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In this Immigration bulletin from the Immigration lawyers at Carroll & O’Dea, 2 areas of immigration on which you may have little knowledge are raised and discussed. These are immigration of carers for those injured at work and immigration issues as they affect religious orders.

We also talk about certain developments in immigration law useful and noteworthy updates in the law.

As always, you are welcome to ring Maithri, Christina or Jamie to discuss any of these immigration issues in more detail

Migration and Personal Injury

When a person is injured at work or in an accident they generally require care of a relative.

In circumstances where the injured person does not have a carer available in Australia, there are options of applying for short term or long term visas for overseas relatives to travel to Australia to provide care and domestic assistance to the injured person.

Short Term Visas

Visitor visas are available for 3 – 12 month stays in Australia. This visa would be suitable for people who require care and emotional support in the short term. The processing time for visitor visa is approximately 2 – 4 weeks, but may be expedited in cases where urgent assistance is required.

Permanent Visas

A permanent carer visa will allow an overseas carer to remain in Australia indefinitely. However, to satisfy the requirement of this visa, the Australian resident in need of care will need to undertake an independent medical assessment to determine whether their injuries are severe enough to require a permanent carer.

In cases where the injured person has sustained serious permanent injuries such as a brain injury, there would be no difficulty in meeting the threshold for a carer.

The second criteria for this visa, is that there is no other suitable carer or government support available in Australia to provide the level of care required by the injured person.

The processing time for a permanent carer visa is approximately 10 – 12 months.

Family Migration

There are a number of migration visas available to overseas applicants to be reunited with family members in Australia.

• Visitor visas are available for overseas relatives to visit Australia for holidays, weddings, graduation ceremonies ect. The period of stay for allowed for visitor visas ranges from 3 – 12 months.
• Spouse visas are available for applicants who are in a genuine marital relationship with an Australian resident or citizen. Fiancé, defacto and same sex partners are also eligible to apply for partner migration.
• Child visas are available for biological or adopted children of Australian residents or Citizens. They are permanent visas available to children under 25 years of age however, if the child is over the age of 18 they will need to prove that they are dependent on their Australian parent for financial and emotional support.
• Parent visas are available to applicants who have at least half of their children living in Australia as citizens or permanent residents.
• Aged Dependent visas are available for elderly applicants who are being wholly supported by relatives in Australia and have no emotional or financial support in their home country.
• Last remaining relative visas are specifically available to applicants whose parents and siblings are all residing in Australia. The applicant will need to show that they are the only member of their immediate family who is not an Australian resident.

Religious Visas

For the religious organisations wishing to bring overseas priests, ministers, monks, religious, lay workers, whether it be for work, study or training, there a number of visa subclasses which are available to suit each specific purpose.

Subclass 457 or Permanent Visas under the Labour Agreement:

If the religious institution is large in size, it may consult the Government about entering into a Labour Agreement to bring its religious workers on a periodic and ongoing basis. Generally, Labour Agreements enable Australian employers to recruit a specified number of workers from overseas in response to an identified or emerging labour market (or skill) shortages in the Australian Labour market. Employees may come to Australia on either a temporary or permanent basis.

Under the Agreement, overseas religious workers may apply for a subclass 457 – Temporary Business Long Stay Visa for temporary stay, whilst those who intend to stay in Australia on a permanent basis can apply for a subclass 120/855 – Migrant/Residence Labour Agreement Visa.

As an example, the Australian Catholic Church has a Labour Agreement with the Government and entrusted the Australian Catholic Migrant and Refugee Office (“ACMRO”) with the job of administering such a Labour Agreement for the Church. This agreement provides temporary and permanent entry to, and stay in Australia for a specified number of Priests, Religious and qualified lay people and their dependents (where applicable) for service in the Catholic Church in Australia.

As the Labour Agreement works as a pre-approved sponsorship, each potential applicant can apply for her or his visa as long as they meet the requisite qualification and work experience requirements set by the respective Labour Agreement and other requirements such as health and character requirements.

Work Visas under Religious Worker Visa – Subclass 458

This visa is appropriate for relatively smaller religious organisations that would like to invite a religious worker as a one-off recruitment.

The visa holder must work full time and carry out work of a religious nature. The organisation that sponsors the applicant must be an established one and meet various sponsorship requirements which include having financial capacity to sponsor the worker, a standing in Australia as a religious organisation, and undertaking that they will meet the applicant’s travel expenses at the expiry of the visa.

Student Visas (Subclass 570 – 574) and Trainee Visas (Subclass 442):

For the religious novices or trainees, student visas or trainee visas may be the most appropriate option.

Whether it is an English language program or a theology degree, the applicant needs to meet a number of complex visa requirements for a student visa. They often involve an assessment of English proficiency, minimum educational requirements and for an applicant to meet certain criteria relating to their finances and health for example. The level of proof and documentation requirement varies depending on the nationalities of the applicant. Nationalities are organized within five assessment categories with students from lower assessment level countries often facing stricter requirements with little access to discretion.

It the applicant has to go through formal training with the religious organisation other than academic studies, a subclass 442 – Occupational Trainee Visa may be most appropriate.

