Agriculture visa subclass 403 is a visa program specially designed for farmer workers to come to Australia and work in farms. Agriculture visa is now merged with the subclass 408 Pacific Labour Scheme (PALM) and is only available to passport holders of certain Pacific Island countries.

The agriculture visa subclass 403 is a temporary work (International Relations) visa with a PR (permanent resident) pathway. This visa supports Australia’s agricultural and primary industry sectors with farm workers shortage.

Agriculture visa subclass 403 allows workers in a range of agriculture sectors and skill levels from certain Southeast Asia countries to work in Australia.

Applicants for the agriculture visa subclass 403 must be sponsored and work with approved employers. This new visa allows for more flexibility by allowing workers to change their employer (employer must be a TAS).

The agriculture visa program is managed by the DFAT and the Department of Home Affairs is responsible for sponsorship and visa applications. The Fair Work Ombudsman is responsible for making sure workers on this visa is protected from employers attempting to abuse their rights.

Which agriculture sectors can you work?

The agriculture visa subclass 403 allows you to work in the following agriculture sectors (including support and primary processing):

• Horticulture
• Dairy
• Wool
• Grains
• Fisheries
• forestry

Who can apply for agriculture visa subclass 403?

This visa is for those who are skilled, semi-skilled and low-skilled workers within specified occupations across the above sectors. You must have the experience and/or qualifications at the skill level and occupation.

You can only apply for the agriculture visa subclass 403 if you holds a passport from certain selected countries that participate in this program.

What are the requirements to apply for agriculture visa subclass 403?

You must:

• have the necessary skills to perform the job you are offered
• English proficiency, for e.g., at least average of 4.0 in IELTS (higher if the occupation requires it)
• not bring your family members
• be at least 21 (no maximum age requirement)
• be sponsored by a TAS
• supported by DFAT
• meet character and health requirements
• have health insurance

Temporary Activity Sponsor

You can only apply for this visa if your employer is approved as a Temporary Activity Sponsor or TAS, usually approved for up to 5 years.

A TAS must be an Australian company operating in Australia. They cannot be an individual, sole trader. TAS must be able to meet their sponsorship obligations, have a good business record, obey Australian laws.

To become a TAS, your sponsor must be approved by DFAT. However, employers wishing to employ agriculture visa subclass 403 visa holders who are already in Australia need to be approved to participate in the program but are not required to be a TAS.

Employers wanting to participate in the agriculture visa subclass 403 program must:

• become an approved employer by showing they are currently an approved employer under the PALM scheme; or currently accredited under an endorsed industry accreditation scheme and is financially solvent and comply with Fair Work Ombudsman requirements; or applied to become an approved employer under the agriculture visa subclass 403 program, is financially solvent and comply with Fair Work Ombudsman requirements
• sign a Deed of Agreement with DFAT setting out their obligations, including worker protections, conditions and standards

TAS procedure to employ agriculture workers

Once approved to become a TAS, the process of recruiting workers involves:

• provide DFAT with LMT
• provide DFAT with recruitment, accommodation (workers can seek their own accommodation) and transport plan to DFTA
• provider workers with an offer of employment that set out information about the nature of the employment, wages and conditions, and arrangements allowing workers to change employers
• provide pre-departure briefing, including information on life, culture and workplace rights in Australia and rights and obligations under the agriculture visa subclass 403 program

Once the above is completed, the TAS must arrange for visas and travel for the workers; offer DFAT approved accommodation options; and provide on-arrival briefing to the workers; invite the Fair Work Ombudsman and any relevant union representative to be present.

Other visa programs for the agriculture sectors

As from March 2022 (subject to change without notice), the Department has provided flexibility for visa holders working in agriculture sector, they include:

• allowing international students (subclass 500 – click here for more information) to work more than 40 hours per fortnight
• allowing Working Holiday Makers (click here to learn more about this visa) to be exempted from the 6 months limitation working for 1 employer
• permitting Working Holiday Makers to apply for further visa to continue working in agriculture for another 12 months
• permitting workers under the Pacific Labour Scheme (PALM) and Seasonal Worker program to further employment in the agriculture sector and to work for more than 1 approved employer
• allowing visa holders who are in Australia and with work rights to apply for COVID-19 Pandemic Event (subclass 408 – click here to learn more) visa to extend their stay for another 12 months

How long will the agriculture visa subclass 403 last?

You can apply to be a short-term or seasonal work, you will be granted up to 9 months in every 12 months. You can apply for a visa for up to 4 years to undertake seasonal work every year. You will be required to return home after each season. Your employer will need to offer you certain minimum hours of work.

Long-term applicants will be granted a visa for between 1 and 4 years. Your employer will need to offer you full-time employment.

PR pathway

There is a PR pathway, including regional settlement, for workers holding agriculture visa subclass 403.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you decide if you are eligible to apply for the agriculture visa subclass 403.

0412224020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Agriculture visa subclass 403 | How to apply appeared first on Ozzie Visa.

Character test under section 501 can be used discretionary to refuse a visa application or to cancel a visa.

Discretionary visa refusal or cancellation

Character test under section 501 provides that a visa application may be refused if the applicant does not satisfy the decision maker that they pass the character test. Similarly, if the decision maker reasonably suspects that a visa holder does not pass the character test, and the visa holder does not satisfy the decision maker that they pass the character test.

The character test under section 501(6) requires the decision maker to determine whether or not the person passes the character test according to the prescribed circumstances. If a person does not pass 1 ground, then they do not pass the character test.

Unresolved or pending criminal matters

If a person already failed the character test then any other outstanding criminal matter would not generally prevent visa refusal or cancellation under section 501.

However, if a person who does not already fail the character test and is subject of unresolved or pending criminal charges in Australia, would not generally be considered under section 501 until the charges have been finalised.

If a person is in Australia, and they are facing criminal charges in another country which cannot be resolved without their presence in that country, the conduct that is the subject of the criminal charges may be considered under section 501(6)(c)(i) and/or (ii).

If the applicant does not pass the character test, their visa applicant will be refused under section 501(1).

If the visa holder does not pass the section 501 character test, their visa will be cancelled under section 501(2).

Mandatory visa cancellation

Section 501(3A) requires the decision maker to cancel a person’s visa because they have a substantial criminal record (section 501(6)(a)) because the person has been sentenced to death, imprisonment for life, or sentenced to 12 months or more imprisonment (section 501(7)(a), (b) or (c)); or involved in sexually based offences involving a child (section 501(6)(e)). The sentence must be a full-time custodial sentence.

Whether a person is liable for mandatory visa cancellation, “serving a sentence of imprisonment, on a full-time basis” does not include periodic detention or home or residential detention.

A person who has been servicing a full-time sentence and is allowed to participate in a work release scheme, or is allowed home visits is liable for mandatory cancellation.

The mandatory cancellation is only activated when a decision maker makes a finding that they are satisfied that section 501(3A)(a) and (b) are met. Once the decision maker is satisfied, they must cancel the person’s visa.

The intention of mandatory cancellation of those who are in prison is to make sure they do not pose a risk to the safety of the Australian community and they are to remain in either in prison or in immigration detention until that risk has been assessed.

Substantial criminal record

Section 501(6)(1) provides that a person does not pass the character test if they have a substantial criminal record as defined in section 501(7).

A person has a substantial criminal record if:

• sentenced to death; or
• sentenced to imprisonment for life; or
• sentenced to a term of imprisonment of 12 months or more; or
• sentenced to 2 or more terms of imprisonment totally 12 months (eg, sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently, the total of those terms is 6 months); or
• acquitted of an offence on the grounds of unsound mind or insanity; and has been detained in a facility or institution; or
• found by a court to not be fit to plead and has been detained in a facility or institution.

Immigration detention offences

If a person who has been convicted of an offence that was committed while in immigration detention; or while escaping from immigration detention or after escaping from immigration detention but before been taken into immigration detention again, they will not pass the character test (section 501(6)(aa) & (ab)).

