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)
“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.
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.
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.
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
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
On 2 September 2020, the Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon Alan Tudge MP, and the Minister for Employment, Skills, Small and Family Business, Senator the Hon Michaelia Cash, announced the introduction of a new priority skills list and strengthened labour market testing requirements.
Priority Migration Skilled Occupation List
The occupations included on the Priority Migration Skilled Occupation List (PMSOL) were identified based on advice from the National Skills Commission, and in consultation with other relevant Commonwealth agencies, and will be reviewed regularly.
Existing skilled migration occupation lists will remain active and applications will still be processed, but priority will be given to those relating to occupations on the PMSOL. Prioritisation of applications relating to PMSOL occupations will only apply to employer sponsored visa programs.
Ministerial Directions pursuant to section 499 of the Migration Act 1958
To prioritise processing occupations on the PMSOL, Ministerial Directions 87 and 88 have been effected and can be found here.
Enhanced labour market testing
Current labour market testing (LMT) requirements have been enhanced to ensure that Australian workers are prioritised for job opportunities in Australia.
The existing instrument LIN 18/036: Period, manner and evidence of labour market testing has been amended to reflect these enhancements. The amending instrument can be found on the Federal Register of Legislation.
As a result of the amendment, businesses that are considering employing overseas skilled workers on a Subclass 457 (Temporary Work (Skilled)) visa, Subclass 482 (Temporary Skill Shortage) visa, or Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa, will be required to advertise their vacancies on the Jobactive website (http://www.jobactive.gov.au) in addition to the two other advertisements that must be published in line with existing requirements.
The enhanced labour market testing requirements apply to nominations lodged on or after 1 October 2020 to ensure that appropriately skilled Australian citizens and permanent residents are given work opportunities before overseas workers when a business nominates a vacancy.
The amendment will not affect nominations lodged prior to 1 October 2020, or nominations for a select occupation or a select position to which alternative evidence arrangements apply.
Registered migration agents are asked to advise their clients of the new requirements as a matter of urgency to allow advertisements for upcoming positions to be placed on Jobactive, with applications for the positions able to be accepted for at least four weeks as per existing LMT requirements.
Nominations lodged on or after 1 October 2020 without evidence of a Jobactive advertisement that satisfies all existing LMT requirements, such as those in relation to position details and duration, cannot be approved. There are no provisions in regulation 2.73AA or 2.73C that allow for refunds of the nomination fee or Skilling Australians Fund (SAF) levy where a nomination is refused or withdrawn due to failure to satisfy the LMT requirement.
Given the economic impacts of COVID-19, registered migration agents are also advised that the Australian Government has an expectation that positions will be advertised on Jobactive before seeking to nominate an overseas worker for a permanent employer sponsored visa (subclass 186 or 187), in order to demonstrate that there is a genuine need for an overseas worker to fill that position.
In addition, to ensure that job opportunities for Australian workers are being prioritised, the Department will be further scrutinising ENS and RSMS nominations in relation to Australian workers employed by the business in similar occupations, including:
recruitment of temporary visa holders beyond the ordinary scope of the business.
retrenchments in the previous 12 months
reduction of hours worked during the previous 12 months
reduction in pay and conditions within the previous 12 months
employment of a temporary visa holder on conditions less favourable than Australians
Further information can be found on the Department’s website. If you are an overseas worker looking to migrate to Australia contact our team. We have helped hundreds of people with our 40 years of experience and immigration law services.
The relevant procedural instructions will be updated to reflect the new arrangements in due course.
For offshore visa applicants, Australia’s international border restrictions remain in place (currently only Australian citizens, permanent residents and their immediate families are permitted to enter unless an exemption is granted).