Australia:Upcoming changes to immigration law 1st January 2021

December 26, 2020

Changes to Australian immigration law in 2021

Australian immigration law is subject to rapid change in response to emerging issues such as the COVID-19 pandemic.

As we begin the New Year, there are even more changes afoot that will take place, or are likely to take place in 2021.

Below is an overview of these changes:

1. More temporary visas can be cancelled on biosecurity grounds

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:

Subclass 400 (Temporary Work (Short Stay Specialist)) visa;
Subclass 403 (Temporary Work (International Relations)) visa;
Subclass 407 (Training) visa;
Subclass 408 (Temporary Activity) visa;
Subclass 417 (Working Holiday) visa;
Subclass 457 (Temporary Work (Skilled)) visa;
Subclass 462 (Work and Holiday) visa;
Subclass 476 (Skilled—Recognised Graduate) visa;
Subclass 482 (Temporary Skill Shortage) visa;
Subclass 485 (Temporary Graduate) visa;
Subclass 500 (Student) visa;
Subclass 590 (Student Guardian) visa;
Subclass 600 (Visitor) visa;
Subclass 601 (Electronic Travel Authority) visa;
Subclass 651 (eVisitor) visa;
Subclass 676 (Tourist) visa;
Subclass 771 (Transit) visa; and
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.

2. COVID concession for certain family visa applicants unable to depart Australia due to border closures

The Department of Home Affairs has indicated that it will implement a concession for certain family visa applicants who applied for their visas offshore, then came to Australia and are stuck in Australia due to border closures.

Usually such applicants would need to be offshore in order to have their visas granted however the concession will now allow affected applicants to have their visas to be granted while they are in Australia.

At this stage, the Department proposes to waive the offshore visa grant with respect to the following visa subclasses:

Child (subclass 101) visa
Adoption (subclass 102) visa
Dependent Child (subclass 445) visa
Prospective Marriage (subclass 300) visa
Partner (subclass 309) visa

The Department has indicated that the concession may start in early 2021 and will be providing further information in due course.

You can find the latest information on the Department’s COVID-19 visa concessions here.

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.

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 and 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.

5. English requirement for Partner Visa

Based on the budget, one of the most significant changes to the partner visa is the English requirement. Applicants and sponsor will be required to pass the English language requirement. The aim of the test is to promote social cohesion and economic participation.

The language requirement will NOT be in place for subclass 300 Prospective Marriage visa, Subclass 309 Partner (Provisional- offshore) visa and Subclass 820 Partner (Provisional-onshore) It is only a requirement for the permanent subclass 801 or subclass 100 stage.

If you are on the provisional partner visa, you may have to sit the English language test. Whilst the difficulty of the test is not yet determined, it will likely be a basic English test, and the applicant has to show functional English.

An alternative to the English language test is that the applicant undertakes about 500 hours of English language classes through the Adult Migration English Program (AMEP). Permanent resident sponsors (not citizens) will be required to show the same level of English language proficiency as the visa applicant.

It is likely these changes will come into effect from 1 July 2021.

6. General Skilled Visas

The overall points to receive an invitation has also dropped dramatically in the last few months. The results for the October 2020 invitation round were as follows:

Subclass 189 – The lowest score to receive an invitation was 65 points. This is a dramatic drop from the previous months, where the lowest score to receive an invitation range between 90 -110. 65 points is the lowest for the whole year however this may happen if you have an occupation on the PMSOL.
Subclass 491 – 65 points remained to be the lowest score to receive an invitation for a subclass 491 visa. The 65 points includes the extra 15 points awarded to subclass 491 visa.

Whilst there is a drop in points to receive an invitation, many people who received the invitations were in targeted sectors. This is in line with the government aims to attract migrants to help with post-COVID-19 recovery.

For many months there has been no information on pro-rata occupations. The minimum points score has been N/A. It is likely that no invitations were issued for these occupations during these periods.

We expect this trend to continue through to 2021, with people in the targeted sectors receiving priority over other sectors.

7. Additional 485 Skilled Graduate visa from 21 January 2021

The Department of Home Affairs has announced a new initiative for an additional Temporary Graduate visa with an extra one or two year of post-study work rights for international students who:

graduate from the regional campus of a registered university or institution with a higher education or postgraduate qualification; and
maintain ongoing residence in a regional area while holding their first Temporary Graduate (subclass 485) visa

The second Temporary Graduate visa will require ongoing residence in a regional area. For more information, see our other article on the 485 visa changes here.