A person does not pass the character test if convicted of an offence against section 197A.

Membership/Association

Under section 501(6)(b), if the Minister reasonably suspects you have been or is a member of a group or organisation, or you have or have had an association with a group, organisation or person which or who has been, or is, involved in criminal conduct, then you do not pass the character test.

Minister’s suspicion

The Minister’s suspicion does not have to be a certainty or a belief. However, the suspicion must be more than a speculation or idle wondering. The Minister’s suspicion must be reasonable, it should be:

(a). a suspicion that a reasonable person could hold in the particular circumstances; and

(b). based on an objective consideration of relevant material.

Belonging to a criminal group or organisation

If you belongs to a group or organisation, the Minister is required to have evidence to establish reasonable suspicion of your membership which depends on the circumstances of the case. The Minister is not required to assess whether you are sympathetic with, supportive of, or involved in the criminal conduct of the group or organisation. It is enough that the Minister has reasonable suspicion that:

(a). you have been, or is a member of a group or organisation; and

(b). the group or organisation has been, or is, involved in criminal conduct.

Associating or associated to a criminal group or organisation

Unlike belonging to a group or organisation, under the association limb of the character test, the Minister is only required to have a reasonable suspicion that you were sympathetic with, supportive of, or involved in the criminal conduct of the person, group or organisation to fail the character test. However, mere knowledge of the criminality of the associate is not, in itself, enough to establish association. The association must have some negative bearing upon your character.

You should note some information concerning association cannot be disclosed if the disclosure might put the life or safety of informants or other people at risk.

Involvement in certain criminal activities

Under section 501(6)(ba), you do not pass the character test if the Minister reasonably suspects that you have been, or is involved in, conduct constituting 1 or more of the following:

(a).      people smuggling (described in sections 233A to 234A);

(b).     trafficking in persons;

(c).      genocide, a crime against humanity, a war crime, a crime involving torture or slavery  or a crime of serious international concern.

You should note that you can fail this limb of the character test even if you have not been convicted of an offence constituted by the conduct.

Not of good character due to past and present criminal or general conduct

Under section 501(6)(c)(i) and (ii), you do not pass the character test if you are not of good conduct because of your past and present criminal and/or because of your past and present general conduct.

Conduct can be both general and criminal at the same time or it may either general or criminal conduct (Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 440 at [33]).

The Minister can consider that you are not a person of good character when all the relevant circumstances of the particular case are taken into account to obtain a complete picture of your character.

What is of good character?

The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not just a matter of repute, fame or standing in the community. The words “of good character” refer to the continuing performance according to moral principle. For example, a person of ill repute because of their past criminal conduct may, on objective examination at a later stage in life, be shown to be a person reformed and now of good character (Godley v MIMIA (2004) 83 ALD 411 at [34]).

You can fail this limb of the character test even if you do not have a recent criminal conviction, or have been involved in recent general conduct which could indicate that you are not of “good character”. However, your conduct in question must be sufficient to indicate a lack of enduring moral quality that outweights any consideration of more recent good behaviour. So, the nature of your criminal conduct must be examined and assessed as to its degree of moral culpability or turpitude. In addition, the Minister must examine your past and present criminal conduct to establish that at the time of decision, you are not of good character. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that you are not of good character.

Furthermore, before past and present general conduct is taken to reveal indicia that you are not of good character, your continuing conduct must be shown a lack of enduring moral quality (Godley v MIMIA (2004) 83 ALD 411).

What is past and present criminal conduct

Whether you are not of good character because of your past or present criminal conduct, the Minister will take the following into consideration:

(a).      the nature and severity of your criminal conduct;

(b).     the frequency of your offending and whether there is any trend of increasing seriousness;

(c).      the cumulative effect of repeated offending;

(d).     any circumstances surrounding the criminal conduct which may explain the conduct, for example, the sentencing judge’s comments, parole reports and other authoritative documents; and

(e).      your conduct since your most recent offence, including:

          (i).      the length of time since last criminal offending;

          (ii).      any evidence of recidivism or continuing association with criminals;

          (iii).     any pattern of similar criminal conduct;

          (iv).     any pattern of continued or blatant disregard or contempt for the law;

          (v).      any conduct which may indicate character reform.

What is past and present general conduct

Past and present general conduct refers to situation where convictions may not have been recorded or when your conduct may not have constituted a criminal offence. However, the relevant circumstances of the particular case are to be taken into consideration, including evidence of rehabilitation and any relevant periods of good conduct.

The Minister may consider the following factors to determine whether you are not of good character:

(a).      whether you have been involved in activities indicating contempt or disregard for the law or for human rights. This includes (not unlimited to):

          (i). involving in terrorist activity, trafficking or possession of trafficable quantities of proscribed substances, political extremism, extortion, fraud; or

          (ii). having a history of serious breaches of immigration law, breach of visa conditions or visa overstay in Australia or in another country; or

          (iii). involved in war crimes or crimes against humanity.

(b).      whether you have been removed or deported from Australia or another country

(c).      whether you have been:

          (i). dishonourably discharged; or

          (ii). discharged prematurely

          from the armed forces as a result of disciplinary action or serious misconduct

In addition, if you are in Australia and charges have been brought against you in another country, and those charges will only be resolved if you return to that country, that conduct may be considered against your overall character.

Risk in regards to future conduct

Under section 501(6)(d), you do not pass the character test if there is a risk that you would engage in below conduct. However, there must be evidence suggesting that there is more than a minimal or remote chance that you, if you would engage in the below conduct. Section 501(6)(d) cannot be applied to the past conduct because there must be a risk that you would engage in the below conduct in the future.

Future conduct (section 501(6)(d))

1. Engage in criminal conduct in Australia – a criminal conviction could be recorded (section 501(6)(d)(i))
2. Risk of harassing, molesting, intimidating or stalking another person in Australia (section 501(6)(d)(ii)). Conduct and behaviour that may fall under this category include (but not limited to):

(a). conduct that could be construed as harassment or intimidation which does not necessary breach an AVO or DVO

(b). conduct that could potentially places children in danger, for example, unwelcome and/o inappropriate approaches through electronic media and other means

(c). conduct that would reasonably cause a person to be severely apprehensive, fearful, alarmed or distressed regarding your behaviour or alleged behaviour towards an individual, or in relation to their property.

• Risk of vilifying a segment of the community, of inciting discord or of representing a danger through involvement in disruptive and/or violent activities (section 501(6)(d)(iii), (iv) and (v)). Factors to be considered include (but not limited to) evidence that you:

(a). would hold or advocate extremist views such as a belief in the use of violence as a legitimate means of political expression

(b). would vilify a part of the community

(c). have a record of encouraging disregard for law and order (for eg, when addressing public rallies)

(d). have engaged or threatens to engage in conduct likely to be incompatible with the smooth operation of a multicultural society (for eg, advocating that particular ethnic groups should adopt certain political, social or religious values outside those generally acceptable, and if adopted or practised, might lead to discord within those groups or between those groups and other segment of the society

(e). participates in, or is active in promoting politically motivated violence or criminal violence and/or is likely to propagate or encourage such action in Australia

(f). likely to provoke civil unrest because of the conjunction of your intended activities and proposed timing of your presence in Australia with those of another person, group or organisation holding opposing views.

You should note that section 501(6)(d)(iii) to (v) is balanced with freedom of expression. The Minister cannot refuse or cancel your visa simply because you hold and are likely to express unpopular opinions unless those opinions may attract strong expressions of community disagreement and condemnation.

Sexually based offences involving a child

Under section 501(6)(e), you will not pass the character test if a court in any country has convicted you of 1 or more sexually bas offences involving a child or found you guilty of such an offence, or found a charge proven, even if you were discharged without conviction or regardless of the level of penalty or orders made in relation to the offence.

What are sexually based offences involving a child?

