Coles and Woolworths are facing pressure to boycott suppliers linked to the exploitation of migrant workers, amid a push to address ongoing issues within the labour hire industry. The Australasian Centre for Corporate Responsibility (ACCR) has raised concerns with both supermarkets about the accreditation of labour-hire providers in their domestic supply chains. There are concerns the supermarkets are continuing trade with labour hire providers found to have violated Fair Work laws. Under Woolworths’ policies, a labour-hire provider must be accredited through one of three systems: the state licensing system for labour hire; be considered an approved employer on the Australian Government’s Seasonal Worker Programme; or be accredited by the certification scheme, StaffSure. The ACCR named Brisbane-based company Agri Labour Australia as one of several companies linked to claims of underpayment and poor working conditions. Last week, Agri Labour Australia Pty Ltd was forced to pay $50,823 to 19 Vanuatu nationals, who were employed under the Seasonal Worker Programme between December 2017 and April 2018. Despite the revelations, the company still has a working relationship with retailers who supply to Woolworths, is still licensed by the Queensland Government and certified by StaffSure. It is not however listed as an approved employer on the Australian Government’s Seasonal Worker Programme.
Two men with Indigenous heritage, but who were both born overseas, could be deported after they failed a migration character test, depending on the outcome of a High Court case which began on 8 May 2019. The Australian Government’s policy to deport an increasing number of people under the character test provisions has raised numerous complications for Indigenous people and those born in PNG before its independence in 1975. The two men in the separate High Court cases have at least one parent who is Indigenous and holds Australian citizenship. They both have Indigenous children, and one is a native title holder. However, neither formally applied for Australia citizenship and, after being convicted of ‘serious’ crimes and given jail sentences of 12 months or more, both had their visas cancelled under the government’s character test provisions. The High Court is now being asked to determine if an Aboriginal Australian in the men’s circumstances is an “alien” for the purposes of the Constitution. It is the first time the Court has been asked to rule on the commonwealth’s use of its alien powers in this way. In submissions to the Court, the men’s lawyers argued that Indigenous people “cannot be alien to Australia” and were “beyond the reach” of that constitutional power. The Australian government has submitted that whether the men were Indigenous or native title holders was “irrelevant” to the question of their alien status. They have said it was an agreed fact that neither plaintiff was a citizen and that “non-citizen” was the same as “alien”. Legal arguments began on Wednesday, with the government citing the High Court’s section 44 ruling on MPs with Australian citizenship concerns, and the men’s lawyers citing significant cases including the Mabo decision and the High Court ruling on a Papua-born man who was an Australian citizen by birth but who could be treated as an alien.
What is a Section 48 Bar? Section 48 of the Migration Act 1958 imposes limitations if the applicant’s substantive visa has been refused or cancelled while in Australia or the applicant does not currently hold a substantive visa. This provision (the s48 bar) prevents them from applying for most other Australian visas while in Australia and can have ramifications on their ability to remain in Australia legally. Section 48| Migration Act 1958 Section 48 Non-citizen refused a visa or whose visa is cancelled may only apply for particular visas (1) A non-citizen in the migration zone who: (a) does not hold a substantive visa; and (b) after last entering Australia: (i) was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or (ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q(regional sponsored employment visas); may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class. The s48 bar is only imposed when the applicant is in Australia. If the applicant is subject to the s48 bar, they can still apply for a limited number of substantive visas while onshore. These include: Child visas Partner visas Protection, Territorial Asylum or Border visas Medical treatment visas Bridging visas Resolution of Status visas The s48 bar will not apply if the applicant applies for a visa, does not meet the valid visa application criteria for whatever reason and the visa application is subsequently not considered or invalid. For eg. An incorrect departmental fee has been paid. Bridging Visa B If the applicant is on a Bridging Visa B and the Department of Home Affairs (the Department) has refused the substantive visa application, the applicant will not be able to get around the section 48 bar by leaving and re-entering Australia and making a new substantive visa application when they intend to return. The Department considers the applicant to be continuously residing in Australia despite any international travel. Review Rights If the government has refused or cancelled the visa and section 48 applies, the applicant may be able to appeal the decision in the Administrative Appeals Tribunal. The s48 bar does not prevent the applicant from departing Australia and applying for a subsequent visa. Getting Assistance If you need immigration advice and/or assistance, please ensure you speak to OMARA, or you can contact us with your query. At McKkrs, we provide CPD classes for RMAs and lawyers practicing migration law and would be happy to assist you where possible. Please contact us on (02) 4626 1002 or simply email us at admin@mckkrs.com.au.
