, non-ongoing work
• in limited circumstances, participate in an activity or work relating to Australia’s interests.

There is no need for sponsorship for this visa. The visa will be granted for a maximum of 3 months stay.

Subclass 403 Temporary Work (International Relations) visa

This visa would be for people who want to come to Australia on a temporary basis:

• in relation to a bilateral agreement
• to represent a foreign government or to teach a foreign language in an Australian school
• to undertake full-time domestic work for a diplomat
• as a person with statutory privileges and immunities
• to participate in the Seasonal Worker Programme.

Subclass 407 Training visa

This visa would be for people who want to come to Australia on a temporary basis to undertake occupational training or participate in classroom based professional development activities.

The subclass 407 Training visa involves Sponsorship, Nomination and Visa Application. The training provider will be the sponsor of the occupational trainees. Applicants will need to demonstrate functional English and the maximum stay for this visa is 24 months.

PhD students, university researchers and academics will now apply under the subclass 408 Temporary Activity visa.

Subclass 408 Temporary Activity visa

This visa would be for people who want to come to Australia on a temporary basis to:

• work in the entertainment industry
• participate in a non-ongoing cultural or social activities at the invitation of an Australian organisation
• observe or participate as an academic in a research project
• undertake full-time religious work
• participate in a special programme to enhance international relations and cultural exchange
• participate in high-level sports (including training)
• work in a skilled position under a staff exchange arrangement
• participate in an Australian government endorsed event
• work as a superyacht crew member
• undertake full-time domestic work in the household of certain senior foreign executives.

Sponsorship for this visa is required if the application is lodged onshore. Offshore applications will also require sponsorship if the stay required is longer than 3 months. Offshore applications applying for stay periods lesser than 3 months will not require sponsorship. Nomination applications are not necessary for this visa.

Important Note:

Temporary activity visa applications lodged before 19 November 2016 will be processed under current legislation. If a visa application is made on or after 19 November 2016, you will be unable to link the visa application to a previously approved nomination. In other words you will need to resubmit a nomination before you can submit the visa application.

Sources:

https://www.border.gov.au/Trav/Work/temporary-activity-visa-changes

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

The new temporary activity visa framework is a step in the right direction to streamline visa applications and allow visa applications to be processed faster. However it is worth noting that when the Student visa programme underwent a similar streamlining process the transition was less than smooth for many applicants. There were reported delays that many student visa applications took longer than expected, and were processed slower compared to the previous programme. Hopefully the transition for the temporary activity visas will be smoother this time around.

This information is accurate on 14 October 2016

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

With the Australian Parliament back in motion, developments to the Australian visa programme have been announced in quick succession. Here are two recent news update that will be of interest to many.

Lower taxes, visa application fees and more for Working Holiday Visas holders

On 27 September 2016 The Hon. Scott Morrison MP, Treasurer for the Australian Government, released a media statement announcing a string of changes to the benefit of Working Holiday visa applicants and holders. The changes include:

- Lower taxes for working holiday visa holders

The $80,000 threshold is increasing to $87,000 for the 2016-17 financial year; tax paid calculation is based on the $80,000 threshold.

- Lower visa application fee for the working holiday visas

- A$ 10 million in funding to campaign for and attract youth around the world for the working holiday visa programme

- Allowing working holiday visa employees to stay with one employer for 12 months (instead of 6 months previously) provided the location of employment is different

Employers of working holiday visa holders will also need to register with the Australian Taxation Office (ATO) to withhold taxes at the 19 per cent tax rate. An additional A$ 10 million will be provided to the ATO and Fair Work Ombudsman (FWO) to address workplace exploitation of working holiday visa holders.

Working holiday visa holders will need to note that a 95 per cent tax applies for the Departing Australia Superannuation Payment (DASP), which will be effective from 1 July 2017.

New Temporary Visa for Parents to stay in Australia for up to 5 years

Assistant Minister for Immigration and Border Protection Alex Hawke recently announced the Department’s plan to introduce a new temporary visa for parents of Australian citizens, permanent residents and Eligible New Zealand citizens. Under the new temporary visa to be introduced parents who are sponsored by their Australian citizen, permanent resident or eligible New Zealand citizen child will be able to visit and stay in Australia for a period of up to 5 years.

