Presentation by Kerry Murphy of
Craddock Murray Neumann Lawyers
1. Parent visas
2. Skilled Migration changes
3. Temporary Business visa changes 457
4. Business skills provisional visa holder
5. Sponsored Training Professional Development visa UV 470
6. Entertainment visa 420
7. Bridging visas
8. Lowering of X-Ray screening age
9. Fee increases
10. MARA fee increases
11. Increased use of cancellation and character
12. Recent cases
1. Parent visas
There will be four new parent visa subclasses called the ‘Contributory Parent Visa.
- Subclass 143 Contributory Parent (Migrant) visa (Class CA)
- Subclass 173 Contributory Parent (Temporary) visa (Class UT)
- Subclass 864 Contributory Aged Parent (Residence) visa (Class DG)
- Subclass 884 Contributory Aged Parent (Temporary) visa (Class UU)
Applications from applicants residing offshore can be lodged from 27 June 2003 and for applicants onshore it is from 1 July 2003.
The cap on parent visas will be lifted to 1500 places in 2003-2004 and in the year thereafter 1000 places.
The Contributory Parent Visas will have 5,500 places in 2003-2004 and 3,500 in the year thereafter.
Onshore applications are still restricted to aged parents 65 for men and 62 for women.
They have the same Visa Application Charge as the existing parent visa.
Subclass 143 Contributory Parent (Migrant) visa (Class CA)
Schedule 1 item 1130
Form 47PT if holding the 173 subclass otherwise form 47PA
Visa Application Charge:
- If holding the 173 subclass $160.
- If the applicants made their application for a Parent Class AX before the changes came into operation and withdrew that application at the same time as making the new application, no fee.
- Other cases $1175
Second installment
- Holding 173 subclass at time of application; $10,000
- Child under 18 at time of application for Class CA and not 18 at time of application for Class UT; nil
- Dependent child of applicant for Class CA and not 18 at time of application; $1050
- All other cases; $25,000
Other schedule 1 Criteria
- If applicant in Australia and holder of 173 subclass at time of application, must make application in Australia
- If not above, then must be posted to Gazetted PO Box or delivered by courier service to Gazetted address.
Mail:
Perth Offshore Parents Centre
Locked Bag 7
NORTHBRIDGE WA 6865
Courier:
Perth Offshore Parents Centre
411 Wellington Street
Perth WA 6000
Schedule 2 criteria
143.211. A parent of a settled Australia citizen or settled Australian permanent resident. Or settled eligible NZ resident (Reg 1.03 definitions) or
Holder of subclass 173 whose child (sponsor) has died
143.212. Must be sponsored in one of two ways, or taken to have been sponsored as set out in (4) below
(2) Child over 18, or their cohabiting spouse where the spouse is over 18 and the spouse is a settled Australia citizen or settled Australian permanent resident or settled eligible NZ resident; or
(3) Child under 18 and the cohabiting spouse where the spouse is over 18 and the spouse is a settled Australia citizen or settled Australian permanent resident or settled eligible NZ resident. Alternatively is a close relative or guardian of the child under 18 and the close relative is over 18 and the spouse is a settled Australia citizen or settled Australian permanent resident or settled eligible NZ resident.
If the cohabiting spouse is also under 18, then can be sponsored by a close relative or guardian of the child under 18 and the close relative is over 18 and the spouse is a settled Australia citizen or settled Australian permanent resident or settled eligible NZ resident.
Or the sponsor is a community organization
(4) Holder of subclass 173 at time of application and the sponsor for 173 died before subclass 173 ceases and there is no other sponsor available to meet (2) or (3) above.
143.213 – If not the holder of a 173 at the time of application, then satisfies the balance of family test (Reg 1.05)
Schedule 4 criteria 4001, 4002 and 4003. If not the holder of subclass 173 at time of application, then also criteria 4004, 4005, 4009 and 4010
Health checks. Schedule 5 criteria 5001, 5002, and 5010
Assurance of support given and accepted
5-year residence visa.
Either 8502 or 8515 may be imposed
Subclass 173 Contributory Parent (Temporary) visa (Class UT)
Schedule 1 criteria – item 1221
Form 47 PA
Visa Application Charge
- If the applicants made their application for a Parent Class AX before the changes came into operation and withdrew that application at the same time as making the new application, no fee.
