It will be well-known to RMAs that a person who fails to lodge an application for a new substantive visa with the Department before an existing visa has expired may encounter major difficulties in obtaining the new visa. 

These difficulties may be posed by the need to comply with the criteria of Schedule 3 of the Migration Regulations.  For example, Clause 3004 of Schedule 3 provides that if the applicant has ceased to hold a substantive visa (or criminal justice visa) at any time after 1 September 1994, the applicant must satisfy the Department , among other things, that she or he does not currently hold a substantive visa due to factors beyond her/his control; that there are compelling reasons for the grant of the new visa; and that the applicant has “complied substantially” with the conditions that applied to the last substantive visa that was held.

A decision of the Full Court of the Federal Court of Australia has clarified the meaning of clause 3004, and has explained the nature and extent of the “compliance” with the conditions of a person’s last substantive visa that must be achieved in order to satisfy clause 3004. This decision was made in the case of Montero v Minister for Immigration and Border Protection, (2014) FCAFC 170 (12 December 2014).

The following information has just been received from the DIBP:

Dear Agent

As you have been advised, legislative changes came into effect on 1 July 2015 which will limit nominations for permanent visas for Minister of Religion (ANZSCO 272211) to the Agreement Stream of the Employer Nomination Scheme (Subclass 186 visa). The Department would like to clarify the impact of these legislative changes.

Legislation to change the Migration Act will be introduced into parliament next month by independent South Australian senator Nick Xenophon to create a visa which could allow an estimated 40,000 foreigners to work in special migration zones in regional Australia.

Specifically targeted at ‘economically challenged’ regions of Australia including South Australia and Tasmania, the proposal is supported by several industry groups, The groups say the measures will boost population growth, revive regional towns and create between ‘1.3 to 1.6 jobs for every job filled’ by a foreigner, according to a report in The Australian

 “This program will be a win-win for struggling areas of the nation — boosting the local economy and boosting jobs in the process,” said Senator Xenophon. He believes the program would particularly help address the jobs crisis facing South Australia, where unemployment is at a 15-year high.

National Farmers Federation manager of workplace relations Sarah McKinnon told The Australian that the 457 visa program and the seasonal worker program used by backpackers did not accommodate semi-skilled workers. Without an agriculture-related degree, foreign workers are ineligible for 457-visa sponsorship by a farm employer.

“Across industry there is a need for this particular level of skill that we can’t always find in the local labour market and there is no visa that provides for it,” she said.

Peak horticultural growers’ group Ausveg said the challenge would be to identify a migration zone that covered regional areas most in need. “Many farms struggle to find labour, it is a huge concern for industry that they don’t have access to that labour force to harvest the fruit and vegetables that we consume,” Ausveg deputy chief executive Andrew White said.

Can a person who is not the primary applicant for a visa that has been refused, and is not even aware that the visa application has been made on their behalf, be subject to a bar under section 48 of the Act when they make a further visa application?

The Full Court considered this question in the case of Minister v Immigration and Border Protection v Kim, (2014) FCAFC 47 (24 April 2014). The decision in the case is important for RMAs who are advising visa applicants who were previously “secondary applicants” on a visa application that was refused.

The factual background of this case was that the visa applicant, Ms Kim, had first arrived in Australia from South Korea when she was a small child, less than 3 years old. When she was 5 years old (in 2008), her father lodged an application for an “Other Family (Residence) (subclass 835)” visa. Ms Kim was included as a member of her father’s family unit in this application. Of course, Ms Kim was not aware that she had been included in this visa application, and the “blocks” on the application form above her name had been signed on her behalf by her father.  This application was refused by the Department.  Nonetheless, Ms Kim apparently remained “onshore” with the status of an unlawful non-citizen.

The occupational ceilings for the skilled migration programme for the 2015-16 financial year were announced earlier this month with the quota for several occupations notably accountants, air-conditioning/refrigeration mechanics, engineering managers, electronic Trades Workers, Auditors and nurses falling sharply.

Rising sharply in numbers is the demand for Early Childhood Teachers, Medical Laboratory Scientists and several trades occupations including Metal Fitters, Wall/Floor Tilers, Plumbers and Painting Trade workers.

Registered nurses remain the most wanted occupation in the Australian workforce if you go by the occupational ceiling numbers. The occupational ceiling for registered nurses however dropped by almost 8% or 1170 places in the latest skilled migration programme.

Panelbeaters and Cabinetmakers made a debut with 1134 and 1530 places respectively.

Occupational ceilings limit how many invitations to apply are issued by the Department of Immigration each year for general skilled migration for a particular occupation. This is to ensure that the migration program is not dominated by a small number of occupations. Generally, applicants with an Expression of Interest in occupational groups which have reached their ceiling will not be invited to apply for a visa but however will remain in the EOI pool for two years from the date of submission, or until they are selected to apply when a fresh quota is issued.

The DIBP generally distributes grants over the programmeto to "ensure availability of invitations across the programme year" particularly for occupations for where applications are high in demand. It has listed the following occupations as being in high demand:

• ICT Business and System Analysts
• Software and Applications Programmers
• Accountants.

Occupational ceilings do not apply to Employer Sponsored or Business Innovation and Investment visa subclasses and have now also been removed for State or Territory Nominated, visa subclasses. Effectively this means that states can nominate occupations for Skilled Nominated Subclass 190 and Skilled Regional Subclass 489 visas even if the ceiling has been reached.