Monday, 7th of December 2015

 

Issue #1 December

 

TOP STORY

Changes to 4567 visa
 

ISSUES OF THIS MONTH

Changes to 457 visa effective from 1st December 2015

 

Think you're not an employer? Think again!

 

Incorrect / False Application Results In Cancellation Of 189 Visa

 

Working Holiday Visa 417 & Work and Holiday Visa 462 : PATHWAY TO RESIDENCY IN AUSTRALIA

 

Court Provides Guidance On Criteria For 485 Visas

 
 

Changes to 457 visa effective from 1st December 2015

The Department of Immigration and Border Protection announced that those applying for the Temporary Work (Skilled) Visa (Subclass 457) will be required to fulfill a number of new obligations in order to be granted the right to work in the country for an approved business for up to four years. It is anticipated that this change will shed light on some otherwise confusing aspects of the visa process for new immigrants applying to the program.

Under these new regulations, if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder:

  1. must hold the licence, registration or membership while the holder is performing the occupation; and
  2. if the holder was outside Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s arrival in Australia; and
  3. if the holder was in Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s visa was granted; and
  4. must notify the Department, in writing as soon as practicable if an application for the licence, registration or membership is refused; and
  5. must comply with each condition or requirement to which the licence, registration or membership is subject; and
  6. must not engage in work that is inconsistent with the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject; and
  7. must notify the Department, in writing as soon as practicable if the licence, registration or membership ceases to be in force or is revoked or cancelled.
 
Click here for 20 Minutes Free Consultation

Think you’re not an employer? Think again!

think-if-you-are-an-employer

Most of us have had a friend help us out around the house or yard whether it is to assist us with fencing, landscaping or assistance with house renovations or cleaning. If you find yourself agreeing to a friend helping you, beware that you may actually be found to be an employer. It sounds crazy but this is what happened to a couple that allowed a friend to help them out when they were renovating their house.

The ‘friend’ assisted a couple on a few occasions within a period of one month and was reimbursed the cost of fuel and for the materials that he brought to the house. There was never a discussion of wages, hours of work and it was clear from the version of events put forward that it was simply an offer of help from one friend to another.

A few months later, the couple found themselves liable for a workers’ compensation claim from their ‘friend’ in a decision by WorkCover Queensland (WorkCover). WorkCover issued a frankly erroneous statement of decision which found their friend to be a ‘worker’ and that they were his employer. It was clear WorkCover heavily relied on the worker’s statement of events without taking due consideration of the couple’s alternate version.

As the couple were not covered by a responding insurance policy or a WorkCover policy, WorkCover advised that they were liable for a workers’ compensation claim for an amount over $15,000 with the possibility of further medical costs being incurred, including possible surgery for which they would be liable. If the claim was upheld by WorkCover the couple would be in a dire financial situation.

Under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (Workers’ Compensation Act) a person is deemed to be a ‘worker’ that person:

  1. “Works under a contract; and
  2. In relation to the work, is an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cwlth), schedule 1, part 2-5.”

There was no evidence that the ‘friend’ was working under a contract other than the couple advising that ‘he did a bit of work around the house’. The ‘friend’ advised that he was in receipt of an hourly wage although there was no evidence provided to support this claim.

After engaging our firm the couple then appealed the WorkCover decision to the Regulator who ultimately set aside the decision and found that the ‘friend’ was not a worker. The decision of the Regulator was that there was no evidence of a contract being in place nor was there any evidence of payments being made to the ‘friend’. On this basis, a finding was made: the friend was not a worker; the couple were not an employer and they are no longer liable for what could have been astronomical surgical bills on top of a $15,000 plus claim.

Many people would (reasonably) believe that there is no way they could be found liable as an employer when simply agreeing to let a friend help out around the house, but as this case demonstrates it can happen.

To prevent this from happening to you we recommend the following tips:

  • If a friend is performing services at your home it is best to have the details in writing, via text message will suffice provided you keep a copy of the message;
  • Be clear that it is not a working relationship and that they are in no way obliged to offer you any help;
  • Any payment for reimbursement of expenses should be done via banking so these amounts can be traced and that prior to payment a receipt is produced before reimbursement occurs;
  • Never say to any insurer that the friend worked for you, this implies that you are an employer and you may be found liable by WorkCover and you may be found to engaging in fraud.

In the event that you may find yourself in such a situation or you are concerned that a friend may be planning to submit a WorkCover claim after recently helping you out we recommend obtaining legal advice urgently.

If you are found to be an employer and liable for a WorkCover claim NB Lawyers offer a free 20 minute legal consultation to all employers.

For further information please contact Jonathan Mamaril, Principal on 07 3876 5111 or email jonathanm@nb-lawyers.com.au.

Written By
Jonathan Mamaril, Principal, and Michelle Chadburn, Lawyer, NB Lawyers
07 3876 5111
LAWYERSFOREMPLOYERS.COM.AU

 

Cautionary Tale: Incorrect / False Application Results In Cancellation Of 189 Visa

false information lead to visa cancellation

“Tell the truth, the whole truth, and nothing but the truth”!

This admonition, given to potential witnesses about their paramount obligation when giving evidence in court cases, applies with equal force to visa applicants.

