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Australian Immigration Law Update No 141

In this issue

Australian Border Force, Day 1

As part of the amalgamation of the Department of Customs and the Department of Immigration and Border Protection which have come  into effect on the 1st of July 2015. The Australian Border Force, the new operational arm of the new Department of Immigration and Border Protection has come into effect.

The ABF will undertake all the operational responsibilities previously held by both agencies including intercepting prohibited imports at the border, immigration compliance activities and maintaining the good order of Australia’s detention facilities.

The ABF will partner with the Australian Federal Police (AFP) to combat border-related crimes. The ABF will also target national security threats with dedicated counter-terrorism units at Australia’s major airports.

Occupation ceilings 2015-16 points based visas

The occupation ceilings for invitations for points based skilled visas in the 2015-16 general skilled migration programme have been released. There have been some minor increases in the ceilings for 22 occupations and minor decreases for 13 occupations.

The largest increases were for Metal Fitters and Machinists with an extra 1254 (18%) and Plumbers with an extra 666 (15%) places.

Panel beaters and Cabinetmakers were added to the list for the first time.

The largest decreases were for Accountants down 2953 (54%) places and Registered nurses which decreased by 1170 places, although this only accounted for an 8% decrease for that occupation.

Dentists were removed from the list.

Due to high levels of demand, three occupations groups will be subject to pro rata arrangements to ensure availability of invitations across the programme year:

ICT Business and Systems Analysts

Software and Applications Programmers


MIA Notice – 8 July 2015

New visa measures generate international buzz

Announcements made as part of the historic China-Australia Free Trade Agreement and, recent significant immigration policy reforms and initiatives revealed in the Northern Australia White Paper are already generating positive feedback in international target markets.

The Assistant Minister for Immigration and Border Protection, Senator the Hon Michaelia Cash, said amendments to the Work and Holiday visa programme and enhanced Visitor visa products will further foster cultural and tourism exchange while simultaneously facilitating growth in Australia’s northern regions.

“The Coalition Government’s much anticipated Northern Australia White Paper will unlock the immense potential in our northern areas and amendments to our visa programmes will play an important role in this expected growth,” Minister Cash said.

The announcement of a 2016 trial offering 10 year Visitor visa for Chinese nationals (with a maximum three month stay provision) builds on the Coalition Government’s initiatives to realise the enormous potential that exists within the growing Chinese market. This premium product will attract repeat travellers and will cost $1000.

MIA Newsletter – 1 July 2015

Teachers gagged under new immigration laws

The AEU NSW Teachers Federation branch is seriously concerned at policies of the current Federal Government which impinge on civil liberties and human rights and indeed, the rule of law itself.

These policies include:

  • That teachers working in detention centres face up to  2 years in jail speaking up for the students in their care

  • The continuing detention of children in detention centres

  • The denial of rights to asylum as provided for under international conventions

  • Attempts to silence the Human Rights Commission and the national broadcaster

  • Royal Commission which appears politically motivated

The Federation believes that the laws and policies appear designated to foster a climate of fear and intolerance which can threaten rational democratic processes while curtailing the capacity for opposition.

MIA Newsletter – 1 July 2015

Occupation lists, assessing authorities and countries: application from 1 July 2015

Primary School Teachers have been inadvertently left off the Schedule 2 list. The Department will correct this mistake and replace the occupation shortly.

Legislative Instrument – IMMI 15/092 – F2015L01059 – Migration Regulations 1994 Specification of Occupations, a Person or Body, a Country or Countries 2015

This instrument specifies the occupations, ANZSCO codes, assessing authorities and countries for the following visa subclasses from 1 July 2015. Changes to the Schedules and occupations are also listed below.

The Instrument specifies the following schedules for the following visa classes:

  • Subclass 457 (as per Reg 2.72(10(aa)) – for a nomination made on or after 1 July 2015 lists the occupations, skills assessing authorities and countries in Schedule 1 and Schedule 2

  • Subclass 189 and Subclass 489 (as per Reg 1.15I(i)) visa applicants and partners not nominated by state and territory governments who were issued invitations to apply on or after 2015: lists the occupations, skills assessing authorities and countries, in Schedule 1.

