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Conference Papers

Day 1: Friday 14 March 2014


2014 CPD Immigration Law Conference
Sheraton on the Park, Sydney, 14-15 March 2014
Conference Papers

Opening keynote address

Minster for Immigration and Border Protection

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2014 CPD Immigration Law Conference
Sheraton on the Park, Sydney, 14-15 March 2014
Conference Papers

How does the new Government plan to lead the way in 2014
and beyond?

Successive generations of immigrants have brought new skills, traditions and perspectives that have
contributed to the swift evolution of our commercial systems. This didn't begin in 1946, it began in
1788.
I am the son of an immigrant, he may have come out on the Scarborough in 1788 but he was an
immigrant nonetheless.
The notion that Australia only became an immigration nation after the Second World War is a false
one.
Apart from our indigenous Australians, we are a nation of immigrants, descended from immigrants.
The key reason Australia's migration programs either by design or default over the last two centuries
have historically been so successful and indeed, have set us apart from other countries, is that we
receive migrants principally through our skilled migration program streams.
Over a considerable period of time, the defining principle of these programs has been that of a fair go
for those who have a go.
They have had a go and Australia has been the great beneficiary. The mindset which has been to ask
for nothing but to give everything and to reap the reward of their efforts, as we have all reaped benefits
as a result of their efforts has been one of the foundation principles of immigration in this country and
one this government respects and honours.
We are an immigrant nation, with core values that define our legal and political institutions, and a
forward focused outlook to engage ongoing economic development and participation in our economy,
operating in an increasingly sophisticated global environment.
But we see these challenges as opportunities; it is very much the immigrant mindset to see a
challenge as an opportunity.
So much of our nation's future economic growth and innovation is linked to ensuring that our migration
programs continue to be successful and that key political and industry stakeholders take a proactive
approach to ensuring their success.
The government I am part of is firmly committed to fostering and furthering the systems that develop
successful and legitimate economic migration.
We want to bring people to Australia who add value, who have a real go and make a contribution to
our society from day one.
The nation building policies of previous Coalition governments were defined by our commitment to
skilled migration and we are working to ensure that is also a core tenant of how we conduct ourselves
as a government in immigration.
Over the course of the last Coalition government, the percentage of skilled migrants in the permanent
program rose from less than 30 percent at the end of the Keating era, to almost 70 percent at the time
of the 2007 election. It is still a little bit below that, but that level of about two-thirds has been able to be
maintained over the last six years.

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2014 CPD Immigration Law Conference
Sheraton on the Park, Sydney, 14-15 March 2014
Conference Papers

The current government has clear, solid plans to re-engage the development of these vital immigration
streams in the economic domain and is committed to enhancing Australia's migration program through
thoughtful and productive reform.
The Business Innovation and Investment Program is a small, but important program that provides the
local economy with a source of valuable skills through migrants with proven business and investment
skills.
Within this program, the Significant Investor or SIV stream, facilitates the migration of international
investors with a personal interest in forging stronger connections in Australia.
This scheme was introduced in November 2012 , when it was announced in May of 2012 by the
previous government, it received immediate government support and it has considerable potential to
benefit Australia through an increased inflow of investment and more importantly, through the
immigration of highly skilled investors and entrepreneurs.
My interest in this programme is not in the cash, it's in the people, because it is the people who
generate the wealth. They have demonstrated that in their host countries, in their countries of origin
and their desire to come and be part of our team, our country is the long-term benefit.
There are immediate thresholds of investment, but it is very much my intention that the $5 million
dollars which is the qualifying investment for being part of that programme is the first $5 million they
invest, not the last $5 million and I think that requires us to take a much longer term view about how
we recruit and how we run that programme.
The Significant Investor program provides a two stage migration pathway to investment migrants and
seeks to attract high net worth individuals who are prepared to invest at least $5 million of
unencumbered and lawfully acquired funds into complying investments in Australia.
Complying investments include Commonwealth, state or territory government bonds; eligible managed
funds and direct investment into Australian proprietary companies.
Current rules apply strict qualification conditions to eligible managed funds that require capital to be
held in genuine Australian infrastructure projects or divested into legitimate Australian deposit taking
institutions, registered companies, businesses, fund portfolios, private commercial bonds, real property
and liabilities listed or expected to be listed on the ASX.
It is currently a requirement that any investments individuals intend to claim towards a SIV application
must be formalized before the visa can be granted, whilst also meeting any remaining visa criteria,
including health and character requirements prior to making any financial commitments.
SIV holders may apply for two extensions of their visa, a provisional SIV, providing a total provisional
visa period of not more than eight years. After maintaining their investments for a minimum of four
years and applicable residency requirements, visa holders become eligible for a permanent SIV visa.
I am interested in how we can broaden and streamline these rules, to be more consistent with our
broadened liberalised policy on trade and investment. This is an important visa stream for us but it is
also an important part of our trade and investment programs. I work closely with the Minister for Trade
and Investment, Minister Robb to that end.
The program has had an interesting operational history. Between its commencement in November
2012, after its announcement in May 2012, and the most recent federal election, only 38 applications
were approved, with a total value of $140 million Australian dollars directed into local investments.

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2014 CPD Immigration Law Conference
Sheraton on the Park, Sydney, 14-15 March 2014
Conference Papers

Since the election of the Coalition government however, international interest in investing in Australia
has increased quite remarkably.
Since the September election, 150 new Significant Investment Visa applications have been approved
and over $580 million dollars in additional investment capital directed to approved Australian projects.
This of course compares rather favourably with the figures previous to the election and this difference
is particularly apparent when one examines monthly averages.
Labour's peak period fell in July last year, when 8 applications worth $30 million dollars were
approved.
Since September however, approval and investment figures have increased exponentially, with at least
$60 million dollars of complying investments approved every month.
In this year alone through to the beginning of March, $285 million dollars of complying investments
have been approved. As of the end of January, 489 applications worth more than $2.4 billion dollars in
potential investments were being processed by the Department of Immigration.
The government is very pleased with this result and the evident growing confidence of foreign
investors in the future of Australian economic story.
Interest in the SIV programme has been particularly strong amongst Chinese nationals, who have
accounted for more than 91 per cent of the applications lodged since the commencement of the
scheme.
Over 86 per cent of all applications approved during the period through to the end of February were
made by Chinese national applicants. The government is delighted that Chinese investors have shown
such interest in Australian initiatives and have great confidence that these applications will continue to
grow, alongside increased numbers from other nationalities.
To support the success of the SIV program, its development and the entry of complying capital into the
Australian economy, the processing of Significant Investor applications has been given a high priority
by my department.
The current service standard for the processing of applications for this visa is only six to nine months,
during which time all aspects of investment approval and other personal requirements are assessed,
shorter than the processing times for most other migration visas.
The government is committed to ensuring that the Significant Investment Visa programme realizes its
full potential and I believe strongly that this can only be achieved through rigorous oversight and
continuous target market assessment and functional evaluation.
We are conscious that the SIV application and management processes could be improved and there
are several key areas that I am anxious to examine.
I think we can do better on this programme. As I said not long after coming to this portfolio in
government, I want to reboot our Significant Investor Visa programme and we are now in the process
of identifying measures to improve efficiency and service standards. I am also particularly interested in
examining how the SIV programme can be more effectively marketed overseas. As I have noted, we
have seen strong interest from applicants from China, many of whom have now had visas granted but
vast untapped markets remain within China and many emerging markets, including India and South
Africa.
Other areas I am keen to examine for potential development include:

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2014 CPD Immigration Law Conference
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Current policy settings and all associated implications for the Significant Investor Visa
programme, reflecting especially whether these are conducive to the effectiveness of the
program.
Whether any additional measures that could impact SIV programme management may be
identified and implemented to enhance the benefits of the scheme.
An examination of possible measures that may improve application processing and service
standards. We are offering a premium visa product and premium visa servicing needs to
accompany that, it may be that there needs to be a tighter associated fee nexus.
Potential increased investment flexibility.
With all these potential areas of policy and process re-tuning in mind, I recently announced that the
Coalition government will undertake an internal review of the SIV program.
As part of the government's efforts to foster an effective commercial migration environment, that helps
stimulate and support a growing economy, we will also establish a review of the 457 visa program.
The purpose of this program is to allow employers to fill short to medium term skill shortages by
recruiting qualified workers from outside Australia when they cannot find an equivalently skilled and/or
experienced local Australian resident.
The 457 scheme aims to support and complement existing domestic education, training and skills
development by allowing businesses to sponsor overseas workers over the short term to address
labour needs, whilst they invest in training and skills development of Australians to meet longer-term
needs.
In April last year the then federal Labor government launched an incredibly, unprecedented far-ranging
attack on the 457 system and its impacts on the Australian labour market.
Labor's attack sadly marked the end of decades of bipartisanship on skilled migration, and sadly Labor
have remained locked in their anti-migrant stance on skilled migration in Opposition.
Labor's attacks were based on parroting union rhetoric and unsubstantiated claims, which peaked with
former Immigration Minister, Mr O'Connor claimed that he was aware of over 10 000 rorting cases in
the 457 system he simply made this up, which has been established by evidence presented in
Senate estimates and various other settings since that time.
The Coalition strongly opposed Labor's attacks on skilled migrants and the 457 scheme, which is a key
feeder for our permanent skilled migration programme.
457 skilled migrants make a contribution from day one. They work for a living, they pay taxes to the
Australian government, they pay full freight to use Australian government services such as our public
schools and hospitals. Like all skilled migrants they support themselves.
The 457 visa program enables us to handpick those migrants for permanent residency who have
already demonstrated their ability to make a contribution that is what our immigration program is
supposed to be all about.
Access Economics estimates the net fiscal impact of the 90 120 457 visa entrants in 2010/11 would
generation $2.2 billion over three years, or more than $27 000 each DIAC 2012, twice the average
estimated contribution of all permanent migrants.

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2014 CPD Immigration Law Conference
Sheraton on the Park, Sydney, 14-15 March 2014
Conference Papers

A research paper by the American Enterprise Institute for Public Policy Research & Partnership for a
New American Economy, found that two primary categories for temporary foreign workers in the US
are associated with strong job creation for Americans.
The study found that the States with greater numbers of temporary workers in the H-1B program for
skilled workers and H-2B program for less-skilled non-agricultural workers had higher employment
among US natives. Adding 100 H-1B workers created an additional 183 jobs for US citizens. Adding
100 H-2B visa class workers created 464 jobs for Americans.
457 visas create Australian jobs, that's the bottom line. I have been into many workplaces around the
country as I am sure many of you who work in this area will have done too. I am most reminded of a
metal working business up in Brisbane last year where the person who was running the training for
Australian apprentice metal workers was a Filipino man, who had come out on a 457 and learnt his
trade in the shipyards in the Philippines, now an Australian running the training teaching young
Australians how to become metal workers. That for me said it all about the 457 programme, that is
what it is designed to do.
Allowing employers to address skill gaps with qualified overseas sourced employees is not a substitute
for Australian workers, but an integral part of the economic machinery that creates Australian jobs.
They are vital in so many cases to the ongoing success and even existence of many Australian
businesses. A business that closes will employ no-one, a lose-lose situation for the employer and for
Australian workers. The types of attacks that have been made on this scheme by those who would
seek to undermine it, seek to take it down, go to the very heart of attacking the visa so many Australian
businesses that employ so many Australians, rely on.
The government supports the principle that Australian workers have priority, but not needless and
inefficient red tape which hampers productivity and adds significant costs to business.
An effectively managed temporary labour migration program will secure the future of business,
enabling them to ultimately employ more Australians.
The government has commenced several measures that will increase the efficiency of the 457
program and foster legitimate growth.
Principally these changes include removal at present of nomination ceiling requirements.
Standard business sponsorships approved on or after February 14th this year are no longer subject to
a nomination ceiling. Sponsors are still required to provide the number of persons they wish to
nominate in applications and sponsorships that were approved between 1 July 2013 and 13 February
2014, will still cease when their nomination ceiling is reached.
These functional improvements are a result of the Coalition government's broader efforts to reduce
unnecessary union red tape for businesses. This particular reform is part of our commitment to reduce
the red tape costs to business by $1 billion dollars every year.
Whilst the program will benefit from these improvements, in light of the significant number of changes
which the 457 program has had in recent years and the claims made by the previous Minister of rorting
in the program, an independent review of the integrity of the 457 system is necessary.
The review will evaluate the regulatory framework of the 457 program and determine whether the
existing requirements appropriately balance a need to ensure program integrity against the costs to
employers endeavouring to access the program.
Broadly, the independent review will examine:

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2014 CPD Immigration Law Conference
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The level of non-compliance in the 457 program and have a genuine understanding of the
nature and extent of non-compliance, rather than the made up numbers that formed the basis of
leg forced through the parliament last year
The current framework to better understand whether the existing requirements balance the
needs of business with the integrity of the program
The viability of the deregulation strategy of the current program and
The quality of current compliance and sanctions.
I value the 457 programme. Accordingly I plan to protect it, by ensuring strong compliance and
enforcement or more effective and practical laws.
And my warning to businesses in this area is: if you abuse it, you will lose it.
As Immigration Minister I will be as strong on protecting the integrity of our immigration system in our
work place as I am on our borders.
The Australian people must have confidence that our immigration system is:
Firstly, well designed to meet our economic objectives immigration is first and foremost an
instrument of economic policy not welfare policy,
Secondly, well run to maximize efficiency and minimize costs and compliance for legitimate
users of the system, and
Thirdly to strongly enforce, to stamp out abuse and to protect the integrity of the programme,
which when compromised, erodes its value and effectiveness.
The 457 program settings should be sufficiently robust so as to ensure that the employment
opportunities of Australians are protected, whilst Australian businesses are safeguarded from skill
shortages and red tape. This is the central principle of the 457 program, which with the advice of the
review panel, the government will ensure is maintained.
Finally in the area of education, the government has identified further opportunities for growth and
improvement within the Student Visa Programme.
This visa stream provides an opportunity for people who are not Australian citizens or permanent
residents to study in an environment that is internationally recognized as progressive, secure and
culturally diverse.
The international education market is an area of significant growth and remains a strong focus area in
Australian international trade and investment promotion activities. We recognize the strong contribution
of our international education sector to local and national economies and we remain committed to
continuing to support its growth by facilitating the visa process for genuine international students.
We are in the business of having a world leading international education sector in this country, not
selling visas. Those reforms that have broken that nexus are important and I will be ensuring that we
are selling visas not education.
On 29 October 2013, the government announced that it would invite more than 20 low-immigration risk
non-university providers that offer Bachelor, Masters or Doctoral degree courses to participate in
extended streamlined visa processing or SVP.
On 22 March 2014, a number of key reforms arising from the Review of the Student Visa Assessment
Level Framework 2013 will commence pending legislation changes. These reforms are aimed at

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2014 CPD Immigration Law Conference
Sheraton on the Park, Sydney, 14-15 March 2014
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attracting more international students and will facilitate the extension of SVP and a simplified AL
Framework.
SVP allows eligible students to be assessed for a student visa as though they are a lower immigration
risk, regardless of the applicant's country of origin. In practice this means that SVP eligible students
provide less information to the department and receive simpler and quicker visa processing. To remain
eligible to participate in SVP each participating higher education provider must continue to meet low
immigration risk benchmarks.
Following a detailed application and assessment process that included an objective assessment of
immigration risk, nineteen non-university higher education providers have been selected to participate
in the SVP arrangements from 22 March 2014. These are in addition to the 41 universities currently
participating in the arrangements.
To participate in the extended SVP arrangements, a non-university provider must:
Be registered to offer Bachelor, Masters of Doctoral degree level courses
Achieve a lower immigration risk rating equivalent to AL 1 or 2
Be associated with at least 100 active student visa holders
Meet the requirements set out in the Guidelines for Educations Provider Participation in SVP
arrangements.
Changes to extend SVP and to simplify the AL Framework are made possible by the existence of the
Genuine Temporary Entrant (GTE) requirement which acts as a safeguard to ensure that only genuine
applicants are granted a student visa.
These changes will assist participating low risk education providers to recruit international students.
The extension of streamlined visa processing will not affect the current arrangements that are available
to participating universities. Visa applicants without access to streamlined visa processing will continue
to have their visas processed under the Assessment Level (AL) framework.
We will continue to work collaboratively with these and other non-university higher education providers
to assist them with strategies to manage their immigration risk now and into the future. Education
providers that did not meet the eligibility requirements for SVP at this time may have their eligibility
reassessed following the end of the current program year and the end of the calendar year.
Education providers that are not currently able to access SVP arrangements will also benefit from the
simplified AL Framework and reduced financial requirements. Assessment levels under the AL
Framework will be reduced from five levels to three, whilst financial evidence for AL3 students will
reduce from 18 months to 12 months, provided funds are from a close relative of the student visa
applicant.
Students from a number of key markets, such as China, India and Pakistan, will be able to apply for a
student visa with approximately $40 000 less in the bank. The Vocational Education and Training
(VET) sector will benefit particularly from these changes with students from key VET markets now able
to apply for a student visa with less cumbersome financial requirements.
Australian schools too will be able to enrol students from China, the largest source country for school
students, in year 7 instead of year 10. Importantly, these reforms bring Australia's student visa
financial requirements in line with competitor countries, allowing Australian international education
providers to better compete based on the quality of education they offer.