They include (but not limited to):

(a). child sexual abuse

(b). indecent dealings with a child

(c). possessing or distributing child pornography

(d). internet grooming

(e). other non-contact carriage service offences

Crimes under International Humanitarian Law

You will not pass the character test if you have in any country been charged with or indicted for 1 or more of the following offence (section 501(6)(f)):

• Crime of genocide
• Crime against humanity
• War crime
• Crime involving torture or slavery
• Crime that is otherwise of serious international concern

National security risk

If ASIO has assessed you to be directly or indirectly a risk to security (section 4 of the ASIO Act 1979, then you will not pass the character test (section 501(6)(g)).

Certain Interpol notices

Under section 501(6)(h), you will not pass the character test if an Interpol notice in relation to you is in force as this infer that you would present a risk to the Australian community or a segment of that community.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (consultation fee applies) regarding the character test under section 501 or click here to learn more about Direction No 90.

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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Character test under section 501 explained appeared first on Ozzie Visa.

188B visa Victoria nomination is for people who are willing to invest at least $2.5m into complying investments and to maintain business and/or investment activity in Victoria.

The 188B visa Victoria nomination is valid for up to 5 years and can apply for permanent residence (click here to learn more about Subclass 888 visa) after 3 years.

There is no processing fee for Subclass 188B visa Victoria nomination and the processing time is approximately 20 business day.

To apply for the 188B visa Victoria nomination you must satisfy:

Eligible requirements

• you must not be over 55 at the time of application
• you must score at least 80 points in the points test (click here to calculate your points)
• you must live in Victoria for at least 2 years while holding the Subclass 188B visa
• you must make a complying investment of at least $2.5m

Complying investments in Victoria

To be eligible for 188B visa Victoria nomination, you must make a complying investment of at least $2.5m, comprising of:

• 20% in eligible Victorian Venture Capital and Private Growth Equity (VCPE) funds; $500,000 will be invested in start-up and small private companies; VCPE is Victorian based Early Stage Venture Capital Limited Partnership (ESVCLP), Venture Capital Ltd Partnership (VCLP) or a Fund of Funds (AFOF); VCPE must be unconditionally registered with the Dept of Ind, Science, Energy and Resources.
• 30% in eligible managed funds or Listed Investment Companies (LICs); $750,000 must be invested in emerging companies
• 50% or $1.25m must be invested in balancing investments in managed funds or LICs that invest in eligible assets, for e.g., Australian listed securities, eligible corporate bonds or notes, annuities and real property;  eligible complying investments (emerging companies and balancing) must make a contribution to the Victorian economy and investment must be made into businesses, infrastructure, projects or ventures

Nomination obligations

If you are successful with 188B visa Victoria nomination, you are required to sign and comply with your nomination obligations.

Your nomination cannot be transferred to another state or territory, in short, you must invest in Victoria and must not live (including your family) in other states or territories.

Permanent residence pathway

188B visa Victoria nomination is a temporary or provisional visa valid for 5 years, you must satisfy the below requirements to apply for the permanent Investor Subclass 888 visa.

Evidence of complying investments

You must provide evidence of having made and maintain at least $2.5m complying investments.

While holding your Subclass 188B visa, you can change your investments provided you continue to maintain at least $2.5m amount and continue to meet the complying investment rules.

Keep Victoria Government informed

You are required to notify the Victoria Government of any changes to your contact details.

You must participate in any Victoria Government surveys.

Comply with nomination obligations

You must comply with your 188B visa Victoria nomination obligations.

Commitment to Victoria

You must live in Victoria for at least 2 years before applying for Subclass 888 visa. You are required to buy or rent a residential home. Staying with friends is not accepted.

Nomination refusals

If your 188B visa Victoria nomination is refused, you will not be able to submit a new application for 6 months or request for a review of your application, unless there was an administrative error in your refusal.

Renomination

You cannot request the Victoria Government to renominate you if:

• your EOI was incorrect
• your nomination has expired and you did not submit your Subclass 188B visa application within 60 days

However, you can submit a new 188B visa Victoria nomination.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies).

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

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Direction No 99 is the Ministerial Direction provides consideration for the decision maker to consider when refusing or cancelling a visa under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

Direction No 99 replaces Direction No 90. Like other Ministerial Directions, Direction No 99 is given by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs under section 499 of the Migration Act 1958.

Direction No 90 has been replaced by Direction No 99 (effective on 3 March 2023). Direction No 99 allows the strength, nature and duration of ties to Australia to be considered as a primary consideration. Hence, will be given more weight by the decision-makers. What this mean is, the level of tolerance will increase with the length of you have spent in Australia, especially if you have been living here as a child. Whereas, under Direction No 90 these factors were considered as “other considerations” and not given much weight.

The Migration Act 1958 regulate, in Australia interest, the presence of non-citizens in the country. A non-citizen who does not pass the character test is liable to have his or her visa application refused or their visa cancelled.

Section 501(1) prescribes that a non-citizen may be refused a visa if they do not pass the character test. Similarly, under section 501(2), a non-citizen may have their visa cancelled if they do not pass the character test.

When the discretion to refuse or to cancel a visa is activated, the decision maker must consider the specific circumstances of the case in deciding whether to refuse or cancel the visa. In short, the decision maker must be satisfied that the person passes the character test (because of the operation of section 501(6)(a) on the basis of section 501(7)(a), (b) or (c) or section 501(6)(e)) or servicing a sentence of full-time imprisonment for an offence against an Australian law.

Where the visa holder has their visa cancelled under section 501(3A), they may request for the cancellation order be revoked under section 501CA. If the decision maker is not satisfied that the non-citizen passes the character test, the decision maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.

Purpose of Direction No 99

The purpose of Direction No 99 is to direct the decision maker in deciding whether to refuse or to cancel a visa (under section 501) or revoke a cancelled visa (under section 501CA). The decision maker must comply with Direction No 99 (section 499(2)).

Direction No 99 contains factors that the decision maker must consider when deciding whether to refuse or cancel a visa or whether or not to revoke a cancelled visa.

Principles of Direction No 99

The principles of Direction No 99 are:

• Australia has a right to determine whether non-citizens who are of character concern be allowed to enter and/or remain in the country.
• Non-citizens who engage or have engaged in criminal or other serious conduct may be denied the privilege of coming to, or removed from, Australia.
• Australian community expect that the Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in, whether in Australia or elsewhere, conduct that raises serious character concerns.
• Australia has a low tolerance of any criminal or other serious conduct of non-citizens who contribute to the Australian community only for a short period of time. Those who have lived in the Australian community for most of their life, or from a very young age may be afforded a higher level of tolerance of criminal or other serious conduct.
• Decision makers must take into account the primary and other considerations relevant to the individual case. In cases where the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may not be enough to justify not refusing or cancelling the visa, or revoking a mandatory visa cancellation. For example, family violence conduct even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

Exercising Direction No 99 discretion

The decision maker should give appropriate weight for both primary and other considerations. However, primary considerations are generally given greater weight than the other considerations; and 1 or more primary considerations may outweigh other primary considerations.

Direction No 99 Primary Considerations

There are 4 primary considerations in the Direction No 99 which the decision maker has to take into consideration when making a decision under section 501(1), 501(2) or 501CA(4).

1. Protection of the Australian community. Australian government is committed to protecting the community from harm from non-citizens’ criminal activity or serious conduct. Staying in Australia is a privilege for non-citizens who must be law abiding, respecting important institutions and will not cause or threaten hard to individuals or the Australian community. This is the expectation the Australian government have on non-citizens wanting to enter or remain in Australia.

The decision maker will give consideration to the nature and seriousness of the non-citizen’s conduct and the risk of the Australian community if the non-citizen commit further offences or engage in other serious conduct.

