Friday, 20th of February 2015 Issue #2 February
No Borders Newsletter

TOP STORY

Significant investor visa changes announced

Issues of this month

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Changes to Australian Investor Visas Announced

The Australian government has released a draft investment framework for an enhanced Significant Investor Visa Scheme (SIV) and design options for a new Premium Investor Visa (PIV).

As part of a broader competitiveness agenda, the reforms are aimed at better directing investment through the visa schemes into more dynamic areas of the economy, including venture capital and small emerging companies.

The framework and design options were developed by Austrade following initial rounds of stakeholder consultation which attracted 68 written submissions.

The review explains that under the existing SIV scheme investment is directed largely into passive investments like government bonds. Applicants are required to make an investment of at least $5 million in complying investments for a minimum of four years. Under the proposed changes government bonds would no longer be a complying investment class.

The proposed complying investment framework for the SIV scheme includes specifying that at least 20% or $1 million of the applicant?s $5 million investment must flow into early stage, growth capital investments, through approved venture capital funds.

It also says that at least 30% or $1.5 million of the applicant?s investment must flow into emerging listed companies, through managed funds investing in small Australian stock exchange listed companies.

And it reinforces the existing rules banning direct investment into residential real estate, and introducing new measures to clamp down on indirect investment into residential real estate. A portion of funds will continue to be permitted to flow into commercial real estate, via managed funds.

There are also enhanced measures to improve protection for investors. The Premium Visa scheme would require a minimum investment of $15 million and offer an accelerated 12 month pathway to citizenship.

This scheme will be more flexible in terms of investment class and will be aimed at attracting exceptional business people to Australia, including high-calibre entrepreneurs.

Investor visas offered a valuable prize which the government believes warrants investment in more dynamic and productive areas of the economy which experience capital constraints, according to Michaelia Cash, assistant immigration minister.

She explained that the changes will attract more investment into high growth companies and will support the commercialisation of great Australian research. The key objective is to see more investment into areas which support innovation and which provide new sources of growth capital, particularly in areas with thin capital flows.

The enhancements are also designed to see the full potential of the government?s investor visa scheme realised, while maintaining strong safeguards to ensure Australia?s migration programme is not misused.

Changes to complying investment policy for the SIV and new PIV will take effect from 01 July. ?They include higher risk and potentially higher return investments such as venture capital, which will provide a bigger potential boost to the Australian economy,? added Cash.

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Recent Favourable Migration Review Tribunal Decision

REGIONAL EMPLOYER NOMINATION (PERMANENT) (CLASS RN) – SUBCLASS 187 – CL.187.234 OF SCHEDULE 2 – SKILLS ASSESSMENT – The delegate refused to grant the visa because the applicant did not meet cl.187.234 of Schedule 2 to the Regulations, a criterion which related broadly to the demonstrated qualifications and skills of the applicant. The delegate found that the applicant was required to, but had not obtained positive skills assessment from the relevant skills assessing authority as per cl.187.234(b) prior to making the application, and refused the visa on that basis. The applicant’s representative made written submissions to the tribunal arguing that the delegate imposed the incorrect skills requirement on the applicant.

Held: Decision under review remitted.

The tribunal found that the occupation of Sales and Marketing Manager ANZSCO 131112 was not (and had never been) an occupation specified for the purposes of the provision. For this reason the tribunal found that cl.187.234(b) did not apply and the relevant provision was cl.187.234(c). Having considered the evidence, in particular the extensive documentation which indicated that the applicant had over 10 years employment experience in sales, marketing and management roles prior to making this application, the tribunal accepted that the applicant had at least five years of relevant experience at the time the visa application was lodged. The tribunal accepted that the applicant had the qualifications mentioned in ANZSCO for the nominated occupation at the time of application, and that the applicant met cl.187.234(c) on that basis. The tribunal was therefore satisfied that the applicant met the requirements of cl.187.234 and remitted the visa application to the department to consider the remaining criteria for the visa.

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Demand for Family Visas in Australia Continues to Grow

family visa demands grow

Demand for family visas in Australia has continued to growand as a result there have been some major changes to these types of visas.