Public interest criterion 4020 (“PIC 4020”) is particularly important for migration agents to understand. This visa criterion aims to prevent applicants providing false, misleading or fraudulent information in the process of applying for a visa. This does not necessarily have to be intentional; you could violate this criterion without meaning to. PIC 4020 can also impact the lodgement of future visa applications, so a risky move or a mistake may have serious, ongoing implications— whether you are an applicant or an agent. What visas are affected? PIC 4020 is a criterion which applies to most Australian visas including skilled, business, temporary, family and student visas. But it doesn’t just apply to the particular visa you are applying for at the time: it may apply in relation to a visa application or a visa that the applicant has held in the period of 12 months before the visa application is made. What is false and misleading information? If you submit information as part of a visa application, it will only be deemed false and misleading if it is false at the time it was given, and not if events transpire such that it later becomes false. It must also be information relevant to the making of the decision—whether or not the decision actually turns on that information. Examples of false or misleading information include: False or inaccurate statements, such as falsified work references; Omission of facts, such as not disclosing that a sponsor for a work visa is a relative; or Supplying false statements or information when asked to clarify information or omitting relevant information in a way that misrepresents facts, such as deliberately answering questions from the Department of Home Affairs incorrectly. What is a bogus document? A bogus document is one which has been altered form the original issued version, fraudulent, or obtained under false pretences. Examples of bogus documents may include: fake passports; fake birth certificates; doctored academic transcripts; or photo shopped images. Not being able to provide sufficient, valid supporting documentation can be a reason for a refusal of the lodged visa. Waiver There is an option for to apply for a waiver of this criterion, if you believe the applicant may not be able to satisfy the Department of you identity or if there have been ineligible documents submitted with their application. However, the Department will only grant a waiver in compelling or compassionate circumstances which affects Australian citizens or eligible New Zealanders. Non-grant periods A refusal under PIC 4020 grounds can have serious implications for the applicant and his family. If the visa is refused on these grounds, the applicant may be barred from re-entry to Australia on a visa for which PIC 4020 is a criterion for three years. If the applicant then fails to satisfy an officer of his identity, this may increase to ten years. What’s more, anyone listed as a member of the family unit may also be refused a visa. You as an agent may face these consequences if you submit bogus or misleading documents on behalf of the applicant to help his case. Getting Assistance If you need immigration advice and/or assistance, please ensure you speak to OMARA, or you can contact us with your query. At McKkrs, we provide CPD classes for RMAs and lawyers practicing migration law and would be happy to assist you where possible. Please contact us on (02) 4626 1002 or simply email us at admin@mckkrs.com.au.
Training Benchmarks still apply and sc457 sponsors must ensure that they meet this sponsorship obligation before applying for sc186 visa under the Transition Stream. Please note that Training Benchmarks still apply to all sc457 Sponsors who have or had sc457 visa holders working for them The Skilling Australia Fund (SAF) Levy applies to new nominations made after 12th August 2018 only on sc482, sc186 and sc187 visas. sc457 sponsor companies who wish to nominate workers on sc482 and sc186/ sc187 visas will need to provide evidence of having met their Training Benchmark obligations. Please also note that sc482 sponsors who had nominated workers after the implementation of sc482 but before the implementation of SAF on 12th August 2018 will also need to meet their Training Benchmark obligations. McKkr’s is a leading Training Benchmark B Provider and has successfully delivered training under Training Benchmark B to thousands of sponsoring companies and have helped RMAs. If you have missed training, please feel free to contact us. As part of our services of providing Free Auditable Training Plan for Training Benchmark B, we are also now providing Free Submissions to support Training Benchmark gaps and other issues in relation to Training Benchmarks for RMAs to help their clients. We have over 1000 courses to choose from to suit any industry and occupation and have 100% success rate for Training Benchmark B. Do not risk sc187 and sc186 applications under TRT by not meeting Training Benchmark obligations.
Migration Regulations 1994 Schedule 4 PIC 4002 amendment. The ‘Security Requirement document’ has been removed from PIC 4002 on LEGENDcom and superseded by the Security Checking Handbook (SCH). The SCH covers all the information that was contained in the Security Requirement document but is far more comprehensive. The SCH sets out the procedures officers must follow for security checking. Due to its subject matter the SCH is not publically available or on LEGENDcom.
Users of ImmiAccount should note planned maintenance of ImmiAccount scheduled for 8 May 2019 between 5am and 8am. The following services will not be available during this period: ImmiAccount eLodgement (Online visa and citizenship applications) My Health Declarations service eMedical Visa Entitlement Verification Online LEGENDcom Australian Trusted Trader Employment Suitability Clearances Detention Visitor Application APEC Business Travel Card Humanitarian Entrants Management System Adult Migrant English Program Reporting and Management System Education Provider Report Visa Pricing Estimator Departmental websites
The University of Tasmania (UTAS) will review its international student recruitment and admission practices after an ABC Four Corners program broadcast on 6 May 2019 exposed its processes. The Four Corners program examined the UTAS application of Medium of Instruction (MoI) letters which are used as evidence to decide whether an international student had the necessary English skills to study at one of its campuses. In the wake of the allegations, UTAS said it will review international admission practises. A group of senior university staff will oversee UTAS admissions until the review’s recommendations are introduced. As an interim measure, MoIs will no longer be accepted as an alternative to the university’s English standards. This will only apply to students not already involved in an admissions process. Four Corners has also alleged other institutions are admitting students from overseas who are below the institution’s individual published English standards or who are being ‘granted entry through other means without taking an independent English test’.
