In recent times, the Australian Department of Immigration and Citizenship has begun refusing Citizenship and Visa applications on the grounds of character at a far greater rate. It is not clear why this is happening, but there are some avenues of redress if this has happened to you.
To approve an application for Australian Citizenship, it is a requirement that the person be of good character. There has been a much more restrictive definition of good character adopted by the Australian Department of Immigration and Citizenship of late. However, it is possible to challenge a decision like this in the Administrative Appeals Tribunal.
Under s.21(2)(h) of the AUSTRALIAN CITIZENSHIP ACT 2007 (Cth) it is a requirement that the person applying for citizenship must be considered by the Minister to be of good character. In the past, for an application to be rejected, the applicant would need to have a serious criminal record. However, some citizenship applications have been rejected recently due to very minor offences such as speeding fines.
If you think that it may be possible for you a challenge the decision to reject your citizenship application, please do not hesitate to contact us.
For those finishing University Studies, the temporary graduate visa subclass 485 is an ideal potential path to permanent residency. It allows you to remain in Australia for up to 4 years and is split into two streams. The two streams are the Graduate stream and the Post-Study Work Stream.
Graduate Stream
The first stream is the graduate work stream which is for students from overseas with a qualification that is relevant to an occupation on the Skilled Occupations list. This is the more restrictive of the two visas to apply for as it requires a skills assessment to be completed by the applicant. The graduate stream allows a person to remain in Australia for up to 18 months after they have studied.
The Post-Study Work Stream
The post study work stream is for international people who have a higher degree from an Australian education provider without any test placed upon their field of study. It is only available to students who received a student visa after 5 November 2011. This part of the temporary graduate stream can last for as long as four years depending upon the qualification obtained by the student. When making an application for this visa, you have to be located in Australia and you also have to be in Australia when the visa is granted.
In cases where a person has a no further stay condition placed upon their visa, they can apply to have this Visa condition waived in order to take up the temporary graduate visa subclass 485. This is a visa of much increasing popularity and it is very common for people to complete their studies at an Australian University and then find employment relevant to their field which mean that they then need to stay in the country for a longer period with full rights to work, study and travel which this visa does allow. Because it also facilitates the development of work experience in their chosen field, this visa is a common path way to permanent residence for students who need to boost their work experience component on the points test for general skilled migration.
The 4020 rule is a condition placed upon visa applications which can have devastating consequences for the right of a person to stay in Australia in the longer term. It was introduced on 2 April 2011 and amended the regulations of the Migration legislation so that a public interest criterion could be added to Visa applications. It contains a 3 year bar on applications from an applicant where they have previously submitted ‘bogus’ documents in a visa application as defined in the legislation.
What can you do if the 4020 rule has been used in relation to your Visa application?
The decision to impose a 3 year ban and refuse a visa application on the basis of the submission of bogus documents is a decision that is re-viewable before the Migration Review Tribunal and can also go for judicial review before the Federal Court of Australia. However, it is a very high hurdle to get over in order to prove that the ban should not have been imposed by the department of immigration. The ban is usually only imposed in cases where it is clear that the documents submitted have were not genuine. Relevantly, the state of mind of the applicant has no bearing on whether the documents are considered bogus or not. So it is technically possible to unknowingly submitted a ‘bogus’ document to the department and still have the three year ban imposed on further visa applications. Notably, the activation of the 4020 rule also poisons the applications made by any member of your family.
If you have had the 4020 public interest criterion raised against you visa application, there are a number of things that you can do. Firstly, the department will normally allow you 28 days to respond to the allegations regarding the imposition of the ban. It is also possible to argue for a waiver of 4020 rule on the basis of:
– compelling circumstances that affect the interests of Australia
– compelling or compassionate circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen
If you would like to consult with us in relation to the imposition of a 4020 rule, we have lawyers available that are experienced with the operation of this provision of the migration law and can advise you in relation to your appeal rights and options.
