Friday, 12th of December 2014 Issue #1 December
No Borders Newsletter

TOP STORY

Foreign Student Visa Checks

Issues of this month

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Australian institutions look at improving foreign student visa checks

Foreign students who enroll in visa approved education courses in Australia are facing a clampdown, with one major education provider increasing scrutiny of applicants.

It comes as the Department of Immigration and Border Protection (DIBP) said it has written to 1,400 students who had left educational institutions but remained in the country.

More than 500 students have been notified the department is considering cancelling their visas, with 103 visas cancelled in the 10 months leading up to the end of October.

Education giant Navitas said it expects enrolment numbers to fall as a result of its determination to stamp out fraud. It has now improved its vetting system for applicants from certain countries such as India and Nepal.

The company said last year it detected a significant enrolment increase from Nepalese and Indian recruiters, which raised a number of red flags. It was evident a number of the enrolments weren't genuine students.

Figures show that enrolments in the third semester this year rose 6% compared to a 13% rise in the corresponding period last year.

Rod Jones, the company's chief executive, said Navitas carried out additional checks, which alerted it to cases of fraudulent documentation and higher incidences of student withdrawals.

'To ensure optimal student outcomes, we have instituted a protocol of more intensive screening assessments in Nepal and India. These have negatively impacted enrolment growth, but we will not compromise on entry standards and risk adversely affecting academic outcomes,' he explained.

The company recruits 80% of students from Nepal and India through third party agents and has also identified the agents which it considers unreliable.

The Department of Immigration and Border Protection has notified all higher education providers to be vigilant with their checks.

Although the recent introduction of a streamlined visa process for international students enrolling at accredited providers has been a boon for the industry, there are concerns that the new requirements put the onus for policing the visas on the institutions.

The changes have led to a surge in student visas from India, which recorded a 47.9% rise in the year.

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Notice of legislative change - Migration Amendment (Character and General Visa Cancellation) Bill 2014

regional areas for rsms visa

The Migration Amendment (Character and General Visa Cancellation) Bill 2014 reflects the government's position that travelling to, and remaining in, Australia is a privilege, not a right and that any non-citizen who chooses to breach the law or fails to uphold the behavioural standards expected by the Australian community should expect to be refused entry or have their visa cancelled.

Changes to the Character test

The amendments to the Act insert additional grounds on which a person will not pass the character test. These include where:

  • the Minister reasonably suspects that a person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person and that group, organisation or person has been or is involved in criminal conduct;
  • the person has been charged or indicted with one or more of the following, or there is reasonable suspicion that the applicant has been involved in: people smuggling; people trafficking; the crime of genocide; a crime against humanity; a war crime; a crime involving torture or slavery; or a crime that is otherwise of serious international concern;
  • a person has had a charge proven for or been found guilty of a sexually based offence involving a child, regardless of conviction;
  • the person has been assessed by the Australian Security Intelligence Organisation (ASIO) to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979);
  • an Interpol notice in relation to the applicant, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force;
  • a person has been found by a court to be unfit to plead, however the offence has otherwise been proven and the person subsequently detained at an institution or facility.

Further amendments strengthen existing limbs of the character test by providing that a person will not pass the character test:

  • if, in the event that they were allowed to enter or to remain in Australia, there is a risk (as opposed to a significant risk) that the person would engage in any of the conduct referred to in subparagraphs 501(6)(d)(i) - (v) of the Act;
  • where they have been sentenced to two or more terms of imprisonment where the total of those terms, when calculated as consecutive terms, total 12 months or more (rather than 24 months or more, as is currently the case).

Mandatory Cancellation

Additionally, the legislative reforms include an amendment to allow for mandatory visa cancellation without notice for people who are serving a full-time sentence of imprisonment for an offence against the law of the Commonwealth, a State or a Territory, and who objectively fail the character test on of the following grounds:

  • sentenced to imprisonment of 12 months or more;
  • sentenced to death;
  • sentenced to life imprisonment; or
  • have a charge proven for or are found guilty of a sexually based offence involving a child.

Some non-citizens who are currently in prison and have already been sent a Notice of Intent to Consider Cancellation (NOICC) under section 501(2) of the Act are captured by the new mandatory cancellation provision in section 501(3A) and will have their visa cancelled without notice.

