Australian Immigration Daily News

Insufficient evidence of Labour Market Testing (LMT) is now becoming common reason for applications receiving an unfavourable outcome.  Whilst the Instrument that dictates  LMT framework has been in effect since August 2018, there is still level of confusion in terms of the type of supporting documentation considered to be sufficient in order to satisfy this requirement. A number of agents have addressed their concerns as well as questions relating to LMT criteria. 

Below are some of the common questions surrounding LMT:

Do I need to submit evidence of LMT as part of my subclass 186 – Employer Nomination Scheme?

Skills Assessments are an integral part of visa application process.  This week, Legal Training Australia in partnership with ANMAC provided a presentation to Migration Agents discussing ANMAC skills assessment process including common pitfalls associated with lodging a skills assessment application, the assessment process as well as review rights.

For agents who were unable to attend due to the event being sold out, below is a recap of the webinar.

Only programs of study that are accredited by ANMAC and approved by the Nursing and Midwifery Board of Australia will lead to registration in Australia as a nurse or midwife under the approved qualification pathway of the Health Practitioner Regulation Act (2009).

Migration Alliance has previously reported on the introduction of two skilled regional visas, subclass 494 and 491 respectively.  Accompanying legislation will introduce several changes to skilled migration from 16 November 2019 including awarding additional points to certain applicants.

These amendments introduce a revised points system for subclass 491 visa as well as existing General Skilled Migration visas (that is, subclass 189 and 190 visas).  Points are awarded for attributes that are linked with the applicant’s ability to make the greatest economic contribution, as the key purpose of the skilled migration program is to maximise the economic benefits of migration to Australia.  The changes to the points test are to introduce:

• more points for having a skilled spouse or de facto partner (10 points);
• more points for applicants nominated by a State or Territory government or sponsored by a family member residing in regional Australia (15 points);
• more points for having certain STEM qualifications (10 points);
• points for applicants who do not have a spouse or de facto partner (10 points); and
• points for applicants with a spouse or de facto partner who has competent English (5 points).

Currently, Skilled Independent (189) and Skilled Regional (489) visas are sitting at a minimum 80-point score.  This means that applicants who lodged their EOI which is below 80 points are unlikely to receive an invitation in the next round.

It is incredibly (incredibly!) rare for a decision of a Department officer not to “waive” the infamous “no further stay” condition (Condition 8503) that it is Big News (even when the decision of the Court is a couple of months old, as it is in the case described in this article – Nguyen v Minister for Immigration (2019) FCCA 572 (8 March 2019).

The reason that this decision is Big News is that it provides guidance as to when a decision of a Department officer not to grant the waiver can be successfully challenged.

Recall importantly that such decisions are not “AAT-reviewable”: in order to challenge such a decision, it is necessary to seek judicial review in the Federal Circuit Court and to demonstrate that the delegate’s decision to refuse the waiver was affected by jurisdictional error – for example that the Department officer has “misconstrued” Regulation 2.05(4), which provides that a waiver may be granted if since the grant of the visa containing the 8503 condition, compelling and compassionate circumstances have developed  over which the visa holder had no control.

There may be certain situations where a client file may be handed from one agent to another.  For example, if a matter becomes too complex and current agent is no longer in the position to assist their client, or a client may terminate their relationship with the agent (and vice versa).  It is therefore vital for registered migration agents to have systems and processes in place to ensure that a when client file is handed over to another agent, this is done in line with the Code of Conduct.

Unfortunately, recent sanctions published on OMARA website indicate that some agents do not appear to have such processes in place which results in consequences including but not limited to sanctions, bar or cancellation of the agent’s registration.  In the ever-evolving nature of immigration law, which is becoming more complex and unpredictable, it is understandable why clients may choose to "shop" and go through a number of different agents in order to achieve their desired outcome.

Part 4 of the Code states that before accepting immigration work, a registered migration agent must consider whether he or she is qualified to give the advice sought by the client.  A referral may be made, for example, if a registered migration agent is asked for advice on matters for which he or she does not regularly provide immigration assistance.  Further, a registered migration agent must not encourage another agent’s client to use the first agent’s services, for example by denigrating other agents or offering services that the first agent cannot, or does not intend to, provide.