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Australian Immigration Law Update - No. 160- EDITED BY: MICHAEL JONES

In this issue

In Memoriam Adrian Philo Bitel

It is with great sadness that we announce the death of the Newsletter's editor, Adrian Bitel, on 8 October.

Adrian was born in England on 3 August 1941 and came to Australia as an infant with his family. After studying at Hunters Hill High School and the University of Sydney, he began a professional life dedicated to teaching, notably at Marist College North Sydney and Newington College, teaching English and Drama and taking on a variety of non-academic activities including Master of Cricket at Newington, coaching athletics and Rugby and organising outdoor education camps. He also began a lifelong involvement in directing amateur theatre.

After retiring from Newington in 2008, Adrian found he could not give up teaching so easily. He soon found himself providing private classes to help prospective visa applicants pass the demanding English language exams that are essential to moving from a temporary resident or overseas student to a permanent visa holder. He conducted his one-on-one lessons from a corner of the Parish Patience office, which at that time was the law firm of his younger brother David.

When David died last year, Adrian moved into the role of a Director of Parish Patience Bitel Pty Ltd which took over David's firm. Adrian's responsibilities were to manage the human resources of the firm as well as the communications and marketing of the business. One of his many tasks was editing this Newsletter. At the same time he continued his teaching work.

Throughout his life, Adrian was passionately devoted to the arts, in particular theatre and music. Even after a period of serious illness that left him with restricted mobility, he amazed everyone with his energy in attending performances of all types from classical music to opera to avant-garde theatre, of which he was also a prolific director and producer. His many subscriptions included the Australian Opera and the Sydney Theatre Company, and he regularly attended productions by NIDA, the Genesian Theatre and various independent productions. He devoted time to directing at Crash Test Drama and Short & Sweet, both of which are competitions for short plays providing up and coming writers and actors a chance to have their work presented.  He was also a keen Bridge player.

Adrian is missed by all staff at Parish Patience, as well as by his students, for his approachable and open nature, his wit and intelligence, and for his devotion to his work.

Parish Patience Immigration Lawyers

The Parliament-citizenship fiasco

What a strange country we live in. Anywhere else, the question of who can sit in the Parliament of a country would depend entirely on the law of that country. In this country a person's eligibility to stand for and be elected to either House of the Federal Parliament may depend on the law of other countries.

When the High Court considered whether Barnaby Joyce was eligible to sit in Australia's Parliament it turned to the law of New Zealand, and on the basis of its interpretation of the law of that country it decided that he was not. In the case of Fiona Nash, the Court turned its attention to the law of the United Kingdom and, based on its interpretation of that country's law, it decided that she could not sit in our Senate. The same result applied to Larissa Waters, in her case based on the law of Canada. In the case of Senator Xenophon, the Court again studied the law of the United Kingdom and decided that, unlike Fiona Nash, he was eligible to sit in our Senate. In Senator Canavan's case, the Court heard from independent experts on the laws of Italy and decided that he could remain in the Senate.

The legal basis for this rather strange situation is s 44 of the Constitution, which disqualifies from being elected to the Federal Parliament any person who is "entitled to the rights or privileges of a subject or a citizen of a foreign power". There was no issue about whether any of these people were Australian citizens, but that was not the problem. It is a well-established principle of international law that the question of who is a citizen of a particular country is a matter for the law of that country. So Barnaby Joyce was a citizen of New Zealand because the law of that country automatically confers citizenship on the child of a New Zealand citizen, wherever they are born. The same automatic conferral of citizenship applied to Fiona Nash under UK law. Senator Canavan, on the other hand, was held not to be an Italian citizen because the law of that country required him to personally apply for registration, which he had not done. In Senator Xenophon's case, the Court ruled that the status of "British Overseas Citizen" that he had acquired at birth was not a real citizenship because it gave him no right to enter and reside in the UK.

 

In another case that has not (yet?) been referred to the High Court, the Minister for the Environment and Energy Josh Frydenberg has denied suggestions that he is a Hungarian citizen by descent through his mother, who was born in Hungary under the pro-Nazi regime that had revoked the citizenship of all Hungarian Jews. On arrival in Australia she declared her nationality as "stateless". However the post-war Hungarian government re-instated the citizenship of the country's Jewish population. Did the Minister then become "entitled to" the rights and privileges of a Hungarian citizen by descent?