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2014 CPD Immigration Law Conference
Sheraton on the Park, Sydney, 14-15 March 2014
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These changes will attract more students from overseas, providing a boost to the economy and
creating jobs, whilst still providing assurances that immigration risk is being managed effectively.
I have ranged over a number of topics this morning, hopefully what you have gleaned from those
topics and specifically in relation to a number of key areas, is a government agenda which is designed
to facilitate whilst improving and always maintaining integrity.
One of the great achievements I think of the Howard government on immigration, people would think
that from my perspective that would be border protection and that is certainly true, we are replicating
those achievements as we speak, but the consequences of those achievements was to build a
confidence in the Australian people that the government was running the immigration program and not
anyone else.
That allowed the government to double the level of permanent immigration to this country and halve
the level of community concern that immigration was too high. That to me highlights confidence in
immigration and in the government and that is certainly an objective of mine, and of the government.
As the Prime Minister has stated, Australia is open for business and the recent successes of the SIV
programme under the Coalition's brinkmanship, are a remarkable indication of what can be achieved.
We are a government that likes to announce things we have done, not things we would like to do and I
hope that will be my opportunity at a later occasion.

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2014 CPD Immigration Law Conference
Sheraton on the Park, Sydney, 14-15 March 2014
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Opening Session: The Year in Review

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2014 CPD Immigration Law Conference
Sheraton on the Park, Sydney, 14-15 March 2014
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2013 a year in review


David Prince

The 3 certainties in life:


Death, Taxes & change in migration law

Type of Instrument Number

Amending Acts - Migration Act 1958 7

Amending Acts Australian Citizenship Act 2007 1

Amending Regs Migration Regulations 1994 20

DIBP policy

Decisions of the FFC, FCFCA, HCA

Refugees & Protection visas

Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (No 35 of
2013) & associated Regulations (SLI 95 of 2013)
June 2013
Recommendation 14 of the report from the Expert Panel on Asylum Seekers handed to the
Prime Minister on 13 August 2012 (we ignored the other 21).
The Panel Recommends that the Migration Act 1958 be amended so that arrival anywhere on
Australia by irregular maritime means will not provide individuals with a different lawful status than
those who arrive in an excised offshore place
Establishes PNG (Manus Island) as a location for the processing of such arrivals.
Successful applicants will not be resettled in Australia.

Migration Amendment (Permanent Protection Visas) Regulation 2013 (SLI 106 of 2013)

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2014 CPD Immigration Law Conference
Sheraton on the Park, Sydney, 14-15 March 2014
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30 May 2013
New condition 8559 to be imposed on all protection visas:
The holder must not enter the country by reference to which:
(a) the holder; or
(b) for a member of the family unit of another holderthe other
holder;
was found to be a person to whom Australia has protection
obligations unless the Minister has approved the entry in writing.

Migration Amendment (Subclass 050 and Subclass 051 Visas) Regulation 2013 (SLI 156 of 2013)
28 June 2013
Discretionary power to cancel if a person is charged or convicted of an offence.
New discretionary condition 8564 The holder must not engage in criminal conduct.
The Government has become increasingly concerned about unauthorised arrivals who engage
in criminal conduct after being released into the community on BVEs while they wait for their
claims for protection to be assessed. The Government is also concerned about unauthorised
arrivals who have been charged or convicted of an offence in another country or who are the
subject of a notice issued by Interpol.

Migration Amendment (Temporary Protection Visa) Regulation 2013 (SLI 234 of 2014)
18 October 2013
Reintroduction of the subclass 785 Temporary Protection visas for:
unauthorised maritime arrivals ; or
otherwise arrived in Australia without a visa; or
were not immigration cleared on their last arrival in Australia
Disallowed by the Senate on 2 December 2013.

Migration Amendment (Bridging VisasCode of Behaviour) Regulation 2013 (SLI 269 of 2013)
14 December 2013
Established an enforceable code of behaviour for Bridging E visa holders granted by the
Minister under s.195A.
Creates PIC 4022, to abide by a code of behaviour, and a visa condition requiring ongoing
compliance with the code of behaviour.
Prevents a person whose BVE has been cancelled due to criminal conduct or a breach of the
code of behaviour from applying for a further BVE.

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2014 CPD Immigration Law Conference
Sheraton on the Park, Sydney, 14-15 March 2014
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Migration Amendment (Disclosure of Information) Regulation 2013 (SLI 270 of 2013)


14 December 2013
Authorise the disclosure of information, specifically name, residential address, sex, date of birth
and immigration status, of Subclass 050 (Bridging (General)) or Subclass 051 (Bridging
(Protection Visa Applicant)) visa holders (BVE holders) to the Australian Federal Police or the
police force or police service of a State or Territory.
to ensure that the Police are able to readily identify if a person charged with a criminal offence is
a BVE holder

Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (SLI 280 of 2013)
14 December 2013
The Government response to the Senate disallowing sc 785 TPVs.
A Protection visa can only be granted to a person who:
held a visa that was in effect on their last entry into Australia; and
is not an unauthorised maritime arrival; and
was immigration cleared on the applicants last entry into Australia

Migration Amendment Regulation 2013 (No. 2) (SLI 75 of 2013)


16 May 2013
Introduce a new Community Proposal Pilot program within the current Refugee and
Humanitarian (Class XB) visa (Class XB visa) framework.
500 places in the FY2013/2014 program year.
Approved proposing organisations are: AMES (Vic), Brotherhood of St Laurence (Vic), Illawarra
Multicultural Services (NSW), Liverpool Migrant Resource Centre (NSW) & Migrant Resource
Centre of South Australia (SA).
First 2 groups - Chaldean Christians and Sabean Mandaeans.

Visa Simplification

Migration Amendment Regulation 2013 (No. 1) (SLI 32 of 2013)


23 March 2013
Part of the Governments simplification and deregulation agenda.
streamline four visitor visas (Tourist, Sponsored Family, Business and Sponsored Business)
into one simplified Visitor visa, new Subclass 600 (Visitor)

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2014 CPD Immigration Law Conference
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Streamline 3 Electronic Travel Authority (ETA) visas into one simplified ETA visa, new Subclass
601
streamline 2 Medical Treatment visas (Short Stay and Long Stay) into one simplified Medical
Treatment visa, new Subclass 602 (Medical Treatment)
introduce a new Temporary Work (Short Stay Activity) visa permitting entry to Australia to
undertake highly specialised work
Skilled visas

Migration Legislation Amendment Regulation 2013 (No. 1) (SLI 33 of 2013)


1 July 2013
Modifies the subclass 485 Temporary-Graduate visa with the length of visa granted contingent on the
level of qualification obtained by the applicant.
Bachelor, Bachelor with Honours, Masters by Coursework or Masters (Extended) degree 2
years
Masters by Research 3 years
Doctoral degree 4 years
Also removes the s.137J automatic cancellation of student visas following a s.20 notice issues under
the Education Services for Overseas Students Act.

Migration Amendment (Skills Assessment) Regulation 2013 (SLI 233 of 2013)


28 October 2013
Assessments of the applicants skills for a skilled visa may be applicable only to the visa applied for.
Assessments of the applicants skills for a skilled visa may be applicable only to the visa applied
for.
New Reg 2.26(3) allowing a relevant assessing authority to set different standards for assessing
a skilled occupation for different visa classes or subclasses.
at this stage it is only a skills assessment obtained for the purposes of a subclass 485 visa
application that cannot be used in a subsequent application for a subclass 457 visa, subclass
186/187 visa, subclass 189/189 visa etc

Family visas

Migration Legislation Amendment Regulation 2013 (No. 3) (SLI 146 of 2013)


1 July 2013
Amends the Prospective Marriage (Temporary) (Class TO) visa:
Increase minimum age of applicants to 18 years

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2014 CPD Immigration Law Conference
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remove the ability for a parent or guardian to sponsor an applicant for a Prospective Marriage
visa on behalf of the prospective spouse who is under the age of 18
The applicant/sponsor must have met since turning 18 and be personally known to each other
Both parties must be over 18 (even if Australian court order has been granted authorising the
marriage)

Migration Amendment (Internet Applications and Related Matters) Regulation 2013 (SLI 252 of
2013)
23 November 2013
Allows online applications for the following:
Prospective Marriage (Temporary) (Class TO) visa
Partner (Migrant) (Class BC) visa
Partner (Provisional) (Class UF) visa
Partner (Temporary) (Class UK) visa
Partner (Residence) (Class BS) visa

Migration Amendment (Internet Applications and Related Matters) Regulation 2013 (SLI 252 of
2013)
Include public interest criterion 4020 (PIC 4020) to provide a basis for refusing to grant a
Family stream visa to all applicants where bogus documentation or information that is false or
misleading has been presented by a primary or secondary applicant
Money Matters
Application fee increases 1 July 2013 & 1 September 2013
Fees for visa evidencing
Separate application fees for each person included in the application
Impending credit card merchant fees to be charged

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2014 CPD Immigration Law Conference
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The politics of the 457 debate

Michael Jones

Foreigners are stealing our jobs!

1 July 2013 changes


Ongoing requirement to train Australian citizens and permanent resident workers
Demonstrating a genuine skill need
Indicating how many workers an employer will sponsor
Market salary rate assessment expanded to regional locality
Market salary rate assessment exemption lifted from $180 000 to $250 000
Employment must consist of a direct employee-employer' relationship
Extension of sponsor obligations to pay costs including migration agent costs
English language requirement must be met when new nomination is lodged
Occupation based exemptions to the English language requirement removed
Definition of English language aligned with the Employer Nomination Scheme (IELTS 5)
457 visa holders must begin work within 90 days of arriving in Australia
Extension to 90 days of the period in which a visa holder can seek new sponsored employment

Labour Market Testing -- 23/11/13

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2014 CPD Immigration Law Conference
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Section 140GBA
a suitably qualified and experienced Australian citizen or Australian permanent resident (or
working holiday visa holder in an agricultural sector) is not readily available to fill the nominated
position
evidence must accompany the nomination application
Section 140GBA(2) International trade obligations exemption
Minister determines what international trade obligations apply to this exemption
Section 140GBB Major disaster exemption
Minister declares a major disaster having a significant impact on individuals requiring
government response; and
the exemption is necessary or desirable in order to assist disaster relief or recovery
Section 140GBC Skill and occupation exemptions
Minister makes instrument in writing
Current instrument covers all ANZSCO occupations requiring Skill Level 1 (Bachelor or higher
degree) or 2 (diploma, advanced diploma, associate degree)

The new government steps in


Limitation on nomination numbers already reversed
Appointment of independent panel to report by 30 June
Trade unions say panel is stacked

Back to the politics

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Panel 1: Globalisation, Free Trade,


Employment & Skilled Migration

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Globalisation, free trade and skilled migration

David Wilden, Assistant Secretary,


Skilled Migration Policy Branch,
Migration and Citizenship Policy Division,
Department of Immigration and Border Protection

A departmental perspective
Australia has a long and proud history of migration and trade. Our nation is built on migrants, with
about 45 per cent of our population being either a migrant or second generation Australian according
to the 2011 Census. As our trading relationships have developed and evolved from European roots to
closer neighbours in the Asia Pacific, so too have our migration programmes. Migration to Australia is
now more global, and increasingly driven by economic rather than social principles. Australia must
remain globally competitive to attract the best skilled migrants to fill our skill shortages and drive
national competitiveness. Free Trade Agreements play a vital role in facilitating the exchange of
goods, people and services across borders for the mutual benefit of countries.
Now more than ever, the role of skilled migration is an enabling one: to support the economy through
the entry of globally skilled persons to fill gaps in the local labour market. The Abbott Governments
message is clear: Australia is open for business, and the Governments role is to create the conditions
for business to prosper by supporting growth and removing unnecessary regulation.1 Such growth is
underpinned by the principle that Australian workers should have priority wherever possible and that
programme integrity is vital to public support for immigration.2

Free Trade
The government appreciates the mutually reinforcing relationship between trade and migration, and
between temporary and permanent migration. Trade attracts goods and associated service providers,
who establish and serve domestic communities. Australia benefits from greater access to goods and
services, global networks and investment. Many temporary migrants similarly establish themselves
permanently and attract fellow temporary and permanent migrants.
The Department of Immigration and Border Protection works closely with the Department of Foreign
Affairs and Trade to ensure that Australia offers attractive commitments relating to the temporary entry

1
Prime Minister of Australia, the Hon Tony Abbott MP, Address to the World Economic Forum, Davos, Switzerland, 23
January 2014, www.pm.gov.au/media/2014-01-23/address-world-economic-forum-davos-switzerland-0
2
Minister for Immigration and Border Protection, the Hon Scott Morrison MP, Migration shaping Australia, Address to the
Migration Institute of Australia National Conference, Canberra, 21 October 2013,
www.minister.immi.gov.au/media/sm/2013/sm208937.htm

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of business persons, while ensuring that our migration framework is not unduly constrained. An
important distinction is made between other capacity building initiatives, such as the Seasonal Worker
Programme, and free trade commitments relating to the temporary entry of professionals and skilled
service providers.
Australia does not enter into commitments regarding labour mobility and lower skilled workers in free
trade agreements. To do so would dramatically change the nature of Australias migration
programmes and leave Australia vulnerable to requests for the same access from other trading
partners on the basis of the Most Favoured National Principle. Australia also avoids committing to the
entry of specific occupations, but rather refers to specified categories of entrants being subject to our
sponsorship requirements. This approach allows us the flexibility to adapt to changes in the domestic
labour market, while still providing one of the most generous temporary entry offers, with over 600
occupations currently on the Consolidated Sponsored Occupation list.
Australia has, however, entered into commitments not to impose limitations on the total number of
visas to be granted to business persons of certain trading partners in defined categories. Consistent
with these commitments, affected persons are not subject to the Subclass 457 programme labour
market testing requirement. 3 As more Free Trade Agreements are signed and come into effect, the
number of persons not subject to labour market testing under the Subclass 457 programme will
increase.