• The nature and seriousness of the conduct. The decision maker when considering the non-citizen’s criminal offending or other conduct, must have regard to (not exhaustive):

Very serious conduct

1. whether the conduct is related to violent and/or sexual crimes
2. whether the violent crimes is against women or children, regardless of the sentence imposed
3. whether the conduct is an act of family violence, regardless of whether there is a conviction or a sentence imposed

Serious conduct

1. causing or being a party to a forced marriage, regardless of whether there is a conviction or a sentence imposed
2. committing a crime against vulnerable people, for e.g., elderly and the disabled, or government representatives or officials because of the position they hold, or in the performance of their duties
3. any conduct that forms the basis that the non-citizen does not pass an aspect of the character test (section 501(6)(c))
4. a crime committed while in immigration detention or while escaping or having escaped from immigration detention (section 197A prohibiting escaping from immigration detention)

• a sentence imposed by the courts for a crime(s)
• how often did the non-citizen offended
• is the offending becoming more serious
• the cumulative effect of repeated offending
• whether the non-citizen has provided false or misleading information to the Department, including not disclosing prior criminal offending
• if the non-citizen has been formally warned, or being made aware, in writing, reoffended (if there was no formal warning, it is not considered to be in the non-citizen’s favour)

• The risk to the Australian community if there is further offences or engage in other serious conduct. Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, hence any risk that may be repeated may be unacceptable. The decision maker must have regard to:
• the nature of the harm if the non-citizen engage in further criminal or other serious conduct by considering information and evidence on the risk of re-offending; and evidence of rehabilitation completed, time spent in the community since most recent offence

When deciding whether to grant a visa, the decision maker must consider whether the risk of harm may be affected by the duration and purpose of the intended stay, the type of visa applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Family violence

The Australian government has serious concerns of people who engage in family violence. Those who has been convicted, found guilty or had charges proven that involve family violence; and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence and has been afforded procedural fairness, is relevant consideration under section 501 or section 501CA.

Seriousness of the family violence

The following factors will be used to determine the seriousness of the family violence:

1. the frequency of the conduct and/or whether there is any trend of increasing seriousness
2. the cumulative effect of repeated acts of family violence
3. whether the non-citizen has been rehabilitated since the last known act of family violence; and
4. whether the non-citizen has accepted responsibility for their conduct
5. to what extent the non-citizen understands the impact of their behaviour on the victim and witness of that abuse, particularly children
6. efforts to address factors which contributed to their family violence conduct
7. whether the non-citizen has re-offended after family violence conduct is known and warned (absence of warning is not considered to be in the non-citizen’s favour)

Best interests of minor children in Australia affected by the decision

The decision maker has to consider whether the best interests of a child (under 18) is affected by section 501 visa refusal or cancellation or section 501CA non-revocation of visa cancellation. If there is more than 1 child, then each child’s best interests will be considered as their interests may differ.

Best interests of minor children – factors

1. nature and duration of their relationship. Less weight will be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including an existing Court order restricting contact)
2. what role the non-citizen is likely to play a positive parental role in the child’s future (up to 18) (including an existing Court orders relating to parental access and care arrangements)
3. the impact of prior conduct, and likely future conduct, and whether that conduct has, or will have a negative impact on the child
4. the likely effect of their separation and the ability for them to maintain contact in other ways
5. whether there are other persons fulfilling a parental role
6. child’s views (weight depends on age and maturity of the child)
7. evidence whether the child has been, or is at risk, or exposed to, family violence, or has been abused or neglected by the non-citizen in any way (physically, sexually or mentally)
8. evidence whether the child has suffered or experienced any physical or emotional trauma from the non-citizen’s conduct

Expectations of the Australian community

Australian community expects non-citizens to obey Australian laws. The community expects the Australian government not to allow non-citizens who have engaged in serious conduct or where there is an unacceptable risk that they may do so, to enter or remain in Australia.

Australian community expects the government to refuse entry or cancel non-citizens’ visas if they raise serious character concerns through their conduct anywhere if their conduct (not necessarily involve physical harm to the community and the community generally) involve:

1. acts of family violence; or
2. forced marriage
3. committing serious crimes against women, children or other vulnerable members (e.g., elderly or disabled) of the community. Serious crimes include crimes of a violent or sexual nature; fraud, extortion, financial abuse/material exploitation or neglect against the elderly or disabled
4. crimes against government representatives or officials due to their position, or in the performance of their duties; or
5. suspected to, or involved in human trafficking or people smuggling, or in crimes that are of serious international concerns, for e.g., war crimes, crimes against humanity and slavery; or
6. worker exploitation

Other considerations

The decision maker when considering whether to refuse or cancel a visa or revoke a cancellation under section 501(1), 501(2) or 501CA(4), must also take into account:

1. Australia’s international non-refoulement obligations
2. the extent impediments if the non-citizen is to be removed
3. impact on victims
4. the non-citizen links to the Australian community (e.g., strength, nature and duration of ties to Australia) and the impact on Australian business interests.

International non-refoulement obligations

Non-refoulement means not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), the 1951 Convention relating to the Status of Refugees (Refugees Convention), and the International Covenant on Civil and Political Rights (the ICCPR).

It is relevant whether Australia has non-refoulement obligations (section 197C) because section 198 provides for the removal from Australia as soon as reasonably practicable, and section 189 requires unlawful non-citizens to be detent.

In addition, it does not mean when Australian non-refoulement obligation is enlivened, a visa cannot be refused or cancelled or mandatory visa cancellation must be revoked. This is because the non-citizen could be removed to another country where s/he does not face any risk of harm or the Minister can use his section 195A discretion to grant another visa or use section 197A discretion to make a residence determination to enable the non-citizen to live in a specific place in the community. Also, the non-citizen could also apply for a protection visa (click here to learn more about Subclass 866 visa) and will not be removed until the visa application is being determined.

Furthermore, international refoulement obligations will not be relevant unless the visa application or visa cancellation or revocation is a protection visa.

You should be aware that if the visa application or visa cancellation is a protection visa, you may not be able to lodge another protection visa application (section 48A) unless the Minister exercise his discretion under section 48B that section 48A does not apply to you. In addition, a visa application is refused or visa is cancelled under section 501 or visa cancellation is not revoked under section 501CA, you can only apply for a Bridging Visa Class WR (section 501E; r. 2.12AA).

Extent of impediments if removed

When considering whether to refuse or cancel or not to revoke your visa cancellation, the decision maker must consider the extent of any impediments you may face if you are deported back to your home country, for e.g., difficulty establishing yourself and maintaining basic living standards (comparing with local residents) taking into account your age, health; your language or cultural barriers; and any social, medical and/or economic support available to you in your home country.

Impact on victims

What this mean is if your visa application is refused or visa cancelled or your visa cancellation is not revoked, what is the impact  on members of the Australian community, including the victims  and their family of your criminal behaviour.

Links to the Australian community

If you have family members in Australia who are Australian citizens, PRs or having a right to remain definitely. The decision maker must consider the strength, nature and duration of these ties. Also, the nature of your family or social links with Australian citizens. The decision maker must consider how long you have lived in Australia. Less weigh will be given you start offending soon after arriving in Australia. More weight will be given to the time for contributing positively to the Australian community.

Impact on Australian business interests

The decision maker must consider if your visa application is refused or cancelled or cancellation is not revoked, and your employer’s business will be adversely affected because if you were not in Australia, it would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) or click here to decide whether to retain a registered immigration agent or a migration lawyer.

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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Direction No 99 | Visa refusal & Cancellation appeared first on Ozzie Visa.

188A visa Victoria nomination is the Business Innovation and Investment or BIIP (Provisional) visa allowing the holder to live and operate a business in Victoria.

To apply for the 188A visa you must be nominated by a State or Territory, for e.g., by the Victorian Government. The 188A visa is valid for up to 5 years (a further extension is permitted) and after 3 years you can apply for the permanent visa (click here to learn more about Subclass 888 visa).

Currently there is no cost imposed by the Victoria Government for the 188A visa Victoria nomination and the nomination processing time is around 20 business days.