There are some major changes Occurring in relation to General Skilled Migration to Australia at the moment. The visas that used to be used with the relevant subclass numbers are being retired:
Skilled – Sponsored (Residence) Visa (Subclass 886)
Skilled – Independent (Residence) Visa (Subclass 885)
Skilled – Regional Sponsored (Provisional) Visa (Subclass 487)
From 1 January 2013, the Australian department of immigration will not accept applications for the visa subclasses above. However, these visa classes have been replaced by a number of other virtually identical visas which are now known as the ‘skill select’ system. The skill select system is designed to more efficiently identify people for migration to Australia and integration into the Australian economy. The new visas under skill select include:
Skilled Independent (subclass 189) visa
Points-based visa is for skilled workers who are not sponsored by an employer, a state or territory, or a family member. A visa holder can live and work permanently anywhere in Australia. Certain family members can be included in the application.
Skilled – Nominated (subclass 190) visa
This points-based visa is for skilled workers who are nominated by a state or territory. A visa holder can live and work permanently anywhere in Australia. Certain family members can be included in the application.
Skilled – Nominated or Sponsored (Provisional) (subclass 489) visa
This points-based visa is for skilled workers who are nominated by a state or territory or sponsored by an eligible relative living in a designated area in Australia. The visa is valid for four years, and a visa holder must live and work in a specified regional area. Certain family members can be included in the application, including members not included in previous subclass 495, 496, 475 and 487 applications.
This visa allows holders of provisional visa subclasses 495, 496, 475 and 487 to stay in Australia for up to 48 months from the date their current visa was granted.
Subclass 457 visa
Work in Australia for up to four years. Bring your family to work or study in Australia. Travel in and out of Australia as often as you want. This is a sponsored visa. Before you can apply for the visa, your employer must:
become an approved sponsor
nominate you for a position.
Employer Nomination Scheme (subclass 186)
This visa is for skilled workers from outside Australia or skilled temporary residents who live and work in Australia.
This visa is for skilled workers from outside Australia or skilled temporary residents who live and work in regional Australia.
Business Talent (Permanent) (subclass 132) visa
The Significant Business History stream is for affluent owners or part owners of a business who want to have a major management role in a new or existing business in Australia. The Venture Capital Entrepreneur stream is for people who have obtained at least AUD1 million in funding from an Australian venture capital firm.
Business Innovation and Investment (Provisional) (subclass 188) visa
The visa has three streams. The Business Innovation stream is for people who want to own and manage a new or existing business in Australia. The Investor stream is for people who want to make a designated investment in an Australian state or territory and want to maintain business and investment activity in Australia after the original investment has matured. The Significant Investor stream is for people who are willing to invest at least AUD $ 5 million into complying investments in Australia and want to maintain business and investment activity in Australia after the original investment has matured.
Business Innovation and Investment (Permanent) (subclass 888) visa
The Business Innovation and Investment (Permanent) visa (subclass 888) is the second stage of the Business Innovation and Investment (Provisional) visa (subclass 188). You can apply for it after you have fulfilled the requirements of your provisional visa.
The Business Innovation stream is for people who continue to own and manage a business in Australia
The Investor stream is for people who want to maintain business and/or investment activity in Australia after the designated investment has matured. The Significant Investor stream is for people who are willing to maintain business and investment activity in Australia after the original complying investment has matured.
My Immigration Lawyers is pleased to announce a new international partnership with expert migration consultants in Saudi Arabia:
TWA Horizon
CR#4030235514
Jameel Square Office Building
Office #107
Al Thahila St
Jeddah, Saudi Arabia
T: (+966) 920002980
Together, our two companies intend to be able to provide migration services across the full spectrum of visas including general skilled migration, partner visas, business visas, significant investor visas, student visas all other common types of visas for which you may wish to apply. Because of Australia’s strong education system, there is a long history of a strong relationship between Australia and Saudi Arabia with over 8,000 Australian student visas granted to Saudi Arabian Citizens in the previous financial year. Australia is also a significant importer of Saudi Arabian oil and petroleum products.
Relationship between Australia and Saudi Arabia
Almost 5,000 people travel from Saudi Arabia to Australia on Tourist Visas every year, also, there are more than 3000 Australians working in Saudi Arabia on projects to do with health education and on other specialities. There is a Memorandum of Understanding on Higher Education between Australia and Saudi Arabia and some similar experiences related to the climate, limited populations, large distances between cities and abundance of natural resources. The two countries share a dominance of the commodities markets but for different products with Australia having an abundance of Iron Ore, Coal, Uranium and Natural Gas and Saudi Arabia holding over 20% of the world’s oil reserves as well as substantial deposits of natural gas.