Deregulation
The Governments Deregulation agenda will see legislative frameworks and administrative processes
scrutinised, with a view to facilitating bona fide entry in the simplest way while maintaining the integrity
of our borders and migration programmes and penalising those who seek to abuse programmes. Any
new legislative proposals will need to consider the cumulative impact on business productivity. 4
The Governments commitment to deregulation in migration programmes can be seen in its
implementation of the Subclass 457 programme labour market testing requirement introduced under
the former government. In the interests of minimising red tape, the Government adopted a sensible
approach by exempting highly skilled occupations.5 In effect, this means that approximately 65 per
cent of the programme is exempt from labour market testing, avoiding the associated costs and
potential delays in hiring a skilled overseas worker. The Department of Immigration and Border
Protection has also implemented streamlined processes for businesses that are subject to the labour
testing requirement to minimise compliance costs and processing delays.
It can be expected that Government will continue to review current programmes to identify
opportunities to deregulate and drive productivity and that consultation will be an important part of any
reforms.

3
See Legislative Instrument F20131954 (IMMI 13/138), signed 18 November 2013,
www.comlaw.gov.au/Details/F2013L01954
4
Parliamentary Secretary to the Prime Minister, the Hon Josh Frydenberg MP, The Abbott Governments Deregulation
Agenda, Address to the Sydney Institute, Gallipoli Club, Sydney, Monday 28 October 2013
5
Assistant Minister for Immigration and Border Protection, Senator Michaelia Cash, Media release, Government
announces new 457 visa labour market testing rules, 15 November 2013,
www.minister.immi.gov.au/search/cache.cgi?collection=immirss&doc=2013%2Fmc209591.xml

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Maximising the economic benefits of migration


The prevailing policy paradigm of Australian immigration has, since Federation, been one of managed
migration where the Government determines the number and composition of people who may enter
and stay in Australia. In the last quarter of a century, the focus of migration has shifted from family
reunion to skilled migration, contributing to our greater engagement with the Asia Pacific region. This
focus is set to continue with the Abbott Governments focus on the economic, rather than social,
benefits of migration.6
The demand driven approach to skilled migration introduced by SkillSelect in 2012 is likely to remain a
prominent feature of Australias migration programme, given the Governments emphasis on
supporting business. How this manifests in terms of migration programme planning levels will be seen
soon in the 2014-15 Budget, although the Government recognises the importance of independent
skilled migration and has committed to ensuring that the proportion of skilled migrants does not fall
below two thirds of our overall permanent migration programme. 7
It is likely that the Government will remain interested in ensuring that the attributes recognised through
the points test allow migrants to fully participate in the economy and contribute to society.8 There is
also an acknowledgement of the migration continuum: the incremental increase in requirements and
entitlements from temporary to permanent migration, and the importance of providing legitimate visa
pathways with appropriate controls for temporary migration to prevent abuse of programmes.
The Governments interest in maximising the economic benefits of migration extends beyond skilled
migration to foreign investment and can be seen in recent reforms to the Significant Investor visa.
Additional investment options through eligible managed funds have been added to make the visa more
attractive to potential investors and accordingly stimulate the economy through foreign investment. 9

6
Minister for Immigration and Border Protection, the Hon Scott Morrison MP, Migration shaping Australia, Address to the
Migration Institute of Australia National Conference, Canberra, 21 October 2013,
www.minister.immi.gov.au/media/sm/2013/sm208937.htm
7
Ibid.
8
Ibid.
9
Assistant Minister for Immigration and Border Protection, Senator Michaelia Cash, Media Release, Greater investment
flexibility as government reboots significant investor visa programme, 29 November 2013,
www.minister.immi.gov.au/search/cache.cgi?collection=immirss&doc=2013%2Fmc209891.xml

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Australias Temporary Work (Skilled) Visa (457) Update:


Reforms of 1 July 2013

Maria Jockel, Partner, Holding Redlich


Accredited Immigration Law Specialist,
Registered Migration Agent 98/02742

Australia continues to grapple with globalisation and free trade and in response to the ongoing
demand for entry under the subclass 457 visa program, has continued to significantly tighten the
requirements.
As stated in section 140AA Division 3A of the Migration Act 1958 (the Act) the aim of the subclass 457
visa program is to address genuine skills shortages, in the Australian labour market, without displacing
employment and training opportunities for Australian citizens and Australian permanent residents and
ensuring that the employment of overseas workers is not to the detriment of the employment and
training opportunities for Australian workers.
To protect overseas skilled workers from exploitation, approved sponsors are required to meet certain
sponsorship obligations, some of which apply beyond the term of sponsorship approval. The
obligations and to ensure that the subclass 457 program is being used to meet genuine skill shortages,
and not to undermine local employment opportunities and conditions of employment.

Sponsorship obligations
Sponsorship obligations apply to all approved sponsors and former approved sponsors and include,
but are not limited to the following:
To ensure non-discriminatory employment practices.
To cooperate with inspectors.
To ensure equivalent terms and conditions of employment (namely to pay the market salary rate
however described) to the primary Subclass 457 visa holder.
To pay prescribed costs of the departure of the visa holder (or a former visa holder) from
Australia.
To pay prescribed costs to the Commonwealth in relation to locating the former visa holder, and
removing the former visa holder from Australia.
To keep records of its compliance with its sponsorship obligations.
To provide records of compliance with its sponsorship obligations and other requested
information to the Department.
To notify the Department of prescribed changes in the circumstances of an approved sponsor, a
former approved sponsor, visa holder or a former visa holder.
To ensure that a visa holder works or participates in an occupation, program or activity
nominated by an approved sponsor (including by preventing the on-hire of a visa holder).
To require an approved sponsor or former approved sponsor not to recover, transfer or take
actions that would result in another person paying for certain prescribed costs.

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To require an approved sponsor or former approved sponsor to meet prescribed training


requirements.
The Act and the Migration Regulations 1994 (the Regulations) contain provisions relating to
sponsorship obligations and the powers of the Department to ensure that all sponsors satisfy their
obligations. These obligations are summarised below10.

Non-Discriminatory employment practices (Regulation 2.59(f)(ii))


A business wishing to become a standard business sponsor must attest in writing to having a strong
record of, or demonstrate a commitment to, employing local labour and declare that it will not
discriminate in their employment practices.
This means that a representative of the sponsor making the attestation must insert their full name and
must have the legal authority to act on behalf of that business and make the attestation for and on
behalf of that business.
In addition there must be no adverse information in relation to the employment practices of the sponsor
known to the Department.

Obligation to cooperate with inspectors (Regulation 2.78)


The standard business sponsor must cooperate with inspectors appointed under the Act in determining
whether:
A sponsorship obligation is being, or has been, complied with;
An illegal worker has been hired; and
In respect of other circumstances that exist or have existed in which the Department may take
administrative action.
This obligation starts to apply on the day the person is approved as a standard business sponsor.
This obligation ends 5 years after the day on which the person ceases to be a sponsor.
Co-operation with Inspectors includes but is not limited to:
providing access to your premises;
Producing and providing documents within the requested time-frame;
Not preventing or attempting to prevent access to a person who has custody, or access to, a
record or document; and
Providing officers access to interview any person on their premises.

Obligation to ensure equivalent terms and conditions of employment (namely to pay the market
salary rate however described) to the primary Subclass 457 visa holder (Regulation 2.79)
The standard business sponsor must ensure that the terms and conditions of employment provided to
a primary sponsored person are no less favourable than the terms and conditions the person provides,
or would provide, to an Australian citizen or Australian permanent resident performing equivalent work
in the persons workplace at the same location.
The terms and conditions of employment are no less favourable if:

10
The sponsorship obligations are detailed on the Department of Immigration and Border Protections website:
http://www.immi.gov.au/visa/Pages/457/aspx (and following).

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The same terms and conditions are provided to an Australian worker for performing equivalent
work in that workplaces regional locality; or
If there is no Australian worker at the same location, these terms and conditions would be
provided to an Australian worker performing equivalent work at that workplaces regional
locality.
This obligation requires that the nominated position should have (amongst other things) the same pay,
hours of work and leave entitlements as those which are provided to Australian workers performing the
same or similar work in that workplaces regional locality. The pay provided according to these terms
and conditions is considered the Market Salary Rate for that occupation in that workplaces regional
locality.
This obligation starts to apply on the day the primary sponsored person is granted a Subclass 457
visa, unless he or she already holds a Subclass 457 visa in which case the obligation starts to apply on
the day the Minister approves the nomination for the primary sponsored person.
This obligation ends on the day the primary sponsored person ceases employment with the sponsor or
on the day the primary sponsored person is granted a further substantive visa (other than a Subclass
457 visa). If the primary sponsored person is granted another Subclass 457 visa in order to continue
to work for the sponsor, the obligation continues.

Obligation to pay travel costs for the visa holder (or former visa holder) to leave Australia
(Regulation 2.80)
The standard business sponsor must pay reasonable and necessary travel costs to enable the
sponsored persons to leave Australia if the costs have been requested in writing by the Department or
the sponsored persons, and the costs have not already been paid by the sponsor in accordance with
this obligation.
The costs will be considered reasonable and necessary provided they:
Include travel from the primary sponsored persons usual place of residence in Australia to the
place of departure from Australia;
Include travel from Australia to the country (for which the person holds a passport) specified in
the request to pay travel costs;
Are paid within 30 days of receiving the request; and
Are for economy class air travel or, where unavailable, a reasonable equivalent.
This obligation starts to apply on the day the primary sponsored person is granted a Subclass 457
visa, unless he or she already holds a Subclass 457 visa in which case the obligation starts to apply on
the day the Minister approves the nomination for the primary sponsored person.
This obligation ends on the earliest of the following:
The day on which the Minister approves a nomination by another sponsor in relation to the
primary sponsored person; or
The day on which the person is granted a further substantive visa (other than a Subclass 457
visa). If the primary sponsored person is granted another Subclass 457 visa in order to
continue to work for the sponsor, the obligation continues; or
The day the person has left Australia and their visa has ceased to be in effect.

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Obligation to pay prescribed costs to the Commonwealth in relation to locating a former visa
holder (who has become unlawful due to the expiry of their visa), and removing the former visa
holder from Australia (Regulation 2.81)
The standard business sponsor must pay costs incurred by the Commonwealth in locating and/or
removing the primary or secondary sponsored persons from Australia if the Minister has requested the
payment by written notice.
The sponsor is liable to pay the Commonwealth the difference between the actual costs incurred by
the Commonwealth (up to a maximum of $10,000) less any amount already paid under the obligation
to pay travel costs to enable sponsored persons to leave Australia.
This obligation starts to apply on the day on which the primary sponsored person or secondary
sponsored person becomes an unlawful non-citizen and ends on the day the primary sponsored
person or secondary sponsored person leaves Australia
This obligation ends 5 years after the sponsored person leaves Australia.

Obligation to keep records (Regulation 2.82)


The standard business sponsor must keep records of its compliance with its sponsorship obligations.
All of the records must be reproducible and some must be capable of verification by an independent
person.
This obligation starts to apply on the day the person is approved as a standard business sponsor.
This obligation ends 2 years after the concurrence of the following two events:
The person ceases to be a standard business sponsor; and
There is no primary or secondary sponsored persons in relation to the sponsor.
However, no record need be kept for more than five years under this obligation.

(a) Obligation to keep records - The Departments Monitoring Activities


As the Department is enhancing its monitoring activities to ensure compliance with sponsorship
obligations, and requires approved sponsors to keep specified records to demonstrate compliance with
their sponsorship obligations, the following is a summary of the Departments policy guidelines in
regard to keeping records relating to:
Obligation to pay travel costs to enable sponsored persons to leave Australia;
Obligation to ensure equivalent terms and conditions of employment;
Obligation to provide information to the Department when certain events occur; and
Obligation to meet prescribed training requirements.

(b) Records that must be kept in respect of travel costs


Departmental policy provides that the following records must be kept in regard to travel costs to enable
a sponsored person to depart Australia:
A record of the written request for payment of return travel;
A record of when the request was received; and

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A record of how the sponsor complied with the request (including the costs paid, who the costs
were paid for and the date of payment which is maintained in a manner that is capable of being
verified by an independent person).

(c) Records that must be kept in respect of equivalent terms and conditions of employment
This obligation requires that the sponsor must keep:
A record of money paid to the primary sponsored person;
A record of the money applied or dealt with in any way on the primary sponsored persons behalf
or as the sponsored person directed;
A record of agreed non-monetary benefits provided to the primary sponsored person including
the agreed value and the time at which, or the period over which, those benefits were provided;
A record of terms and conditions of employment of equivalent workers within the workplace;
A record of tasks performed by the primary sponsored person and the location(s) where the tasks
were performed; and
A contract of employment signed by both parties under which the primary sponsored person is
employed.
The following records must be maintained in a manner capable of being verified by an independent
person:
Records on how the sponsor complied with a request for payment of return travel costs;
Records of money paid to the primary sponsored person; and
Records of the money applied or dealt with in any way on the primary sponsored persons behalf
or as the primary sponsored person directed.
The Departments position is that cash payments are generally not capable of being verified by
an independent person. If a sponsor chooses to pay sponsored persons in cash, the onus is on
the sponsor to ensure that they keep records of such payments. To avoid any doubt, sponsors
are strongly encouraged to use salary payment methods which clearly meet the requirements of
Regulation 2.82, such as Electronic Funds Transfers.
The Department considers an independent person is a person who is free from influence or
authority of the sponsor and who can establish the correctness of a record on the basis of the
presented facts.
All of the records must be kept in a reproducible format. No record needs to be kept for more
than five years.

(d) Records in respect of information to provide to the Department when certain events
occur
This requires that the person must keep a record of any notification including the particulars of the
notification of the event, provided to the Department, specifically:
The date on which the sponsor notified the Department of an event specified in regulation 2.84;
The method by which the notification was provided; and
The address to which the notification was sent.

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(e) Records in respect of obligation to meet prescribed training requirements


This obligation requires a sponsor to keep all records to show that the sponsor has complied with the
prescribed training requirements.

Obligation to provide records and information to the Department (Regulation 2.83)


The standard business sponsor must provide records or information that goes to determining whether:
a sponsorship obligation is being, or has been, complied with; and
other circumstances, in which the Minister may take administrative action, exist or have existed,
on written request and in the manner and timeframe requested by the Minister.
This obligation starts to apply on the day the person is approved as a standard business sponsor.
This obligation ends 2 years after the following events occur concurrently:
the person ceases to be a standard business sponsor; and
there is no primary or secondary sponsored persons in relation to the sponsor.

Obligation to notify the Department of prescribed changes in the circumstances of an approved


sponsor, a former approved sponsor, visa holder or a former visa holder (Regulation 2.84)
Sponsors must now provide certain information to the Department when certain events occur. This
information must be provided by registered post or electronic mail to the address specified by the
Minister in a Legislative Instrument in accordance with the Regulations and within certain timeframes
of the event occurring.
The events for which sponsors must provide information and the timeframe in which this information
must be provided are outlined below:

Event Timeframe

All sponsors Cessation, or expected Within 10 working days of the


cessation, of a primary person ceasing employment.
sponsored persons
employment.