In order to apply for the 188A visa Victoria nomination, you must satisfy:

Eligibility requirements

• be under 55 at the time of applying for the 188A visa, in some exceptional circumstances, the Victorian Government may waive the age requirement if you have an exceptional and innovative business proposal
• you must have vocational English (for e.g., at least 5 in each of the 4 test components in IELTS); exemption applies if you have completed at least a 3 year course taught in English and led to a degree (tertiary) qualification, or you have completed final year schooling in Singapore, Hong Kong, South Africa or NZ, or you completed other qualifications such as the International Baccalaureate or Cambridge Certificate of Proficiency in English
• completed a STEMM bachelor degree (Science, Technology, Engineering, Mathematics or Medicine), or a MBA
• have relevant 3 years business history (must be in a senior role, such as CEO or CFO in the last 10 years) if you do not have a STEMM degree, your business experience must be in health, medical research (e.g., providing medical services, or involved in medical education or R & D, and medical research can include drug development, clinical trials, health product manufacturing, medical devices and digital health) and life science (include medical technology, biotechnology and pharmaceutical, or food processing, nutraceuticals and cosmeceuticals), or digital (for e.g., health/medtech, digital games, AI and analytics, education tech, robotics and automation, agri tech, fintech, transport tech, cloud software / Saas, cybersecurity, smart cities and infrastructure tech, device software, energy and resources tech and GPS, imaging and geospatial) or agri-food (including food R & D, innovation in developing food growth, modernisation and innovation of the agri-food sector such as adopting technology and innovative packaging to improve storage life), or advanced manufacturing (embracing new advances in technology such as additive manufacturing / 3D printing, digital technologies, industry 4.0 technologies, robotic and automation; includes defence, automotive, pharmaceuticals, medical technologies, aerospace, rolling stock, zero emission vehicles, renewable energy, advanced materials and composites, food processing, off-site and modular construction and new emerging technologies such as green hydrogen and green steel), or new energy, emissions reduction and circular economy (includes industries such as energy, renewables, bioenergy, carbon capture and energy storage, recycling and waste reduction)
• score at least 65 points (click here to calculate your points)

Business requirements

• explain how your proposed business will contribute to the Victorian economy through innovation and job creation (you may be refused Subclass 888 nomination if this is not shown after been granted the 188A visa Victoria nomination)
• explain how your proposed business will contribute to innovation through innovations in either product or process (you may be refused Subclass 888 nomination if this is not shown after been granted the 188A visa Victoria nomination); process innovation is a new or significantly improved production or delivery method, including significant changes in technologies, equipment and/or software (processes already commonly used in Victoria is not considered process innovation; product innovation is a good or service that is new or significantly improved, including significant improvements in technical specifications, components and material, software in the product, user friendliness or other functional characteristics (selling innovative products are excluded)
• explain how your proposed business will create jobs (must employ at least 2 F/T resident employees (F/T is at least 30 hours per week or 20 hours P/T over 12 months with 2 months of vacation and casual is not accepted; employees cannot be related to you and must be Australian citizen or PR or NZ citizen); you may be refused Subclass 888 nomination if this is not shown after been granted the 188A visa Victoria nomination); however you could be exempted if your business’ turnover is at least $1m (including GST) per year for the 2 years before you apply for Subclass 888 visa

Exporting business

If you are proposing an exporting business for your 188A visa Victoria nomination, the exporting business must provide direct contribution to the Victorian economy but cannot be “parallel exporting” or “grey market”.

Parallel exporting or grey market is goods sold in an export market without the permission of the trademark owner. For e.g., if you buy wine from a wine supplier or wholesaler where the brands already having an existing and official export channels into the countries you intended to export. In this case, you must have evidence that shows the trademark owner is aware of, or agrees to you exporting the wine.

You are considered to be exporting if your business report at least $2,000 of export sales in BAS.

Business activities not accepted

Your proposed business activities cannot be:

• property development
• gift stores
• convenience stores
• cafes or restaurants

188A visa Victoria nomination obligations

If your 188A visa Victoria nomination is successful, you must sign and comply with the nomination conditions. This nomination cannot be transferred to another state or territory, you must operate your business in Victoria.

You and your spouse must live (cannot with friends) in Victoria, and you must actively manage the day-to-day operation of your business.

You must notify the Victorian Government of any changes to your contact details, and participate in any surveys.

Changing business activities after granted 188A visa

If there are some circumstances beyond your control and you need to change your proposed business activities, you will need notify the Victoria Government’s Skilled and Business Migration Program before changing.

Permanent residence pathway

Once you meet the requirements, you can apply for the permanent Business Innovation Subclass 888A visa. The requirements for Subclass 888A visa are:

• business performance – you must explain how your business contributed to the Victorian economy through innovation and job creation
• business innovation – you must explain how your business contributed to innovation in Victoria through either product or process innovation
• job creation – you must show how your business created jobs in Victoria by employing at least 2 F/T resident employees, unless your business’ turnover is at least $1m per year for the 2 years before applying for the 888A visa

Extending 188A visa Victoria nomination

The 188A visa is issued with a 5 year validity and if you need more time to fulfil the Subclass 888A visa criteria, you will need to apply for a Victorian Business Extension Subclass 188X visa nomination. There is no nomination fee and the processing time is usually about 10 days.

To be eligible for the Subclass 188X visa nomination, you must:

• hold a 188A visa Victoria nomination for at least 2 years and 9 months, own and actively operated your Victoria business for at least 1 year and 9 months

188A visa Victoria nomination refusal

If your 188A visa Victoria nomination is refused, you will not be able to apply for 6 months, or request for a review of your nomination application unless there is an administrative error.

Renomination

If your 188A visa Victoria nomination is successful and you failed to apply to the visa within 60 days or your SkillSelect EOI was incorrect when you are nominated, the Victorian Government will not renominate you but you can submit a new 188A visa Victoria nomination again.

Click here if you are interested in the 188B visa nominated by Victoria.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to determine if you are eligible to apply for a 188A visa Victoria nomination.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post 188A visa Victoria nomination | Business visa appeared first on Ozzie Visa.

Regaining Australian PR by former permanent residents may be possible by applying for a subclass 159 visa, Subclass 159 visa is for eligible Norfolk Island or NI (click here to learn more) and former permanent residents who departed Australia without checking their visa status.

As a general rule, only Australian citizens have an automatic right to enter Australia. Permanent residents do not have an automatic right to return to Australia.

As a permanent resident, before you leave Australia you must always check to make sure you have a valid permanent visa (click here to learn more about RRV 155) for you to return if you wish to leave and return as a permanent resident.

If your permanent visa has ceased when you depart Australia and you cannot provide evidence that you was an Australian permanent resident, it is still possible for regaining your Australian PR by applying for a former PR subclass 159 visa if there is an urgent and compelling reasons for wanting to travel to Australia before being able to prove you are a former PR. Regaining Australian PR is only possible if you are outside Australia.

You should be aware that by regaining Australian PR, the subclass 159 visa has the following aspects for the grant of this visa:

• subclass 159 visa will cause any other visa, including RRV 155 held (s. 82(2));
• subclass 159 visa is only a single entry and valid for 3 months;
• You will be required to apply for a RRV 155 or 157 (click here to learn more about subclass 157 visa) in Australia after returning;
• While holding a subclass 159 visa, you may not be eligible for government payments and services;
• Holding a subclass 159 visa may adversely affect your future applications for Australian citizenship (click here to learn more about General Residence requirement); and
• As a subclass 159 visa is valid for 3 months, failing to apply for a visa within the 3 months validity will cause you to become an unlawful non-citizen.

