Australian Immigration Daily News

Dear Migration Agents
The following information was received today by email from the Migration Agents Policy Section,
Visa Framework & Family Policy Branch, Department of Immigration and Border Protection

Recently, you may have noticed when visiting a DIBP office that our processes have changed. With significant expansion and improvement of online lodgement options available to visa applicants and Registered Migration Agents, there is no longer any need to attend an office to lodge applications in person for most visa subclasses. An increasing number of visas can now be applied for on our website at www.immi.gov.au or alternatively, applications can be sent directly to the department by post.

If you choose to come in to Client Service Counters to apply for a visa we will receive the application at reception or through our dropbox, and email or post the payment receipt and decision notification letter in due course. Alternatively, you may be given the option to apply for the visa online using one of our internet kiosks where appropriate.

Despite heavy endorsement across all parties, the NSW Same-Sex Marriage Bill has failed to get through in the Upper House.

The debate was held on the NSW Cross Party Marriage Equality Working Group Private Member's Bill this morning at NSW Parliament House.

The Bill which was initially introduced by frontbencher Penny Sharpe from the ALP on 1 November, was debated for about two hours before a vote was called.

Members such as Michael Veitch and Sarah Mitchell implored that the House consider ending the discrimination and voting in favour of the Bill.  Penny Sharpe and Helen Westwood told personal stories and made suggestions that it was time for change.

Other members of the Upper House were vocal in their opposition of same-sex marriage, with Liberal Party Right-Winger, David Clarke saying “I am opposed to same-sex marriage for a host of reasons and will not, now, or ever support same sex marriage”.  David Clarke is a Catholic and his wife is part of Opus Dei. 

At the end of the day it did not pass.  So for all those migration agents out there that thought that gay marriage might be a way of showing that a same-sex couple are in a genuine and continuing relationship....nope.  For all those couples wanting to tie the knot then submit subclass 820 and 801 partner visa applications on the basis of marriage, the end of that plan is already here.

News update 26/11/2014:  This is fast becoming a High Court Battle  - Australia is watching

I have to say that I was sent information today about the sad situation of an asylum seeker by the name of Latika and her son Farus.  In fact, I find the situation completely abhorrent.   This woman is located in a Brisbane detention centre.  Her status is 'OTHER'.   Latifa is called an 'illegal'.  Farus lays in the Mater hospital, sick with a respiratory illness whilst his mother is kept away from him for 18 hours a day in a detention centre.

Latifa is a person outside the protection of the law and yet at exactly the same time is constrained by the law.  At the very least, the government is not respecting her dignity as a human being, let alone as a mother and a woman.

According to the Explanatory statement accompanying the amendment; from 23rd of November, 2013 onwards companies intending to sponsor 457 workers will have to:

· undertake labour market testing in relation to a nominated occupation, in a manner consistent with Australia's international trade obligations;

· require the Minister to be satisfied that a suitably qualified Australian citizen, Australian permanent resident or eligible temporary visa holder is not readily available to fill the nominated position;

· provide the evidence required in relation to labour market testing which is to accompany an application for a nomination;

· provide that if one or more Australian citizens or Australian permanent residents were, in the previous 4 months, made redundant or retrenched from positions in the nominated occupation in a business, or an associated entity, of the approved sponsor, require the approved sponsor to provide information about those redundancies or retrenchments with the nomination;

· ensure that if there have been redundancies or retrenchments, the labour market testing must be undertaken after those redundancies and retrenchments;

· clarify that if the approved sponsor elects to provide evidence and information other than evidence of advertising and fees, or payment of fees, to support their claim to have tested the labour market, the Minister may take that evidence and information into account. But if the approved sponsor elects not to provide such other evidence or information, the Minister is not to treat the nomination less favourably merely because of that fact;

· provide exemptions from labour market testing in circumstances where there has been a major disaster, or the skill level of the nominated occupation is equivalent to Skill level 1 or Skill Level 2 as provided for in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) (except for protected qualifications or protected experience);

· in relation to exemptions from labour market testing- provide for the Minister, by way of legislative instrument, to specify the occupations and for such legislative instruments to be subject to disallowance by either House of the Parliament;
 

The new subsection 140GBA(3) of the Migration Act provides that the labour market testing condition is satisfied if:

·          the Minister is satisfied that the approved sponsor has undertaken labour market testing in relation to the nominated position within a period determined by the Minister, by legislative instrument, in relation to the nominated occupation; and

·          the nomination is accompanied by:

o    evidence in relation to that labour market testing (see subsection 140GBA(5) and (6)); and

o    if one or more Australian citizens or Australian permanent residents were, in the previous 4 months, made redundant or retrenched from positions in the nominated occupation in a business, or an associated entity, of the approved sponsor - information about those redundancies or retrenchments; and

·          having regard to that evidence and information (if any), the Minister is satisfied that:

o    a suitably qualified and experienced Australian citizen or Australian permanent resident is not readily available to fill the nominated position; and

o    a suitably qualified and experienced eligible temporary visa holder is not readily available to fill the nominated position.

 
New subsection 140GBA(5) of the Migration Act provides the following regarding the evidence in relation to labour market testing :

·          must include the information about the approved sponsor's attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position and any other similar positions (see also subsection 140GBA(6)); and

·          may also include other evidence, such as:

o    copies of, or references to, any research released in the previous 4 months relating to labour market trends generally and in relation to the nominated occupation; or

o    expressions of support from Commonwealth, State and Territory government authorities with responsibility for employment matters; or

o    any other type of evidence determined by the Minister by legislative instrument.

The above requirements have the potential to impact a number of business sectors, some professional and management occupations would be exempt, but they would be required to be explicitly listed in a legislative instrument as being exempt.

The full impact of any Labour Market Testing will only be known several months into its operation.

Thanks to Karl Konrad's Immigration News for this information.

Update: 14/11/2013 - Christopher Levingston informs me this decision has been appealed!

The Federal Circuit Court's Judge Cameron handed down a judgement on the 24 Sept 2013 which will be of great interest to migration agents.  The case can be viewed on Austlii "Kim v Minister for Immigration & Anor [2013] FCCA 1433".  Interestingly this case is about  the finding that there was a defective notification of a migration decision against the Minister for Immigration and Border Protection and his Department.

The Federal Circuit Court found in favour of the applicant.  It found that where an applicant provides two addresses for notification in their visa application, any communication from the Department of Immigration and Border Protection (“DIBP”) must be sent to both addresses and not just one.