The Department of Immigration and Border Protection?s annual report shows that in the 2013/2014 financial year the total number of family visas granted increased by 1.54%.

The biggest increase was in the parent (non contributor) steam which saw applications rise by 4.65% while partner visas were up by 3.08%. There was no change for child visas and parent (contributory) visas.

In recognition of this demand, the planning level for the family stream was set at 60,885 visas for 2013/2014 and a major change was the removal of the additional 4,000 family stream places allocated to applicants seeking family reunion under the regular Migration Programme. These were allocated to the Family stream in 2012/2013 as a result of a recommendation of the Expert Panel on Asylum Seekers.

In 2012/2013, some 1,066 places were granted to IMA-sponsored family members and the remaining 2934 places were filled by applications from the Migration Programme partner category pipeline. Before the removal of the 4,000 places in December 2013, 1159 visas were granted to IMA-sponsored family members in 2013/2014.

There was another major change in December 2013 when the Immigration Minister used his powers under section 499 of the Migration Act 1958 (Migration Act) to introduce priority processing. This gives lowest priority to family stream visa applications sponsored by permanent residents who arrived as IMAs.

The annual report says that it forms part of the government?s overall efforts to combat people smuggling and will help to sustain public confidence in the fairness of family migration.

Under this direction, someone who enters Australia illegally by boat cannot gain an unfair advantage over those who arrive lawfully. The direction applies to applicants up until such time as the sponsor acquires Australian citizenship.

The department uses a number of measures to ensure the integrity of the family stream, including risk matrices for decision makers, document verification processes, interviews with applicants and/or their sponsors, home visits, liaison with other government agencies, and monitoring of emerging trends and risks.

'The family stream of the Migration Programme provides for the permanent migration of certain family members to Australia, in recognition of the social benefits associated with family unity. Australian citizens, Australian permanent residents and eligible New Zealand citizens are able to sponsor their family members through the family stream, where priority is given to partners, including fiances, and dependent children,' the report explains.

In June 2014 the non-contributory parent visas (subclasses 804 and 103) and other family visas including Carer (subclasses 836 and 116), Remaining Relative (subclasses 835 and 115) and Aged Dependent Relative (subclasses 838 and 114) visas, were repealed.

'Due to the high number of applications in comparison to the limited places available, these visas had extensive waiting periods and were ultimately unsustainable. The waiting times for the ongoing processing of applications received before the repeal is up to 30 years for a non-contributory parent visa, six years for Carer visas, and 25 years for Aged Dependent Relative and Remaining Relative visas,' the report explains.

'The changes are in line with the government?s commitment to a Migration Programme that meets the needs of a modern Australia, balancing the important economic and social contribution of migrants with the desire for family reunion. A person applying for a permanent skilled visa can include their partner, dependent children and dependent parent in the same application. Where a parent is not dependent they can subsequently be sponsored under the contributory parent visa category,' it adds.

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Immigration advisers warn of Cricket World Cup visa scam

Cricket world cup visa scam

Travellers with no intention of attending Cricket World Cup games are taking advantage of a transtasman arrangement allowing visa-free entry to New Zealand for the event.

The visa arrangement, announced last September, was aimed at providing ease of movement for cricket fans following their teams here and in Australia.

Fans and supporters who have an Australian visa can also obtain a three-month visitor visa to New Zealand on arrival.

It means people from countries for which visas are usually required do not have to provide the same evidence to back their reasons for visiting, meet health requirements or prove that they have enough money to support themselves.

An immigration adviser said some people were treating the arrangement as a "loophole" for easy entry into New Zealand.

The Herald has been told of one person, a Chinese passport holder, who was allowed in after showing that he had a $20 e-ticket for the Bangladesh-Scotland game in Nelson.

But the man told an immigration adviser he had no intention of going to the game, and had used the ticket only to support his case for entry.

The adviser, who wanted to remain anonymous, said the man had a restaurant job waiting and had inquired about ways to stay in New Zealand permanently.

Another adviser, Tony Tse, said the price in China to fraudulently obtain a New Zealand visa was 100,000 ($21,800) to 120,000 renminbi. The price of a World Cup ticket was therefore "a bargain" for would-be rule-breakers, he said.