  • Subclass 190 and Subclass 489 (as per Reg 1.15I(i)) visa applications and partner nominated by state and territory governments who were nominated on or after 1 July 2015: lists occupations, skills assessing authorities and countries in Schedule 1 and Schedule 2.

  • Subclass 485 (1229 (3)(k)) visa applicants who applied on or after 1 July 2015: lists occupations, skills assessing authorities and countries for applicants in Schedule 1.

  • Subclass 186 Direct Entry (as per 5.18(4)(h)(i)(A), 1137 4(a), 1138 4(a), 1230 4(a) & 186.234(2)(a)) nomination applications made on or after 1 July 2015 lists the occupations on Schedule 1 and Schedule 2, and for Direct Entry visas applications, the assessors for those occupations in Schedule 1 and Schedule 2

  • Subclass 405 Training and Research (as per Reg 2.72I(5) applications made on or after July 2015: lists the occupations and their ANZSCO code for the nominated occupational training in Schedule 1 and Schedule 2.

  • The ANZSCO specified is the version that is published and current at 1 July 2015.

Indonesian police detail boat turn back and alleged payments

Indonesian police have provided new details about how Australian authorities allegedly intercepted an asylum seeker boat, transferred the passengers onto two boats and sent them back to Indonesia.

One of the boats provided by Australia allegedly ran out of fuel during the journey and the asylum seekers had to climb onto the other boat which later crashed onto a reef.

 The documents, provided to the ABC by local police deputy chief commissioner Ronalzie Agus, detailed the journey of the asylum seekers from West Java to the waters off East Timor and back to Indonesia.

In their investigation into the turn-back operation and the allegations that Australia paid money to the crew, Indonesian police have interviewed six witnesses as well as the captain and crew of the boat.

Some of the passengers have also reported that an Australian Customs official paid money to the crew of the asylum seeker boat.

The police document about the initial findings of the investigation is in the form of a PowerPoint presentation and put the amount of money paid at more than $US30,000.

It detailed how the boat was allegedly intercepted by Australian authorities twice and taken to Australian waters before the 65 passengers and six crew were sent back to Indonesia.

En route they ran aground on a reef and had to be rescued by local villagers.

Indonesian police have also provided the ABC with photos of the thousands of dollars the crew were allegedly paid, as well as a stricken wooden boat provided by Australia in order to get the asylum seekers back to Indonesia.

 The head of Indonesia's military (TNI), General Moeldoko, has reportedly described the tactic as unethical.

"That conduct was inappropriate. That's my view, but I would not give comment on the political context of a relation[ship] between two countries," he said.

General Moeldoko also defended Indonesia's ability to adequately patrol its vast waterways.

"Our sea border is so long — 81,000 kilometres — with our current military power, with its insufficient navy capabilities ... some sectors were sometimes missed," he was reported as saying.

The chairman of the country's parliamentary commission that covers foreign affairs, Commission One, told reporters at the national parliament that Indonesia and Australia needed to work together diplomatically.

Mahfudz Sidiq also hit out at the tactic of paying the boat crew as dishonorable.

"They bribed fishermen," he said.

"They knew exactly that our fishermen are needy and they bribed them. The conduct done by Australia toward Indonesian civilians ... was dishonor[able]."


Mother who faced deportation over cost of son’s autism celebrates official news of permanent residency

A Townsville nurse who was told she would have to leave Australia because of the cost of her son’s autism on the healthcare system said she was “jumping for joy” when she received official word she had received permanent residency.

Immigration Minister Peter Dutton indicated in May that Maria Sevilla and her 10-year-old son Tyrone would be allowed to stay, but the family only officially heard last week.

Her application for a skilled worker visa for regional areas was declined, with the Migration Review Tribunal citing the “significant cost to the Australian community” of health care of Tyrone due to autism.

But now, Ms Sevilla said her lawyer had been informed the pair had been given permanent residency. Ms Sevilla said she was grateful to Immigration Minister Peter Dutton for his decision, as well as the Queensland Nurses Union for their support.