It is obviously untenable that the eligibility of Australian citizens to serve as elected representatives in the country's Parliament could depend on the vagaries of the laws of foreign countries. Amending the Constitution is a difficult process involving a referendum with a majority of electors in a majority of States (that is, four out of six) supporting the proposal. In the past, proposed amendments have usually only been successful when there was bipartisan political support. Perhaps this is an issue on which our notoriously fractious politicians should put the national interest ahead of their squabbles.

Michael Jones
Legal Practice Manager
Accredited Specialist in Migration Law
MARN: 9255530

Manus Island: First Refugees leaves PNG for US under swap deal

Twenty-two men from Manus Island have become the first refugees from Australia’s offshore detention centre to leave Papua New Guinea for the United States.

The refugees were accepted under a deal between former US President Barack Obama and Prime Minister Malcolm Turnbull.

Refugee advocates said another group of at least 27 people on Nauru, including women and children, were due to depart on September 27.

Many other refugees on both Manus Island and Nauru have been interviewed by US Homeland Security officials and are awaiting notice about their applications for settlement.

The US is not bound to take a set number of refugees, so the final number of people in Australia’s offshore detention centres who will be resettled remains unknown.

However these numbers make only a very small dent in the 600 men who will be affected by the closure of the Refugee Camp on Manus Islands.

The Federal Government is still determined to go ahead with the resettlement of many of the refugees in the wider community of P.N.G

Adapted from ABC News Service on P.N.G.

20th September 2017 Round Result

Following the invitation round held from 20 September 2017, a significant change has occurred in relation to the occupation of Accountants; which has been increased from 75 to 85 points. This current points requirement is the highest that has been set for any occupation, exceeding the requirement of 80 points set at the conclusion of the previous financial year.

The remaining pro rata occupations have remained unchanged from the last invitation round of 06 September 2017. Pro rata occupations are classified as being highly competitive, receiving a significantly higher volume of applications than other occupations, and the volume of applications exceeds the demand. Higher point requirements are set for pro rata occupations to ensure only the highest quality applicants are accepted.

Due to the remaining pro rata occupations remaining consistent, the minimum point requirement for a Subclass 189 Invitation remains at 65 for all occupations not listed as a pro rata occupation. Nursing remains the most promising migration avenue, with only 500 invitations issued while more than 16,500 invitations are allocated to this occupation. This is the only occupation which has been allocated an invitation quota in excess of 10,000. While the Subclass 190 Invitation point requirements are not published, it can be assumed that state nominations will be offered on a similar basis to those published for the Subclass 189 program.

The points requirements for a Subclass 489 Invitation remain at 60. The reason for this lower points threshold is due to this visa not being an immediate Permanent Residence Visa; however it does offer a promising pathway to Permanent Residence if specific qualifying conditions are met while holding this visa.

Due to the significant increase in the point requirements for Accountants, the Subclass 489 pathway may become the only option for many applicants. This is due to a successful Nomination Application from a regional certifying body awarding the applicant a further 10 points; which will be crucial in reaching the high threshold of 85.

Visa Subclass

Points score

Visa date of effect

Skilled - Independent (subclass 189)

65

13/09/2017 12.05 am

Skilled - Regional Provisional (subclass 489)

60

19/09/2017  4.27 am

 

Occupation ID

Description

Points score

Visa date of effect

2211

Accountants

85

15/09/2017 10.37 pm

2212

Auditors, Company Secretaries and Corporate Treasurers

75

28/07/2017 10.26 am

2334

Electronics Engineer

65

22/07/2017  3.13 pm

2335

Industrial, Mechanical and Production Engineers

65

18/02/2017 7.35 pm

2339

Other Engineering Professionals

70

08/09/2017 11.38am

2611

ICT Business and System Analysts

70

14/06/20178.21pm

2613

Software and Applications Programmers

65

30/03/2017  7.37 pm

2631

Computer Network Professionals

65

21/02/2017  12.03 am

 

 

Mr. Alasdair Dougall
Solicitor and Registered Migration Agent
MARN:1684660

Australian Citizenship Regulation - Update

Legislative Instrument - - F2017L01284 - IMMI 17/108 - Australian Citizenship (Permanent Resident Status)

This Instrument replaces IMMI 07/037, the Australian Citizenship Act 2007 - Determination under subsection 5(2) - Australian Citizenship (Permanent Resident Status) 2007 - that sunsets on 1 October 2017.