- Other cases $1175
- Second installment
Dependent child of applicant for class UT who has not turned 18 at time of application; $1050
- All other cases $15,000
Other schedule 1 Criteria
- must be posted to Gazetted PO Box or delivered by courier service to Gazetted address (see above)
Schedule 2 criteria
173.211 – applicant is parent of person who is settled Australian citizen, settled Australian permanent resident of settled eligible NZ citizen (Reg 103 definitions)
173.212 – be sponsored in accordance with (2) or (3) below:
(2) Child over 18, or their cohabiting spouse where the spouse is over 18 and
the spouse is a settled Australia citizen or settled Australian permanent resident or settled eligible NZ resident; or
(3) Child under 18 and the cohabiting spouse where the spouse is over 18 and the spouse is a settled Australia citizen or settled Australian permanent resident or settled eligible NZ resident. Alternatively is a close relative or guardian of the child under 18 and the close relative is over 18 and the spouse is a settled Australia citizen or settled Australian permanent resident or settled eligible NZ resident.
If the cohabiting spouse is also under 18, then can be sponsored by a close relative or guardian of the child under 18 and the close relative is over 18 and the spouse is a settled Australia citizen or settled Australian permanent resident or settled eligible NZ resident.
Or the sponsor is a community organization
173.213 – applicant satisfies balance of family test (Reg 1.05)
Time of decision still satisfies balance of family test.
Schedule 4 criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.
Health checks. Schedule 5 criteria 5001, 5002, and 5010
Must be outside Australia at the time of the grant.
Visa for 2 years
Conditions either or both 8502 and 8515
Subclass 864 Contributory Aged Parent (Residence) visa (Class DG)
Schedule 1 criteria 1130A
Forms: If holder of 884 subclass then 47PT otherwise a 47PA
Visa application charge
- If holding the 173 subclass $160.
- If the applicants made their application for an Aged Parent Class BP before the changes came into operation and withdrew that application at the same time as making the new application, no fee.
- Other cases $1745
Second installment
- Holding 884 subclass at time of application; $10,000
- Child under 18 at time of application for Class DG and not 18 at time of application for Class UU; nil
- Dependent child of applicant for Class DG and not 18 at time of application; $1050
- All other cases; $25,000
Application must be made in Australia and applicant must be in Australia.
Schedule 2 criteria
864.211 holder of a substantive visa other than a 771, or if no substantive visa then was not holding a 771 and satisfies 3002.
864.212: applicant is aged parent of person who is settled Australian citizen, settled Australian permanent resident of settled eligible NZ citizen (Reg 103 definitions)
864.213 – be sponsored in accordance with (2) or (3) below:
(2) Child over 18, or their cohabiting spouse where the spouse is over 18 and
the spouse is a settled Australia citizen or settled Australian permanent resident or settled eligible NZ resident; or
(4) Child under 18 and the cohabiting spouse where the spouse is over 18 and the spouse is a settled Australia citizen or settled Australian permanent resident or settled eligible NZ resident. Alternatively is a close relative or guardian of the child under 18 and the close relative is over 18 and the spouse is a settled Australia citizen or settled Australian permanent resident or settled eligible NZ resident.
If the cohabiting spouse is also under 18, then can be sponsored by a close relative or guardian of the child under 18 and the close relative is over 18 and the spouse is a settled Australia citizen or settled Australian permanent resident or settled eligible NZ resident.
Or the sponsor is a community organization
(4) Holder of subclass 884 at time of application and the sponsor for 884 died before subclass 884 ceases and there is no other sponsor available to meet (2) or (3) above.
864.214: If not holder of 884 at time of application, then satisfies the balance of family test (Reg 1.05)
Schedule 4 criteria 4001, 4002 and 4003. If not the holder of subclass 884 at time of application, then also criteria 4004, 4005, 4009 and 4010
Health checks. Schedule 5 criteria 5001, 5002, and 5010
Assurance of support given and accepted
5-year residence visa.
Subclass 884 Contributory Aged Parent (Temporary) visa (Class UU)
Schedule 1 criteria – item 1221A
Form 47 PA
Visa Application Charge
- If the applicants made their application for an Aged Parent Class BP before the changes came into operation and withdrew that application at the same time as making the new application, no fee.
- Other cases $1745
Second installment
- Dependent child of applicant for class UU who has not turned 18 at time of application; $1050
- All other cases $15,000
Other schedule 1 Criteria
Application must be made in Australia and applicant must be in Australia.
Schedule 2 criteria
884.211 holder of a substantive visa other than a 771, or if no substantive visa then was not holding a 771 and satisfies 3002.
884.212: applicant is aged parent of person who is settled Australian citizen, settled Australian permanent resident of settled eligible NZ citizen (Reg 103 definitions)
884.213 – be sponsored in accordance with (2) or (3) below:
(2) Child over 18, or their cohabiting spouse where the spouse is over 18 and
the spouse is a settled Australia citizen or settled Australian permanent resident or settled eligible NZ resident; or
(5) Child under 18 and the cohabiting spouse where the spouse is over 18 and the spouse is a settled Australia citizen or settled Australian permanent resident or settled eligible NZ resident. Alternatively is a close relative or guardian of the child under 18 and the close relative is over 18 and the spouse is a settled Australia citizen or settled Australian permanent resident or settled eligible NZ resident.