MIA Newsletter – 1 July 2015

Sacked and exploited workers call for action over 457 visa abuse

A NSW miner who was sacked and then made to train up temporary workers on 457 visas to replace him will give evidence to a Senate Inquiry investigating the abuse of Australia’s temporary visa system in Sydney.

Ben Loeve was one of 106 workers at a coal mine in the NSW town of Boggabri who were made redundant by Downer EDI, while eight employees on 457 visas with less experience and qualifications were retained as the company tried to bring in another 360 workers from overseas.

The Senate Inquiry will also hear from a Filipino worker who was employed on a 457 visa to work on a construction project in the town of Narrabri, north-west of Sydney. Edwin De Castro was one of 30 Filipino workers employed by Taiwanese company Chia Tung.

They were paid just $7-$10 an hour and housed in shipping containers or forced to sleep with six people to a room in company housing before being thrown out in the middle of the night.

MIA Newsletter – 1 July 2015

First refugees from Nauru detention centre arrive in Cambodia

Four refugees transferred from the Nauru detention centre have arrived in Cambodia and have been taken away in a van with curtains covering the windows.

Two Iranian men, an Iranian woman and a Rohingya man from Myanmar arrived in Phnom Penh on a commercial flight.

The International Organisation for Migration (IOM) then took them to their villa at a secret location.

The refugees did not speak to the media, with Australian immigration officials saying the four did not want to jeopardise the safety of their families.

In a statement, the IOM said the group were being taken to temporary accommodation in the Cambodian capital to undergo language training as well as "cultural and social orientation".

"They're here, they're healthy and we ask for privacy for them," IOM regional spokesman Joe Lowry said.

The four are the first refugees to be transferred from Nauru as part of Australia's offshore processing policy.

As part of the deal Australia is giving the Cambodian government $40 million in aid and giving the IOM $15.5 million to support all refugees transferred there for a year.

"Cambodia clearly has no will or capacity to integrate refugees permanently into Cambodian society," Phil Robertson from Human Rights Watch said following the transfer.

"These four refugees are essentially human guinea pigs in an Australian experiment that ignores the fact that Cambodia has not integrated other refugees and has already sent Montagnards and Uighur asylum seekers back into harm's way in Vietnam and China."

In a statement, Amnesty International Australia said Cambodia's track record of protecting asylum-seekers was "poor" and called on Canberra to "cease the transfer of asylum seekers and refugees to third countries where they are not adequately protected from human rights abuses".


‘Lazy or sneaky?’ Vanstone slams Abbott over citizenship policy

A former senior Liberal minister has launched a scathing attack on the Abbott Government and the Prime Minister's handling of citizenship policy.

Amanda Vanstone, former immigration minister under the Howard government who presents Counterpoint on ABC Radio National, took aim at Tony Abbott in an opinion column published by Fairfax.

Her comments were triggered by the leaked Cabinet discussion over citizenship policy and what she described the lack of "proper process".

The Prime Minister had raised the prospect of a tougher policy — stripping citizenship from suspected terrorists.

Under the proposal, the immigration minister would have the power to decide, and sole nationals could be affected if they were able to apply for citizenship in another country.

Ms Vanstone argued Cabinet ministers were not provided with enough information to make a considered decision on the proposal.

"In fact the very seriousness of the threat terrorism poses and this suggested response demands a full discussion," she said.

"Hoping to flick it through at the end of a Cabinet meeting smacks of trying to get something difficult through without proper discussion.

"That's either lazy, sneaky or both."

She also praised the six Cabinet ministers who raised concerns about the policy.

"Cutting down our democratic protections to get at the enemy is profoundly dumb," Ms. Vanstone said.

"We end up doing the enemy's work for them, and from within."

A string of Cabinet ministers, including Malcolm Turnbull and Julie Bishop, have denied being the source of the leak.

Ms. Vanstone said it would not be in Mr Turnbull's interests to publicise the discussion and "only a moron" would think a leak that damages Mr Turnbull would not have flow-on effects for the Prime Minister.

Assistant Minister Simon Birmingham defended the Government's handling of the issue.