The new temporary visa for parents is planned to be implemented in July 2017 and is currently at a community discussion stage. This means that details about the new temporary visa may change and the confirmed details may only be published closer to July 2017.

Information about the new temporary visa for parents currently includes:

- the validity of the visa is determined by the needs of the sponsor. As such the visa can allow parents to stay for one, three or five years

- the sponsor(child) must have resided in and contributed(be employed and paid taxes) to Australia

- the sponsor will need to demonstrate that they can support their parents in Australia

- the parents will need to have adequate health insurance

- a bond will be required for the duration of the visa validity

As mentioned this visa is currently not in effect and further details will be provided as they become available.

Sources:

1. http://sjm.ministers.treasury.gov.au/media-release/104-2016/
2. https://www.alexhawke.com.au/media/media-releases/new-temporary-visa-sponsored-parents

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

The changes announced for the Working Holiday visa holders are a good direction in attracting skilled youth to visit Australia. The working holiday visa programme provides casual and seasonal workers for the agricultural industry and is a big help to Australian farmers. Making the working holiday visa attractive is important for the agricultural and tourism industry of Australia. The big u-turn to the originally planned backpacker’s tax is helpful for the working holiday visa programme.

The announcement of the temporary visa for parents is also a good direction in allowing families to spend more time with each other. However it is worth noting that in the Productivity Commission Inquiry Report on Migrant Intake into Australia, No.77 released on 13 April 2016, it is noted that the report finds that the contributory fee (currently A$ 43,600) for the subclass 143 Contributory Parent visas are deemed insufficient to cover fiscal costs of granting a parent visa. It is estimated that the fiscal costs for a single parent visa holder ranges between A$ 335,000 to A$ 410,000. Based on this finding we may see a significant increase to the contributory fee soon.

If the contributory fee for parents does increase, it may drive more applicants to apply for the new temporary visa for parents. Check back with Work Visa Lawyers as we will provide you with the latest changes about the parent visas as they become available.

This information is accurate on 30 September 2016

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

Recently Work Visa Lawyers had the opportunity to host an intern as part of the internship programme jointly organised by the Australia China Busines Council (ACBC) SA and the University of Adelaide. We received an intern from the University of Adelaide, Alice Zhu and she performed the following for Work Visa Lawyers as part of her internship:

• provide insights for social media marketing for China
• help arrange posts to the Work Visa Lawyers Weibo account
• analyse and suggest Chinese social media engagement strategies for the business to adopt

In addition to the above Alice managed to produce a video on her own which shares the experience and feelings of a Chinese international student in Adelaide. The video showcases some of the tourist attractions in South Australia, including:

• Hanhdorf
• Adelaide Central Market
• Chinatown
• Glenelg
• Victor Harbour
• Yankalilla
• Kangaroo Island

It is our pleasure to present to you the video made by Alice below:

You can copy and paste the link below into your browser if you are unable to view the video here.

YouTube: https://www.youtube.com/watch?v=PGc6hC6XXk8&feature=youtu.be

For viewers in China you can also view the video on the Work Visa Lawyers Youku account via the link below:

YouKu: http://v.youku.com/v_show/id_XMTY2MDIxNDE2MA==.html#paction

Work Visa Lawyers would like to convey our thanks to ACBC-SA and the University of Adelaide for taking the initiative and making the effort to introduce this internship programme. The internship programme is an excellent platform to allow international graduates here in SA to help Australian businesses become China-ready, and gain practical work experience at the same time. We also thank Alice for her excellent work and contribution during her short time with us.

Principal Migration Agent and Lawyer Chris Johnston with intern Alice Zhu

If you would like to know more, or have an Australia-China visa or migration related enquiry, please feel free to contact Work Visa Lawyers at:

(08) 8351 9956 or +61 8 8351 9956

or This email address is being protected from spambots. You need JavaScript enabled to view it.