It is absolutely essential that visa applicants be entirely truthful in the information and documents that they provide to the Department in connection with a visa application. This obligation is stated expressly in section 101(b) of the Migration Act, which provides that a non-citizen must complete his or her application form in such a way that no incorrect answers are given or provided. The consequence of providing incorrect information on a visa application may be that the visa may be cancelled under section 109 of the Act. And under section 48, a person whose visa has been cancelled may only be able to re-apply for adelete’a’ very limited types of visas.

As we see in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 (4 April 2014), the consequences of giving incorrect information on a visa application can be very dire indeed. This case concerned the cancellation of a Subclass 189 – Skilled – Independent visa due to false information having been provided on an application form. The AAT affirmed the Department’s decision.

To make matters worse, the visa holder had lodged an application for Australian citizenship after he had received notification from the Department that it considered that some of the information that he had provided on his visa application was not correct.

So, in this case, the submission of incorrect information caused “everything to become unraveled”: it resulted not only in the cancellation of the 189 visa, but it undoubtedly doomed any chance the visa holder might have had of getting his citizenship application approved.

On the visa application, it had been indicated that the visa holder had obtained a skills assessment from the relevant skills assessment authority for his nominated occupation of “accountant” and that he had also undertaken an IELTS test which resulted in the characterization of his English language proficiency as being “superior”.

However, following the grant of the visa, CPA Australia advised the Department that it had no record in its database of a skills assessment having been done for the applicant, no record of the reference number for the skills assessment that had been provided to the Department, and not even any record of the applicant’s name.

Similarly, checks that were undertaken by the Department with the IELTS Report Verification Service revealed that there was no record of the applicant’s having ever undertaken an IELTS test, no record of the reference number for the test that had been provided with the application, and no record of the applicant’s name in the IELTS database!

 

Working Holiday Visa 417 & Work and Holiday Visa 462 : PATHWAY TO RESIDENCY IN AUSTRALIA

working holiday visa

Over 3 millions visitors come to Australia every year, this number has been increasing 10% each year and is due to continue the same trend. Many of these holiday makers are on working holiday visa’s or work and holiday visas. Shortly after arrival they fall in love with the weather, the activities and the people of Australia. The million dollar question here is how can they obtain a suitable visa to stay Australia and obtain permanent residency?

Please find below some tips for the pathway to obtain a temporary or permanent visa:

Work :

  • Don’t just take on any job for money, more importantly find a job that relates to your qualification or interests
  • Offer to work for free while in training to prove your ability – we can’t say this
  • If you need to take on a job for financial reason, do so. But keep your job search active for more suitable opportunities
  • Have a timetable for job seeking – e.g. walk the street in the morning and search online in the afternoon
  • Have a well prepared resume with full details of your qualifications and your abilities
  • Have the right attitude: “Yes I can” in the interview with potential employers
  • Dress to impress for the interview regardless of the position

Study:

  • Enrol in some Diploma courses that could lead to potential employment and sponsorship
  • If you already have a degree, begin the skill assessment procedure early as it takes some time to process
  • Obtain a good IELTS level by studying with a private coach
  • Have a strategy planned out as soon as you decide to stay in Australia
  • Bring a copy of your qualification, transcript and work references from your home country

The most important step that holiday makers need to do is to arrange a meeting with an experienced migration agent, as people are obtaining incorrect information from unreliable sources.

The differences between: Work and Holiday Visa (Sublcass 462) and Working Holiday Visa (Subclass 417)

  • 462 visas have education requirements, while 417 visas do not.
  • 462 visas require a letter of support from your government of origin (unless you’re from the U.S.), while 417 visas do not.
  • 462 visas also require evidence of functional English, while 417 visas do not.

To know more about your options, please click here to register for a complimentary consultation with No Borders Migration Advocates.

Happy Holidays!!!

 
Click here for 20 Minutes Free Consultation

Court Provides Guidance On Criteria For 485 Visas

Criterion for grant of Australian Graduate Visa

How can an applicant satisfy the criteria for the grant of a “Temporary Graduate” (Subclass 485) visa?

This is a question that is of obvious importance to students who wish to remain in Australia to work for a period of time after they have completed their studies.

And it is of particular consequence to students who wish to nominate an occupation in their 485 applications that do not correspond exactly, or entirely, with the courses that they have taken in Australia.

What, then, precisely, do the words “closely related” as used in clause 485.222, actually mean?

Some answers to these questions can be found in a decision that was handed down by Judge Manousaridis of the Federal Circuit Court in the case of Tobon v Minister for Immigration & Anor (2014) FCCA 2208 (26 September 2014).

The decision means that there does not have to be a direct “overlap” or “match” between the subject matter of the course and the nominated skilled occupation in order for an applicant to be able to qualify for a Temporary Graduate visa. All that is necessary is that the skills that are gained through the Australian study must be capable of being used for more than a small part of the skilled occupation.

Contact us for an assessment of your individual circumstances.

Email: service@noborders-gorup.com

Phone: +61 7 3876 4000

 
 

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"

 
 

No Borders Group

Email: service@noborders-group.com
Phone: (+61) 07 3876 4000

 
 

NO BORDERS Universal Migration
Level 4, 20 Park Road
Milton 4064
Queensland
AUSTRALIA