A change to the work duties Within 10 working days of the


carried out by the primary event occurring.
sponsored person.
A change to the information in
the sponsors application for
approval as a sponsor, or
variation to a sponsorship,
relating to the training
requirements and the persons
contact details.

The legal entity of the sponsor


ceases to exist.

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Event Timeframe

The sponsor has paid the travel


costs to enable the sponsored
persons to leave Australia.

The sponsor has become


insolvent.

All sponsors that are a company A new director is appointed.

An administrator is appointed for


the company.

The company resolves to be


wound up voluntarily.

A court has ordered that the


company be wound up.

A court has appointed a


liquidator.

A court has approved a


compromise or arrangement
proposed by the company.

The property of the company


becomes subject to a receiver
or other controller.

Procedures are initiated for the


deregistration of the company.

All sponsors that are a A new partner joins the


partnership partnership.

All sponsors that are an A new member is appointed to


unincorporated association the managing committee.

All sponsors that are a natural The sponsor enters into a


person personal insolvency agreement.

The sponsor enters into a debt


agreement.

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Event Timeframe

A sequestration order is made


against the estate of the
sponsor.

The sponsor becomes a


bankrupt by virtue of the
presentation of a debtors
petition.

The sponsor presents a


declaration of intention to
present a debtors petition.

A composition or scheme of
arrangement is presented in
relation to the sponsor.

This obligation starts to apply on the day that the person is approved as a sponsor.
This obligation ends after the first day on which each of the following occurs concurrently:
the person ceases to be an approved sponsor; and
there is no primary or secondary sponsored person in relation to the sponsor.

Obligation to ensure that a visa holder works or participates in an occupation, program or


activity nominated by an approved sponsor (including by preventing the on-hire of a visa
holder to a business that is not associated with the sponsor) (Regulation 2.86)
The standard business sponsor must ensure that the primary sponsored person does not work in an
occupation other than the occupation that is the subject of the most recent approved nomination for the
person. If a sponsor wants to employ a primary sponsored person in a different occupation, the
sponsor must lodge a new nomination in respect of that occupation for the primary sponsored person.
In response to concerns that some sponsors are engaging visa holders under arrangements that
resemble independent contracting arrangements, employees must now be employed by their sponsor
in a direct employee-employer relationship. This prohibits on-hire arrangements that fall outside
approved Labour Agreements and aims to prevent sham contracting arrangements.
Sponsors will now be required to keep a record of all written contracts of employment with primary
sponsored persons. The contract must be signed by both the sponsor and the sponsored person and
must include the hours of work, salary and conditions of employment.
This obligation starts to apply on the day the primary sponsored person is granted a Subclass 457
visa, unless he or she already holds a Subclass 457 visa in which case the obligation starts to apply on
the day the Minister approves the sponsors nomination for the primary sponsored person.
This obligation ends on the earliest of the following:
the day on which the Minister approves a nomination by another sponsor in relation to the
primary sponsored person;

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the day on which the person is granted a further substantive visa (other than a Subclass 457
visa). If the primary sponsored person is granted another Subclass 457 visa in order to
continue to work for the sponsor, the obligation continues; or
the day the person has left Australia and their visa has ceased to be in effect.

Obligation to require an approved sponsor or former approved sponsor not to recover, transfer
or take actions that would result in another person paying for certain prescribed costs
(Regulation 2.87)
Previously sponsors were obligated not to recover certain costs from a primary or secondary
sponsored person.
Now sponsors are required to pay certain costs associated with becoming a sponsor and not to pass
these costs, in any form, onto a sponsored person.
The new legislative provision in regard to regulation 2.87 - Obligation not to recover, transfer or take
actions that would result in another person paying for certain costs states:
(1A) The person:
(a) must not take any action, or seek to take any action, that would result in the transfer to
another person of some or all of the costs, including migration agent costs:
(i) associated with the person becoming an approved sponsor; or
(ii) associated with the person being an approved sponsor; or
(iii) associated with the person being a former approved sponsor; or
(iv) that relate specifically to the recruitment of a non-citizen for the purposes of a
nomination under subsection 140GB(1) of the Act; and
(b) must not take any action, or seek to take any action, that would result in another
person paying to the person some or all of the costs, including migration agent costs:
(i) associated with the person becoming an approved sponsor; or
(ii) associated with the person being an approved sponsor; or
(iii) associated with the person being a former approved sponsor; or
(iv) that relate specifically to the recruitment of a non-citizen for the purposes of a
nomination under subsection 140GB(1) of the Act.
Similarly, the sponsor must not recover or seek to recover from a sponsored person some or all of the
costs as detailed in sub-paragraphs (1A)(a)(i) (iv) and (1A)(b)(i) (iv) above.
When applying for sponsorship approval, a representative of the company with the legal authority to
act on behalf of the business, must declare for and on behalf of the business that it:
has not taken any action, or sought to take any action, to transfer some or all of the costs
associated with the business becoming an approved sponsor, to another person (including
migration agent costs); and
has not taken any action, or sought to take any action, that would result in another person paying
some or all of the costs associated with the business becoming an approved sponsor, to the
business (including migration agent costs); and

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has not recovered, or sought to recover, from another person, some or all of the costs associated
with the business becoming an approved sponsor (including migration agent costs); and
has not taken any action, or sought to take any action, to transfer some or all of the costs
associated with the business recruiting a non-citizen for the purposes of nominating them to fill
a position in the business, to another person (including migration agent costs); and
has not taken any action, or sought to take any action, that would result in another person paying
some or all of the costs associated with the business recruiting a non-citizen for the purposes of
nominating them to fill a position in the business, to the business (including migration agent
costs); and
has not recovered, or sought to recover, from another person, some or all of the costs that relate
to the business recruiting a non-citizen for the purposes of nominating them to fill a position in
the business (including migration agent costs).
The authorised representative of the business will be required to sign the declaration, insert their
position title and date the declaration, thereby making the business responsible for the sponsors
declaration.
This obligation starts to apply on the day the person is approved as a sponsor.
This obligation ends on the concurrence of the following 2 events:
the person ceases to be a standard business sponsor; and
there is no primary or secondary sponsored persons in relation to the sponsor.

Obligation to provide training to Australian citizens and permanent resident workers


(Regulation 2.87B)
Meeting the training benchmarks is now an ongoing and enforceable requirement rather than a
commitment.
In addition, sponsors will be obligated to maintain records relating to training throughout the term of the
sponsorship approval.
Former approved sponsors must also demonstrate that they continue to meet the benchmarks during
their sponsorship term when applying for a new sponsorship or varying the terms of their current
sponsorship.
This obligation starts on the day the person is approved as a sponsor.
This obligation ends:
3 years after the person is approved as a sponsor if the period of approval is less than 6 years; or
6 years after the person is approved as a sponsor if the period of approval is at least 6 years.

2. Recent reforms to Sponsorship Obligations

Introduction of Labour Market Testing


Labour Market Testing was introduced on 23 November 2013.
The commencement of LMT in respect of prescribed occupations adds a further layer of regulatory
compliance within the Subclass 457 Visa program. Amongst other things, it requires you to determine
which occupations are subject to LMT and which are exempt and why.

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You will also be required to satisfy yourself as to the nature and extent of the LMT undertaken and
whether it meets the mandatory and discretionary evidentiary requirements as they may apply from
time to time.
Approved Sponsors seeking to fill prescribed positions under the Subclass 457 Visa program are
required to undertake LMT in relation to the nominated occupation within 12 months prior to the
lodgement of the nomination application and so as to evidence that there is no suitably qualified and
experienced Australian citizen, Australian permanent resident or eligible temporary visa holder
available to fill the position.

Skill and occupational classifications for the purposes of LMT


It is proposed that from time to time, the Minister of Immigration (the Minister) may, by legislative
instrument:
Specify an occupation (or occupations) which are exempt from the requirement to satisfy the LMT
condition; and
Specify an occupation (or occupations) that are not exempt from the requirement to satisfy the
LMT condition.
The legislative instrument operates to specify occupations that are classified in the Australian and New
Zealand Standard Classification of Occupations published by the Australian Bureau of Statistics
(ANZSCO).
The ANZSCO structure has occupational titles which detail the minimum skill entry requirements, the
occupational tasks and the occupations which fall within the main occupation title.
The classification structure of ANZSCO comprises five hierarchical levels: Major Group, Sub-Major
Group, Minor Group, Unit Group and Occupation.
There are 8 Major Groups namely:

Major Group Predominant Skill Levels

1. Managers 1,2

2. Professionals 1

3. Technicians and Trades Workers 2,3

4. Community and Personal Service Workers 2,3,4,5

5. Clerical and Administrative Workers 2,3,4,5

6. Sales Workers 3,4,5

7. Machinery Operators and Drivers 4

8. Labourers 4,5

The Legislative Instrument which came into effect on 23 November 2013, exempts nominated
occupations at Skill Levels 1 or 2 as exempt from the LMT requirement (as summarised below).

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Occupations which are exempt from LMT


Currently, all occupations that are classified in the ANZSCO as Skill Level 1 or 2 are exempt from the
LMT requirement.

ANZSCO Skill Level 1


Nominated occupations are exempt if the nominated occupation requires a relevant bachelor
degree or higher and/or 5 or more years of relevant work experience AND the nominated
occupation is specified by the Minister.
The Minister has specified all occupations that are ANZSCO Skill Level 1.

ANZSCO Skill Level 2


Nominated occupations are exempt if the nominated occupation requires a relevant associate
degree, advanced diploma or diploma covered by the AQF and/or 3 or more years of relevant
work experience AND the nominated occupation is specified by the Minister.
The Minister has specified all occupations that are ANZSCO Skill Level 2.

Period of LMT
In order to meet the LMT requirements, the period within which LMT must be undertaken in
relation to a nominated occupation is twelve (12) months prior to the lodgement of the nomination
application.

Exempt occupations because of Australias International Trade Obligations


LMT will not be required if to do so, would be inconsistent with any International Trade Obligation
of Australia determined under section 140GBA of the Migration Act 1958 as amended by the
Migration Amendment (Temporary Sponsored Visa) Act 2013 (the Act). Australias international
trade obligations are complex and include the General Agreement on Trade in Services (GATS)
which was entered into in 1994 by Member countries of the World Trade Organisation (WTO).
GATS is a multilateral trade agreement to trade in services and is intended to contribute to trade
expansion under conditions of transparency and progressive liberalisation and as a means of
promoting economic growth of all trading partners and the development of developing countries.
It is essentially about providing market access to foreign services and service providers across
an increasing range of service sectors.
Accordingly, where LMT would be inconsistent with Australias International Trade Obligations,
LMT will not be required. The exemptions are:
the Protocol on Trade in Services to the Australia-New Zealand Closer Economic
Relations Trade Agreement:
o Executives and Senior Managers as Intra-Corporate Transferees;
o Specialists as Intra-Corporate Transferees;
o Independent Executives;
o Contractual Service Suppliers.
the General Agreement on Trade in Services at Annex 1B to the Marrakesh
Agreement Establishing the World Trade Organization:
o Executives and Senior Managers as Intra-Corporate Transferees;

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o Independent Executives;
o Specialists who have been nominated following two years full-time employment in
Australia with the same nominating employer.
the Singapore-Australia Free Trade Agreement:
o Executives and Senior Managers as Intra-Corporate Transferees;
o Specialists as Intra-Corporate Transferees;
o Independent Executives;
o Specialists who have been nominated following two years full-time employment in
Australia with the same nominating employer.
the Thailand-Australia Free Trade Agreement:
o Executives and Senior Managers as Intra-Corporate Transferees;
o Specialists as Intra-Corporate Transferees;
o Independent Executives;
o Contractual Service Suppliers.
the Australia-United States Free Trade Agreement:
o Executives and Senior Managers as Intra-Corporate Transferees;
o Independent Executives;
o Specialists who have been nominated following two years full-time employment in
Australia with the same nominating employer.
the Australia-Chile Free Trade Agreement:
o Executives and Senior Managers as Intra-Corporate Transferees;
o Specialists as Intra-Corporate Transferees;
o Independent Executives;
o Contractual Service Suppliers.
the ASEAN-Australia-New Zealand Free Trade Agreement:
o Executives and Senior Managers as Intra-Corporate Transferees;
o Specialists as Intra-Corporate Transferees;
o Independent Executives;
o Specialists who have been nominated following two years full-time employment in
Australia with the same nominating employer.
the Malaysia-Australia Free Trade Agreement:
o Executives and Senior Managers as Intra-Corporate Transferees;
o Specialists as Intra-Corporate Transferees;
o Independent Executives;
o Specialists who have been nominated following two years full-time employment in
Australia with the same nominating employer.
For the purposes of determining whether a nominated occupation is exempt from LMT because of
Australias International Trade Obligations, we have summarised below the scope of the roles of
Executives, Senior Managers, Specialists, Independent Executives and Contractual Service Suppliers
namely:

Executives and Senior Managers as Intra-Corporate Transferees


These are executives and senior managers who are employees of a company operating in Australia
and who will be responsible for the companys entire operations in Australia or a substantial portion of
such operations.

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Specialists as Intra-Corporate Transferees


Specialists are individuals with trade, technical or professional skills who are responsible for or are
employed in a particular aspect of a companys operations, for an initial stay of up to 2 years and a
maximum of 4 years.
Entry of such specialists can be made subject to LMT but not where:
the specialist has specialised knowledge at an advanced level of a proprietary nature of
the companys operations;
the specialist has been employed by the company for at least two years; and
if the position in question is within a labour agreement in force at the time of the
application.

Independent Executives
These are executives and senior managers who intend to establish or are responsible for the
establishment of a new business in Australia as a service supplier that has its head of operations
in a territory of another WTO Member and which has a representative, branch or subsidiary in
Australia.

Contractual Service Suppliers


These are individuals not based in Australia who are sales representatives of a service supplier
and who are negotiating for the sale of services or entering into agreements to sell services.

Labour Agreements
The LMT requirement does not apply to nomination applications lodged by parties to a Labour
Agreement.
Evidence in relation to LMT
The requirement to provide evidence of LMT is complex and includes:
Mandatory evidentiary requirements; and
Discretionary evidentiary requirements, namely:
Mandatory evidentiary requirements:
Must include information about the approved sponsors attempts to recruit suitably qualified
and experienced Australian citizens or Australian permanent residents to the position and
any other similar position;
Any advertising (paid or unpaid) of the position, and any similar positions, commissioned or
authorised by the approved sponsor;
Fees and other expenses paid (or payable) for that advertising;
A sponsor must also provide information about any redundancies or retrenchments that
occurred in the previous 4 months prior to making a nomination application for all
occupations in the sponsor's business. If there have been redundancies or retrenchments,
LMT must be undertaken by the Sponsor after those redundancies and retrenchments.
Discretionary evidentiary requirements:

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Copies of, or references to, any research released in the previous 4 months prior to the
lodgement of the nomination application relating to labour market trends generally and in
relation to the nominated occupation; or
Expressions of support from Commonwealth, State and Territory government authorities
with responsibility for employment matters; or
Any other type of evidence determined by the Minister, by Legislative Instrument.
Information about the approved sponsors participation in relevant job and career
expositions; or
Details of any other fees and expenses paid (or payable) for any recruitment attempts
(including any participation in relevant job and career expositions); or
Details of the results of such recruitment attempts, including details of any positions filled as
a result.
A sponsor may provide independent research if released in the last 4 months (prior to the
lodgement of the nomination application) and other evidence determined by the Minister
by Legislative Instrument.
If an approved sponsor elects to provide other evidence and information as mentioned above, the
Minister may take that evidence and information into account. But, if a sponsor elects not to provide
such further evidence or information, the legislation provides that the Minister is not to treat the
nomination application less favourably merely because of that fact.
If an approved sponsor does not provide such information, the nomination application will not be
treated less favourably.