"We don't make any apologies as a government for doing everything we possibly can to be tough on terrorism, to fight the causes of terrorism, to fight those engaged in terrorism," he told Sky News.

He said the Coalition would continue to look at ways the tough policy could be implemented.

"We will continue to pursue policies like this one," Senator Birmingham said.

He maintained that the controversy on the issue showed the "cabinet system was alive and well during this decision making process".

He said the leaks were "unfortunate", but demonstrated there were robust discussions.

"Ultimately, we stand as one as a government behind policies that we are convinced will help to strengthen the overall suite of measures being taken to protect Australians here in Australia, and to stop as best we can, the spread of terrorism around the world."


Work and Holiday visa a hit on Chinese social media

The Work and Holiday visa programme has received an overwhelming reception in China following the announcement of 5000 visa places for young Chinese nationals coming to Australia.

On Wednesday 1 July in Beijing, the Assistant Minister for Immigration and Border Protection, Senator the Hon Michaelia Cash participated in a one hour online live chat discussion with Chinese young people about the Work and Holiday visa arrangement with China.

“This level of interest and enthusiasm is a great start to what we envisage will be the beginning of a long and successful programme for Chinese youth visiting and working in Australia,” Minister Cash said.

Hosted on the People’s Day (PD) Weibo site, Minister Cash responded to 50 questions about the Australian Work and Holiday visa programme. To date, there have been more than 550,000 visitors to the website.

MIA Newsletter – 9 July 2015

Australian Border Force detains 12 in Bundaberg

Twelve people working illegally in the horticultural industry in Bundaberg have been detain​ed by officers of the Australian Border Force.

The group comprised nine Malaysians - eight men and one woman - a man and woman from the Hong Kong Special Autonomous Region and one Taiwanese male.

Some of the group were working illegally in breach of their visa conditions and others had overstayed their visas. They have been detained ahead of their removal from Australia.

The Minister for Immigration and Border Protection Peter Dutton said the compliance operation was an excellent start for the Australian Border Force formed on 1 July.

“Dealing with illegal workers and visa over stayers is just one of the many vital roles the ABF will fulfil,” Mr Dutton said.


Safe Haven Enterprise Visa (SHEV) now available

The Onshore Protection Branch of DIBP has provided the following information about the Save Haven Enterprise Visa (SHEV):

The Safe Haven Enterprise visa (SHEV) became available on 1 July 2015. It is designed to encourage illegal arrivals to work and/or study in a regional area. Illegal arrivals can now choose to apply for either a Temporary Protection visa (TPV) or SHEV when they are invited to apply for a visa.

A SHEV will allow the holder to stay in Australia for five years and has the same visa conditions as a TPV, including permission to work, Medicare, education for school-age children and a limited ability to travel. Like the TPV, holders of a SHEV will not be offered a permanent Protection visa, be able to bring family members through the Humanitarian or Family Migration programmes or generally have access to settlement services.

One benefit of the SEHV is that the holder might be eligible to apply for other substantive visas in the future, but not a Permanent Protection visa, if they meet SHEV pathway requirements. A SHEV holder will meet the pathway requirements if, for at least three and a half years while on a SHEV, they have been:

Employed in regional Australia and not received certain social security benefits

Enrolled in full-time study in regional Australia, or

A combination of the above.

Only one visa holder in a family unit needs to meet these requirements for all of the members of the family unit who are included on the SHEV application to meet the SHEV pathway requirements.

This does not mean that SHEV holders will automatically be granted a permanent visa if they meet the SHEV pathway requirements. Rather, it means they will not be barred from applying for a range of temporary or permanent visas. They will need to meet the visa criteria in order to be granted that visa. The broad categories of visas for which a person who has satisfied the SHEV pathway requirements could apply include Employer-sponsored, Skilled, Student and Family visas.

Applicants who are not sure which visa would be appropriate for their particular circumstances should consider using the ‘Find a visa’ tool on the Department’s website at www.border.gov.au.

If an applicant has not met the SHEV pathway requirements before their SHEV expires, they can apply for another SHEV or a TPV. If granted another SHEV, any periods of employment and/or study over the course of both SHEVs will count towards meeting the SHEV pathway requirements.