Over 12,000 students from Saudi Arabia are currently studying in Australian educational institutions at all levels of the tertiary system. There is also a very generous scholarship program in place from the King Abdullah Scholarship Program to support Saudi students to study overseas in foreign Countries such as Australia. The Saudi Government also provides considerable social support, in addition to financial assistance, to meet the needs of its students studying in Australia, and has established the Saudi Arabian Cultural Mission (SACM) under the aegis of the Royal Embassy of Saudi Arabia and the Saudi Ministry of Higher Education. SACM’s regional office for the Asia- Pacific region was moved to Canberra in 2004, and sees to the interests of Saudi students; it monitors their progress and helps them to overcome issues that may impact their lives and impede their studies.
A new Australian government program is being adopted which will give multicultural groups greater access to government services by customising the programs to fit multicultural groups. A plan which was recently unveiled was announced by the government spokesperson and justified on the groups that a wide variety of these programs should be available to people living in Australia from all multicultural backgrounds.
The changes are the result of a thorough review and subsequent publication which commented on the situation and has resulted in the requirement that all government agencies are now required to prepare an agency multicultural plan. The plan is part of a policy on behalf of the Rudd led administration to foster a social environment where people of all national origins are accepted and included in Australian society.
The philosophy of multiculturalism in Australia can be traced back to the 1980s and the days of the Hawke-Keating Labour government which was the first to use the term in a political context to describe ta vision of a society integrated along ethnic and cultural lines despite being very diverse in its origins. To varying degrees, across the decades since the policy has been implemented and resulted in Australia being recognised as having a relatively high level of acceptance of people migrating from foreign countries.
Australia’s appeal to migrants remains strong with the issuing of student visas for study in Australia being one of the main avenues of entry into the country. The main sources of migrants for Australia are India, China and the United Kingdom. Australia’s strong educational institutions and economy which is perceived as being capable of providing economic opportunities are the main reasons that people choose to resettle in Australia.
Recently in Australia there has been a movement towards greater restrictions on the holders of 457 visas and those making an application for these visas. The changes have not yet been set to to impact the Business Innovation and Investment (Provisional) (subclass 188) visa, but there are some disturbing assumptions underlying the impetus for the changes. The trend is unlikely to result in any future benefit to Australia because it is clear that migration has dramatically stimulative effect on the economy and in particular innovation dependent aspects of the economy. There are a number of indications that this is the case.
Innovation Benefits To the Australian Economy
Firstly, migrants and more likely that the general population to hold a degree in science or engineering. Also, a high proportion of 457 visas are granted to people in IT related industries. In fact, in 2011-2012, over 5,000 out of 7,200 business skills visas were granted for people in IT related occupations such as software engineering, developers and programmers. Australian employers are also very welcoming of workers coming on 457 visas and business skills innovation visas because it gives them a much wider pool of talent to draw from when it is possible to source staff from the population of the entire globe rather than being limited to Australia’s national borders. It is not only the IT industry that benefits from policies which are more supportive of migration, it is also the biotech industry and many other fields which require staff with high level technical skills in science, technology and engineering.
Here is a list of the some of the most prominent Australians that were born in another country and migrated here:
Julia Gillard (First Female Australian Prime Minister, Born in England)
Tony Abbott (Australian Opposition Leader, Born in England)
The Bee Gees (Musical Group, Migrants from England)
Frank Lowy (Co-founder of Westfield, Refugee from Czechoslovakia)
The Honourable James Spigelman (Chief Justice of the Supreme Court of New South Wales, Polish-born refugee)
Ahn Do (Actor and Comedian, Vietnamese Refugee)
Dr Karl Kruszelnicki (Science Communicator, Born to Polish Refugee Parents)
A Common Experience in the United States
Comparing Australia to its larger cousin in political and economic terms, the United States, research there indicates that migrants are 6% more likely to hold a patent than the general population. The majority of PhDs in engineering in the United States are now granted to people born overseas. The list of notable migrants to the United States is also impressive and their contribution to the scientific and technological development of that nation cannot be under estimated, here are some of the many who have made a great contribution:
Albert Einstein (Discoverer Theory of Relativity)
Nicola Tesla (Discoverer of AC Current)
Sergey Brin (Co-founder of Google, Inc.)