If you previously held a Business Skills visa, such as subclass 132 or subclass 188 or subclass 888 or subclass 160 – 165, that was cancelled or subject to cancellation, you will not be able to apply for a subclass 159 visa. If you are a holder of 1 of these visa and have been granted a subclass 155 or subclass 157 or subclass 159 on the same business visa grounds, you will not be able to make a valid application for a subclass 159 visa. In addition, you did not leave Australia while subject to a deportation order or your visa was cancelled under s. 501 (you must satisfy SRC 5001 or SRC 5002). This rule applies to all secondary visa holders.

Regaining Australian PR, you must satisfy a number of at the “time of application” criteria:

1. You cannot satisfy the Department that before leaving Australia, you were an Australian PR who was usually resident in Australia. Generally, this occurs when your arrived in Australia before electronic records existed and left Australia (between 1 March 1976 and 31 December 1986; holder of an Authority to Return or Return Endorsement) after electronic movement records existed (cl. 159.211). You can also provide evidence of your Australian employment details, drivers licence, Medicare and credit cards.
2. You are eligible for a subclass 155 or subclass 157 (cl. 159.212);
3. You are not an Australian citizen as Australian citizens cannot make a valid visa application under s. 45(1) (cl. 159.212A).
4. You must provide a written statement that you have an urgent and compelling reasons for wanting to travel to Australia before your Australian PR can be proved, your entry to Australia will not prejudice Australia’s interests and there are reasonable grounds for you to prove that you were a former Australian PR (cl. 159.213). Urgent and compelling reasons is not defined, some examples may be, you booked a return flight but has lost your travel documents which contained evidence of your Australian PR or you have an important work appointment or serious family circumstances in Australia.

If your attempt at regaining Australian PR is refused, you may be able to apply to the AAT for a merits review. Whether you have the merits review rights will depend on where you falls within s. 338(6) – you have a parent or partner or child or sibling who is an Australian citizen or an Australian PR (s. 338(6)(c)). If s. 338(6) applies, only your Australian PR or Australian citizen relative will have a right to seek merits review on your behalf regardless of their place of residence (s. 347(2)(c)) and your location at the time your relative lodge the review application is irrelevant.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a detailed consultation (fee applies) or click here to find other Australian visas.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Regaining Australian PR | Subclass 159 (Non-NI) appeared first on Ozzie Visa.

Long-term Australian residents deported – is this possible?

There is a clear distinction between lawful non-citizens (those who hold visas permitting them to enter and remain in Australia: s. 13 of the Migration Act) and unlawful non-citizens (those who do not hold visas – ss. 14 and 15)  and who are in consequence liable to detention and to removal from Australia: ss. 189, 196 and 198).

In Chetcuti v Commonwealth of Australia [2021] HCA 25, Chetcuti was born in August 1945 and arrived in Australia in July 1948 as a 3 year British subject. Between 1958 and 1959 he returned to his country of birth for about 8 months as a teenager. Chetcuti has remained in Australia for 73 years where he voted in local, State, and federal elections (s. 3 Commonwealth Electoral Act 1949). In addition, he registered for compulsory military service during the Vietnam war (National Service Act 1951) and eligible to sit as member of the House of Representative or in the Senate – Commonwealth Electoral Act 1918). Chetcuti was employed by the NSW Education Department where he worked as a teacher (Commonwealth Public Service Act 1922). Furthermore, he is eligible to be issued with an Australian passport (s. 4 of the Passport Act 1948 stopped issuing passports to British subjects in 1984).

In 1993, he was sentenced to 24 years for murder. In 2017, the Minister cancelled his Absorbed person visa (click here to learn more about APV) under s. 501 of the Migration Act (click here to learn more about Character test). After having served his sentence, Chetcuti was taken into detention where he remains.

His visa cancellation was set aside on judicial review by the Federal Court, the Minister then made another decision to cancel his visa. This cancellation was upheld on judicial review by the Federal Court in 2018 but was set aside on appeal to the Full Court of the Federal Court in 2019. The Minister immediately made another decision to cancel his visa again.

Chencuti argued that his detention was unlawful because he is not within the reach of the aliens power even though an alien (s. 51(xix) of the Constitution) is any person who was not born in Australia, whose parents were not Australians, and who has not been naturalised as an Australian (Nolan v MIEA (1988) 165 CLR 178 at 185).

Chencuti also argued that in Love v The Commonwealth (2020) 94 ALJR 198 there is a further exception in respect of a person who is an Aboriginal Australian according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70. This further exception is in respect of a person who was a natural born British subject and who commenced living permanently in Australia before 26 January 1949.

The HCA said that in Shaw v MIMA (2003) 218 CLR 28 (at 43, 87) it was confirmed that ‘the aliens power has reached all those persons who entered this country after the commencement of [the Australian Citizenship Act] on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised”. Such a person is treated as an alien to the Australian community.

Chencuti missed out on becoming an Australian citizen on 26 January 1949 because he arrived in Australia on 31 July 1948 (s. 25(1)(d) of the Australian Citizenship Act) as he had then been ordinarily resident in Australia for a period of less than 5 years. After he had resided in Australia for a period of 5 years he did not apply to Australian citizenship by registration (under s. 25(1) of the Australian Citizenship Act 1948) even though he can do so until this was removed from the Australian Citizen Act at the start of the Australian Citizen Act 1973 on 1 December 1973.

The HCA said that Chencuti falls within the scope of the constitutional meaning of ‘alien’ in s. 51(xix), therefore he is within the application of the Migration Act such that he can be detained or removed from Australia.

In Pochi v Macphee (1982) 151 CLR 101 at 111, the Court rejected the notion that an alien could become a non-alien by absorption into the Australian community, hence Chencuti’s 73 years residence in Australia and the strength of any of his general bonds to the community is irrelevant.

The HCA said in 2017, Chencuti’s circumstances were as follows:

• he was born outside Australia;
• he had no Australian parents;
• he was not an Australian citizen because he never registered or applied to be an Australian citizen;
• he had not been naturalised; and
• he was a citizen of a foreign country.

Chencuti is an alien within s. 51 (xix) and was therefore a person to whom the Migration Act could apply – a long-term Australian resident can be detained and deported.

Long-term Australian residents deported | Is this possible? The above HCA case confirmed that long-term Australian residents can be deported if they do not satisfy s. 501 Character test.

Australian migration law is complex and difficult to understand, contact our immigration lawyer to a consultation (fee applies) if your visa has been cancelled or help you to understand whether it is possible for long-term Australian residents to be deported.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Long-term Australian residents deported | Is this possible? appeared first on Ozzie Visa.

Recovering PR using subclass 157 – if you have departed Australia as a PR and has not renewed your permanent visa (former PR), it is still possible for recovering your PR by applying for a RRV subclass 157 visa.

Generally, only Australian citizens have an automatic right to enter Australia. Australian permanent residents only have the right to live in Australia indefinitely but if they depart the country, they will need to have a right to re-enter.

All visas, including permanent visas, have an expiry date. Permanent visa holders may renew or re-apply for a further permanent visa by applying for a RRV or Resident Return Visa. There are 3 types of RRVs:

• Class BB subclass 155 (5 year Resident Return) visa (click here to learn more). If you are an Australian PR and been living in Australia for at least 2 years in the last 5 years, the Department will [automatically] grant you a subclass 155 valid for a further 5 years. If you do not meet the 2 in 5 year residence rule, the Department could still grant you a subclass 155 but with 12 months validity.
• Class BB subclass 157 (3 month Resident Return) visa. This is also a permanent visa but it is only valid for 3 months. Subclass 157 is usually granted to PR or former PR who do not meet the subclass 155 visa requirements. For example, for a PR who recently started to live in Australia, but has to travel overseas for compelling and compassionate reasons (compelling reasons for absence).
• Class TP subclass 159 (Provisional Resident Return) visa (click here to learn more). Subclass 159 visa can only be applied if the applicant is outside Australia. Subclass 159 is valid for 3 months to allow the holder to enter Australia and to apply for a permanent visa (example, Class BB visa).

