PIC 4020 Update – Immigration Tightens the Screws

PIC 4020 Update – Immigration Tightens The Screws

The following trends are increasingly evident in the cases that clients are bringing to Career Up.

Their experience shows that visa applicants are well advised to seek experienced professional assistance from Career Up before lodging visa related applications, such as; skills assessment applications, applying for police clearances, preparing visa applications, and appealing visa refusals or cancellations.

1.
The wave of visa application refusals under PIC 4020 is proliferating and affecting almost every area of Immigration practice.

2.
PIC 4020 was recently extended to almost all sub-classes with rare exceptions.

The exceptions currently include bridging visas, refugee and protection visas, and a small number of other visa sub-classes.

3.
PIC 4020 is apparently becoming the refusal mechanism of choice.

Where there is more than one reason to refuse a visa, for example;
– a student cannot demonstrate adequate funds (potential refusal reason #1), and
– a bogus document was provided, even if it does not affect the criteria for the visa (potential refusal reason #2),

then increasingly, Immigration is choosing to refuse the visa using PIC 4020, thus imposing bans on future applications if no waiver is available.

4.
Time periods for response are getting shorter.

Immigration policy says that in most cases, “Natural Justice” notifications must be given.

“Natural Justice” means applicants have an opportunity to comment on, or respond to a suspicion that information supplied is false or misleading, or that a document provided is bogus.

An invitation to respond is given by email or letter, but is occasionally being given by telephone. When given by telephone, the applicant might have as little as a few minutes to respond to the adverse information (accusations).

Time periods to respond to written notices are increasingly as short as 7 days, but in most cases longer periods are allowed.

5.
Official Documents too.

Career Up has heard reports of refusals of visas where official documents provided by authorities show errors such as misspellings of names and wrong dates resulting in refusals under PIC 4020.

6.
Errors by Local Staff at Embassies.

Career Up has assisted several clients where case officers have accepted inaccurate or plain wrong reports by local embassy staff that documents are bogus, but where the documents are not, in fact, bogus.

How can I avoid getting caught by PIC 4020 ?

Careful planning and preparation from the start of the application process.

Contact Career Up to help you plan and avoid problems with PIC 4020.

What if I already have a Natural Justice letter?

Contact Career Up immediately to organise the best response possible in your circumstances within the time allowed.

What if my visa application is already refused?

Contact Career Up immediately to assess your options.

George Pearse
MARN 0425396

Contact us here

Please note this blog post is not legal advice or visa advice.

Read our disclaimer for further details;  https://careerup.com.au/visa/disclaimer/

PIC 4013 & PIC 4014 Exclusion Periods

PIC 4013 & PIC 4014 Exclusion Periods

PIC 4013 & PIC 4014 are Public Interest Criteria that must be met for grant of most temporary visas for Australia.

When listed as criteria for a visa, PIC 4013 and PIC 4014 can prevent the grant of the visa for up to three years after a cancellation of a visa (PIC 4013) or after leaving Australia while holding a BVC, BVD, or a BVE (Bridging visa C, D or E) or holding no visa at all.

The purpose of PIC 4013 and PIC 4014 is to identify people who are a risk to Australia because of negative Immigration histories and exclude them from re-entering Australia for a period.

Similar and sometimes related criteria are found in parts of the Migration Act and Regulations relating to “behaviour concern non-citizens”, the Schedule 5 Special Return Criteria, the Character Test, & PIC 4020. The last two are discussed in other blog entries on this website.

PIC 4013

When a visa is cancelled for a Prescribed Reason, then an application for a new visa that requires meeting PIC 4013 cannot be granted during the exclusion period.

The standard exclusion period is for three years from the date of the cancellation decision.

Not all visa cancellations will lead to problems under PIC 4013, however, the list of Prescribed Reasons is incredibly complex and arcane, so if your most recent visa was cancelled for any reason, you should assume you will have trouble with PIC 4013 until you learn otherwise.

If you are applying for a new temporary visa that requires PIC 4013 to be met, you should have this issue checked by an experienced migration agent like Career Up before you submit the application.

PIC 4014

If you leave Australia as an unlawful citizen (with no visa at all) or while holding a BVC, BVD, or BVE, then you may or may not be affected by PIC 4014.

Any application for a new visa that requires meeting PIC 4014 cannot be granted during the exclusion period.

The standard exclusion period is for three years from the date you leave Australia while holding no visa or holding a BVC, BVD, or BVE.

