Cancellation and kids

I received this in a CCH news alert email today - a very interesting case about the interests of family members in the context of a visa cancellation based on bad character:

Cancellation of visa; legitimate expectations, 22 October 2012

23 October 2012

The Federal Court has further explained the Article in the United Nations Convention which (relevant to Australia and its decision-makers) requires that the best interests of the child shall be a primary consideration. The case was Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, concerning a delegate’s decision to cancel the appellant’s visa under s 501(2) of the Migration Act 1958 (Cth) on the basis of a “substantial criminal record”. In an unsuccessful appeal to a full court of the Federal Court, the full court said that the appellant (father of three children who lived with other family members) had misstated the effect of the observations of Mason CJ and Deane J in the 1995 High Court case Teoh. The full court said that it agreed with the following analysis by Tracey J of that aspect of Teoh inBasile v Minister for Immigration and Citizenship (2011) 193 FCR 329: “Teoh does not require that the best interests of Mr Basile’s children must be given temporal primacy over the other three primary considerations which are identified in the Direction. The case stands for the proposition that, by ratifying the United Nations Convention on the Rights of the Child 1989, done at New York on 20 November 1989 (the Convention), the Australian government has represented that it will act conformably with the terms of the Convention. One of its Articles provided that, in all actions concerning children, administrative authorities of the State would ensure that ‘the best interests of the child shall be a primary consideration’ (emphasis added). Although the Convention had not become part of domestic law, its ratification gave rise to a legitimate expectation that administrative decision-makers would comply with it and would not fail to do so without first affording an affected person the opportunity to argue that the decision-maker should treat the interests of a child as a primary consideration. It was not held that an Australian administrative decision-maker must always accord primacy to the interests of any relevant child much less that such a consideration must be brought into account before any other considerations are selected and weighed by the decision-maker.” In Baker, the full court also held that the primary judge was correct to emphasise the need to appreciate that it is usual for administrative decision-makers (and indeed others) to express their reasons sequentially. For example, expressions of conclusion in a particular sequence did not necessarily indicate that there has been a failure to consider the evidence as a whole.

Lots of changes

There have been lots of changes implemented from 1 July 2012. In fact there are so many that it is very difficult to blog about them all. Nevertheless some of the highlights are:

1. There is now a points test for the Business Innovation and Investment Program (the old business skills visas) - details on that points test can be found by clicking here
2. The new Consolidated Skills Occupation List (CSOL) has been published (IMMI 12/039). It is in two sections - Schedule 2 deals with employer and state sponsored occupations, while schedule 1 applies to most other visa subclasses;
3. There has also been a change to the processing priority (which will affect previously lodged applications) - click here for details; and
4. The Temporary Skilled Migration Income Threshold (TSMIT) which is relevant to 457 applications has been increased to $51,400 from 1 July 2012. The significance of the TSMIT is that employers are required to pay temporary entry visa holders the market rate for their position, but the market rate cannot be below the TSMIT.

New passmark

I have previously blogged about the new (starting on 1 July 2012) SkillSelect system.

It was announced on 15 June 2012 that the passmark for the SkillSelect visa subclasses will be 60 (down from the current 65). The current (or soon to be "old") system is going to remain open until 31 December 2012.

Also, although the new consolidated list of skilled occupations has not been announced, DIAC have made some minor changes to the existing SOL. It's not good news for chemists, audiologists, bricklayers and tilers, but it is good for mining production managers, metallurgists, optometrists and computer network engineers. Details on the new SOL can be found here.

Creative commons acknowledgement for the photo.

Significant Investor

The skilled visa program is not the only one currently under review. The old Business Skills visa program will be renamed to the Business, Innovation and Investment Program (I am sure that is not the only change!). 

As with the skilled visa program this one is being simplified and the number of visa classes is being reduced from 13 to 3. There will also be a new "significant investor" visa which will be for people with $5M to invest in Australia. 

An outline of the proposed changes is at the following link - Business Skills Program Reforms.

Creative commons acknowledgment for the photo.

New Pathways

Apart from being at the Conference where the Minister announced the changes I received the following editorial in an email from the Migration Alliance:

After a lengthy review, the Department of Immigration and Citizenship (DIAC) has announced that it will be revising the structure the permanent employer-sponsored visa program.

Announced by the minister for immigration and citizenship Chris Bowen on March 9, the changes will come into effect on July 1 2012.

This date has been chosen to coincide with the introduction of the new invitation-based SkillSelect migration scheme, which will require applicants to first submit an expression of interest to the DIAC.

Made up of the Employer Nomination Scheme (ENS), the Regional Sponsored Migration Scheme (RSMS) and the Labour Agreements initiative, the changes to the employer-sponsored program are designed to bring it closer in line the Australia's economic needs.

This will be achieved by making controls more responsive to labour market pressures by assigning the limited placements available to those individuals who "will make the
greatest contribution to Australia".