It substantially maintains the arrangements in the previous Instrument, with the two amendments: 

Item 1 of Schedule 1 - New Zealand Citizens held to be Australian permanent residents

The previous Item 1 of Schedule 1 clauses that specified which New Zealand citizens were held to be permanent residents of Australia has been replaced with: 

A New Zealand citizen who is a protected SCV holder within the meaning of Section 7 of the Social Security Act 1991... [or who meet the unchanged criteria in Items 2,3 or 4 of Schedule 1]

This amendment was made to ensure consistency across whole of government classification of eligible New Zealand citizens.  It aligns with the changes made to the definition of eligible New Zealand citizen made in Migration Regulations - F2017L00816 - Migration Legislation Amendment (2017 Measures No. 3) Regulations 2017 [see MIA Notice No 47/2017]. 

Item 5 Schedule 1 - Norfolk Island or Territory of Cocos (Keeling) Islands residents held to be Australian permanent residents


The change in the new Instrument inserts 1 October 2017 as the specified date for this Item 5:

A person in Norfolk Island or the Territory of Cocos (Keeling) Islands who is not an Australian citizen and who prior to 1 October 2017:

This amendment is required due to Norfolk Island becoming part of the migration zone for immigration purposes on 1 July 2016. 

This change continues arrangements for those who were permanent residents on Norfolk Island prior to the commencement of this instrument.

This Instrument comes into effect on 1 October 2017.

Source: MIA Notice

Peter Dutton belittles departing refugees.

Peter Dutton is not satisfied with Australia’s treatment of refugees on Manus Island. In a statement on his regular interview with 2CB’s Ray Hadley, Dutton pursued his vindictive nature to an eager Hadley stating.

“Somebody once said to me the world’s biggest collection of Armani jeans and handbags was up on Nauru waiting for people to collect it when they depart.”

Several of the refugees, now in America, were interviewed on ABC television, and poured scorn on Mr Dutton’s farcical claims.

Refugee advocates, Labor and the Greens were critical of Dutton’s statement:

“This people have at the generosity of the Australian taxpayers received an enormous amount of support for a long period of time.”

For Mr Dutton to pretend that many of the refugees were economic migrants was giving fuel to a Trump Administration which was looking to cut its migration quota to its lowest figure in ten years.

Mr Dutton should be seeking ways to help the plight of the refugees, not trade clichés with Rey Hadley

Sources: SBS.com, TheAustralian.com.au, SMH.com.au

Business Innovation and Investment (Provisional) visa (subclass 188)

The subclass 188 visa has five individual streams with different requirements.  It has a validity of four years and three months once granted, some with options for further extension.  Once all the criteria for the corresponding subclass 888 streams are met, applicants can then make application for the permanent subclass 888 visa.  Applicants should be aware of both the 188 and 888 requirements prior to applying.

It is important to know that most of the business visas require State or Territory Government sponsorship or Austrade (for SC188D) before a visa application can be lodged.  The state governments or territories set their own unique criteria from the Department of Immigration’s minimum visa requirements.  They can be the same or vastly different from each other, and many make frequent changes from time to time without notice.  Applicants should research and update themselves with the latest information about the State and Territory requirements before making an application for migration.

Business Innovation stream visa - Subclass 188A

The Business Innovation Stream is designed for business owners with overall successful business career who intend to establish business operations in Australia.  They will need to meet at least the following specific requirements:

  • Age - under 55 years of age, although a state or territory can waive this requirement if your proposed business will be of exceptional economic benefit to the nominating state or territory.

  • You must score at least 65 on the points test.

  • For two out of the four fiscal years immediately before you are invited to apply, you have had an ownership interest in an established business or businesses that had at least AUD500 000 turnover in each of those years.

  • You own at least one of the following percentages of your nominated main business:

    • 51 per cent, if the business has a turnover of less than AUD400 000 per year

    • 30 per cent, if the business has a turnover of AUD400 000 or more per year

    • 10 per cent, if the business is a publicly listed company.

  • You have an overall successful business career.

  • You have a genuine desire to continuously own and maintain a management role in a business in Australia.

If your nominated main business provides professional, technical or trade services, you must have spent no more than half your time providing those services, as opposed to general management of the business.

At the time of invitation, you, your partner, or you and your partner combined must have total net business and personal assets of at least AUD800 000 that are lawfully acquired and available for legal transfer to Australia within two years of the visa being granted.

You and your partner must have had no involvement in unacceptable business or investment activities.

Eligibility for Permanent Residence Subclass 888

To qualify for a permanent subclass 888 visa, you would need to meet the following criteria:

  • Own and operate a business in Australia for at least two years prior to the visa lodgement date with annual turnover of at least $300,000 for the two of the last four years.

  • Physically lived in Australia on the subclass 188A visa for at least twelve months within the two years before visa lodgement.