Mr Tse said there were fears some bogus cup "visitors" could be coming with plans to work and overstay.

As of Wednesday, 94 people had travelled to New Zealand under the arrangement but some had been stopped from boarding their flights.

Immigration New Zealand spokeswoman Rachel Purdom said several Chinese nationals were denied boarding in Australia on Monday.

"The passengers [said] that they would be attending the games and provided Cricket World Cup tickets as evidence. However, the tickets were for games scheduled to take place after the dates of [their] planned departure, which called into question [their] intentions."

The New Zealand Association for Migration and Investment said people coming under the scheme should be "risk assessed".

Immigration Minister Michael Woodhouse was not available for comment yesterday.

The Cricket World Cup runs from February 14 to March 29, but the visa arrangement gives extra time for fans to visit before and after the event.

World Cup visa special

  • Holders of most eligible Australian temporary visas can travel to New Zealand without applying for a New Zealand visa
  • Those who meet requirements will be granted a three-month visitor visa
  • Arrangement is open for travel from January 26 to April 5
  • Holders of New Zealand visas must still apply for an Australian visa to enter Australia
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Flexibility - in or out of the workplace

Individual Flexibility Agreements (IFAs) are fast becoming a good way for agile and growing Employers to best utilise their workforce. The proposed changes by the Abbott Liberal Government are designed to provide greater flexibility with the main change giving Employers and Employees the ability to trade monetary benefits for non-monetary benefits.

Jonathan Mamaril, Special Counsel at NB Lawyers says that these changes will in particular benefit small to medium size businesses that are looking to grow or establish themselves in niche markets.

"If the changes go through as expected IFAs will become an important tool for Employers to stay open for longer or open on Sunday without the need to incur cost blowouts on wages."

"Employers and employees will need to sit down and talk about what suits both their needs, there may be scope for an employee to leave work earlier on a day during the week to pick up the kids and in exchange overtime rates may not be payable." Mr Mamaril said.

Although this is a practical solution Mr Mamaril says that the flexibility agreed to still needs to pass the Better off Overall Test (BOOT) and misuse or abuse by Employers may be possible. If enforced correctly however, the proposed changes should provide opportunities for flexibility for Employees to pick up children from school, go to the bank, run personal errands or work from home.

"As long as the IFA passes the BOOT, there will be many creative ways for Employers to further utilise their workforce", Mr Mamaril concluded.

Written by

Jonathan Mamaril
Special Counsel, NB Lawyers
07 3876 5111
jonathanm@nb-lawyers.com.au
www.lawyersforemployers.com.au

Flexibility in out workplace
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Chinese New Year 2015: Melbourne celebrates the year of the goat

Chinese New Year

The world's largest annual migration is well underway as millions of Chinese head home for the New Year.

Airfares soar and train tickets are in high demand as the Chinese make the journey to their hometowns in what is known as Chunyun (the Spring Festival travel period).

Children are given red envelopes filled with money to bring happiness and good fortune. It is a common misconception that all Chinese receive the envelopes, but in fact only people who are not married receive the packs of money and only those who are married give them out.

Chinese New Year is the longest national holiday in China and spans 15 days. It is based on the ancient Chinese lunar calendar and falls on the second new moon after the winter solstice - somewhere between January 21 and February 19.

This year the Chinese celebrate the end of the year of the horse and the dawn of year of the sheep (or goat).

Goat or sheep?

This year is the year of the goat, but you may see it referred to as the year of the sheep too.

The confusion stems from the Chinese character "yang", which can translate in colloquial Chinese as either sheep or goat.

The goat is the eighth sign in the Chinese zodiac. People born under the sign are thought to be patient, kind and obedient, although those virtues are not necessarily thought to be good for success. Many believe people born in the year of the sheep/goat are destined to be followers and not leaders.

Lucky colours: brown, red, purple
Lucky numbers: 2, 7
Lucky flowers: carnation, primrose
Year of birth: 1919, 1931, 1943, 1955, 1967, 1979, 1991, 2003, 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.


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