The new Entrepreneur Visa which was first mentioned in December 2015 will be open for applications before the end of 2016, according to the announcement by the Australian Government National Innovation and Science Agenda. The legislative instrument which lists the criteria for the new Entrepreneur Visa was registered on 6^th September 2016 and contains the following information about the new visa stream:

- The Entrepreneur visa will be part of the Business Innovation and Investment visa programme

- Applicants will need to submit an Expression of Interest (EOI) and be nominated by a State/Territory government

- The entrepreneurial entity should not be related to residential real estate or labour hire or involve purchasing an existing business or franchise

- The applicant needs to be below age 55 (unless exempted by the nominating State or Territory) and have Competent English (IELTS 6.0 in all components or equivalent English test results)

- One or more funding agreements for a total sum of at least A$200,000 must be obtained from an approved third party, which includes State and Territory governments, Commonwealth agencies, Publicly Funded Research Organisations, and investors registered as a Venture Capital Limited Partnerships (VCLP) or Early Stage Venture Capital Limited Partnerships (ESVCLP)

- The applicant must have a business plan outlining activities for the venture

Applying for Australian Permanent Residency as an Entrepreneur Visa Holder

The holder of the new Entrepreneur visa will be eligible for permanent residency through the Business Innovation and Investment (Permanent) visa (subclass 888) after holding the Entrepreneur visa for four years. The visa holder will also need to:

- Reside in Australia for at least 2 of the last 4 years

- Demonstrate success in the entrepreneurial venture, with consideration to:

• the number of Australian citizens and permanent residents employed by the venture
• the level and nature of funding and investment for the venture
• the annual turnover of the venture

- maintain an ongoing relationship with the nominating State/Territory Government (visa condition 8571)

As the Entrepreneur visa is at its early introduction stage, we will be bringing you more updates once they are available. Follow Work Visa Lawyers on Facebook, Twitter and Google+ to receive the latest news about Australia migration and visas.

UPDATE 12 September 2016

The success of the entrepreneurial venture is demonstrated by completing at least two key success factors or a combination of one key success factor and three supporting success factors.

Key success factors include:

• Employing two or more Australians, permanent residents or other eligible persons
• Generating an annual turnover of at least AUD300 000
• Filing a provisional patent or acquiring a standard or innovation patent
• Receiving ongoing funding or investment in your entrepreneur activity
• Entering into a partnership with a University
• Selling an entrepreneurial venture for AUD2,000,000.

Supporting success factors include:

• Diversifying entrepreneurial activities into other business areas
• Receiving a statement of success from a state or territory government nominator
• Receiving sponsorship from the corporate sector
• Starting at least one other business or contributing to at least two other businesses
• Receiving formal awards or recognition
• Raising or contributing to social capital.

Please check with Work Visa Lawyers if you have questions about the requirements.

Sources:

1. http://www.innovation.gov.au/page/supporting-innovation-through-visas
2. https://www.legislation.gov.au/Details/F2016L01391
3. http://www.border.gov.au/Trav/Visa-1/188-
4. http://www.border.gov.au/Trav/Visa-1/888-

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

While the visa requirements for the Entrepreneur visa look simple based on the information currently available, discussions with industry specialists have highlighted the fact that obtaining approved funding from an approved third party will not be easy and straightforward. The second stage will also require caution as the success factors to be demonstrated are not clearly defined at this moment.

Opportunities for Accountants and other potential migrants

The Entrepreneur visa may be helpful for visa applicants of other streams or categories who are facing long processing/waiting periods for their visa. A good example of this would be general skilled migration applicants who are accountants, but are sitting on less than 70 points on the points test. An innovative idea may allow the applicant to apply for the Entrepreneur visa, and obtain a visa faster than the general skilled migration visas.

More information will be provided once they are available.

This information is accurate on 7 September 2016

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

The Administrative Appeals Tribunal (AAT) is the organisation responsible for reviewing decisions made by the Australian government. The Migration and Refugee Division (MRD) is a division under the AAT which reviews Australia visa decisions. Typically applicants and visa holders will submit an application for review when their visa application is refused, or when their Australian visa is cancelled. Additionally the MRD also reviews decisions regarding sponsorship and nomination under employer sponsored visas. Citizenship application decisions are also reviewed by the MRD.

