KEY CHANGES TO AUSTRALIAN IMMIGRATION LAW IN 2021

Written by: Yee Mei Chow, Maithri Panagoda & Wing Ho - Carroll & O'Dea Laweyrs (Sydney, Australia)

Part #1:New categories of visas that can be cancelled on biosecurity grounds

2021 has brought with it key changes in immigration law which took effect on New Years? Day, including the addition of new categories of visas that can be cancelled ? even during immigration clearance ? for a range of breaches of biosecurity controls.

From 1 January 2021, more temporary visa holders face the risk of visa cancellation if they breach certain sections of the Biosecurity Act 2015 (Cth). The prescribed biosecurity contraventions include: failure to answer questions asked by a biosecurity officer and knowingly provide false or misleading information to a biosecurity officer. The visa can be cancelled while the holder is still in immigration clearance.

As a result of the legislative change, the Department of Home Affairs will have the power to cancel following temporary visas on biosecurity grounds:

(i)        a Subclass 400 (Temporary Work (Short Stay Specialist)) visa;

(ii)       a Subclass 403 (Temporary Work (International Relations)) visa;

(iii)     a Subclass 407 (Training) visa;

(iv)     a Subclass 408 (Temporary Activity) visa;

(v)       a Subclass 417 (Working Holiday) visa;

(vi)     a Subclass 457 (Temporary Work (Skilled)) visa;

(vii)    a Subclass 462 (Work and Holiday) visa;

(viii)   a Subclass 476 (Skilled? Recognised Graduate) visa;

(ix)      a Subclass 482 (Temporary Skill Shortage) visa;

(x)       a Subclass 485 (Temporary Graduate) visa;

(xi)      a Subclass 500 (Student) visa;

(xii)    a Subclass 590 (Student Guardian) visa;

(xiii)   a Subclass 600 (Visitor) visa;

(xiv)   a Subclass 601 (Electronic Travel Authority) visa; (xv) a Subclass 651 (eVisitor) visa;

(xvi)   a Subclass 676 (Tourist) visa; (xvii) a Subclass 771 (Transit) visa; and

(xviii) a Subclass 988 (Maritime Crew) visa.

Visa holders should be aware that visa cancellation brings very serious consequences, in particular a three-year ban from applying for most types of temporary visas.

Part #2 :COVID concession for certain family visa applicants unable to depart Australia due to border closures

We published an earlier article advising that the Australian Government would introduce concessions for certain family visa applicants in early 2021.

On 18 February 2021, the Government introduced regulations which amend the current Migration Regulations and effectively allow for these concessions.

Onshore visa grant available for certain family visas

From 27 February 2021, applicants for the following visas may have their visa granted while they are in Australia:

Child (subclass 101) visa

Adoption (subclass 102) visa

Dependent Child (subclass 445) visa

Prospective Marriage (subclass 300) visa

Partner (subclass 309) visa

Extension of validity period of Subclass 300 (Prospective Marriage) visa

The new amendments also allow for Subclass 300 visas to be granted for a period of up to 15 months. Prior to the change, these visas could only be granted for up to 9 months.

Take away

These concessions have been introduced in the context of the global COVID-19 pandemic. Visa applicants should take care to remember that the regulations can be changed at any time, and therefore we cannot assume that the concessions will remain available indefinitely.

Part #3 - Labour Market Testing requirement for subclass 186 Employer Nomination Scheme (ENS) visa

The legislative instrument (LIN18/ 036) on labour market testing requirements for Temporary Skills Shortage subclass 482 (temporary) visa and subclass 494 (provisional) visa has been amended to include an additional requirement to advertise vacancies on the Government?s  ‘Jobactive’  website from 1 October 2020.

Around the same time, the Australian migration agent services industry regulator also notified registered migration agents that the Government expects Nominators/ Sponsors seeking to nominate an overseas worker for a permanent employer sponsored visa (subclass 186 or 187) to advertise the position on Jobactive first, in order to demonstrate that there is a genuine need for an overseas worker to fill that position.

On 24 November 2020, the Department published a revised policy document relating to the ENS and Regional Sponsored Migration Scheme nomination instructing decision-makers to consider whether the employer has made attempts to recruit local workers through Jobactive or other national advertisements. At this stage, changes to the legislation have not been implemented, however, prospective Sponsors/ Nominators for the subclass 186 and 187 visa programs are advised to consider advertising the position on Jobactive.

Part #4 - Upfront sponsorship approval required before making partner visa application

In 2018 the Australian Government passed legislation to create a new family sponsorship framework which requires upfront formal sponsorship approval before a prospective applicant can apply for the relevant visa.

The framework has been imposed on the subclass 870 Sponsored Parent (Temporary) visa and the Government has indicated that the family sponsorship framework will extend to the partner visas.

As a result, Australian citizen or permanent resident Sponsors for a partner visa will be assessed against sponsorship obligations and character will need sponsorship approval first before a visa application can be made.

It is likely that a separate sponsorship application fee will be payable, in addition to the partner visa application fee which is already approaching $8000 as at the time of writing. This change to sponsorship requirements may also affect the processing time and the ability of an onshore visa applicant to lodge a partner visa application on time before his/ her temporary visa expires. It is expected that subordinate legislation will be introduced to facilitate implementation of the upfront sponsorship approval from November 2021 onwards.

* Yee Mei Chow practises in Immigration Law, including handling Australian Visa Applications, Skills Assessment, State Sponsorship, and Migration Review Applications.

* Educated in both Sydney and Sri Lanka, Maithri has over 35 years experience in litigation and dispute resolution. Maithri is regularly invited to present seminars to lawyers and university students.

* Wing works on a diverse range of matters spanning across immigration, employment and personal injury law. Her broad legal knowledge enables her to provide holistic advice to clients.