Again, the details of whether you will or will not be affected by PIC 4014 are incredibly complex and arcane, so if you left Australia after the grant of any BVC, BVD, or BVE or while you held no visa at all, you should check with an experienced migration agent like Career Up to find out if you are affected.

If you are applying for a new temporary visa that requires PIC 4014 to be met, you should have this issue checked by an experienced migration agent like Career Up before you submit the application.

How to avoid exclusions under PIC 4013 & PIC 4014

Careful planning of ongoing visa applications can help you avoid being caught by PIC 4013 & PIC 4014.

Contact Career Up immediately if you are sent a Notice of Intention to Consider Cancellation (NOICC) of your visa and well in advance of the end of your current visa if planning to apply for further visas inside Australia.

Career Up will assist you to avoid an exclusion under PIC 4013 & PIC 4014 if possible.

Is a waiver possible?

In some circumstances, YES.

If you apply for a visa that requires PIC 4013 & PIC 4014 to be met and you are affected, then you can still apply for a waiver if there are compelling or compassionate circumstances that affect the interests of Australia or of an Australian citizen or permanent resident.

Next Steps

Contact Career Up to assist you with preparing the visa application and waiver application.

The visa application and the waiver application are best prepared and submitted together.

An experienced and qualified advisor like Career Up can help you achieve the best result in your circumstances.

George Pearse
MARN 0425396

Contact us here

Please note this blog post is not legal advice or visa advice.

Read our disclaimer for further details;  https://careerup.com.au/visa/disclaimer/

Visa Application Refusal or Visa Cancellation

Visa Application Refusal or Visa Cancellation

There are few things more personal than the right to be in a country with a right to live there or to do certain things there, such as to study, to work, to live, or just to be safe.

If you suffer a visa application refusal or visa cancellation, then it is a personal loss with sometimes deep implications for you, your family, and other people that you live and work with.

How to prevent visa application refusal or visa cancellation

In all things, prevention is the best cure, so before applying for a visa take time to know what is required for grant of the visa, and for most people this means seeking competent advice and assistance.

For Australian visas, you can get this valuable advice and assistance from registered migration agents, like Career Up.

Early preparation and knowledge will help you avoid visa cancellation too.

How can you know that Immigration is considering visa application refusal or visa cancellation?

Often the first hint of trouble is that Immigration contacts you or your representative and asks for further information or clarification.

It is more serious if the Immigration officer is telling you that they are considering refusing your application or cancelling your visa, and they are asking for your comments before they complete their decision process.

What to do

The first simple step is to make sure that Immigration (and education provider for student visas) have your correct current address and telephone number.

They will write to you or attempt to contact you at your “last known address”, and if you are not there then your application can be refused or visa cancelled before you know anything about it and even after your appeal rights (if any) have expired.

The second important step is to not delay. There are strict time limits for responding or appealing and if you miss out, that may well be the end of the process without any further consideration possible.

The third important step is to read all of the information that has been sent to you and understand it to the best of your ability.

Finally, seek qualified advice. Problems that appear enormous and impossible to solve can sometimes be solved more easily than you first think.

Unfortunately, some problems are so enormous that they are impossible to solve.

A qualified advisor like Career Up can tell you what can be done and what cannot be done.

George Pearse
MARN 0425396

Contact us here

Please note this blog post is not legal advice or visa advice.

Read our disclaimer for further details;  https://careerup.com.au/visa/disclaimer/

Money Saving Options for Some Partner Visas

Money Saving Options for Some Partner Visas

Immigration raised the visa application charges for partner visas by around 50% from 1 January.

The new charges mean that to sponsor a partner with one dependent child to Australia, the application charges have gone up from $6,865 to $8,585 (onshore) and from $3,855 to $5,785 (offshore).

For an application for only a partner with no dependents, the application charges have gone up from $4,575 to $6,865 (onshore) and from $3,085 to $4,630 (offshore).

In the case of Fiancée visas, the initial application charge for the Fiancée visa is the same as the offshore partner visa, and then later, an onshore partner visa application, brings the total application charges up to around the full cost of an onshore partner visa.

Happily, in some cases it is possible to convert a Fiancée application into an offshore partner visa, thus saving around $3,000 in application charges (for a partner with one dependent child) and saving around 3 years in processing time through to permanent residence.

If you are applying for a Fiancée visa and your initial visa has not yet been granted, contact Career Up for an assessment to see if you can make these substantial savings in time and money.

If you are not able to access these savings, contact Career Up to assess your options and prepare, submit, and manage your application process with safety and surety.