Direction No 82 provides priority processing by allowing a Sponsor to become an approved sponsor with accredited status. The new Direction commenced on 27 March 2019 but has just been added to LEGENDCom. It includes the following provisions: Order for considering applications Paragraphs (a) to (d) of this item, set out the order of priority for considering TSS nomination and visa applications and subclass 457 nomination and visa applications (that is, the priority to be awarded when allocating such applications for assessment by a decision-maker), with paragraph (a) being the highest priority and paragraph (d) being the lowest priority: (a) nomination applications lodged by approved sponsors with Accredited Status and related visa applications; (b) nomination applications lodged for positions that are located in a regional Australia (as defined in subregulation 5.19(16) of the Regulations) and related visa applications; (c) nomination applications lodged under the Labour Agreement stream of the TSS visa program (subclass 482 visa); (d) all other nominations and visa applications lodged under the TSS visa program (subclass 482 visa).
Direction No 81 sets the order of processing of applications for visa subclasses 186, 187, 189, 190 and 489 and sets the order of processing of nomination applications for visa subclasses 186 and 187. The new Direction commenced on 27 March 2019 but has just been added to LEGENDCom. It includes the following provisions: Order for considering nominations The following processing priorities (with highest priority listed first) should be given due regard to in relation to nominations for visas that are specified in Schedule A and Schedule B. a)nominations lodged on or after 18 March 2018; b) nominations lodged before 18 March 2018. Within these priorities, the following processing priorities should be given due regard: a) nominations lodged in relation to a Subclass 186 (Employer Nomination Scheme) visa by an employer who is a party to a labour agreement under a Designated Area Migration Agreement or a Global Talent Scheme agreement; b) nominations lodged in relation to a Subclass 187 (Regional Sponsored Migration Scheme) visa. Within this priority, nominations lodged by approved sponsors with Accredited Status should be given precedence; c) nominations lodged in relation to a Subclass 186 (Employer Nomination Scheme) visa where the nominated position is located in regional Australia. Within this priority, nominations by an approved sponsor with Accredited Status, and nominations lodged by a party to a labour agreement not mentioned in paragraph (a), are to be given precedence; d) all other nominations. Within this priority, Subclass 186 (Employer Nomination Scheme) nominations by an approved sponsor with Accredited Status, and nominations lodged by a party to a labour agreement not mentioned in paragraphs (a) or (c), are to be given precedence. Order for considering visa applications The following processing priorities (with highest priority listed first) should be given due regard to in relation to applications for visas that are specified in Schedule A and Schedule B: a)applications lodged on or after 18 March 2018; b)applications lodged before 18 March 2018. Within these priorities, the following processing priorities should be applied: a) visa applications for a Subclass 186 (Employer Nomination Scheme) visa where the applicant is nominated by an employer who is a party to a labour agreement under a Designated Area Migration Agreement or a Global Talent Scheme agreement. b) visa applications for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Within this priority, visa applications where the applicant is nominated by an approved sponsor with Accredited Status are to be given precedence; c) visa applications for a Subclass 186 (Employer Nomination Scheme) visa where the nominated position is located in regional Australia. Within this priority, visa applications where the applicant is nominated by an approved sponsor with Accredited Status, or nominated by a party to a labour agreement not mentioned in paragraph (a) above, are to be given precedence; d) visa applications for a Subclass 489 (Skilled – Regional (Provisional)) visa where the applicant is nominated by a State or Territory government agency; e) visa applications for a Subclass 489 (Skilled – Regional (Provisional)) visa where the applicant is sponsored by an eligible relative; f) visa applications for a Subclass 190 (Skilled – Nominated) visa; g) visa applications where the visa applicant is sponsored or nominated by employers. Within this priority, Subclass 186 (Employer Nomination Scheme) visa applications where the applicant is nominated by an approved sponsor with Accredited Status, or nominated by a party to a labour agreement not mentioned in paragraphs (a) or (c) above, have precedence; h) visa applications where the applicant’s nominated occupation is on the Medium and Long-term Strategic Skills List and applications for Subclass 885 (Skilled – Independent), Subclass 886 (Skilled – Sponsored) and Subclass 487 (Skilled – Regional Sponsored) visas. Within this priority, Subclass 189 (Skilled – Independent) visa applications in the Points-test stream are to be given precedence; i) all other visa applications.