In particular, the DIAC said that the new measures will be of great benefit to regional communities, where "complex labour market conditions and limited labour
supply" can combine to make the smooth running of any enterprise a difficult prospect.

In order to achieve a more streamlined visa submission and review process, the DIAC will begin by reducing the number of relevant subclasses from six to two.

These will be the Employer Nomination (Class EN) Employer Nomination Scheme (subclass 186) and the Regional Employer Nomination (Class RN) Regional Sponsored Migration Scheme (subclass 187).

Inside these new subclasses will be three streams - Temporary Residence Transition, Direct Entry and Agreement - that reflect the nature of the applicant's situation.

Aiming to deliver a wider scope of applicants, the DIAC will also lift the maximum age qualifier to "less than 50 years".

On top of this, Temporary Business (Long Stay) subclass 457 visa holders will have access to a new, simplified pathway to permanent residency.

Where the current system has the capacity to make exceptions for applications that do not meet certain requirements, the new program will put in place more objective exemption criteria.

Submissions that contain exceptional outliers in age, skills or English language abilities will be able to make use of exemptions available in both the Temporary Residence and Direct Entry streams and will be calculated in relation to the applicant's occupation, wage and the length of they have been employed by their potential sponsor.

No changes will be made to the systems used to negotiate exceptions sought under the labour agreement stream - these must be negotiated in accordance with current guidelines.

See also:

Fact sheet on the changes

Comparison chart of current and proposed visa criteria

FAQ document

Changes to State Migration Plans

There have been a number of changes to the State migration plans (which are important if visa applicants are seeking state sponsorship for their general skilled migration applications).




Queensland

Details of the 2012 QLD State Migration Plan can be found by clicking here.
I am indebted to the MIA for it's notice to members which noted the following changes:

1. some trade occupations in welding, electrical and carpentry have been included;
2. IT professions have been removed (from the 176 list); and
3. nurses and surgeons have been removed while some allied professions have been added.

South Australia

South Australia has reached planning levels for:

• 233512 Mechanical Engineer
• 261111 ICT Business Analyst
• 261311 Analyst Programmer
• 511112 Program or Project Administrator
• 225213 ICT Sales Representative

The South Australian requirements for state sponsorship should be checked as well as there are some occupations where "special conditions" apply.


ACT (added on 31 Jan 2012)


The ACT government is also doing its annual overhaul of its SMP (state migration program). The following is an extract from an MIA Notice that was provided to members on 30 January 2012. I note that these changes don't yet appear to have made it to the ACT website - I am sure it will be updated in the not too distant future:

The ACT Government has now released its 2012 SMP Occupation List and associated guidelines. It is effective from 4 February 2012 for applicants intending to apply for ACT Sponsorship:

• There are significant changes to the SMP Occupation List. 160 Occupations have been removed and 5 occupations have been added. See attached list.
• There are significant changes to the Subclasses 176 / 886 guidelines which are summarised in the attached update.
• Of special interest to agents will be the ability to nominate overseas clients for "off list" occupations if they meet certain criteria. Also, the requirement to meet set financial criteria has been removed; and a waiver provision for work experience added.
• Applicants who wish to nominate an occupation on the 2011 list may apply online before 4 February 2012, and then submit their hard copy application to the Skilled and Business Migration (SBM) unit within 4 weeks.
• Applicants that currently have a pending application for ACT Government sponsorship will be assessed under the new guidelines.

Creative commons acknowledgment for photograph.

Good news for Argentinians....

From 29 February 2012, Argentine citizens aged 18-30 will be able to apply for a 462 Work and Holiday Visa  (not to be confused with the 417 Working Holiday Visa which is also available for citizens of some countries. Although both allow the holder to stay in Australia for a year (and to have some work rights) there are a few extra requirements on the eligibility for a 462.

Also, from 15 February 2012, visitors from Argentina and Brazil will be able to apply electronically for their tourist visas - see the DIAC Media Release.

Diplomatic relations with Sth American countries are obviously going well!

Australia Day Speech

I have set out below in full the Australia Day speech from prominent neuro-surgeon Dr Charlie Teo.

This speech was also published in the Sydney Morning Herald and the Canberra Times. I also provide a creative commons acknowledgement for the photograph.

Now the speech....

I had been in the USA for almost 10 years and was enjoying a blossoming career. I was an Associate Professor of Neurosurgery and Chief of Paediatric Neurosurgery at the Arkansas Children's Hospital. The previous Governor of Arkansas, Bill Clinton, had invested wisely in health infrastructure and the neurosurgical facilities at my hospital in Little Rock were world-class and represented one of the largest units of its kind in the world. I had been head-hunted around the continent and was in an enviable position of being able to navigate my academic future. Genevieve was pregnant with our fourth child and life was looking pretty good. Although Genevieve had been hinting at returning to Australia, she knew the academic track that I was on and with my ambition in full throttle, Genevieve and I were confident that a department chair was just around the corner. It was time we had an in-depth conversation about our future. It went like this: Genevieve to Charlie..."I'm going back to Australia. Are you coming?"