Changes to the General Visa Cancellation Provisions

The amendments to the general visa cancellation provisions amend several existing grounds as well as inserting new ones to provide the department with a better range of response mechanisms to incidents of fraud and criminality, and better manage risks to the community or individuals. These include:

  • an amendment to the wording of section 116(1)(a) to refer to a 'fact or circumstance' leading to visa grant that no longer exists;
  • the insertion of a new ground at section 116(1)(aa) to provide grounds for cancellation where a fact or circumstance leading to visa grant never existed;
  • an amendment to section 116(1)(e) to lower the risk threshold - this ground is now enlivened when someone is or is likely to be a risk to the community, a segment of the community, or to an individual or individuals;
  • the insertion of a new ground at section 116(1AA) to provide grounds for cancellation where the Minister is not satisfied as the visa holder's identity;
  • the insertion of a new ground at section 116(1AB) to provide grounds for cancellation where the visa holder provides incorrect information outside of the scope of section 109, and that information led to the granting of a visa or the lifting of a bar;
  • an amendment to section 117(2) to allow the new grounds at sections 116(1AA) and 116(1AB) to be used to cancel permanent visa holders where the holder is onshore.

Other amendments include the insertion of subdivision FA and several new personal Ministerial cancellation powers. These allow the Minister to cancel without notice, or set aside a non-adverse decision, on grounds at sections 109 or 116 of the Act, where it is in the public interest to do so. Additionally, sections 338(3) and 411 have been amended to provide that any decision made personally by the Minister will not be merits reviewable. Cumulatively, these changes provide the Minister with the means to take greater responsibility for cancellation decisions in order to secure outcomes consistent with the public interest.

Regulation Changes

Relevant amendments to the Migration Regulations are expected to come into effect on 12 December 2014. These include:

  • an amendment that will allow a section 65 delegate to refuse to grant a visa if the visa applicant does not provide a police clearance certificate, however described, or a completed approved Form 80, as evidence that they meet PIC 4001 requirements, if an officer requests that they do so;
  • an amendment to Regulation 2.53 so that a person being considered for visa cancellation must be given 28 days within which to provide reasons as to why their visa should not be cancelled;
  • an amendment to Special Return Criteria 5001 to the effect that a person will be permanently excluded from entering Australia if their visa is cancelled under any part of section 501;
  • an amendment to Special Return Criteria 5001 to provide that where the Minister acts personally to grant a permanent visa to a person who had their visa cancelled under section 501, they are not permanently excluded from Australia;
  • an amendment to regulation 2.41(c) to provide that decision makers considering cancellation of a visa under section 109 need only have regard to whether the decision to grant a visa or immigration clear the visa holder was based wholly or partly on incorrect information or a bogus document;
  • the insertion of two new cancellation grounds at regulation 2.43(1)(oa) and (ob) to provide grounds for cancellation, relying on section 116(1)(g), where a temporary visa holder is either convicted of an offence in Australia, or is the subject of an Interpol notice stating that they are likely to commit the same offence in Australia, or that they are a serious and immediate risk to public safety;
  • an amendment to regulation 2.43(1)(p)(i) to exclude non-citizens whose previous visas were cancelled under regulation 2.43(1)(oa);
  • the insertion of a new cancellation ground at regulation 2.43(1)(r) to provide grounds for cancellation, relying on section 116(1)(g), where the Minister reasonably suspects that the holder of a subclass 771 (transit) visa did not have or has ceased to have the genuine intention to transit Australia within 72 hours;
  • an amendment to the scope of Public Interest Criterion 4013 to include any person cancelled under grounds at sections 116(1AA), 116(1AB), 116(1)(e) or regulations 2.43(1)(oa) or (ob).
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Why a Business Owner needs an Employment Lawyer

Employment Lawyer and Business Owner

Why a business owner needs an Employment Lawyer?

Business Owners and Employers are constantly having problems dealing with their employment and HR obligations in the workplace.

  • Unfair Dismissal issues;
  • Redundancies and restructures;
  • Employees setting up their own business with stolen confidential information; and
  • Underpayment of wages claims.

Are just some the prevalent issues where an Employment Lawyer can devise a practical and strategic plan to deal with these difficult legal issues.

Jonathan Mamaril, Special Counsel with NB Lawyers a specialist in Employment Law recently gave an interview to FM Radio on 'Why a Business Owner needs an Employment Lawyer'.

Why a Business Owner needs an Employment Lawyer

It is well worth a listen.