The Departments policy guidance in regard to evidencing LMT


The Departments policy guidelines are complex and include guidance in relation to:
recent efforts to recruit from the Australian labour market for each occupation;
the number of responses to the attempts to recruit to the positions from the Australian
labour market;
the location of the unfilled positions as advertised;
evidence of participation in job and career expos and the responses to attempting to fill the
positions as a result of these initiatives;
other written evidence demonstrating the labour market demand for the nominated
occupation/s;
industry and other research showing labour market trends;
letters from state government authorities with the responsibility for employment confirming
the skill shortages; and
strategies for retaining and training Australian workers undertaken by the business as part
of its commitment to its Australian workforce.

Declaration by authorised sponsor as to LMT


Where a nomination application relates to an occupation which is subject to the LMT requirements, the
authorised officer of the approved sponsor is required to provide a declaration and:
List all modes of advertising or recruitment efforts by your organisation in the last twelve
months for the occupation;
Provide details of where the advertisement or recruitment effort took place;

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Provide the period/dates of advertising or recruitment;


Provide the fee/s paid for advertising or recruitment;
Provide details of who the fees were paid to;
Provide the geographical target audience;
Provide the number of applications received;
Provide the number of applicants that were hired; and
Provide the reasons that candidates were not successful.
The authorised officer is required to declare that the information provided is true and correct and that
the person is aware of the penalties for providing misleading or false information to the
Commonwealth.
Departmental policy also provides policy guidance in regard to the modes of advertising or
recruitment and where the advertisement or recruitment efforts took place.

English language requirements must be met when new nomination is lodged


Previously, to be granted a Subclass 457 visa an applicant had to demonstrate that they met the
English language requirement or that they were exempt. One of the exemptions was for applicants
whose annual earnings would be above the specified threshold.
When a new nomination was lodged with a salary above the specified threshold, the visa holder was
not required to demonstrate that they met the English requirement.
Now, all primary Subclass 457 visa holders are required to demonstrate that they either meet the
English language requirement or continue to be eligible to meet this requirement on the occasion that
they are renominated.

Occupation based exemptions to the English language requirement are removed


Previously most occupations were exempt from the English language requirement with the exception
of, as for example, technicians and trade workers.
Now, occupations based exemptions have been removed. Other exemptions remain unchanged,
namely, the primary sponsored person has:
a nominated salary that is over the specified threshold exemption amount (which is currently
$96,400 gross per annum for a 38 hour week in addition to superannuation); or
a passport from Canada, the United States of America, the United Kingdom, the Republic of
Ireland and New Zealand; or
completed at least 5 consecutive years of full-time study in a secondary and/or higher
education institution where the instruction was delivered in English.

Definition of English language now aligned with the Employer Nomination Scheme (Subclass
186) Program
The Subclass 457 visa program definition of the English language requirement is now aligned with the
Employer Nomination Scheme. In summary, this requires the applicant to have a score of not less
than 5 in each of the four test components namely reading, writing, speaking and listening under the
International English Language Testing System (IELTS) test or a score of B in each of the four test
components under the Occupational English Test (OET). The Applicant must meet the English
language requirement at the time of the decision.

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Demonstrating a genuine skill need


The decision-maker must now be satisfied that the nominated position is genuine and may refuse the
application if:
the tasks of the nominated occupation do not correspond to the tasks of an eligible
occupation, or
the position associated with the nominated occupation is not genuine.
In most cases, the decision-maker can be satisfied that a position is genuine without further
enquiry. However, the Departmental policy guidelines allow for consideration of a range of
factors including:
Where the nominee is a relative or personal associate of an officer of the sponsoring
business;
The nominee is a director of the sponsoring business;
The salary level is inconsistent with other workers in the occupation (for example, if the
nominated salary is significantly lower than industry standards for the nominated
occupation);
The tasks of the nominated position do not include a significant majority of the tasks of the
nominated occupation as listed in the Australian and New Zealand Standard Classification
of Occupations (ANZSCO) Dictionary;
The position does not fit broadly within the scope of the activities and scale of the business;
and
The sponsor is an overseas business and the sponsor seeks to employ the visa holder with
an associated entity in Australia.

Indicating how many workers an employer will sponsor


Previously, sponsors were able to sponsor and nominate unlimited Subclass 457 visa holders.
Now, employers are restricted to sponsoring the number of Subclass 457 workers that was approved
in their sponsorship application over the term of their sponsorship. They can vary this number by
applying for a variation to their sponsorship agreement. A sponsorship agreement will cease either
when the number of nominations are reached or the time period expires (namely generally 3 years). If
the company were to be approved as an accredited sponsor, then the sponsorship agreement will be
valid for 6 years from the date of approval.
Accredited sponsors will not be required to indicate the number of workers they intend to sponsor.

Skill assessments for generalist occupations


The Department is concerned as to the inappropriate use of the Subclass 457 visa program by
presenting lower skilled occupations as Program and Project Administrator or a Specialist Manager not
elsewhere classified as these positions are defined in general terms in the ANZSCO.
In response to this concern, the assessment of these generalist occupations has now been
strengthened so that any nominated position of Program and Project Administrator and Specialist
Manager not elsewhere classified, requires the primary sponsored person to undertake a formal skill
assessment with VETASSESS.

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Fair Work Inspectors as Inspectors under the Migration Act and exercise of powers for
Migration Act purposes
Previously, the Department had 32 active Inspectors appointed to monitor compliance with
sponsorship obligations.
Now, over 300 Fair Work Inspectors will investigate compliance with sponsorship obligations to ensure
sponsored workers are working in their nominated occupation and being paid market salary rates.
The Fair Work Inspectors will also be empowered to investigate a sponsors use of other temporary
visas including for example persons on Working Holiday Visas, Work and Holiday Visas, Student Visas
and such like.
The powers of Inspectors include investigating whether a sponsor who is required to satisfy
sponsorship obligations has committed an offence, or contravened a civil penalty provision, under the
Act.
Both the Department and Fair Work Inspectors now have the powers to investigate a sponsors use of
other temporary visas including Working Holiday Visas, Work and Holiday Visas, Student Visas and
such like.

Health Insurance Requirements


Subclass 457 Visa holders are subject to the requirement to hold health insurance for themselves and
any accompanying family members for the duration of the intended stay in Australia.
Evidence of health insurance must be provided with the Visa Application before the visa will be
approved. Further, Subclass 457 Visas will be granted subject to Condition 8501, namely that the
holder must maintain adequate arrangements for health insurance for their stay in Australia.
The following evidence of health insurance is acceptable:
a copy of the health insurance policy;
a written letter from an acceptable health insurance provider confirming the applicant/s
holds or will hold cover upon visa grant or their arrival in Australia;
evidence that the applicant has enrolled lawfully with Medicare (pursuant to the Reciprocal
Health Care Arrangements); and
for citizens of Ireland only, evidence that they hold an Irish passport.
For applicants who are eligible for Medicare under the Reciprocal Health Care Arrangements, a
Medicare card in the name of the applicant is satisfactory evidence that the applicant has suitable
health insurance at the time of visa grant.
Applicants must be in Australia at the time of the application, in order to make an application for
Medicare under the Reciprocal Health Care Arrangements. If the applicant is overseas, they may wish
to obtain short-term health insurance until a Reciprocal Health Care Medicare card is issued, so that
the health insurance requirement can be met at the time of visa grant.
Subclass 457 Visa holders must ensure that they continue to meet Condition 8501 for the life of their
visa.
All applicants also must meet all other relevant criteria, including the Schedule 4 health requirements
(or the acceptance of the waiver of this), in order to be granted a Subclass 457 Visa.

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Market Salary Rate


From 14 September 2009 all Subclass 457 Visa applicants must be paid the Market Salary Rate or
be offered the same terms and conditions of employment which are no less favourable than those
provided to an Australian worker performing equivalent work to that workplaces regional locality.
The Regulations prescribe the general requirements in relation to provision of equivalent terms and
conditions of employment to the nominated person, including what is required if there is no Australian
performing equivalent work at that workplaces regional locality.
Regard must be had to the proposed terms and conditions of employment for the nominated person, to
ensure that it is no less favourable than the terms and conditions of employment that are provided, or
would be provided, to an Australian worker performing equivalent work at that workplaces regional
locality. These equivalent terms and conditions are considered to be the Market Salary Rate in that
circumstance.
Further, the base rate of pay under the Market Salary Rate must be greater than the Temporary
Skilled Migration Income Threshold (TSMIT) specified in the relevant Legislative Instrument. The
TSMIT is currently $53,900 gross base per annum in addition to superannuation. This is indexed
annually in accordance with ABS earnings data.
Overseas workers whose annual gross base salaries are $250,000 or more are exempt from the
Market Salary Rate requirements.
All Nomination Applications require the employer to pay the relevant Market Salary Rate (which must
be greater than the TSMIT).

Requiring visa holders to begin work within 90 days of arriving in Australia


Previously there was no explicit requirement for a visa holder to commence work with their sponsor.
Now as part of Condition 8107 a Subclass 457 visa holder must commence work with their sponsor
within 90 days of arriving in Australia.
Condition 8107 requires the primary sponsored person to only work in the occupation listed in the most
recently approved nomination.
Additionally, Regulation 2.86 provides that the sponsor must ensure that the primary sponsored person
not work in an occupation other than the nominated occupation.
If the primary sponsored person is found to be working in an occupation other than a nominated
occupation:
that person would be in breach of Condition 8107; and
the sponsor may be in breach of their sponsorship obligation and subject to sanction
actions.
If it comes to the attention of the Department that the primary sponsored person is working in an
occupation that is not associated with an approved nomination, decision-makers are advised to refer
details of the sponsor and the primary sponsored person to the relevant monitoring unit of the
Department for further investigation.
Condition 8107 will be considered to be met if a primary sponsored person changes the duties of their
position on a temporary basis for no longer than two months.

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Sponsors are required to ensure that if the primary sponsored persons duties are revised for a period
of more than two months, that a new nomination is made and approved first.
Further, Condition 8107 requires that a primary sponsored person must not cease employment for
more than 90 consecutive days. A primary sponsored person is considered to have ceased
employment if:
the employer or employee gives notice that employment will cease, or has ceased, on a
particular date; and
that date has passed.
We can advise further in regard to the circumstances in which a primary sponsored person can be
granted leave and other absences from employment, without it being considered a cessation of
employment which, may leave their visa subject to cancellation, once instructed to do so.

Extend the period in which a visa holder can seek new sponsored employment
As noted above, Condition 8107 is a visa condition that requires primary Subclass 457 visa holders to
only work for their sponsoring employer, in the occupation or position in relation to which the visa was
granted; and if the holder ceased employment, the previous period during which the holder ceased
employment could not exceed 28 consecutive days.
Now, if a primary Subclass 457 visa holder ceases employment with their sponsoring employer, they
have 90 consecutive days to find a new sponsor or to depart Australia without being liable to have their
visa cancelled.

Requiring mandatory registration, licensing or membership


For certain occupations visa holders are required to obtain any mandatory registration, licence or
membership in the state or territory where their position will be located.
Condition 8107 now requires that Subclass 457 visa holders must hold any mandatory registration,
licence or membership for their occupation in the state or territory where they are employed before
performing work in the nominated occupation.

Introduction of Labour Market Testing


Labour Market Testing was introduced on 23 November 2013.
Labour Market Testing is to be applied in a manner consistent with Australias international trade
obligations. This means that relevant obligations specified in the World Trade Organisation General
Agreement for Trade and Services (WTOGATS) Uruguay and the Free Trade Agreements with
Singapore, Chile and Thailand will be exempted.
As Australia has extensive international trade obligations specified in WTO GATS and Free Trade
Agreements (including in the case of the latter with New Zealand, Singapore, USA, Thailand, Chile,
ASEAN countries and Malaysia), Australia however reconcile these responsibilities with the Labour
Market Testing requirements.
A sponsor is exempt from Labour Market Testing if the nominated occupation is specified by the
Minister in a Legislative Instrument.
Evidence in relation to Labour Market Testing:

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Must include information about the approved sponsors attempts to recruit suitably qualified
and experienced Australian citizens or Australian permanent residents to the position and
any other similar position; and
May also include other evidence, such as:
o Copies of, or references to, any research released in the previous 4 months prior to
the lodgement of the nomination application relating to labour market trends
generally and in relation to the nominated occupation; or
o Expressions of support from Commonwealth, State and Territory government
authorities with responsibility for employment matters; or
o Any other type of evidence determined by the Minister, by Legislative Instrument.
Evidence of Labour Market Testing must include details of:
Any advertising (paid or unpaid) of the position, and any similar positions, commissioned or
authorised by the approved sponsor; and
Fees and other expenses paid (or payable) for that advertising; and
May also include other information, such as:
o Information about the approved sponsors participation in relevant job and career
expositions; or
o Details of any other fees and expenses paid (or payable) for any recruitment
attempts (including any participation in relevant job and career expositions); or
o Details of the results of such recruitment attempts, including details of any positions
filled as a result.
If a sponsor elects to provide other evidence and information as mentioned above, the Minister may
take that evidence and information into account. But, if a sponsor elects not to provide such further
evidence or information, the legislation provides that the Minister is not to treat the nomination
application less favourably merely because of that fact.
Labour Market Testing is defined in relation to a nominated position, to mean:
testing of the Australian labour market to demonstrate whether a suitably
qualified and experienced Australian citizen or Australian permanent resident is
readily available to fill the position.
A sponsor must provide evidence of advertising of the position (paid or unpaid). A sponsor must also
provide information about any redundancies or retrenchments that occurred in the previous 4 months
prior to making a nomination application for all occupations in the sponsor's business.
If there have been redundancies or retrenchments, LMT must be undertaken by the Sponsor after
those redundancies and retrenchments.
A sponsor may provide independent research if released in the last 4 months (prior to the lodgement
of the nomination application) and other evidence determined by the Minister by Legislative
Instrument. If a sponsor does not provide such information, the nomination application will not be
treated less favourably.
While there are no Departmental policy guidelines in regard to the requirements to be met to satisfy
the Labour Market Testing requirements, we recommend that detailed records be kept in regard to:
recent efforts to recruit from the Australian labour market for each occupation;

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the number of responses to the attempts to recruit to the positions from the Australian labour
market;
the location of the unfilled positions as advertised;
evidence of participation in job and career expos and the responses to attempting to fill the
positions as a result of these initiatives;
other written evidence demonstrating the labour market demand for the nominated occupation/s;
industry and other research showing labour market trends;
letters from state government authorities with the responsibility for employment confirming the
skill shortages; and
strategies for retaining and training Australian workers undertaken by the business as part of its
commitment to its Australian workforce.

Conclusion
The 1 July 2013 reforms aim to ensure that the Subclass 457 visa program is a supplement and not a
substitute for the Australian labour market, that Australian conditions and standards of employment are
safeguarded, and that Subclass 457 visa holders are not exploited.
It is anticipated that there will be ongoing reforms of the subclass 457 visa program, as the
government continues to grapple with globalisation and free trade and the significant movement of
skilled personnel across borders while at the same time meeting Australias skilled workforce needs
and protecting employment and training opportunities for Australians.