George Pearse
MARN 0425396

Contact us here

Please note this blog post is not legal advice or visa advice.

Read our disclaimer for further details;  https://careerup.com.au/visa/disclaimer/

New Character Test

In November 2014, the current government successfully passed a Bill through parliament to effect a new character test. The Bill also introduced some additional cancellation powers under the Migration Act.

When Did the New Character Test Commence?

The new character test became law and came into force on 11 December 2014.

How and When is the New Character Test Applied?

The new character test can be applied when deciding whether to refuse a visa application, or it can be used to cancel an existing visa.

The new character test significant tightens the previous character test and even requires MANDATORY cancellations of visas in some cases – that is the Minister or the Immigration Department MUST cancel visas in certain situations. If your visa is mandatorily cancelled while you are in prison, you may be able to apply to have the cancellation revoked.

The Minister issues special instructions about how Immigration must deal with character cases.

The special instructions have not been updated for several years and considering the recent changes to the legislation and the early press releases of the new Minister, we expect that new stricter instructions will be issued early in the new year.

Effect of Visa Cancellation or Refusal on Character Grounds

If your visa is refused or cancelled because you fail the new character test then you are banned from Australia for life and you cannot enter Australia again, unless you successfully appeal or have the cancellation decision revoked.

Who Should Take Notice or Prepare to Take Action?

The issue is more than interesting reading, but of vital importance to anyone who has any level of police history or other anti-social history. If this applies to you, you should understand the changes and take appropriate action if necessary.

Extended Powers

The new character test gives the Minister greatly extended powers to refuse or cancel visas and the Minister has the further ability to remove appeal rights by acting personally to refuse or cancel visas. Refusal or cancellation of visas by the Minister acting personally cannot be appealed.

New Minister’s Tough Stance

On the day he was sworn in, the new Minister for Immigration announced his intention to target certain groups in the community, starting with motorcycle gangs. There is every reason to believe that the Minister will continue to target other groups that are of interest to the government.

See the link below for Minister Dutton’s first major announcement as the new Immigration Minister.

http://www.smh.com.au/federal-politics/political-news/immigration-minister-peter-dutton-targets-bikie-gang-members-as-top-of-my-list-for-deporting-20141223-12cp0c.html

Overview of Changes in the New Character Test

In overview, the main changes (additional criteria) in the new character test are these;

A person also fails the character test if;

The person is convicted to prison for any offences and the total period of all jail terms sentenced exceeds 12 months (previously 24 months in some cases) or if the person was ruled “not fit to plead” but was sentenced to stay in an institution (mental health facility or even drug rehabilitation facility) for any period.

The Minister suspects (Note: not “reasonably suspects”) that the person is associated with or is a member of a group involved in criminal activity. The activities include people smuggling or trafficking, genocide, war crimes, torture or slavery or (a new category) crimes that are otherwise of serious international concern. This new category is not yet defined, but the new Minister has only barely started work in his role.

Having regard to the person’s past and present conduct, there is a risk (Note: not “significant risk”) that the person will engage in conduct described in the paragraph above.

The person has been convicted in a court anywhere of any sexually based offence involving a child even if the person was discharged without conviction.

The person has been charged or indicted (Note: not convicted) in any country of activities which include people smuggling or trafficking, genocide, war crimes, torture or slavery or (a new category) crimes that are otherwise of serious international concern.

The person has a negative ASIO assessment or an Interpol notice has been issued on the person, and from which the Minister can infer that the person represents a risk to the Australian community.

Please note: The above is a summary of the recent changes to the character test. It is not a full explanation of the character test.
Other Changes

Several other minor changes affect how the “12 months of imprisonment” limit is calculated and makes the new character test even stricter.

The changes also introduced new cancellation powers under the Migration Act that reflect some of the character cancellation powers above, example: where someone is a “risk to the Australian community”, and there are other cancellation powers relating to identity, incorrect information, and changing circumstances of visa holders.

Notice of Intention to Consider Cancellation of a visa (NOICC)

In cases where an appeal right exists, Immigration issues a NOICC which tells the visa applicant or visa holder that a cancellation decision is being considered and offers an opportunity to provide a response including documents and information before the decision is made.

If you receive a NOICC or a letter discussing refusing your visa application on character grounds, contact an experienced migration agent like Career Up immediately to consider how to respond to the NOICC or other notice on time.