Madeleine Albright (Secretary of State, Born in Czechoslovakia 1937)
Felix Frankfurter (Supreme Court Justice, born in Austria in 1882)
Subranhmanyan Chandrasekhar (1983 Nobel laureate for Physics, born in India in 1910)
The benefits which obviously flow from migration are also evident in the advocacy conducted by the IT industry on migration issues there. In a bid to address the problems being created as a result of having am estimated 10 million people in the United States illegally Mark Zuckerberg, the founder of Facebook created the political advocacy group FWD.us.
It has obviously been a common experience in the US and in Australia that migration is beneficial to the industries which are dependent on innovation, science and technology. If you would like more information please do not hesitate to contact us using the contact form to the right.
In the 2011 budget speech, the Australian Government announced that it would allocate 16 000 skilled migration places to regional areas of Australia. This initiative will be complemented by Regional Migration Agreements for communities with skill shortages, and the introduction of Enterprise Migration Agreements to enable large resource projects to gain readier access to temporary overseas labour to meet skilled vacancies that cannot be met locally.
In addition to this, Perth (the capital of Western Australia and a city of 1.7 million people) will, for the purposes of skilled migration, be considered a regional city. This action was taken because of widespread skill shortages in Western Australia. This provides employers in Western Australia an easier avenue to recruit skilled workers from overseas and gives skilled temporary visa holders in Perth a more streamlined pathway to permanent migration.
A new points test for General Skilled Migration applicants came into effect on 1 July 2011. The points test is a mechanism used to select skilled migrants expected to offer the greatest economic benefit to Australia. Points are awarded to applicants who have certain skills, attributes and qualifications. Compared with the previous test, the new points test does not give undue weight to any one factor and recognises a broader range of skills and attributes, focussing on:
better English levels
more extensive skilled employment
higher level qualifications obtained in Australia and overseas
better targeted age ranges.
The new points test will continue to award points for study in Australia, including regional study, community languages, partner skills and completing an approved Professional Year. Points will no longer be awarded for specific occupations, although all applicants must still nominate an occupation on the
In 2011, the Australian Government announced that a new skilled migrant selection register, SkillSelect, will be introduced from 1 July 2012. It is designed to ensure Australia can select the best and brightest skilled migrants from a pool of prospective migrants. It will be based on an electronic two-stage process whereby prospective
migrants first submit an expression of interest and may then be invited by the department to make a skilled migration visa application.
Latest figures show that the number of 457 visa applications jumped by 9.5 per cent this year, while the number of 457 visas granted grew by 6.6 per cent.
The figures back the Gillard Government’s decision to take action to close loopholes in the 457 program to ensure that local jobseekers are not disadvantaged by unscrupulous employers bringing in temporary workers from overseas.
“These January figures show that after the traditional December lull, 457s have continued to increase,” Minister for Immigration and Citizenship Brendan O’Connor said.
“At January 31, there were more than 105,000 people in Australia working on temporary 457 visas. That is an increase of 22.4 per cent compared to January 2012.
“The overall trend is clear – more people are coming in on temporary skilled worker visas. This comes at a time when the unemployment rate is flat, not dropping.
“We know that in the IT industry, for example, 457 visas have increased by 68 per cent while vacancies for local IT workers are decreasing.
“The Gillard Government will not sit idly by while Australian citizens and permanent skilled migrants lose out to unscrupulous employers.
“That’s why we are reforming the 457 program to:
Make business sponsors declare that they will commit to employing Australian citizens
Make training Australian citizens an enforceable requirement of 457 applications
Make employers show that the position is genuine
Restrict the number of workers that a business can sponsor
Tighten the definitions of eligible positions
Strengthen the market rate provision to stop undercutting of local conditions
Tighten on-hiring arrangements so that sponsors cannot bring someone in and then let them work for an unrelated company at a different salary.