When a decision is being reviewed by the Tribunal one of the following results occur:

• the decision is affirmed (i.e. there are no changes)
• the decision is set aside (i.e. the decision is substituted with a new and different decision)
• the original application (visa/citizenship/sponsorship/nomination) is remitted (i.e. returned) to the Department of Immigration and Border Protection (DIBP) for reconsideration with recommendations by the Tribunal on additional factors to be considered
• the decision is varied

The AAT conducts a merits review which is explained as follows on the AAT website:

“Merits review is an administrative reconsideration of a case. A merits review body makes decisions within the same legislative framework as the primary decision maker, and may exercise all the powers and discretions conferred on the primary decision maker.”

The Tribunal reviews the application afresh and may also consider new evidence or information submitted with the review application.

The AAT is independent of the DIBP and has the powers to review and reverse (set aside) the decisions made by DIBP.

AAT-MRD Statistics for 2015-2016

In the 12 months from 1 July 2015 to 30 June 2016 the AAT-MRD received 14,307 applications for review. The reviewed decisions include those for all Australian visas (including bridging visas) and exclude refugee and humanitarian visas.

The majority of the decisions submitted for review are:

• Partner visas (29%)
• Student visas (17%)
• Visitor visas (13%)
• Temporary work visas (11%)

During the same period a total of 12,511 decisions were handed out to active review applications. Out of the 12,511 decisions handed out:

• 37% were set aside
• 44% were affirmed
• 12% were withdrawn
• 7% were not reviewed (no jurisdiction or the review application was not submitted in time)

Other interesting statistics include:

• 46% of Partner visa reviews resulted in DIBP decisions being set aside
• 31% of Student visa reviews resulted in DIBP decisions being set aside
• 51% of Visitor visa reviews resulted in DIBP decisions being set aside
• 26% of Temporary work visa reviews resulted in DIBP decisions being set aside
• 23% of Nomination or Sponsorship approval reviews resulted in DIBP decisions being set aside

Should I submit a review to the AAT for my visa/sponsorship application that was refused?

You can submit a review application only if you are entitled for review rights. The decision to lodge a review application to the AAT depends on the circumstances of the visa/sponsorship refusal. Some of the common grounds for refusals include:

Partner visas – Schedule 3 issues, failure to demonstrate genuine relationship

Student visas – Meeting the Genuine Temporary Entrant (GTE) requirement, lack of financial capacity

457, RSMS and ENS visas – Demonstrating genuine position

Visitor visas – Meeting the Genuine Temporary Entrant (GTE) requirement

At Work Visa Lawyers we will assess the original application and supporting documents submitted and advise if the prospects for review are favourable. The Decision Record received by the applicant will also be studied in detail to identify weak areas of the original application and how we can address them in the review application.

What are my chances of success with the AAT-MRD review?

The chances of obtaining a positive outcome from the Tribunal to set aside a DIBP decision require the following:

- a thorough analysis of the refusal Decision Record

- in-depth knowledge about the visa applied and the requirements

- assessing the applicant’s circumstances and ability to address the issues highlighted by the DIBP delegate when deciding on the refusal

In summary it should be considered whether the applicant can provide better evidence or information that will meet the visa application requirements. If the original application can be improved then the chances for success with the review will be increased.

Applicants with complicated circumstances should also note that submitting an AAT review application is a pathway towards ministerial intervention. You can only request for a ministerial intervention if you have received a decision from the AAT. You should be aware that the Minister only intervenes in a small amount of cases and you should have unique or exceptional circumstances before applying for a ministerial intervention.

You can find out more about ministerial interventions here.

Sources:

1. http://www.aat.gov.au/resources/statistics
2. http://www.aat.gov.au/AAT/media/AAT/Files/Statistics/2015-16/MRD-Detailed-Caseload-Statistics-2015-16.pdf
3. http://www.aat.gov.au/AAT/media/AAT/Files/Statistics/2015-16/MRD-Migration-Caseload-Statistics-2015-16.pdf

This information is accurate on 25 August 2016

Do you need help with an Australian visa application or Review Application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

An article in The Australian today has reported that the Health Department submitted an unpublished submission to the Department of Immigration and Border Protection (DIBP) that recommended for 41 health occupations to be removed from the Skilled Occupations List (SOL).