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Globalization, Free Trade, and Skilled Migration:

A UK Perspective

By Laura Devine

Rarely has a word gone so directly from obscurity to meaningless without any intervening period of
coherence.
- Former US Labor Secretary for the Clinton Administration, Robert Reich, on globalization11

Globalization, for better and for worse, is an increasingly popular and very broad term. Regarded by
some as a destructive, homogenizing force, and by others as a highly positive economic necessity, the
word globalization is used to describe any number of ways the world is becoming increasingly
integrated.
Ideas and culture, goods and people now often pass with relative ease through many of our semi-
permeable national borders. Where a deficit exists in one nation, it is not unusual to witness the
kinetic pull of equilibrium on another as information and individuals rush in to meet need.
One area frequently experiencing this tension and harmonization is in the business and labour
markets. There, the domestic need to fill jobs and skills shortages often draws upon foreign
workforces. Indeed, the advent of a global workforce that possesses both the desire and ability to
move freely between professional roles and international borders has meant an increasingly
competitive market for countries and corporations seeking to attract the best talent. As a result, most
nations have signed international agreements and established a robust framework within their own
immigration systems to more easily facilitate the cross-border movement of labour.
Since the end of World War II, the creation of the European Union and related international free trade
agreements have signalled a meaningful push toward a more open and integrated region. In recent
years, however, many of the signatory nations to these partnerships and treaties have seen a sharp
rise in anti-immigration rhetoric, Euro-scepticism, and nationalist trends. Indeed, there has been a
groundswell of support for more isolationist and protectionist policies. Led by such right-wing groups as
Frances National Front, the Netherlands Party for Freedom, and Greeces Golden Dawn, and aided
by some in the media and politics, this inward turn has unfortunately also fostered xenophobic
sentiments.

11
Inequality for All. Dir. Jacob Kornbluth. 72 Productions, 2013. Film. Productions; see also
http://www.straight.com/news/498931/robert-reich-explains-how-globalization-technology-and-natural-resources-are-
reshaping-global-economy

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The UK has not been immune to these forces, and it has seen a surge in the popularity of anti-
immigration and anti-EU political parties such as the UK Independence Party (UKIP) and the British
National Front (BNP). As these groups have gained purchase, leaders across the political spectrum,
including in the middle, have scrambled to make their own voices heard amongst the polarising, but
popular rhetoric. Regrettably, this has resulted in a race to the bottom, as politicians attempt to appeal
to populist sentiment and appear tough on immigration.

UK immigration policy
Since coming to power in 2010, the Conservative-led coalition Government in the UK has pledged to
reduce net migration from the hundreds of thousands to the tens of thousands. In order to do so, the
Government has assailed all areas of immigration, including work, study and family routes. Although
recent statistics suggest that this pledge is unlikely to be fulfilled, 12 the Government is nevertheless
pressing forward with more detrimental reforms.
Most recently, in October 2013, a new Immigration Bill was introduced in the House of Commons. The
proposed laws goal of creating a hostile environment for illegal immigrants 13 includes a number of
problematic measures, including reduced rights of appeal, limiting illegal migrants access to vital
services such as housing, driving licences, and bank accounts, and legislatively attempting to dictate
courts approaches to claims arising under Article 8 of the European Convention on Human Rights
(ECHR).
Unfortunately, the Bill, in concert with the Governments controversial Go Home vans and Leave the
UK SMS campaigns, appears more focused on ginning up pre-election populist support than
implementing thoughtful, substantive policy. As such, rather than making any meaningful and positive
impact, the proposed law seems poised instead to further damage immigrant relations within
communities, and harm the UKs reputation as an immigrant-friendly nation that is open for business.

Euro-scepticism
How these trends will play out in the long term, and how they will impact skilled migration both for the
UKs domestic policy, as well as policies abroad, remains to be seen. In May, citizens across Europe
will participate in European Parliament elections. The Eurozone crisis and the austerity measures
imposed on a number of member countries have increased the number of Euro-sceptics on both the
right and the left, and there is concern that this could translate into as much as a quarter of
parliamentary seats being lost to anti-EU candidates.14 Indeed, many anti-EU groups view the recent
Swiss vote to limit immigration as a positive indication of where the EU is headed.15
In the UK, too, there has been a significant push to exit the EU, with Prime Minister David Cameron
pledging to hold a referendum on membership in the EU by 2017 should his party win re-election. 16 In
the meantime, he has also been criticized by Germany for seeking to limit free moment of labour within
Europe.17 In part, these policies are a result of the more open immigration policies of the 1990s, which

12
Net migration to UK jumps 30% in a year to 212,000. The Guardian. 27 February 2014.
13
http://www.theguardian.com/politics/2013/oct/10/immigration-bill-theresa-may-hostile-environment
14
Turning right. The Economist. 4 January 2014.
15
Europe's Anti-Immigrant Parties Cheer a Swiss Vote. BloombergBusinessWeek. February 13, 2014.
16
http://www.ft.com/intl/cms/s/0/d650bf4a-a391-11e3-aa85-00144feab7de.html#axzz2v92azMDB
17
UK PM risks damaging Europe over migration: Germany. Press TV. 20 January 2014.

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saw an influx of eastern Europeans EU migrants into the UK. Additionally, they have been driven by
the downturn in the economy and rise of domestic unemployment.
With the outcomes of both the UK and European elections still uncertain, the next two years may well
see dramatic changes. What it will mean for free trade and globalization in the UK, at least with regard
to the movement of labour and skilled migration, is yet unknown.

UK Employment and skilled migration for European Economic Area citizens and Swiss
nationals
The internal market of the European Union, sometimes referred to as the Single Market, ensures the
free movement of goods, services, capital, and people.18 Under European Community law, European
Economic Area (EEA) member state nationals 19 and Swiss citizens (hereinafter referred to collectively
as EEA nationals) may exercise their rights to free movement by working, studying, and residing in EU
member states. 20
For the purposes of UK legislation, these rights are implemented through the Immigration EEA
Regulations 2006.21
EEA nationals and their family members may reside in the UK for up to three months before they must
demonstrate that they are a qualified person.22 Under the Immigration EEA Regulations 2006,
qualified persons are defined as those individuals who are job seekers, workers, self-employed, self-
sufficient, or students.23
After a five-year period of continuous residence, EEA members and their family may apply for
settlement. 24

UK Employment and skilled migration for non-EEA nationals


Non-EEA migrants require immigration permission in order to work, study or live in the UK. At present,
this is regulated by the Points-Based System (PBS), which was introduced in 2008 and is made up of
the following five tiers:
Tier 1 for highly skilled migrants, including entrepreneurs, investors, and individuals of
exceptional talent.
Tier 2 for skilled workers with a job offer in the UK, including intra-company transfers,
ministers of religion, and sportspersons.
Tier 3 for low-skilled workers. This tier has never been opened.

18
http://europa.eu/legislation_summaries/internal_market/index_en.htm ; see also
19
The EU is comprised of Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal,
Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom. The EEA is comprised of all 28 European Union
(EU) member states, in addition to Iceland, Lichtenstein, and Norway.
20
EEA family permits guidance (valid from 21 February 2014) at 4.
21
http://www.legislation.gov.uk/uksi/2006/1003/made
22
Regulation 13-14 of the Immigration (EEA) Regulations 2006
23
Regulation 6 of the Immigration (EEA) Regulations 2006
24
Regulation 15 of the Immigration (EEA) Regulations 2006

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Tier 4 for students.


Tier 5 for temporary workers and youth mobility.
Tiers are comprised of categories and sub-categories, each of which caters to a different area of work
or study. In order to qualify, individuals must pass route-specific points-based evaluations that cover a
range of criteria, and, in most cases, demonstrate that they meet certain English language skills and
levels of maintenance. 25
Below is a summary of the most commonly used and relevant non-EEA work-related routes to the UK.

Tier 1
Tier 1 is intended for highly skilled, non-EEA nationals seeking to work, invest, or start a business in
the UK. Individuals entering under Tier 1 do not require a sponsor.
Tier 1 (Entrepreneur)
The Tier 1 (Entrepreneur) route is designed for individuals seeking to establish, run, or take over one
or more businesses in the UK. 26 To qualify to enter the UK as a Tier 1 (Entrepreneur) migrant,
applicants must meet the following requirements: (1) have, and continue to have post application,
access to at least 200,000 of the applicants own funds, or a minimum of 50,000 from specified
investment sources, (2) funds must be held by a regulated financial institution, and (3) funds must be
disposable in the UK.27 Applicants must also demonstrate sufficient English language skills 28 and
maintenance levels. 29
Tier 1 (Entrepreneur) migrants may receive leave to enter for up to three years plus four months and
extensions to remain from within the category may be granted for up to two years. 30 After five years of
continuous lawful residence, migrants in this category may apply for settlement. Accelerated routes to
settlement exist for higher levels of investment. 31
Tier 1 (Graduate Entrepreneur)
The Tier 1 (Graduate Entrepreneur) category is intended for graduates of domestic and overseas
institutions who have been endorsed by their schools or UK Trade and Investment (UKTI) in order to
start up one or more businesses.32

25
http://www.ukba.homeoffice.gov.uk/business-sponsors/points/quick-guide-pbs/
26
Tier 1 (Entrepreneur) of the Points Based System Policy Guidance (Version 10/13) at 1, para. 1,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier1entrepreneurguidance1.pdf.
27
Tier 1 (Entrepreneur) of the Points Based System Policy Guidance (Version 10/13) at 7, para. 27,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier1entrepreneurguidance1.pdf.
28
Tier 1 (Entrepreneur) of the Points Based System Policy Guidance (Version 10/13) at 30-34, paras. 148-65,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier1entrepreneurguidance1.pdf.
29
Tier 1 (Entrepreneur) of the Points Based System Policy Guidance (Version 10/13) at 34-37, paras. 166-80,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier1entrepreneurguidance1.pdf.
30
Tier 1 (Entrepreneur) of the Points Based System Policy Guidance (Version 10/13) at 4, para. 19,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier1entrepreneurguidance1.pdf.
31
Immigration Directorate Instructions, Chapter 6A, Section 1 - Settlement Tier 1 (October 2013) at 15-18,
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idichapter6a/section1.pdf?view=Binary.
32
Tier 1 (Graduate Entrepreneur) of the Points Based SystemPolicy Guidance (Version 02/14) at 1, para. 1.4,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/t1-ge-guidance1.pdf.

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To qualify to enter the UK as a Tier 1 (Graduate Entrepreneur), applicants must (1) receive an
endorsement from a UK Higher Education Institution (HEI) or UKTI confirming that the applicant and
their business idea have been evaluated by the endorsing institution, and (2) be awarded a UK
Bachelor degree or higher, (or acknowledged equivalent). 33 Applicants must also demonstrate
sufficient English language skills 34 and levels of maintenance. 35
Tier 1 (Graduate Entrepreneur) is limited to 2,000 slots annually, distributed as follows:
General Endorsements: 900 places for graduates of any subject from UK HEIs;
MBA Endorsements: 1,000 places for MBA graduates from UK HEIs;
Global Endorsements: 100 places (assigned to UKTI) for elite overseas graduates.36
Initial entry clearance may be granted for one year, which may be extended for up to one more.37

Tier 1 (Investor)
The Tier 1 (Investor) category is intended for individuals seeking to make a significant investment in
the UK. 38
To qualify to enter the UK as a Tier 1 (Investor), applicants must possess either a minimum of 1
million of their own money that is held in a regulated financial institution and disposable in the UK, or at
least 2 million in assets and a minimum of 1 million, held in a regulated financial institution that has
been loaned to the applicant by a UK regulated financial institution and that is disposable in the UK. 39
Tier 1 (Investor) applicants are not required to evidence their English language skills or maintenance
levels to qualify.40
Tier 1 (Investor) migrants may receive leave to enter the UK for up to three years plus four months and
may extend for an additional two years.41
After five years of continuous lawful residence, Tier 1 (Investor) migrants may apply for settlement in
the UK (indefinite leave to remain). Accelerated routes to settlement exist for individuals who invest
greater amounts. 42

33
Tier 1 (Graduate Entrepreneur) of the Points Based SystemPolicy Guidance (Version 02/14) at 4, para. 1.12,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/t1-ge-guidance1.pdf.
34
Tier 1 (Graduate Entrepreneur) of the Points Based SystemPolicy Guidance (Version 02/14) at 9-13, paras. 1.20-1.25
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/t1-ge-guidance1.pdf.
35
Tier 1 (Graduate Entrepreneur) of the Points Based SystemPolicy Guidance (Version 02/14) at 14-16, paras. 1.26-
1.27, http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/t1-ge-guidance1.pdf.
36
Tier 1 (Graduate Entrepreneur) of the Points Based SystemPolicy Guidance (Version 02/14) at 5, para. 1.14,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/t1-ge-guidance1.pdf.
37
Tier 1 (Graduate Entrepreneur) of the Points Based SystemPolicy Guidance (Version 02/14) at 2, para. 1.6,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/t1-ge-guidance1.pdf.
38
Tier 1 (Investor) of the Points Based System - Policy Guidance (version 10/13) at 1, para. 2,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier1investorguidance1.pdf.
39
Tier 1 (Investor) of the Points Based System - Policy Guidance (version 10/13) at 2, paras. 9-11,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier1investorguidance1.pdf.
40
Tier 1 (Investor) of the Points Based System - Policy Guidance (version 10/13) at 1, paras. 3-4,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier1investorguidance1.pdf.
41
Tier 1 (Investor) of the Points Based System - Policy Guidance (version 10/13) at 38, Annex C, para. C1,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier1investorguidance1.pdf.

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Tier 2
Tier 2 permits UK employers to sponsor and hire skilled, non-EEA nationals for jobs that are unable to
be filled by the resident workforce.43 In order to sponsor a migrant, employers must first apply for a
tier-specific sponsor licence. Once obtained, qualifying employers are allotted a set number of
Certificates of Sponsorship (CoS), which they may issue to prospective employees. At present, CoS
are divided into two types, restricted and unrestricted. Restricted CoS are limited to 20,700 annually
and are comprised of Tier 2 (General) roles that attract an annual salary of less than 152,100, as well
as the dependants of Tier 4 migrants making an in-country switch into Tier 2 (General).44 The balance
of the CoS fall into the unrestricted category.

Tier 2 (General)
The Tier 2 (General) category is for individuals who have received an offer for a skilled position of
employment from a licenced sponsor, which is unable to be filled by a settled worker 45
To qualify to enter the UK under Tier 2 (General), applicants must (1) be assigned a CoS where either
(a) the Resident Labour Market Test (RLMT) has been satisfied, (b) the position is on the Shortage
Occupation List, (c) the role would receive a minimum of 152,100 annually, or (d) the applicant
intends to extend his or her stay in the same occupation with the same employer,46 and (2) receive an
annual salary that is appropriate for the position and is at least 20,300.47 Applicants must
demonstrate that they have the appropriate English language skills 48 and level of maintenance or they
can provide a guarantee for their sponsor of their maintenance. 49
Applicants may receive leave to enter for up to three years plus one month and leave to remain for
three additional years.50 After the last grant of leave has expired, Tier 2 (General) migrants may not re-
apply under the category for a minimum of one year unless they earn at least 152,100 per year.51
Tier 2 (Intra-Company Transfer - Short-Term Staff)

42
Immigration Directorate Instructions, Chapter 6A, Section 1 - Settlement Tier 1 (October 2013) at 18 - 33,
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idichapter6a/section1.pdf?view=Binary.
43
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 1, para. 1,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf
44
Tier 2 and 5 of the PBS - Policy Guidance for Sponsors (Version 02/14) at 70-71, paras. 27.4-27.8,
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/pbsguidance/guidancefrom31mar09/gui
dance-t251.pdf?view=Binary.
45
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 1, para. 2,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
46
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 16-17, paras. 64-67, 20-22, paras. 80-92;
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
47
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 19, para. 72,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
48
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 27-32, paras. 119-150,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
49
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 32-35, paras. 151-67,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
50
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 39-40, para. 192,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
51
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 17, para. 67,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.

