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Strengthened Character Test

Current Update – 11 March 2021

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Alex Hawke announced a new Ministerial Direction (MD) 90 has been issued – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

Ministerial Direction 90 requires crimes or conduct involving family violence to be given primary consideration in decisionmaking. The following crimes or conduct are to be considered as very serious:

  • violent and/or sexual crimes
  • crimes of a violent nature against women and children, regardless of the sentence imposed
  • acts of family violence, regardless of the sentence imposed (a broad list of examples of actions that may be considered family violence are provided).

The following crimes or conduct are consider to be serious:

  • causing a person to enter into a forced marriage, regardless of whether convicted of an offence or the sentence imposed
  • crimes against vulnerable people such as the elderly, disabled, government representatives or officials
  • crimes committed in immigration detention, during an escape or after escape from a detention centre
  • crimes against humanity, people trafficking and worker exploitation

The new MD 90 comes into effect on 15 April 2021 and MD 79 remains in effect until that time.

The full Ministerial Direction 90 is available here but is not yet available on Legend.

For all immigration and family services assistance needed please contact us immediately.

Partner Visa Change Bill: Only Subclass 309 Visas Affected

Details of the Partner Visa Change Bill were released today which target proposed changes to the partner visa program to avoid mandatory offshore activity due to the COVID19 pandemic to a single visa. Subclass 309 Visas are affected. 

The “Migration Amendment (Common Sense Partner Visa) Act 2020”, a private members bill by MP Julian Hill, targets a single visa – the subclass 309 temporary partner visa, and alters the legislation to enable that visa to be granted regardless of whether the applicant is onshore in Australia or offshore. Currently, applicants for this visa must be offshore at the time of grant of the visa.

Contact us immediately if the Partner Visa Change Bill Subclass 309 Visa may affect you and your spouse. We can help guide you through the complex and difficult immigration process due to COVID-19 changes. 

While the bill, if enacted, would address travel restriction concerns for subclass 309 applicants, this bill does not extend the benefit of onshore grants to other visa subclasses including:

  • Prospective Marriage (subclass 300), Adoption (subclass 102)
  • Child (subclass 101)
  • Dependent Child (Subclass 445) 

 The Department of Home Affairs has indicated it will be changed in 2021 to allow visa grant while onshore in Australia:

“It is intended that changes will be implemented in early 2021 that would allow certain family visas, which have been applied for outside Australia, to be granted while the visa applicant is in Australia.  This temporary concession will be for people who are in Australia and are not able to travel offshore to be granted the visa due to COVID-19 related border closures.” (DHA Website Statement – https://covid19.homeaffairs.gov.au/covid-19-visa-concessions)

A significant issue facing onshore partner visa applicants who have been unable to leave Australia is the Schedule 3 criteria which affect onshore partner visa applicants who hold only a bridging visa or no visa. The threshold for a waiver of the Schedule 3 criteria has increased considerably in recent years, and a temporary waiver of enforcement of the Schedule 3 conditions has not been formally proposed. 

Subclass 300 Prospective Marriage Visa (PMV)

Offshore subclass 300 Prospective Marriage Visa (PMV) applicants and visa holders remain concerned that as fiances of Australians are not given an automatic exemption from the travel ban to Australia, any hopes of entering Australia on a PMV are remote at present. 

The Australian partner visa program is set to undergo the most substantial changes in years in 2021 when. The requirements for these visas will be changed to include:

  • An English test
  • Splitting of the sponsor application and visa application
  • Thus, creating a scenario where a sponsor must first apply for a sponsorship application prior to a visa applicant being able to apply for a partner visa and receiving a bridging visa allowing the applicant to remain in Australia from that point until the partner visa is decided.

 Implementation of these changes is planned for 2021, however, no specific information has been announced as to when in 2021 these changes will be made.

Shakenovsky & Associates will provide updated coverage of changes in immigration policy and requirements as they develop. Visit our immigration law services page often and contact us directly with any questions about your personal situation. 

Exemptions from English Test

Exemptions from English Test requirements when applying for the Temporary Skill Shortage visa (subclass 482) to prove English language proficiency are applied if one of the following apply:

  • You are a passport holder from:
    • Canada
    • New Zealand
    • the Republic of Ireland
    • the United Kingdom
    • the United States of America
  • You have completed at least 5 years of full-time study in at least a secondary level institution and where most classes were in English. We need the following information:
    • name and location of the institution/s
    • level of qualification/s
    • official transcript from the secondary and/or tertiary institution
    • number of contact hours per week in English
    • number of years of study
  • Your nominated occupation in Australia will be performed at:
    • diplomatic or consular mission of another country
    • an Office of the Authorities of Taiwan
  • Your nominated occupation requires you to:
    • to hold a license, registration or membership
    • you were granted the license, registration, or membership
    • you had to prove that you had equal or higher English language proficiency than that listed in the table below to be granted the license, registration or membership
  • You are:
    • an employee of an overseas business
    • the business or its associated entity has nominated you to work in Australia
    • you will receive a guaranteed annual earnings of at least AUD96,400

View the exact details about the exemptions from English Test on the Australia Home Affairs website, learn more about our Immigration Law services and our team. We’re standing by to help you and your family immigrate and live in Australia.