Other Immigration Issues:

There are other general criteria such as health and public interest requirements which the visa applicant must be aware of. Various complications and issues can arise during the visa process or while the applicant holds a temporary visa. Some examples may be:

• where the applicant has a prior history of being exposed to certain illnesses such as tuberculosis;
• where the applicant fails to renew their visa and unintentionally stays beyond expiration of their visa in Australia;
• the applicant fails to abide by the conditions imposed on their visas;

There are exemptions, discretion and a review process available under law which may rectify some issues that may arise if assistance is sought appropriately.

At Carroll & O’Dea Lawyers, we advise and assist a number of religious organisations in relation to various legal matters, including immigration and visa issues. Please do not hesitate to contact us if you have any queries

Skilled Migration

In September 2007, the Australian government implemented major changes to the skilled migration program.

The changes benefit those who have strong English skills and work experience in a skilled occupation. Additional points are rewarded to those who have proficient English (a score of 7,7,7,7 in the IELTS exam) and applicants who have worked in Australia.

Therefore, applicants who have generalist occupations such as sale representatives, auditors, management consultants, marketing specialist etc. may qualify for an Independent Skilled visa.

In addition, older applicants who have extensive work experience may also be eligible for the Independent Skilled visa.

Previously, applicants in the situations described above would not be eligible for skilled migration unless they had an Australian relative sponsor or state sponsorship.

The changes to the skilled migration program include:

• New names and subclasses for skilled visas
• New passmarks for skilled visas. These are:

• A new 18 month graduate temporary visa for students currently in Australia to allow them additional time to gain further skilled work experience or improve their English skills. Applicants will have unlimited work rights on the Skilled Graduate visa.
• Extra 10 points awarded to applicants who have proficient English.
• Requirement of 12 months work experience for applicants who wish to claim extra points for occupations in demand.
• Interdependent (same sex) partners can now be included as Spouses on skilled visa applications.

Employer Sponsored Visas

Australia is currently suffering a skills shortage and many businesses require the services of overseas workers. There are two common types of visas available to overseas workers:

1. Subclass 457 Business Long Stay visa. This visa will allow an employee and their family to live and work in Australia for up to 4 years and the visa may be extended if required.

This visa is of benefit to employers as it is a condition of the visa that the employee must work for the Sponsor business and cannot work for another employer.

However, this visa is subject to ongoing monitoring requirements and the business is required to sign sponsorship undertakings.

2. Permanent employer nominated visa. This visa is a permanent visa and will allow the employee and their family to remain in Australia indefinitely.

There are no conditions on the visa that prohibit the employee from obtaining employment with another employer once the visa is granted.

Recent Changes

Due to negative press surrounding the treatment of overseas workers in Australia, the Department of Immigration has introduced tighter requirements on employers who wish to sponsor overseas workers to Australia.

In the past few months many changes have been introduced including:

• Requirement that trade employees must have functional English and may be requested to sit an English exam.
• A new method of calculating the minimum wage payable to overseas workers. The current minimum base salary is $43,440.00 for a standard 38 hour week for most occupations. For IT occupations the minimum base salary is $53,530.00.

For employees sponsored by regional business, the minimum salary level is $39,100.00.

• Recruitment and labour hire companies are no longer able to provide sponsorships for overseas workers. The employee will need to be sponsored by the direct employer.
• However, these prohibitions may be overcome if the labour hire company/ multi-national corporation has a “Labour Agreement” with the Australian Government.
• Heavy fines for employers who knowingly or recklessly employ unlawful immigrants.

The Department of Immigration has indicated that it will expedite processing for employer sponsored visas where:

• the employee will be paid over $70,000.00 per annum; or
• the employer sponsors more than 5 overseas workers each year; and
• the business sponsor has a good record with immigration law compliance.

At present the current processing time for a subclass 457 business long stay visa is approximately 4 – 8 weeks.

The current processing time for the permanent employer nominated visa is approximately 3 – 6 months.

Australian Citizenship Changes

The new citizenship rules came into effect on 1 July 2007. The residency requirements have now changed and affect those who have obtained permanent residency on or after 1 July 2007.

The changes benefit applicants who have lived in Australia as temporary residents eg. overseas students and sponsored employees.

Applicants for Australian Citizenship must now show:

1. Legal residency (either temporary or permanent) in Australia for at least 4 years prior to the date of application; and
2. Permanent residency in Australia for a least 1 year prior to the date of application.

Citizenship Test

Most applicants who wish to apply for Australian Citizenship must now pass the Australian Citizenship Test prior to lodging their citizenship application.

The test is computer based and consists of 20 multiple choice questions about Australian values, history, culture, geography, responsibilities and privileges of becoming an Australian Citizen.

Applicants will need to achieve a score of at least 12/20 to pass the exam.

Further information about the exam and sample questions can be downloaded at: www.citizenship.com.au.

Further Information

Carroll & O’Dea Lawyers are experienced in all immigration law areas. We are able to provide you with advice and services in relation to your visa application and migration issues.

Please contact our office on 1800 816 559 for a consultation