Automatic Cancellation of Visas

The Minister MUST cancel a visa without any right to “natural justice” provisions if the visa holder has a criminal history involving sentences of 12 months or more or is convicted of a sexually based offence against a child and is in prison in Australia for conviction for any offence in Australia.

No NOICC is sent and there is no right of appeal of the decision.

However, Immigration can be asked to revoke the decision, and a decision not to revoke the cancellation can be appealed in many cases.

Direct Intervention by the Minister

The Minister can, and the previous Minister increasingly had been intervening personally in character based visa refusals and visa cancellations. It appears that the new Minister will also intervene more in character cases compared to previous Ministers.

Where the Minister intervenes and exercises his or her power personally, there is no right to appeal the decision.

In practise, there is only a limited ability to challenge whether the Minister correctly exercise the personal powers in the Federal Circuit Court or in the High Court. These options are extremely limited.

Appeals

Decisions to refuse visa applications and cancel visas based on character can be appealed in many cases, but not all.

What Action Should I Take?

If you plan to apply for a visa for Australia, or if you are a visa holder and you might be affected by the new rules, contact Career Up as soon as you can to discuss your situation and prepare and plan your future actions.

If you have been issued with a NOICC, or a notice that Immigration plans to refuse your visa application, or you have had your visa cancelled, then contact Career Up urgently for advice and information about your options and about how to respond.

George Pearse
MARN 0425396

Contact us here

Please note this blog post is not legal advice or visa advice.

Read our disclaimer for further details;  https://careerup.com.au/visa/disclaimer/

 

Partner Visa Charges to rise by 50% on 1 January 2015

Partner Visa Application Charges to rise by 50% on 1 January 2015!

Increases of over $2,000 in many cases.

Hurry if you can!!

If you are almost ready to lodge an application, contact Career Up ASAP for an assessment.

We have capacity to take on a small number of new clients this week.

We will do what we can to get your application lodged on or before 31 December 2014.

George Pearse
MARN 0425396

Contact us here

Please note this blog post is not legal advice or visa advice.

Read our disclaimer for further details;  https://careerup.com.au/visa/disclaimer/

RISK

RISK

Risk is unavoidable so it is no surprise that people spending large amounts of money on visa applications want as much certainty as possible.

Unfortunately Risk is everywhere and cannot be avoided – only managed.

Types of Risk

You name it, there is risk at every step of the way;
Knowledge Risk – Do you know what is required and what to do to successfully apply for the visa?
Regulatory Risk – Will that fantastic legal loop hole you know about, be quietly closed before your application gets through?
Political Risk – Will the government change, or simply change policy so that the planned pathway to your target visa becomes an expensive waste of time? Think about refugees on boats during the current & last governments and General Skilled Migration (GSM) visa changes back in 2011 and 2012. A more common example is if your occupation is quietly dropped off the Skilled Occupation List (SOL).
Administration Risk – Did the assessing officer spend all night up with a sick baby before picking up your file and wrongly refusing it?
Administration Risk 2 – Does the policy manual correctly reflect the law it is trying to explain to case officers?
Documentation Risk – Does that employment reference from 5 years ago have a dodgy ABN? or Did the guy who signed have the authority to give the reference?
Exhaustion Risk  – Do you have the energy, drive, and commitment to keep up with your studies, job-seeking, sponsor-finding, and whatever else is needed to achieve the visa goal you have set?
Monitoring Risk – Has your employer kept up-to-date with their training contributions?
Third Party Risk – Has the employer sold the business and changed the ABN without going through the correct processes with Immigration?
Supporter Risk – Has that person who wrote a supporting statement about your de facto relationship 2 years ago turned against you?
Black Swan Risk – These are risks that no-one thought possible or likely, but which do come up from time to time, such as a severe storm knocking out power in an entire city on the last possible lodgement date, government websites inaccessible due to sustained DDOS attacks, even a tsunami destroying all records and killing all people who can support your planned application, to name some examples from the last few years.

That’s the short list, the long list of possible sources of risk is endless.

Managing Risk

Using an experience agent like Career Up will help you manage the range of risks you face.

We understand there is risk in every human activity, so the solution is to manage risk to the maximum extent possible through measures including;

– Continuous study and research of the Immigration law portfolio and training of staff to keep skills current and at the highest levels.
– Careful checking of previous applications, documents, and the other inputs of third parties where possible.
– Detailed and explanatory submissions to guide case officers through the legislation, regulations, and policy manual to arrive at a positive result.
(NB: any decision to approve or refuse any application is a matter for the Immigration Department and Minister. Career Up writes submissions to assist case officers correctly administer the law, but case officers are independent thinkers and may come to a different conclusion.)
– A workable Plan B (& Plan C & Plan D) is developed where possible.  It is good to keep open as many doors as possible, just in case your target pathway closes unexpectedly.
– Develop collaborative and cooperative relationships with third parties such as employers and supporting witnesses where appropriate.
– Maintain an unrelenting & on-going attitude of constant vigilance, looking ways to improve every application, to eliminate errors and correct problems ASAP.