“Overseas-trained medical practitioners would no longer be granted visas to work in Australia, under a contentious proposal from the Health Department that heralds the end of the nation’s shortage of locally trained doctors.”

“Visa plan to stop foreign doctor influx”, Sean Parnell, Health Editor, The Australian, 9 August 2016

Among these 41 health occupations are:

- General Practitioners
- Anaesthetists
- Cardiologists
- Paediatricians
- Psychiatrists
- Surgeons, General or Specialists
and others.

While the recommendations were not accepted by the Australian government before the Australian general elections, it is reported that the recommendations might be reconsidered in the next few months. Suggestions by the Health Department earlier in the year resulted in the removal of the following from the SOL:

- Dental Hygienist (ANZSCO 411211)
- Dental Prosthetist (ANZSCO 411212)
- Dental Technician (ANZSCO 411213)
- Dental Therapist (ANZSCO 411214)

The article also reported that at the end of March 2016 there were 2155 General Practitioners and 1562 Resident Medical Officers who were holding visas in Australia (implying they are non-citizen arrivals who are working in the health industry). They were followed by Occupational Health and Safety Advisers at 130 visa holders and Psychiatrists at 100 visa holders.

Sources:

1. http://www.theaustralian.com.au/national-affairs/health/visa-plan-to-stop-foreign-doctor-influx/news-story/67a9915f4c258f360875785499d3975c
2. https://www.border.gov.au/Trav/Work/Work/Skills-assessment-and-assessing-authorities/skilled-occupations-lists/SOL
3. http://www.abc.net.au/news/2016-08-09/calls-to-stop-giving-overseas-trained-doctors-visas/7706612

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

The SOL is a list of occupations that are suitable for applying the Skilled Independent subclass 189 visa under the General Skilled Migration programme. The removal of the 41 health occupations mentioned above will mean that overseas health professionals will need to seek state, territory or employer sponsorship to move and work in Australia. The removal of the occupations from the SOL list will not completely stop health professional from moving to Australia, unless the occupations are also removed from the Consolidated Skilled Occupations List (CSOL).

While the Australian Medical Association (AMA) and Rural Doctors Association (RDA) argue that there are many Australian medical graduates who cannot find a position in the Australian health system, there are strong arguments that overseas trained medical professionals are required to provide basic health services to a growing and ageing population, especially in the regional areas of Australia.

The removal of health professionals from the SOL will also create setbacks in the plans of many small to medium private medical practices. Many of these medical practices are unable to find an Australian medical professional to fill positions because of the location of the medical practice. Skilled Independent visa applicants from overseas are one group of health professionals that can help fill in the shortage in such areas, providing necessary health care to local Australian residents.

This news has been discussed among Registered Migration Agents and it was reported that a general practitioner from New Zealand has received a letter stating Medicare will stop issuing Medicare provider numbers to overseas trained medical practitioners in 2 years time because there are too many local medical graduates. This would be a major disincentive for medical practitioners who migrated to Australia from overseas.

This information is accurate on 9 August 2016

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

The South Australian (SA) State Government has introduced school fees for 457 visa holders starting on 1 January 2017. New 457 visa holders who arrive in South Australia from 1 January 2017 will have to pay school fees for each child attending public schools. You will not be required to pay the school fees if your annual gross household income is $57,000 or lower. 457 visa holders are also charged school fees in Western Australia (WA), New South Wales (NSW) and the Australian Capital Territory (ACT).

Do note that this is only applicable to new 457 visa arrivals in SA from 1 January 2017 onwards. It will be extended to all 457 visa holders on 1 January 2018.

Here are the details about the school fees applicable:

Applicable Fees

$5,100 for each primary school child

$6,100 for each secondary school child

The full amount is applicable to the eldest child, with a 10% discount on the fees for subsequent children in school.

Payments can be made upfront, per semester/term or in regular instalments.