NB Lawyers are the Lawyers for Employers and can be contacted on 07 3876 5111.

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Australian government issues advice for those using migration agents

Advice for using Migration Agents

The Department of Immigration and Border Protection has issued advice to help visa applicants understand how it deals with migrant agents.

Many people applying for visas use a migrant agent, but there have been a number of high profile examples of things going wrong due to rogue agents.

The DIBP points out that all agents should be registered and if an applicant uses an agent, then the department's first point of contact is the agent rather than the applicants.

'This means that if we want to discuss your visa application, we will generally contact your registered migration agent first rather than you,' said a spokesman.

Depending on the contract of services an applicant has with a registered migration agent, a visa processing officer may discussing the visa application with the agent and send written communication about the application to the agent, if the agent is also the authorised recipient.

Communication with agents can include an acknowledgement of receipt of the applicant's visa application, a formal request for more information in support of the application, and a request for an interview.

Information about any associated bridging visas and work rights while an applicant waits for a decision can also be done via the migration agent, as can the decision to either grant, refuse or cancel a visa application.

'Depending on your contract, your registered migration agent could prepare documents for your visa application such as your visa application form, and other departmental forms and evidence collected from you to support your application,' the DIBP spokesman said.

'Any document they submit to us is regarded as having been sent on your behalf. Registered migration agents must not make statements in support of an application or encourage the making of statements, which they know or believe to be misleading or inaccurate,' he explained.

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Best 2015 Job Prospects in Australia Will be in Small Business

People looking for new jobs in Australia may find it harder in the New Year, as the latest employment survey shows that hiring will remain relatively modest going into 2015.

The latest Manpower Employment Outlook Survey, which asks the hiring intentions of over 1,500 employers in Australia for the coming quarter, found that 19% plan to increase their hiring, 12% plan to decrease and 68% will make no changes.

The most positive jobs outlook is in the Northern Territory. Smaller firms also have greater hiring intentions than larger companies with mining, construction and manufacturing having the lowest hiring intentions.

The resulting outlook of +8%, sits at a similar outlook to the same time last year, and is slightly down from +10% in the fourth quarter of 2014.

Results broken down by organisation size indicate that hiring intention will remain strongest among employers in small business, who report an outlook of +12%, up 4% from the first quarter of 2014.

'It's been a tough year and many organisations are planning to come out of the Christmas break running with the workforce they currently have in place. Employers in manufacturing, wholesale and retail trade, and mining and construction are reporting particularly soft outlooks,' he explained.

Medium sized business reported an Outlook of +7%, down 3% from the previous quarter. Large organisations reported a soft Outlook of +3%, down 4%, and micro business reported the lowest Outlook of +2%, down 5% quarter on quarter.

Conservative hiring forecasts were reported throughout most of the states and territories. Employers in Victoria expect a moderate decrease in hiring, reporting an Outlook of +5% in the first quarter of next year, down 8% quarter on quarter.

Meanwhile, employers in South Australia reported a muted Outlook of -2%, down 5%, those in Western Australia. The Australian Capital Territory reported mild hiring Outlooks of +3% and +2% respectively.

The strongest employment forecast was again reported by employers in the Northern Territory, down 2% on the previous quarter to an Outlook of +15%. Employers in Tasmania, New South Wales and Queensland reported slight fluctuations in hiring intentions to record Outlooks of +12%, +11% and +14% respectively.

Employers in all sectors reported positive intentions; however, most forecast slightly weaker hiring intentions quarter on quarter and are expecting a reserved start to the year.

Mining and construction, manufacturing, and wholesale trade and retail trade sector employers all reported a drop in hiring intentions to record Outlooks of +5%, +2% and +5% respectively.

Service sector employers recorded a hiring Outlook of +9%, down 7% quarter on quarter while transport and utilities saw no change from last quarter recording an Outlook of +8%. Public administration and education employers recorded the largest increase this quarter, at 7%, to record an Outlook of +11%.

Job prospects in Australia in 2015

We hope that you have found the information in this issue of our newsletter to be enriching and useful. Stay tuned for our next publication and if you would like to talk to us directly, please do not hesitate to email service@noborders-group.com. In addition, if you would like your contact details updated or removed from this distribution list or you know someone who would like to be added, please email us on the same address.


"The only limits to being the person you truly want to be are your own self-limiting beliefs and thoughts. In every moment, you have the power to choose your life"

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