If the cohabiting spouse is also under 18, then can be sponsored by a close relative or guardian of the child under 18 and the close relative is over 18 and the spouse is a settled Australia citizen or settled Australian permanent resident or settled eligible NZ resident.
Or the sponsor is a community organization
884.213: satisfies the balance of family test (Reg 1.05)
Schedule 4 criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010
Health checks. Schedule 5 criteria 5001, 5002, and 5010
2-year residence visa.
There are two new clauses in subclasses 103 and 804 being 103.228, 103.326 and 804.227 and 804.325 respectively which deal with withdrawn applications or applications previously determined.
2. Skilled Migration changes
The main changes are:
3.1 Overseas students will be required to have completed at least 2 years study whilst physically in Australia before they qualify for the bonus points of work experience exception. This requirement seems to be in schedule 1; therefore it becomes a valid application criteria.
ELICOS courses are not included for the purpose of the 2 years study.
3.2. There will be an award of 5 additional points for overseas students who study and reside in regional Australia or a low population growth metropolitan area for at least 2 years.
This applies to applications assessed on or after 1 July 2003.
‘Regional Australia’ is defined as having a population of less than 200,000 in the 2001 Census.
‘Low population growth metropolitan area’ are those districts with a population growth rate between the last 2 census of less than 50% of the national average. This includes areas such as:
- Tasmania
- Northern Territory
- South Australia
- Western Australia except for Perth
- Queensland except for Brisbane and the Gold Coast
- Victoria except for Melbourne
- NSW except for Sydney, Newcastle, the Central Coast and Wollongong.
The areas are subject to change.
3.2 There will be an increase in the points from 5 to 10 for a skilled occupation on the MODL and from 10 –15 for those having a jobs offer relating to an occupation on the MODL.
This applies to all applications assessed on or after 1 July 2003.
3.3 Points increase from 5 to 10 for completion of an Australian upper second class Honours (or higher degree) or Masters following the completion of an Australian bachelor degree, both being obtained whilst studying in Australia
3.4 Points increase from 10 –15 for the completion of an Australian doctorate with a minimum of 2 consecutive years of full time study whilst physically in Australia.
3. Temporary Business visa changes 457
From 1 July 2003, there will be a single sponsorship that combines the existing PQBS and SBS. Businesses in Australia or overseas will apply for approval as business sponsors. Approval of a SBS will be subject to reg 1.20D for Australian businesses and reg 1.20DA for overseas businesses. The sponsorship will remain in force for a specified number of nominations and the approval remains in force for 2 years or until all nominations are filled or the nomination is cancelled. There is a fee of $250 for each temporary business sponsorship application lodged on or after 1 July 2003.
Nominations lodged on or after 1 July 2003 will attract a further $50 fee for each nomination under an SBS lodged on or after 1 July 2003.
There will also be a $50 fee for nominations lodged under labour agreements entered into on or after 1 July 2003.
There will be provision for electronic lodgment for:
- Sponsorship applications by Australian businesses
- Nominations under approved sponsorships by Australian businesses, labour agreements or RHQ agreements
- Visa applications for approved sponsorships by Australian businesses, labour agreements or RHQ agreements.
Temporary business sponsorships and nomination applications are to use the new form 1196. This form combines the existing forms 1067 and 1068. The 1066 remains for the visa applicant and the visa application fee will be $165
Transitional arrangements are that PQBS and SBS applications lodged before 1 July 2003 but not decided at 1 July 2003 are to be decided in accordance with the law in force at time of application.
Applications for sponsorship lodged from 1 July 2003 will be assessed against the new law, even if lodged on the old form 1067.
Nominations lodged after 1 July may or may not be subject to a fee. The criteria are:
- If the nomination is under an approved PQBS, no fee
- If the nomination is under a labour agreement entered into before 1 July 2003, no fee
- If the nomination is under an SBS approved by pre 1 July 2003 regs, fee of $240
- If the nomination is made under nomination arrangements for overseas businesses in force before 1 July 2003, fee of $240
- Nomination made under SBS where sponsorship application lodged on or after 1 July 2003, fee of $50
- If nomination lodged under a labour agreement entered into on or after 1 July 2003, fee of $50
New form 1196, sponsoring temporary overseas employees to Australia in hard copy or Internet version.
The form 1067 will still be accepted after 1 July 2003, but the application will be assessed against 1 July 2003 law.
Form 1068 will be accepted from 1 July 2003 but there may be a fee.
The existing forms 1067 and 1068 will be accepted until 1 November 2003, but new provisions and fees apply from 1 July 2003.
There will be an electronic version of the form 1066 which will also be an application for a Bridging Visa A. The grant of the bridging visa will be by email notification. The e457 as DIMIA refer to it will be trialled by high volume users and big businesses who are established clients of DIMIA. A pilot program will be trialled from 1 July 2003 until October 2003. The e457 will then be established for all users from 1 November 2003, assuming there are no significant problems arising from the pilot.