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The Tier 2 (ICT-STS) subcategory is designed for skilled employees of multi-national companies who
wish to transfer to a UK branch of their employer for up to 12 months. 52
To qualify to enter the UK under Tier 2 (ICT STS), applicants must (1) be assigned a CoS at the
appropriate skill level from an employer for whom they have worked for at least the past year, 53 and (2)
command an appropriate salary for their position of not less than 24,300.54 While there are no
English language requirements for this subcategory, 55 applicants must provide evidence that they
meet the required levels of maintenance either through their own means or by virtue of a guarantee
from their sponsor. 56
Tier 2 (ICT STS) migrants may qualify for leave to enter for up to 12 months and may extend their
permission for the time it would take to make their total stay twelve months. 57 With the exception of
individuals who apply to switch into Tier 2 (ICT Long Term Staff), as well as those migrants earning
at least 152,100 annually, Tier 2 (ICT - STS) migrants are subject to a cooling off period and may
not re-apply under the category for a year from the expiration of their last leave. 58
Tier 2 (ICT) migrants who arrived in the UK under the Immigration Rules in force after April 6, 2010 no
longer may qualify for settlement. 59
Tier 2 (ICT - Long-Term Staff)
Tier 2 (ICT-LTS) is designed for skilled workers of multi-national companies who have been sponsored
to work in the UK branch of their employer for more than 12 months. 60
To qualify to enter the UK under Tier 2 (ICT LTS), applicants must (1) be assigned a CoS at the
appropriate skill level from an employer for whom they have worked for at least the past year, 61 and (2)
command an appropriate salary for their position that is not less than 40,600.62 As with Tier 2 (ICT
STS) there are no English language requirements for this sub-category, 63 but applicants must still

52
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 1, para. 2;
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
53
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 6-7, paras. 22-26;
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
54
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 11, para. 44,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
55
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 27, para. 119,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
56
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 32-35, paras. 151-67,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
57
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 41, para. 192,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf
58
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 7, paras. 25-26,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
59
http://www.ukba.homeoffice.gov.uk/visas-immigration/working/tier2/ict/settlement/; see also Immigration Directorate
Instructions, ch. 6A, 2Settlement (Version 12/12) at 1112,
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idichapter6a/section2.pdf?view=Binary.
60
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 1, para. 2;
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
61
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 6-7, paras. 22-26;
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
62
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 11, para. 44,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
63
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 27, para. 119,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.

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demonstrate that they either meet the minimum levels of maintenance, or that their maintenance has
been guaranteed by their qualified sponsor. 64
Tier 2 (ICT LTS) migrants may qualify for leave to enter for a maximum of three years and one
month and may extend their leave for two to three years depending on the type of leave previously
granted. Individuals earning a minimum of 152,100 may qualify to extend their leave for up to an
additional six years (for a total of nine years). 65

Tier 2 (ICT) migrants who arrived in the UK under the Immigration Rules in force after April 6, 2010 no
longer may qualify for settlement. 66
Tier 2 (ICT - Graduate Trainee)
The Tier 2 (ICT Graduate Trainee) subcategory is designed for recent graduates, who are being
transferred to a UK branch of their multinational employer in order to participate in a training
programme geared towards managerial or specialist positions.67
To qualify to enter the UK under Tier 2 (ICT Graduate Trainee), applicants must (1) be assigned a
CoS at the appropriate skill level from an employer for whom they have worked for at least the past
year,68 and (2) command an appropriate salary for their position that is not less than 24,300. 69
Although there is no English language requirement for this subcategory,70 applicants must
demonstrate that they either meet the required levels of maintenance, or that their qualified sponsor
has guaranteed maintenance for them. 71
Tier 2 (ICT Graduate Trainee) migrants may qualify for leave to enter for up to 12 months.
Thereafter, migrants in this subcategory may only extend their leave for the time it would take to make
their total stay 12 months. 72

With the exception of individuals who apply to switch into Tier 2 (ICT Long Term Staff), as well as
those migrants earning at least 152,100 annually, Tier 2 (ICT - STS) migrants are subject to a
cooling off period and may not re-apply under the category for a year from the expiration of their last
64
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 32-35, paras. 151-67,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
65
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 7, para. 25-26,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf
66
http://www.ukba.homeoffice.gov.uk/visas-immigration/working/tier2/ict/settlement/; see also Immigration Directorate
Instructions, ch. 6A, 2Settlement (Version 12/12) at 1011,
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idichapter6a/section2.pdf?view=Binary.
67
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 2, para. 1;
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
68
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 6-7, paras. 22-26;
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
69
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 7, paras. 25-26,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
70
Tier 2 of the Points Based System - Policy Guidance (Version 07/13) at 27, para. 119,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
71
Tier 2 of the Points Based System - Policy Guidance (Version 07/13) at 31, paras. 147-50,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
72
http://www.ukba.homeoffice.gov.uk/visas-immigration/working/tier2/ict/settlement/; see also Tier 2 of the PBSPolicy
Guidance (version 07/13) at 40, para. 188, http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-
guidance.pdf.

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leave. 73 Additionally, time spent in the UK as a Tier 2 (ICT Graduate Trainee) after 6 April 2010 will
not count toward settlement. 74
Employer sponsors are limited to five Tier 2 (ICT Graduate Trainee) positions.75
Tier 2 (ICT - Skills Transfer)
The Tier 2 (ICT Skills Transfer) subcategory is intended for individuals who are being transferred
from abroad to a UK branch of their employer in order to either learn the necessary skills to perform
their role overseas, or to teach UK-based colleagues specialist skills.76
To qualify to enter the UK under Tier 2 (ICT Skills Transfer), applicants must (1) be assigned a CoS
at the appropriate skill level,77 and (2) command an appropriate salary for their position that is at least
24,300 per year.78 While there is no English language requirement, 79 applicants must provide
evidence that they either meet the required levels of maintenance or that their qualified sponsor has
guaranteed maintenance for them. 80
Tier 2 (ICT Skills Transfer) migrants may qualify for leave to enter for up to six months. Thereafter,
migrants in this subcategory may only extend their stay for the amount of time that would be needed to
make their total stay six months.

With the exception of those who apply to switch into Tier 2 (ICT Long Term Staff), as well as those
migrants earning at least 152,100 annually, Tier 2 (ICT Skills Transfer) migrants are subject to a
cooling off period and may not re-apply under the category for a year from the expiration of their last
leave. 81
Additionally, time spent in the UK as a Tier 2 (ICT Skills Transfer) migrant after 6 April 2010 will not
count toward settlement. 82

73
Tier 2 of the PBSPolicy Guidance (version 08/12) at 6-7, paras. 22-26,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
74
http://www.ukba.homeoffice.gov.uk/visas-immigration/working/tier2/ict/settlement/; see also Directorate Instructions, ch.
6A, 2Settlement (Version 12/12) at 11-12,
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idichapter6a/section2.pdf?view=Binary.
75
Tiers 2 and 5 of the Points Based SystemSponsorship Guidance (version 02/14) at 87, para. 30.20,
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/pbsguidance/guidancefrom31mar09/gui
dance-t251.pdf?view=Binary.
76
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 1, para. 2;
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
77
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 6-7, paras. 22-26,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
78
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 11, para. 44,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf
79
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 27, para. 119,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
80
Tier 2 of the Points Based System - Policy Guidance (Version 10/13) at 32-35, paras. 151-67,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf.
81
Tier 2 of the PBSPolicy Guidance (version 10/13) at 7, paras. 25-26,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf; see also
http://www.ukba.homeoffice.gov.uk/visas-immigration/working/tier2/ict/settlement/.
82
Tier 2 of the PBSPolicy Guidance (version 07/13) at 42, para. 192,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier2-guidance.pdf; see also Immigration Directorate

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Tier 5
Tier 5 allows sponsored, non-EEA nationals to live and work the UK in for short periods of time.
Tier 5 (Temporary Worker - Creative and Sporting)
Tier 5 (Temporary Worker - Creative and Sporting) is intended for individuals entering the UK for short-
term contracts or engagements as established, high-level athletes, entertainers, or artists.83
Tier 5 (Temporary Worker - Charity Worker)
Tier 5 (Temporary Worker - Charity Worker) is intended for individuals wishing to participate in unpaid
volunteer work that is aligned with the goals of the sponsoring organization.84
Tier 5 (Temporary Worker - Religious Worker)
Tier 5 (Temporary Worker - Religious Worker) is intended for persons seeking to work temporarily in
the UK as a religious worker, including activities such as preaching, pastoral work, and non-pastoral
work). 85

Tier 5 (Temporary Worker - Government Authorized Exchange)


Tier 5 (Temporary Worker - Government Authorized Exchange) is intended for individuals coming to
the UK via pre-approved schemes in order to share workplace knowledge and experience life and
culture in the UK. 86
Tier 5 (Temporary Worker - International Agreement)
Tier 5 (Temporary Worker - International Agreement) is intended for those seeking to provide a
service covered by specific international law agreements, including private servants in diplomatic
households, employees of overseas governments and international organizations, roles covered by the
General Agreement on Trade Services, and positions under similar agreements. 87
Tier 5 (Youth Mobility Scheme)
Tier 5 (Youth Mobility Scheme) is intended for recipients of youth mobility scheme sponsorship from
Australia, Canada, Hong Kong Special Administrative Region, Japan, Monaco, New Zealand, South
Korea, and Taiwan seeking to experience life and work in the UK. Additionally, British overseas

Instructions, ch. 6A, 2Settlement (Version 12/12) at 11-12,


http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idichapter6a/section2.pdf?view=Binary.
83
Tier 5 (Temporary Worker) of the PBSPolicy Guidance (version 10/13) at 16-18, paras. 100-18,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier5temporaryworkerguidan1.pdf.
84
Tier 5 (Temporary Worker) of the PBSPolicy Guidance (version 10/13) at 18-19, paras. 119-21,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier5temporaryworkerguidan1.pdf.
85
Tier 5 (Temporary Worker) of the PBSPolicy Guidance (version 10/13) at 19, paras. 122-25,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier5temporaryworkerguidan1.pdf.
86
Tier 5 (Temporary Worker) of the PBSPolicy Guidance (version 07/13) at 19-20, paras. 126-30,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier5temporaryworkerguidan1.pdf.
87
Tier 5 (Temporary Worker) of the PBSPolicy Guidance (version 10/13) at 20-21, paras. 131-32,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier5temporaryworkerguidan1.pdf.

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citizens, British overseas territory citizens, and British nationals (overseas) are eligible to apply, but do
not require sponsorship.88

Conclusion
Since 2010, the UK has pulled back from the immigration policies of the previous Labour Government.
For the moment, it remains relatively easy for EEA nationals to exercise their free movement rights
within the UK. However, there is a danger that this may change. As non-EEA nationals have seen
restrictions grow and available routes for skilled migration decline, so too may the citizens of European
nations see their options dwindle if the UK opts to modify its arrangement with, or pull out altogether
from the EU.

88
Tier 5 (Youth Mobility Scheme) of the PBSPolicy Guidance (version 01/14) at 1416, Annex A, and Annex B,
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/tier5youthmobilityguidance1.pdf.

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Panel 2: Immigrant Entrepreneurs


(The Pathway to Economic Citizenship)

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Mexican Immigration Regime

Enrique Arellano, Mexico

A year and a few months after the enactment of the new Migration Act in Mexico, the economic
scenario is particularly positive. The country is currently 14th largest economy of the world and the
second largest of Latin America. According to the Central Bank, the country has grown 3.5% during
2013 and forecasts a growth of 3.8% for the current year, which is highly favored by the electronics
industry. In addition over recent years the Mexican manufacturing sector has become highly
sophisticated, which also contributes to the positive growth projections.
Pursuant to the World Banks publication Doing Business 2013, Mexico is ranked 48th among the
best countries with an encouraging environment to do business. This places Mexico above emerging
countries such as Brazil, China and India.
The current immigration regime is going through rather difficult times, since the Immigration Law was
enacted in November 2012 and substituted the regimen in effect for almost 40 years. The theory has
not always been consistent with the real policies and the relatively recent change also presents
discrepancies and loopholes that exist between the law and the legal provisions that complement the
same. Therefore it is highly relevant to clearly separate such elements.
As well, the autonomy vested to the INM has been de-centralized and currently certain powers have
been transferred to the Ministry of Foreign Affairs through their consular representatives around the
world to issue visas. Previously these visas were exclusively issued by the INM. It is now possible to
obtain the authorization for a temporary residence visa for one year directly at the Mexican consulates
if the applicant demonstrates investments in Mexico, such as ownership of real estate, shareholdings,
business plans, contracts, etc.
Several governmental training programs have been carried out with public officers from the INM as
well as from the Ministry of Foreign Affairs to consolidate the new provisions, since a generalized
unawareness after the enactment of the new law during the first six-month period of this year was
evident.
Historically, Mexico is a hospitable country and allows the entry of foreigners without the requirement
of a visa for up to 6 months as a visitor (i.e. tourism or business) without relevant restrictions to the
type of activities that are allowed under such status.
Currently electronic means are more easily available, which has steadily given rise to reforms that
authorize Immigration to notify the resolution of immigration filings electronically.
In summary, a considerable amount of modernized policies exist in Mexico which seeking to reduce
bureaucracy and optimize immigration filings in order to encourage foreign tourism and business
visitors. It is expected that these measures will become more effective through out the current term
and will create the foundations to significantly reduce the issues that currently affect the Mexican
Immigration Institute.

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The U.S. EB-5 Immigrant Investor Program and

Hong Kongs Capital Investment Entrant Scheme

Eugene Chow 89

In a recent CNBC News report published on January 17, 201490, it was reported that 64% of Chinese
millionaires had either emigrated or plan to emigrate and that the United States is their favorite
destination.
Citing data from Hurun (www.hurun.net), a wealth research firm which focuses on China, the report
stated that one-third of Chinas super rich those worth US$16 million or more have already
migrated.
The main reasons wealthy Chinese give for emigrating is to provide better educational opportunities for
their children, to escape the pollution and overcrowding in urban China, and for a better quality of life.
A less stated reason often given in private to immigration lawyers is to diversify their risk because of
political uncertainty, especially if some of their wealth might have been acquired through connections
or favors from government officials who may now be in political disfavor and under attack, even if
certain business advantages obtained because of guauxi (a Chinese cultural term roughly translated
as connections or relationships) does not necessarily rise to the level of corruption.
This article will examine the basic requirements of the U.S. EB-5 Immigrant Investor Program as well
as the Capital Investment Entrant Scheme of Hong Kong to see why these programs are so attractive
to the Chinese and perhaps instructive to other jurisdictions wooing Chinese investors.