To be eligible for a subclass 157 visa, you do not have to be an Australian PR at the time of application, i.e., recovering PR. However, you must have been a PR in the past, and your last held PR visa was not cancelled. It is the Department’s policy to support former PR who was originally given permission to settle permanently in Australia, but subsequently lost their PR for any reasons other than through visa cancellation. This Policy ensure that no applicant, regardless of their origin or date of migration, is inadvertently disadvantaged by the definition of “permanent resident” in the Migration Act. This applies to NZ citizens who hold a SCV Class TY subclass 444 (click here to learn more) who are former PR (either granted a PR or were a resident in Australia prior to 01 September 1994 as an exempt non-citizen or the holder of a permanent entry permit).

If you are a former PR and was subsequently granted a temporary visa or your RRV application is refused, you will always be a former PR and may be in the future eligible for an RRV.

If you have lost your PR and wanting to return to Australia as a PR, it is still possible for recovering your PR. If you are granted a RRV, you will be issued with a subclass 157 visa. However, subclass 157 cannot be applied via the internet. You will first be considered against the subclass 155 criteria and if you are ineligible, the Department will then consider you for a subclass 157 visa.

You should note that if your last permanent visa was cancelled (cl. 157.211(c)), you will not be eligible for an RRV. Or if your last visa was a Business Skills visa and was subject to cancellation order, you may not be eligible for this visa.

Recovering PR, when you apply for a RRV to return to Australia, the Department will 1^st consider you for a subclass 155 visa and if you are ineligible, the Department will then consider you for a subclass 157 visa. If you are eligible for both, the Department will grant you the most advantageous RRV which is subclass 155.

If you are applying for subclass 157 visa outside Australia and you do not satisfy the visa criteria, the Department may invite you to apply [under r. 2.11] for an alternate visa.

When applying for a RRV, the Department must be satisfied that you are of good character even though there is no character PIC (but character is a consideration for the grant of all visas specified in s. 501). There is no legal requirement for an RRV applicant to provide penal certificates or police clearance certificates.

Proving you are a former PR

From 01 September 2015, the Department stopped issuing visa labels. You may use the following historic evidence that you are a former PR:

• Information from National Archives
• Statutory declaration setting out the circumstances of your arrival in Australia and length of residence
• Australian tax assessments
• Australian bank statements
• Australian employment records
• Australian school, academic or other training records

If you have more than 1 citizenship, you may be eligible for an Australian declaratory visa (ADV). An ADV is not actually a visa but is an administrative document.

If you have lost or renounced your Australian citizenship, you can still be considered for the grant of an RRV. Alternatively, you could resume Australian citizenship if you renounced Australian citizenship to acquire the citizenship of another country (s. 17 of the Australian Citizenship Act 1948).

If you have lost your Australian citizenship while in Australia, s. 35 will automatically grant you an ex-citizen visa which allows you to remain indefinitely in, but cannot re-enter, Australia. You will need an RRV to leave and return Australia as a PR.

Recovering PR using subclass 157 visa, this visa is intended for PR who have not lived in Australia for more than 2 years and who have not yet established substantial ties of benefit to Australia.

Recovering PR, at the time of applying for subclass 157 visa (cl. 157.211) you must either be an Australian PR or a former PR (last permanent visa must not be cancelled).

In order to be successful in recovering your PR, you must satisfy 1 of the following 3 criteria (cl. 157.212):

1. You must be lawfully present in Australia as a PR for at least 1 day (but less than 2 years) in the last 5 years, and not holding certain specified visa (cl. 157.212(2)(a)(ii)), and
2. has compelling and compassionate reasons for leaving Australia; or
3. you are a member of your family unit who satisfied the RRV criteria and is also a RRV applicant, or is a member of your family unit holding a subclass 157 visa.

“Compelling and compassionate circumstances” is not defined but you must demonstrate that you have both compelling and compassionate reasons for leaving Australia. You should be aware that a reason which is considered ‘compelling’ will not necessarily also be a ‘compassionate’ reason for leaving Australia. However, ‘compelling and compassionate’ reasons include:

• unexpected severe illness or death of a family member or
• involved in custody proceedings for your child
• you need to travel in order to finalise your relocation to Australia

You should note that if you had compelling and compassionate reasons for leaving Australia (as required under cl. 157.212(b)), but later you chose to remain overseas after this reason ceased or no longer required your absence, for example, to take up employment.

If you are not successful with recovering PR using subclass 157 visa application, you may be able to apply to the AAT for a merits review. If you are outside Australia and you have Australian citizen or Australia PR parent or partner or child or sibling, they can apply to the AAT on your behalf. If you applied for subclass 157 while you are in Australia, you can apply to the AAT if you are in Australia at the time of the refusal decision and at the time of AAT application.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation to help you in recovering your Australia PR using subclass 159 or click here to find other Australian visas or click here to learn about regaining lost PR (Nolfork Island).

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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Recovering PR using subclass 157 | How to regain lost PR appeared first on Ozzie Visa.

Visa for Afghan nationals, Australian government has made available refugee and humanitarian visa options to Afghan nationals, both within Afghanistan and elsewhere.

Visa for Afghan nationals – Afghan nationals wanting to apply for a visa from inside Australia can apply for:

• Protection Subclass 866 visa (click here to learn more) – this visa is for anyone who arrived in Australia on a valid visa. This is a permanent visa allowing you to live in Australia permanently and allows you to apply for Australian citizenship (click here to learn when you can apply for Australian citizenship). To be eligible for Protection Subclass 866 visa, you must engage Australian’s protection obligations and meet all other visa grant criteria.
• Temporary Protection Subclass 785 visa (click here to learn more) – this visa is for anyone who arrived in Australia without a visa. This is a temporary visa allowing you to live in Australia for up to 3 years. You must engage Australia’s protection obligations and meet all the visa grant criteria.
• Safe Haven Enterprise Subclass 790 visa (click here to learn more) – this visa is for anyone who arrived in Australia without a visa. This is a temporary visa allowing you to live and work or study in regional Australia for up to 5 years. You must engage Australia’s protection obligations and meet all the visa grant criteria. If you hold this visa, you may be able to apply for certain visas, including a permanent visa, if you meet the Safe Haven Enterprise Subclass 790 visa pathway requirements and the visa grant criteria for your subsequent visa.

Visa for Afghan nationals – if you are having difficulty contacting the Department of Home Affairs, you can appoint another person to apply for a visa on your behalf. If you are in Afghanistan and you need to contact the Australian government, you may call the 24-hour Consular Emergency Centre on +61 2 6261 3305.

Visa for Afghan nationals who are in Afghanistan or outside of Afghanistan, you can apply for 1 of the following visas:

• Refugee Subclass 200 visa (click here to learn more) – this visa is for you to enter Australia if you are subject to persecution in Afghanistan. This is a permanent visa allowing you and your family to live, work and study in Australia. It is recommended that you are registered with the United Nationals High Commissioner for Refugees (UNHCR) as they can refer you for this visa. If you are granted this visa, the Australian government will pay for all your travel and other costs before arriving in Australia. There is no visa application charge. The processing time may take months, or even years and this visa is subject to annual capping or quota. You must be in Afghanistan to be eligible to apply for this visa.
• Global Special Humanitarian Subclass 202 visa (click here to learn more) – this visa is for you to enter Australia if you are subject to substantial discrimination or human rights abuses in Afghanistan. This is a permanent visa allowing you and your family to live, work and study in Australia. To be eligible for this visa, you must have a proposer. You must not be living in Afghanistan when you apply for this visa. If granted this visa, the Australian government will not pay for your travel costs. The processing time may take months, or even years and this visa is subject to annual capping or quota. There is no visa application charge unless you are proposed under the Community Support Program (CSP) by an Approved Proposing Organisation (APO). Some APOs are:
  • AMES Australia
  • Diversitat
  • Eastern Christian Welfare Australia
  • International Organisation for Migration
  • Assyrian Australian Association
  • Illawarra Multicultural Services (NSW)
  • Settlement Services International (NSW)
  • Brotherhood of St Laurence (Vic)
  • Spectrum Migrant Resource Centre (Vic)
  • Multicultural Australia Ltd (Qld)
  • Australian Migrant Resource Centre (SA)
  • Australian Refugee Association (SA)

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (consultation fee applies).