  • Applicants also must meet two of the following three criteria for the last twelve months:

    • Assets of at least $200,000 in the business.

    • Net personal and business assets of at least $600,000 in Australia.

    • Employed at least two Australian full-time employees in your business in Australia.

Source: border.gov.au

Canberra Your Future: Skilled Visa – ACT Nomination

Canberra - Confident, Bold and Ready. If you’re looking for a place to create your future – one that is full of brilliant possibilities – Canberra is your city.

Canberra, the national capital of Australia, is located within the Australian Capital Territory (ACT). Big things happen here: in politics, science, research, education, business and the arts – creating the potential for exciting careers and opportunities.

You must apply for ACT nomination of a Skilled Nominated (subclass 190) visa after completing an Expression of Interest on the Department of Immigration and Border Protection SkillSelect. Before lodging an application for ACT nomination, it is recommended that you obtain specific migration advice relevant to your circumstances from the Department of Immigration and Border Protection or a Registered Migration Agent.

Applying for ACT Nomination while in Australia:

Student or temporary graduate visa

If you are the holder of a student or temporary graduate visa you must meet the following criteria before you are eligible to apply for ACT nomination:

  • You have lived in Canberra for the last 12 months; and

  • If you have NOT lived or studied in another Australian state or territory within the last two years:

    • You have completed and graduated (or you are the dependent of a graduate) from a CRICOS registered course at Canberra institution. The course must be, at minimum, a Certificate III or higher qualification; and have a minimum duration of one academic year (40 weeks); and

    • You are working for an ACT employer in a skilled occupation (as defined by ANZSCO skill level 1 to 4). You do not have to be working in your nominated occupation. The employment does not have to be full time. You must provide at least two current payslips to evidence your employment.

  • If you HAVE lived or studied in another Australian state or territory within the last two years:

    • You are working full time for an ACT employer in your nominated occupation for at least six months immediately before applying for ACT nomination. Student visa holders (with visa condition 8105) working 20 hours per week are deemed to meet the full time criterion.
      or:

    • You have completed and graduated (or you are the dependent of a graduate) from a CRICOS registered course at Canberra institution. The course must be, at minimum, a Certificate III or higher qualification; and have a minimum duration of one academic year (40 weeks); and

    • You must be working full time for an ACT employer in a skilled occupation (as defined by ANZSCO skill level 1 to 4). Student visa holders (with visa condition 8105) working 20 hours per week are deemed to meet the full time criterion. You must provide at least two current payslips to evidence your employment.

Postgraduate course – Canberra tertiary institution

If you are the holder, or the dependent holder, of a student visa (subclass 500 series) who is currently studying or has completed a postgraduate course at a Canberra university, you must meet the following criteria before you are eligible to apply for ACT nomination:

  • You have lived in Canberra for the last 12 months; and

  • You are either:

    • In receipt of a stipend and / or scholarship from the University / government agency(that covers your living expenses) that is ongoing for at least 3 months from ACT nomination application date; or

    • Working an ACT employer in a skilled occupation (as defined by ANZSCO skill level 1 to 4). You do not have to be working in your nominated occupation. The employment does not have to be full time. You must provide at least two current payslips to evidence your employment.

ACT Occupation List

The ACT Occupation List identifies the skills that are currently in demand, or ‘open’ in Canberra. The demand for each occupation is used to determine availability of ACT nomination for that occupation.

While a major analysis of the demand for occupations will be undertaken twice a year (in February and August) the demand for each occupation will be reviewed on an ongoing basis. Once it is determined that the demand for an occupation has been met, the occupation will be closed without further notice.

The ACT Occupation List is not linked to specific job vacancies and it is not a guarantee of a job in a nominated occupation. You must be satisfied that there are sufficient employment opportunities in your nominated occupation before you apply for ACT nomination.

You must also understand that the demand for your particular occupation may change before you arrive permanently in Canberra. You will compete for jobs with all people in the labour market as part of a normal selection process. Your success will depend on employer requirements, your relevant skills, your experience and your level of English language ability.

Open Occupations

You are eligible to apply for ACT nomination if your occupation is in demand and listed as ‘open’ on the current ACT Occupation List and you meet the nomination criteria.

Closed Occupations

If your occupation is listed as ‘closed’ on the ACT Occupation List, you are not eligible to apply for ACT nomination unless you meet the following criteria:

Canberra residents:

You are eligible to apply for ACT nomination of a ‘closed’ occupation if you meet the nomination criteria.

Sources:
Canberrayourfuture.com.au & Canberrayourfuture.com.au/workspace/

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