The list of regional areas that are currently included in the SHEV programme is available at www.border.gov.au/ima.

MIA Notice – 10 July 2015

NSW Significant Investor program update

NSW continues to welcome investors under the state nominated Significant Investor visa (SIV) program. Applications for NSW nomination for the SIV restarted on Wednesday 1 July 2015 when the Commonwealth program reopened.

NSW policy for SIV nomination remains straightforward and allows investors to choose the investment option most suitable to them as long as this complies with the Complying Investment Framework determined by the Commonwealth Government.

To be eligible for NSW nomination applicants must be able to substantiate their ability to meet the requirements set out by the Department of Immigration and Border Protection for the SIV (188C).

Summarised, from 1 July 2015, applicants seeking NSW nomination will simply need to:

  1. Demonstrate at least A$5 million in assets that are unencumbered, lawfully acquired and readily available for transfer to Australia

  2. Commit to investing at least A$5 million in complying investments as defined by the Austrade complying investment framework and

  3. Provide details of the complying investment intentions in the NSW nomination application form.

The program – including the Complying Investment Framework and visa criteria – continues to be managed by the Commonwealth Government. In order to be nominated by NSW, applicants need to show that they meet both Commonwealth and NSW requirements.

MIA notice – 10 July 2015

Update Child and Orphan Relative visa update

The Department announced in the 2015 Budget that up to 190,000 permanent migration places will be available in 2015-16 migration programme. Some changes to the programme have been announced which will affect how the Child and Orphan relative categories will be managed.

At least 3,485 additional permanent Child visa places will be available outside the managed Migration Programme.

Child category visas (excluding Orphan Relative) will no longer be counted under the managed Migration Programme. This is in response to the Government’s commitment to reform and improve the processes relating to inter-country adoption. The Child category will continue to be carefully monitored while it transitions to a fully demand-driven model by 2019-20.

Orphan Relative visas will now form part of the Other Family category within the Migration programme with 400 places allocated to Orphan Relative visas.

More details on the 2015-16 Migration Programme can be found on the Department’s website.

MIA Notice – 14 July 2015

ENS Subclass 186 – Direct Entry: skills exemptions for holders of Subclasses 444 and 461

Legislative Instrument – IMMI 15/109 – F2013L01148 – Migration Regulations 1994 – Specification of Class of Persons 2015 specifies a class of persons who are exempt from satisfying the primary criteria in relation to skills for the relevant occupation at the time of application for a Subclass 186 (Employer Nomination Scheme (ENS)) visa in the Direct Entry stream.

That class of persons are those hold Subclass 444 – Special Category visa or Subclass 461 – New Zealand Citizen Family Relationship (Temporary) visa and who have been working in their nominated occupation for their nominating employer for at least two years (excluding any periods of unpaid leave) in the previous three years, immediately before applying for their Subclass 186 – Employer Nomination Scheme visa.

This instrument commenced on 1 July 2015.

MIA Notice 15 July 2015

$14.5 Million to help refugees on TPVs learn English

An extra $14.5 million in 2015-16 will be spent to help refugees learn English so they have a better chance of supporting themselves through work.

Assistant Minister for Education and Training Senator Simon Birmingham said the extra funding will help up to 2700 people being provided with Temporary Protection Visas take part in the Adult Migration English Program (AMEP).

Senator Birmingham said the AMEP represents a sound investment in ensuring new arrivals have more opportunities to be self-sufficient rather than be dependent on income support.

MIA Newsletter – 22 July 2015

Specialist IELTS Test Training and Coaching

Passing an IELTS test is now an essential requirement for all applicant for General Skilled Migration, student visas, and for many employer sponsored applicants. Adrian Bitel provides individual lessons to assist applicants achieve proficiency to the required levels in:

  • Reading

  • Speaking

  • Writing

  • Listening

He gives comprehensive ONE to ONE Personalised Coaching in any or all of the above areas at very competitive rates.

Contact: Adrian Bitel on (02) 9286 8700 or Mobile: 0412 656 026

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