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Visa for Afghan nationals | Refugee & Humanitarian visas appeared first on Ozzie Visa.

Become an Australian citizen by conferral or applying to become an Australian citizen under s. 21 of  Australian Citizenship ACT 2007 – you must be an Australian permanent resident and satisfy a number of criteria, including general residence requirement (click here to learn if you need this requirement), must be of good character (click here to learn more) and the Department must be satisfied with your identity (click here to learn more).

When you apply to become an Australian citizen by conferral, you are required to complete an online application and provide a number of documents to support your application. It is very important that you must take care when completing or when answering the questions in the application form as your application may be refused under s. 24(1) of the Act.

Section 24(1) of the Act states if “a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the become becoming an Australian citizen”.

When applying to become an Australian citizen by conferral, you must not provide incorrect answer(s) or fake document because “the grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home” (Fenn v MIMA [2000] AATA 931 at [8]).

In the case of Bongely and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2360 (15 July 2021), Bongely was born in Congo (DRC) first arrived in Australia as child on his father’s Partner subclass 309 visa (click here to learn more about subclass 309). In March 2017 (aged 21 and having lived in Australia for over years), he lodged an application to become an Australian citizen by conferral. In his application he gave date of birth as 20 September 1995. He provided his Document of Travel showing his date of birth as 20 September 1995, a DRC birth certificate showing his date of birth as 20 September 1995 and a WA driver’s license showing his date of birth as 20 September 1995.

Bongely produced his DRC school records (to support his identity pursuant to s 24(3) of the Act) which he paid a family friend to obtain, the records turned out not to be genuine. He then advised the Department that he did not pay close attention to the records and if he did he would have known that they were fraudulent documents and would not have submitted them to the Department. It was on this that cause the Tribunal to consider whether he is of good character pursuant to s. 21(2)(h).

Identity

There is no discretion in s. 24(3) available to the Department to grant Australian citizenship unless they are satisfied of the identity of the applicant. “Identity” is not defined in the Act but is covered in chapter 13 of the Australian Citizenship Policy (CPI). CPI 16 states that (at [4.12]):

“It is not sufficient to be satisfied of a person’s identity at one point in time, as a person’s identity is not a point in time concept; it must be verified incrementally throughout a person’s life and considered historically”.

CPI 16 provides 3 pillars of identity to be used when assessing identity and they are:

1. Biometrics – personal identifiers such as fingerprints, facial images or signature.
2. Documents – genuine documents that are issued with robust identity proofing processes with issuance protocols and security features. For e.g., documents contain biodata, or personal information, such as name, date of birth, nationality, and containing biometric information.
3. Life story – a narrative of the events that happened to them from birth to present. It should include descriptions of family composition, education, employment countries of residence, countries visited, social footprint, and online presence

Applying to become an Australian citizen by conferral, you must satisfy the Department as to your identity, the Department will rely on each of the above 3 pillars of identity. The Department must reach an affirmative belief as to your identity (Rezai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 145).

Good character

Section 21(2)(h) of the Act states that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

“Good character” is not defined in the Act. In Irving v MILGEA (1996) 68 FCR 422, Lee J said at 431-432 “the words ‘good character’ should be taken to be used in their ordinary sense, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. . . . . A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless, may show that he or she has reformed and is of good character …. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”

In short, when applying to become an Australian citizen by conferral you must be of good character, good character is not a reputational test, but an objective assessment. It requires ‘consideration of an aggregate of qualities” and a single adverse incident of ‘sufficient weight and seriousness’ can outweigh many good qualities (Prasad and MIEA [1994] AATA 326 at [7]).

CPI 15 (Assessing character under the Citizenship Act) states “An applicant who is a person of good character would generally be expected to exhibit the following characteristics:

• not practise deception or fraud in dealings with the Australian Government, or other organisations. For e.g., intentionally providing false personal information (such as fraudulent work experience or qualification) or other material deception during visa and citizenship applications.

CPI 15 also provides “it also necessary to consider other information that is relevant to a person’s character such as family life, for e.g., raising children, in a stable home environment, employed, paying taxes, and doing community work. In addition, expressing genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing.

In Taradel and MILEA [2005] AATA 1255, the Tribunal observed at [23] that “dishonesty in dealings with the department is a very serious matter …. [because] the integrity of the immigration system depends on individuals telling the truth about their personal circumstances and history …. When dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting dishonestly.”

Dishonesty includes providing documentation that you knew or ought to have known is unlikely to be of any probative value, without providing the necessary explanation and qualification that would enable the Department to appreciate the value of the evidence: Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729 at [73].

When Bongely’s father apply for Partner subclass 309 visa listing him as being born on 20 September 1995 in Q 38 of form 47SP and on Q 64 of the same form, his date of birth was listed as 21 October 1995. On form 40SP, his mother listed his date of birth as 21 October 1995. He provided his birth certificate showing his date of birth to be 21 October 1995. However, his mother provided a statutory declaration declaring that he was born on 21 October 1995. He further provided a pathology report listing his date of birth as 21 October 1995. When he was applying for the subclass 309 visa, his migration health check-up recorded his date of birth as 26 October 1995. He later provided a replacement birth certificate which listed his date of birth as 20 September 1995. Sometime in November 2019 his mother told him that he was born on 21 October 1995.

When his application to become an Australian citizen by conferral was refused by the Department he applied to the AAT and gave his date of birth as 20 September 1995. When asked by the Tribunal why he put 20 September 1995 as his date of birth when applying to the AAT, he could not explain why even though he already knew from his mother that he was born on 21 October 1995.

The Tribunal finds that Bongely’s date of birth is 21 October 1995. And on his school records the Tribunal could not be certain if they were fraudulent documents. The Tribunal concluded that Bongely was careless in providing evidence because he admitted that he did not pay due care and attention to, and which he says he would likely have considered to be fraudulent if he had paid sufficient attention.

Furthermore, Bongely made a number of errors in his application to become an Australian citizen by conferral even though he has a good command of English and the questions were plain and simple. Here the Tribunal finds that he has at best been flippant in completing his application to become an Australian citizen by conferral. On balance, the Tribunal finds it more likely that he has been careless in completing the application form, rather than intentionally dishonest.

The Tribunal was satisfied with Bongely’s identity prior to coming to Australia and after coming to Australia on the basis of his biometric evidence.

However, the Tribunal is concerned with his incorrect answer given on his application to become an Australian citizen by conferral. The Tribunal concluded that the failure to answer simple questions in a forthright manner raises questions concerning his honesty. The Tribunal do not know why Bongely had lied in his application, finds that he simply did not give sufficient weight to the need to ensure that the information he provided was complete, truthful and correct in every detail. On this basis, the Tribunal is not satisfied that Bongely is of good character.

With regard to his school records, the Tribunal said that Bongely should have included information about how he went about obtaining it and the fee he paid. The Tribunal said that this is further evidence that he lack appreciation for the level of detail and diligence required when making an application to become an Australian citizen by conferral.

The Tribunal said that it does not make a finding that Bongely is not of good character, it simply unable to be satisfied, on evidence before it, that he was of good character at the time of its decision, in the context of his lack of demonstrated appreciation for the need to be both honest and forthcoming in his dealing with the Department, irrespective of any personal cost.

Australian migration law and Citizen law are complex and difficult to understand, contact our immigration lawyer for consultation (fee applies) to assist you on becoming an Australian citizen by conferral.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration or citizenship legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Become an Australian citizen by conferral appeared first on Ozzie Visa.