Practice Points

 
 

ATO AND DIBP VISA HOLDERS DATA MATCHING PROGRAM

 

The ATO and the DIBP have entered into a data matching program. According to the Gazette Notice, the ATO will acquire names and addresses and other details of visa holders, their sponsors, and migration agents for the 2013-2014, 2014-15, 2015-16 and 2016-17 financial years. Data that will be obtained includes:

  • Address history for visa applicants and sponsors
  • Contact history for visa applicants and sponsors
  • All visa grants
  • Visa grant status by point in time
  • Migration agents (visa application preparer who assisted or facilitated the processing of the visa)
  • Address history for migration agents
  • Contact history for migration agents
  • All international travel movements undertaken by visa holders (arrivals and departures)
  • Sponsor details (457 visa)
  • Education providers (educational institution where the student visa holder intends to undertake their study)
  • Visa subclass name.

All of the above ramps up compliance. Employers not paying what they said they would will ended up with a double whammy – compliance activity from Immigration and probably a tax audit!

 

ONE SIZE FITS ALL REPORTS

 

There is now a proliferation of organisations offering to do reports on ‘genuineness’, labour market testing, market salary, training plans and business plans.  There is a ‘one size first all’ impression being created in this.  Immigration is aware that these companies are offering large commissions back to migration agents. Take care with these organisations as it may create the impression of ‘Oh No not another purchased report from X’ in the mind of a decision maker.  Reports looking the same across a large number of visa applications may raise credibility issues. Any individual migration agent or advisor will not know how many ‘same style’ reports are being sent to the same section of Immigration from other sources.

This unmistakable adage is that each and every application for sponsorship, nomination or visa has to be individually ‘hand’ crafted or as I say ‘hand sculptured’. There is no alternative to this.

Any competent migration advisor ought to be able to draft ‘genuineness’, labour market testing, market salary and training plans. Doing a business plan is a specialist skill and unless one is an accountant, this should be undertaken by a qualified accountant or other skilled business analyst for such a report to have any traction or credibility.

Note also that the Code says this about receiving commissions in 2.2 :

If a registered migration agent:

(a) gives advice of a non-migration nature to a client in the course of giving immigration assistance; and

(b) could receive a financial benefit because of the advice;

the agent must tell the client in writing, at the time the advice is requested or given, that the agent may receive a financial benefit.

The writer’s opinion is that any commissions received from these agencies would need to be revealed to the client. Because the commissions are so high then it may even raise a conflict of interest in recommending to a client that the client go to the expense of getting one of these reports.

 

NO AGE LIMIT ON THE SUBCLASS 457 VISA

 

There is no age limit on the applicant for a subclass 457 visa. It means a 60 year old or even older could validly apply for a subclass 457 visa.

Obviously the older the employee the more it raises issues of authenticity.  But the absence of an age limit does create all sorts of possibilities for positioning for other visas.  Transition to permanent residence however may be limited and the pathway via either skilled visas or ENS visas ends once the person turns 50 unless age exemptions apply.

 

THE 457 VISA AS A RESCUE VISA

 

There are many situations where a person is facing visa refusal or may have been refused a visa and the prospects of appeal to the Migration Review Tribunal and/or the Federal Courts may be problematical.

For example if a person held a subclass 820 temporary spouse visa but the relationship has broken down so that the person will not get the permanent residence 801 spouse visa then positioning the person to apply for a subclass 457 is a viable rescue strategy.  The person can apply onshore prior to any refusal. Ideally one needs to find a sponsoring employer.  But if one cannot be found then the self-sponsorship model may work if the person has the skills and the access to funds to set up a company and a business and that company and business becomes the sponsoring employer. Relatives can sometimes be brought in to assist with management and capital.

If the visa has already been refused here is one strategy. Before decision at either MRT or Federal Court an applicant would obtain a Bridging Visa B, go offshore and apply for a subclass 457 visa offshore. New Zealand or Bali could be appropriate destinations, or if a visa to either of those countries was not possible then the applicant could take a short trip home. Note that Malaysia readily grants short term visas to people of the Muslim faith.

Once the person is offshore, with appropriate sponsorship and nomination ready to be lodged at the same time, the applicant applies for a subclass 457 visa and returns to Australia and awaits the decision.

Interestingly with the subclass 457 visa, the secondary applicant can be in Australia and the primary applicant can be offshore. Because a valid visa application has been lodged then the secondary visa applicant in Australia obtains a bridging visa.  The primary applicant can be in either Australia or offshore in relation to a subclass 457 visa.

However there may this hitch as set out in the schedule 2 criteria:

457.21      Criteria to be satisfied at time of application


457.211

If the applicant is in Australia at the time of application:

(a)      the applicant holds a substantive visa, other than a Subclass 771 (Transit) visa or a special purpose visa; or

(b)      if the applicant does not hold a substantive visa at the time of application:

(i)      the last substantive visa held by the applicant was not a Subclass 771 (Transit) visa or a special purpose visa; and

(ii)      the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.

 

457.22      Criteria to be satisfied at time of decision


457.221

If the applicant is in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.


457.221A

If the applicant was outside Australia at the time of making their application, but inside Australia at the time of the decision on the application:

(a)      the applicant holds a substantive visa, other than a Subclass 771 (Transit) visa or a special purpose visa; or

(b)      if the applicant does not hold a substantive visa at the time of the decision on the application:

(i)      the last substantive visa held by the applicant was not a Subclass 771 (Transit) visa or a special purpose visa; and

(ii)      the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.

 

Paragraph 3003 is historical and largely irrelevant to current visa situations.

 

3004

If the applicant:

(a)      ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(b)     ….

the Minister is satisfied that:

(c)      the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and

(d)      there are compelling reasons for granting the visa; and

(e)      the applicant has complied substantially with:

(i)      the conditions that apply or applied to:

(A)      the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

(B)      any subsequent bridging visa; or

(ii)      the conditions that apply or applied to:

(A)      the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

(B)      any subsequent bridging visa; and

(f)      either:

(i)      in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

(ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

(g)      the applicant intends to comply with any conditions subject to which the visa is granted; and

(h)      if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

 

The above issues need to be studied carefully in order to position oneself to meet those ‘exclusory’ provisions.

It may be that the client will have to return overseas for the grant and notify Immigration that that is the intention of the client in order to prevent the applicant being refused for otherwise meeting the criteria but falls foul of paragraph 3004 for being present in Australia at time of grant.  Obviously the primary submission should be that the client meets paragraph 3004. But the submission should end with this sentence:

If the decision maker is of the view that the applicant does not meet paragraph 3004 then the applicant is ready, willing and able to leave Australia prior to any decision about the grant of the visa. Kindly let the writer know if that is the position so that arrangements can be made for the applicant to leave Australia when required.

Barbara DavidsonPractice Points