Jobactive Requirement Summary

Jobactive requirement summary (Subclass 457, 482 and 494/Subclass 186 and 187).

Clients must ensure that advertising on Jobactive use the platform correctly and undertake the required full 28 days of advertising. There have been reports that advertisements on JobActive are for 14 days by default and therefore it is recommended to tick the correct box to extend the period when publishing the ad to meet the 28 days requirement. The Jobactive site can also take several days to post the adverts and this should be taken into account when placing the advertisements. As always, we are standing by to help you with all your Jobactive questions and concerns. Contact our team anytime and we’ll gladly help.

  • Jobactive advertising is mandatory for Subclass 457, 482 and SC 494.
  • Jobactive advertising is an ADDITIONAL requirement to the current Labour Market Testing (LMT) requirements of having 2 advertisements i.e. A total of THREE advertisements must be placed.
  • The advertising criteria is the same for all LMT adverts including that on Jobactive
  • International Trade Obligation (ITO) exemptions apply to LMT including the Jobactive advert for SC 457 and SC 482 only.
  • LMT and Jobactive requirement not needed for nominations for a select occupation or a select position to which alternative evidence arrangements apply.
  • An ABN is required to advertise through Jobactive. Those Overseas Business Sponsors (OBS) required to undertake LMT will need to authorise a suitable Australian company to place the advertisements for them.
  • The new requirement to advertise on Jobactive applies to nominations lodged on or after 1 October 2020.

SC 186 and 187

  • There is no direct LMT requirement for SC 186 and SC 187 however, the Australian Government has an expectation that positions will be advertised on Jobactive for SC 186 and 187 to demonstrate that there is a genuine need for an overseas worker to fill that position. Genuine need criterion is under 5.19(9)(d) for DE and 5.19(5)(k) for TRT.
  • JobActive for SC186 and 187 is expected to apply to all positions. NO exemptions for ITO and select position or select occupation arrangements will apply.
  • It is not clear whether the advertisement on Jobactive must follow the same advertising requirements as LMT for SC 457, 482 and SC 494 but safer to assume that the same requirements apply.
  • It is not clear when the expectation to advertise on Jobactive commences however, it is not thought to be retrospective and most likely will apply to nominations lodged on or after 1 October 2020 as per the SC 457, 482 and 494 requirements.
  • If you have received an RFI, requesting that the position be advertised in order to meet a genuine need, it is recommended the required evidence be provided as the Department may refuse the application, if no information is provided.
  • Procedural instructions will be updated to reflect the new arrangements in due course.
  • The MIA has contacted the Department to clarify aspects of the Jobactive expectation for ENS and RSMS. Once we have further information we will let members know.

Subclasses 190 & 491 Nominations

A small number of places have been allocated to the States and Territories for Subclasses 190 and 491 nominations and the Business Innovation and Investment classes up until the Federal Budget on 6 October 2020.

The Department has provided the MIA with the specific number of interim allocated places for each State and Territory for subclasses 190, 491 and the Business Innovation and Investment program, please see below.

Visit our Immigration Law Services page for my information about how we can help you or your family migrate and stay in Australia.

State & Territorysc 190sc 491 & 489BIIP
ACT250454
NSW550150200
VIC600200400
QLD200200160
NT80805
WA2004070
SA300600180
TAS2504005
Total243017151024

Further Inbound Travel Exemptions

Further inbound travel exemptions were announced on the Australian Department of Home Affair’s COVID mini site has been updated today to allow additional categories of persons to be automatically exempt from travel restrictions and can enter Australia, without obtaining an individual exemption.

Those exempt from requiring individual exemptions are:

  • an Australian citizen
  • a permanent resident of Australia
  • an immediate family member of an Australian citizen or permanent resident*
  • a New Zealand citizen usually resident in Australia and their immediate family members
  • a diplomat accredited to Australia (holding a subclass 995 visa)
  • a traveller transiting Australia for 72 hours or less
  • airline crew
  • maritime crew including marine pilots
  • recruited under the Government approved Seasonal Worker Program or Pacific Labour Scheme
  • holder of a Business Innovation and Investment (subclass 188) visa

Further information on the requirements for these exemptions is available on the Department’s site. Contact our team for all of your Immigration Law concerns. We’re standing by to help you!