Income Means Testing

Families do not need to pay the full fee if their annual gross income does not exceed the income threshold. The income threshold is calculated as follows:

Family with 1 child - $77,000

Family with 2 children - $87,000

Family with 3 children - $97,000

Each additional child will increase the threshold by $10,000.

So how much do I have to pay if my gross income is above $57,000 but below the threshold?

Since you do not meet the threshold income level, you will only need to pay a percentage of the contribution fees. The percentage is calculated as such:

Family with 1 child – 5% for each $1,000 above $57,000

Family with 2 children – 3.33% for each $1,000 above $57,000

Family with 3 children – 2.5% for each $1,000 above $57,000

Here are some examples provided by the South Australia Department for Education and Child Development:

Example 1

Tomas commences work under a 457 visa arrangement and will be paid a gross income of $67 000 pa. He is accompanied by his wife, who is not in paid work, and their eight-year-old daughter, who is enrolled at the local government primary school. His contribution payable would be calculated as follows:

Step 1: Primary school rate of $5100 is the full contribution rate

Step 2: Gross family income is $67 000

Step 3: Relevant family income threshold at which full fees are payable is $77 000

Step 4: As the gross family income is between $57 000 and $77 000, Tomas will not be required to pay the full contribution rate. His income is $10 000 above the $57 000 limit, so the fee payable will be 10 x 5% x $5100 = $2550.

Example 2

Aisha commences work under a 457 visa arrangement and will be paid a gross income of $61 200 pa. She is accompanied by her husband, who is working part time and earning $20 400 p.a., and their two children. Both children attend government schools; one in secondary school, the other in primary school. The contribution payable would be calculated as follows:

Step 1: The full contribution rate is $6100 + ($5100 x 90%) = $10 690

Step 2: Gross family income, (rounded down to the nearest whole $1,000), is $81 000

Step 3: Relevant family income threshold at which full contribution is payable is $87 000

Step 4: As the gross family income is between $57 000 and $87 000, Aisha will not be required to pay the full contribution fee rate. Her family income is $24 000 above the $57 000 limit, so the fee payable will be 24 x 3.33% x $10 690 = $8 552.

Example 3

Lucinda is a sole parent who commences work under a 457 visa arrangement, and will be paid a gross income of $200 000. She is accompanied by her three children, each of whom attend government schools; one in secondary school, the other two in primary school. The contribution payable would be calculated as follows:

Step 1: The full contribution rate is $6100 + (($5100+ $5100) x 90%) = $15 280.

Step 2: Gross family income is $200 000

Step 3: Relevant family income threshold at which full fees are payable is $97 000

Step 4: As the gross family income is above $97 000, Lucinda will be required to pay the full contribution rate of $15 280.

If you are a permanent resident visa holder there is no need for you to pay the contribution fee. You can contact the Department for Education and Child Development (DECD) if you need further information.

Sources:

1. https://www.decd.sa.gov.au/sites/g/files/net691/f/schoolfees_457visa.pdf
2. http://www.adelaidenow.com.au/news/south-australia/state-government-poised-to-charge-parents-on-457-visas-up-to-6100-per-child-for-public-education/news-story/e0bed470801a9d11614611257fc67f63

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

This policy will make South Australia an unattractive destination for 457 visa workers with families. Additionally a SA business which genuinely needs a skilled overseas worker to work in SA will have to provide a higher salary package to compensate for the school fees applicable. Costs to the business will be higher if a South Australian business has to sponsor an overseas worker for a 457 visa.

Another note is that the new school fees for 457 visa holders are very complicated. To assess each individual 457 visa holder’s gross income and family composition to calculate the applicable fees will take time and labour. I would guess that the public cost of administering the school fees may be very high to the SA government.

This may cause more applicants to consider the Regional Sponsored Migration Scheme (RSMS) subclass 187 visa instead of the 457 visa if they are to be sponsored by a South Australian business. Many 457 visa holders may also be pushed to apply for permanent residency via the Employer Nomination Scheme subclass 186 visa or the RSMS visa via the Temporary Transition stream. There is now more incentive to consider the permanent RSMS visa over the temporary 457 visa.

This information is accurate on 5 August 2016

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.