Act now

Contact Career Up now, to plan and begin your visa application to get the best possible result for your circumstances.

George Pearse
MARN 0425396

Contact us here

Please note this blog post is not legal advice or visa advice.

Read our disclaimer for further details;  https://careerup.com.au/visa/disclaimer/

Labour Market Testing

Labour Market Testing (LMT)

Employers wishing to sponsor overseas workers may be required to show they have done adequate Labour Market Testing when nominating workers to fill positions.

What is Labour Market Testing?

Requirements are that, unless exempt, employers should actively seek an Australian worker to fill any position they plan to sponsor an overseas worker to before the nomination can be approved.

The rules in relation to Labour Market Testing change frequently.

Why do Labour Market Testing?

The idea is that employers should look for local workers before bringing in workers from overseas to fill positions.

Is Labour Market Testing needed every time?

Not all positions and not all workers require Labour Market Testing – there are a range of exemptions based on the position to be filled or the country of origin of the worker, for example, and there are more exemptions based on other factors.

How to avoid a mis-step?

Before sponsoring workers to temporary or permanent visas for Australia, contact Career Up for reliable advice based on our experience and knowledge of the law.

Career Up will handle your 457 visa sponsorship, nomination, and application processes professionally and efficiently to assist you bring your workers to your work site quickly and with minimum fuss, where eligible.

George Pearse
MARN 0425396

Contact us here

Please note this blog post is not legal advice or visa advice.

Read our disclaimer for further details;  https://careerup.com.au/visa/disclaimer/

 

More Good News on PIC 4020

More Good News on PIC 4020

The Australian government made changes to regulations last week that affect how PIC 4020 will apply to some people. The changes take effect from 23 November.

The changes to PIC 4020 mean that exclusions of 3 or 10 years will not be enforced if the person applying is under 18 at the time the application was made.

People under 18 will still have their current application refused if they do not meet the rules under PIC 4020, but will not be subject to the exclusion period for later fresh applications.

The intention of the changes is that children should not be affected by mistakes made by their parents.

If you are affected by PIC 4020, the Sledgehammer PIC, then contact Career Up as soon as you can for advice on your options.

George Pearse
MARN 0425396

Contact us here

Please note this blog post is not legal advice or visa advice.

Read our disclaimer for further details;  https://careerup.com.au/visa/disclaimer/

Should I use a migration agent

Should I use a Migration Agent

People often agonise over whether to use a migration agent, so the reasonable question is; What value will the agent give me in the application process?

Frequently people come to Career Up for advice and assistance after they find out they have a problem, that they made a mistake, gave wrong information, misunderstood what was needed and even messed up simple things like missing a deadline – so the obvious point is that these problems and grief would not have happened if they used Career Up as their migration agent in the first place.

There are often alternative pathways to the same visa goals – sometimes with very different costs and level of effort required. Choosing the best pathway will ensure a more reliable result, usually with less cost and effort.

The main reason you should consider using Career Up as your migration agent is because Australian migration law and procedures are complex and constantly changing. Our agents are specialists with the expertise to advise on the options and the implications of different choices.

Our aim is to reduce the time, cost and hassle in achieving your objectives.

So, consider our services if:

  • You want to be sure you choose the best way to apply for a visa.
  • You aren’t sure about all the visa options open to you.
  • You’re worried about how your circumstances might affect your application.
  • You don’t have the time to educate yourself about every aspect of this complex area of law
  • You want to reduce the risk of making a mistake that will affect your and your family’s future

Some people may prefer to handle their own application where their circumstances are straightforward. Career Up can still assist you with reviewing your application prior to lodgement at an hourly rate. With the emphasis by the Immigration Department on submitting decision ready cases, this could be money well spent.

Use Career Up as your experienced MARA registered migration agent to take the hassle out of your application process and achieve the best result possible.

George Pearse
MARN 0425396

Contact us here

Please note this blog post is not legal advice or visa advice.

Read our disclaimer for further details;  https://careerup.com.au/visa/disclaimer/