It is also proposed that all 457 processing will be onshore and that ETA nationals will have their 457 visas evidenced on arrival.
DIMIA have indicated there will be penalties for sponsors who breach undertakings and also changes to review procedures. The review changes will require the sponsor at time of application for review and the sponsor must be the same sponsor at the time of the decision. This will involve changes to s338 (2).
4. Business skills provisional visa holder
Dependents assessed as a member of the family unit for the original provisional visa will be eligible for the grant of a permanent Class DF visa even if they no longer meet the definition of ‘dependent’. This is provided they are included in an application for the Business Skills Residence Class DF visa. There is a new subreg 1.12(5)
Provision will be made for secondary applicants who hold a student visa at the time of application for the class UR Provisional Business Skills visa to be eligible to apply for a class WA bridging visa. There is an amendment for sub item 1301(1) of schedule 1
Only businesses that are established in Australia can be included for the purposes of meeting the business requirements when applying for the Business Skills residence Class DF visa. Amendments are made to clauses 890.213, 890.214, 890.212(a) and 892.213.
5. Sponsored Training Professional Development visa UV 470
The new visa is designed to enable approved training providers to deliver specific academic and practical training for groups of professionals, managers and government officials from overseas.
There will be two stages. The first stage is the sponsorship (form 1226). The second is the visa application (form 1227).
Sponsors can be approved for up to three years and must accept responsibility for delivery of the training program, assessing the genuineness of the visa applicant, assisting DIMIA in monitoring adherence to visa conditions and reporting to DIMIA.
The visa will allow stay for up to 12 months.
Processing will be in the Hobart office.
6. Entertainment visa 420 subclass changes
Removal of the provisions for employment of models and mannequins from the subclass 420 visa.
7. Bridging visas E changes
There will be cessation of BV E in the following cases:
- Applicants who withdraw an application for revocation of an automatic visa cancellation (7 working days) or merits review of a decision to cancel a substantive visa or not to revoke a cancellation (28 days)
- Applicants for merits review of a decision to cancel a substantive visa where the cancellation is set aside but the visa period in the original substantive visa has in the meantime expired (28 days)
- A Court remits a matter relating to a cancellation of a decision by the MRT or RRT.
These changes affect BV E applications from 1 July 2003.
8. Lowering of X-Ray screening age
The X Ray requirements will not be for persons from the age of 11 years, previously from the age of 16 years. This involves changes to the
- Temporary Protection Visa [785.225(b)]
- Temporary (Humanitarian Concern) visa [786.223(2)(a)]
- Protection Visa [866.224(b)
It will also affect those with the condition s 8205 or 8529.
9. Fee increases
There are CPI fee increases; the new form 990i details the new fees from 1 July 2003.
10. MARA fee increases
MARA fees will significantly increase.
- CPD course registration charges increase 300% from $33 to $99
- Commercial agent registration increase of 49% from $1180 to $1760
- Initial agent registration increase of 10.5% from $950 to $1050
11. Increased use of cancellation and character powers
This is a comment from a number of experienced Migration Agents and free services such as IARC. Section 501 Notices are being issued on cases where citizenship applications are being made and the decision is deferred, then you receive the s501 Notice. Where there are criminal convictions, the decisions are being made by the Minister, therefore no AAT review.
Successful AAT cases are also faced with increased s501A Notices; despite the statements of the Minister in 1998 in his second reading speech that s501A was required to deal with the AAT letting in criminals. It seems to be used in cases where the AAT finds in favour of character, when the case was based on ‘general conduct’ rather than a criminal conviction.
“The purpose of this bill is to ensure that the government can effectively discharge its fundamental responsibility to prevent the entry and stay in Australia of non-citizens who have a criminal background or have criminal associations.”
In discussing the s501A power, the Minister then stated:
“Minister's power to intervene or set aside Administrative Appeals Tribunal decisions
Over the past 12 months or so, the AAT has made a number of character decisions that are clearly at odds with community standards and expectations. The AAT has found a number of non-citizens who have been convicted of very serious crimes to be of good character, and has ruled that they should be granted visas.”
12. Recent cases
Re MIMIA; Ex Parte Applicant S20/2002 [2003]HCA 30 17 June 2003
B and B and MIMIA Full Court of the Family Court, 19 June 2003
MIMIA v Al Masri [2003] FCAFC 70 (15 April 2003)
Ongoing debate about the Privative clause, see Australian Institute of Administrative Law publication Forum No 37.
Kerry Murphy June 2003
Craddock Murray Neumann Lawyers
1.Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998. Second Reading speech of Hon Mr P Ruddock MP, 2 December 1998, Hansard p 1229 ff