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:
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:
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:
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:
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:
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.
For assistance with any Australian immigration matter, please contact the Registered Migration Agent at Visa Lounge Global Immigration.