The U.S. EB-5 Immigrant Investor Program


On November 29, 1990, the effective date of the Immigration Act of 1990, the U.S. Congress created
the fifth employment-based preference immigrant visa category, popularly known as the EB-5
Immigrant Investor program, for immigrants seeking to enter the U.S. to engage in a commercial
enterprise which will benefit the U.S. economy and create at least ten full-time jobs. 203(b)(5) of the
Immigration & Nationality Act, 8 USC 1153(b)(5).
The amount required to be invested is US$1 million, although the amount can be reduced to
US$500,000 if the investment is made in a targeted employment area. 203(b)(5)(c)(ii), 8 USC
1153(b)(5)(c)(ii). A targeted employment area is a rural area (an area not within either a
metropolitan statistical area as designated by the Office of Management and Budget) or the outer
boundary of any city or town having a population of 20,000 or more), or an area which, at the time of

89
Copyright 2014, Eugene Chow All rights reserved
90
www.cnbc.com/id/101345275

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investment, has experienced unemployment of at least 150 percent of the national average rate. 8
CFR 204.6(e)
There are 10,000 visas available for this category, with 3,000 reserved for those who invest in targeted
employment area. 203(b)(5)(B)(i), 8 USC 115.3(b)(5)(B1)(i).
Contrary to the expectation of Congress that investors would flock to the U.S. under this program, the
early years of the program saw very few people immigrating under EB-5, not only because the
requirements to qualify were quite onerous, but because there were much more attractive and less
expensive immigration investment alternatives to other countries, especially Canada.
To encourage more use of the EB-5 visa category, Congress established the Immigrant Investor Pilot
Program in 1993 and set aside 3,000 of the allocated 10,000 visas for investors who invest within
designated regional centers91. A regional center is permitted to count indirect as well as direct jobs to
meet the job-creation requirement.
From Fiscal years 1998 to 2007, persons who entered the U.S. under the EB-5 investor immigrant
category ranged from a low of 39 in FY2003 to a high of 491 in FY2007 92. In FY2008, the usage
increased to 1,029, further increased to 2,703 in FY2009, and to 2,764 in FY2011.93
The demand for visas under the EB-5 category has continued to rise each year, reaching an all time
high of 6,628 in FY2012.94
The lack of demand for EB-5 visas in earlier years can be attributed not only to the onerous
requirements of the program but the uncertainties that plagued the program when the Administrative
Appeals Office (AAO) of legacy Immigration and Naturalization Service (INS) (now United States
Citizenship and Immigration Services, USCIS) issued four precedent decisions in 1998 which altered
previously issued guidance and substituted new and more restrictive interpretation of the law, resulting
in many potential investors deciding not to go ahead with their investments 95.
Retroactive application of the principles announced in the four precedent decisions also left many
investors who had obtained conditional permanent resident status based on reliance on prior guidance
and interpretation of the law stranded in the U.S. unable to remove the conditions imposed on their
lawful permanent residency96.

91
Department of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L.
No. 102-395, 610, 160 Stat. 1828, S. Rep. No. 102-918 (1992)
92
Office of Immigration Statistics, U.S. Department of Homeland Security, 2007 Yearbook of Immigration Statistics
(August, 2009) Table 6 at p.18, available at
http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2007/ois_2007_yearbook.pdf
93
Office of Immigration Statistics, U.S. Department of Homeland Security, 2011 Yearbook of Immigration Statistics
(September, 2012) available at
http://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2011/ois_yb_2011.pdf
94
Office of Immigration Statistics, U.S. Department of Homeland Security, Annual Flow Report (March, 2013) Table 2 at
p.3, available at https://www.dhs.gov/sites/default/files/publications/ois_lpr_fr_2012_2.pdf
95
See Matter of Soffici, 22 I&N Dec. 158, 19 Immigr. Rep. B2-25 (Assoc. Commr, Examinations 1998); Matter of Izummi,
22 I&N Dec. 169 (Assoc. Commr, Examinations 1998); Matter of Hsiung, 22 I&N Dec. 201 (Assoc. Commr, Examinations
1998); and Matter of Ho, 22 I&N Dec. 206 (Assoc. Commr, Examinations 1998).
96
A successful investor under the EB-5 category is granted conditional permanent resident status for a period of two
years. Before the second anniversary of the investors arrival as a conditional permanent resident, the investor must file a
petition to remove his/her conditions with the USCIS along with evidence that the capital investment has been maintained

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While Congress did enact legislation97 to rectify the situation to help stranded immigrant investors hurt
by the 1998 decisions, and Section 11033 of the Appropriations Act required the INS to publish
regulations within 120 days of the effective date of the legislation, proposed regulations were only
finally published in 2011, but have yet to result in final regulations being promulgated, leaving 581
conditional residents cases held in abeyance for a decade or more.
The reality is that the USCIS has swept the old pending cases under the carpet and instead put all of
their efforts into making a success of the Regional Center Program, which has substantial industry
support from politicians, real estate developers, and other U.S. businesses interested in attracting
foreign capital into the U.S.
Unlike the regular program, which requires the investor not only to invest the minimum amount of
US$500,000 in a targeted employment area or US$1 million in a commercial enterprise which will
create ten new full-time jobs and to have a policy-making role in the enterprise, either as a board
member or limited partner depending on the entity structure, the Immigrant Investor Pilot Program
(Pilot Program) is more flexible as it allows the ten-full time jobs to be created indirectly or directly as
a result of the investment.
The Pilot Program has been extended several times 98, and directs the Attorney General and Secretary
of State to set aside 3,000 visas each year for people to invest in designated regional centers.
To qualify under the EB-5 program, the investor must make his/her investment through a Regional
Center, as designated by the USCIS.
A Regional Center is defined as an economic unit, public or private, which is involved with the
promotion of economic growth, including increased export sales, improved regional productivity, job
creation, or increased domestic capital investment. A center seeking approval and designation by the
USCIS must submit a proposal for a specific geographic region which describes how it will achieve the
economic growth, etc. 8 CFR 204.6 (m)(3).
Some Regional Centers exist within Targeted Areas and allow for the reduced US$500,000
investment, while others do not. However, merely being designated as a Regional Center does not
automatically guarantee that all projects within the Regional Centers boundaries will qualify for EB-5
status.
In addition to demonstrating that the target project is within the geographic area of the approved
Regional Center, an immigrant investor still must make the required US$1,000,000 or US$500,000
investment (as applicable) in a new commercial enterprise or invest in an expansion/restructuring of an
existing enterprise that will undertake the project, and demonstrate that the project will create a
minimum of ten new full-time jobs, either directly or indirectly.
To show that at least ten jobs will be created indirectly, the regional center may use economically or
statistically valid forecasting tools including feasibility studies, analyses of foreign and domestic
markets for the goods or services to be exported, and/or multiplier tables. 8 CFR 204.6 (m)(3)

during the period of conditional residency and that the ten full-time jobs have been or will be created within a reasonable
time. 8 C.F.R. 216.6 (a)(4)
97
The 21st Century Department of Justice Appropriations Act of 2002 (the Appropriations Act), Pub. L. No. 107-273, 116
Stat. 1758 (2002)
98
Most recently on September 28, 2013, President Obama signed Senate Bill S. 3245 into law, extending the EB-5
Regional Center Pilot Program for another 3 years, until September 30, 2015, Public Law 112-176.

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The EB-5 visa has had a surge of applicants for the past three years not only because of the rise of the
Regional Center projects but also because Canada suspended its Immigration Investor Program
beginning July, 2012.
Canada was extremely popular with the Peoples Republic of China (PRC) Chinese because it had
allowed passive investors with a net worth of CDN$800,000 to emigrate by investing CDN$400,000
into designated government guaranteed securities for a period of five years, with the government
guaranteeing the return of the CDN$400,000 after five years without interest.
Furthermore, successful investors were issued immigrant visas on an unconditional basis. While the
net worth requirement was doubled to CDN$1.6 million and the minimum investment amount to
CDN$800,000 on June 26, 2010, the program continued to flourish until its suspension on July 1, 1992
to clear up the severe backlog of applications.
According to a news report published on February 8, 2014 in the South China Morning Post (SCMP)
which it had obtained from a Canadian Immigration Department spreadsheet dated January 8, 2013,
there is a backlog of 57,308 applications lodged in Hong Kong and Beijing alone, which accounts for
about 75% of the whole backlog in this investor category99.
The SCMP went on to report that the Chinese queue for British Columbia is 45,000 as of January,
2013 about six times the combined annual applications from all nationalities to the investor
immigration programs of the U.S., Britain, and the U.S. combined and would sustain the current pace
of millionaire migration to Vancouver for a decade to come even if the program remains frozen to new
applications.
With the suspension of the Canadian program, the U.S. became the beneficiary of the pent-up demand
to emigrate even though unlike Canada, the money invested in the U.S. had to be placed at risk in a
commercial enterprise and cannot be guaranteed by the government or any third party. While far less
attractive than the Canadian program and despite Ottawas pledge to clear the backlog, some
impatient investors and newly-minted millionaires decided to invest in the U.S. regional centers as they
at least offered an option where the investors did not have to establish their own business but could
pool their investments into Regional Center projects to make large investments that created indirect
jobs.
As mentioned earlier, the burden to furnish proof of ten full-time direct jobs created was alleviated as
regional center investors were permitted to demonstrate through reasonable methodologies such as
statistical formulas and models to demonstrate a correlation between their investment of capital with a
specific business and indirect jobs created in other businesses within the greater community to satisfy
the job creation requirement.
While some regional centers have prospered and many investors have successfully immigrated, there
have also been some highly publicized disasters involving large regional centers which have failed
financially and whose investors have failed to have their conditions removed and have lost their
capital.
These include the South Dakota Regional Center which backed the Northern Beef Packers project
which involved a beef processing plant processing high-quality beef from local farms and ranches

99
South China Morning Post, Saturday, February 8, 2014, at A7.

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which filed for bankruptcy on July 19, 2013 and left its 160 investors (who each invested US$500,000)
with little or no financial professional return and questionable immigration status100.
Another large scale project, the Intercontinental Regional Center Trust of Chicago (IRCTC), is now
the subject of an enforcement action in federal district court by the U.S. Securities and Exchange
Commission (SEC) for securities fraud violations.
According to the SECs litigation press release101, IRCTC and another company, A Chicago
Convention Center (ACCC) had fraudulently sold more than US$145 million in securities and
collected US$11 million in administrative fees from more than 250 investors primarily in China by
falsely claiming that investors funds would be used to build a convention center and hotel complex
and five upscale hotels and that three major hotel chains such as Hyatt, Intercontinental Hotel Group
and Starwood Hotels were all participants in the project when none of the hotel chains had executed
franchise agreements to include a brand hotel in the project as represented to the investors in the
offering materials.
The SEC filed suit for injunctive relief and obtained an emergency court order to protect the remaining
US$145 million in investor assets as the Chicago businessman and his companies behind the project
had misappropriated and spent more than 90% of the administrative fees despite their promise to
return this money to investors if their visa applications were denied.
Yet, despite these scandals, the demand for EB-5 visas remains strong in China. This is because
many Chinese investors are relatively unsophisticated and rely more on emigration agents in China
who tend to simply recommend projects offering the highest commissions or referral fees, or who
blindly follow the investment decisions of their friends and family instead of conducting due diligence
themselves or through professionals. In fact, some investors with new found wealth simply view an
investment of US$500,000 as the purchase of a legal status rather than as a real investment and do
not expect a return on investment so long as the capital investment is not a total loss and they do not
lose their legal status.
That said, there are of course reputable and legitimate regional centers among the 440 regional
centers approved by the USCIS 102.
The attraction of the U.S. investor program is that the threshold minimum investment amount of
US$500,000 is relatively low, and, unlike other jurisdictions, it does not require the applicant to have a
successful business background or to prove that the investor has acquired a particular minimum net
worth through his own endeavors, and there is no English language proficiency requirement.
In addition to these factors, IIUSA, the Association to Invest in the USA, a non-profit business trade
organization representing more than 130 approved EB-5 Regional Centers across the U.S. and 180
associate members including attorneys, broker-dealers, consultants, developers, economists, financial
advisors, migration intermediaries, etc. has also done a very effective job representing the EB-5
Regional Center Program industry in government affairs through lobbying, advocacy, research, and
industry development to give the pilot program more certainty, adopted best practices for the regional
center industry, and in getting the message out that investment immigration benefits the U.S.
economy.

100
http://cis.org/north/big-eb-5-project-bankrupt-south-dakota-investors-may-lose-everything
101
www.sec.gov/litigation/litreleases/2013/lr22615.htm
102
For a list of the approved regional centers, see http://www.uscis.gov/working-united-states/permanent-
workers/employment-based-immigration-fifth-preference-eb-5/immigrant-investor-regional-centers

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IIUSA has also become very important for capital investment projects, legal resources, and interested
investors. According to one study referred to on IIUSAs website 103, Economic Impacts of the EB-5
Immigration Program 2010-2011 Report, spending associated with EB-5 investors (including
investments, household, and other immigration expenses) contributed US$2.65 billion to U.S. GDP
and supported over 33,000 jobs during 2010-11. Spending by EB-5 investors also contributed US$347
million to federal tax revenues and US$218 million to state and local tax revenues.
According to statistics released by the USCIS, about 80% of the EB-5 visa petitions are being filed by
mainland Chinese. With per county quota limitations and some 6,500 petitions filed in the fiscal year
ending September 30, 2013, the State Department had warned that the quota for China this fiscal year
might be reached as the 10,000 quota includes the investor as well as his/her dependents, which
averages 3 4 applicants per family. However, visa quota retrogression did not happen because of the
slow pace of processing by the USCIS.
However, assuming the steady clearing up of the backlog and continued demand, retrogression may
well happen towards the end of this fiscal year for China in September, 2014.
The U.S. quota backlog and long waiting time might well discourage Chinese investment into the U.S.
under the EB-5 program and create opportunities for competing jurisdictions for the Chinese
investment capital.

The Hong Kong Capital Investment Entrant Scheme 104

(CIES)
The Capital Investment Entrant Scheme is a passive investment scheme launched by the Hong Kong
Government on October 27, 2003, to attract investors prepared to make a substantial capital
investment in Hong Kong but who do not wish to set up, join in, or run a business themselves.
Although Hong Kong is part of the Peoples Republic of China (the PRC), Article 154 of the Basic
Law (Hong Kongs Constitution) provides that the Hong Kong Special Administrative Region
(HKSAR) government may apply immigration control on entry into, stay in, and departure from the
Region by persons from foreign states and regions.
Thus, Hong Kongs immigration and visa policy is independent from that of China and, under the One
Country, Two Systems policy, all PRC citizens who are Mainland residents require an exit-entry
permit to enter Hong Kong unless they are in transit through Hong Kong to an ongoing destination, in
which case they may be granted a stay of seven days.
Many PRC Chinese desire to settle in Hong Kong because of its proximity to China, the lack of a
language barrier, and its low tax regime. In Hong Kong, PRC nationals can remain in close touch with
the many business opportunities in Mainland China, and can take advantage of Hong Kongs well-
established infrastructure, its free economy, and the simple and low tax regime. Hong Kong has no
capital gains tax, no tax on dividends and interest income from bank deposits, no sales tax, and
completely abolished estate tax effective February11, 2006. Assessable profits of corporations are at
16.5% while the standard salaries tax, at 15%, is among the lowest in the world.

103
http://iiusablog.org/wp-content/uploads/2013/08/IIUSA-IMPLAN-AUBER-Economic-Impacts-of-EB-5-Immigration-
Program_2010-2011_FINAL-David-Kay.pdf
104
Updated from an earlier article published by Mr. Chow in Immigration Options for Investors and Entrepreneurs Second
Edition, p 415 (AILA 2010) (copyright 2010, Eugene Chow, All rights reserved)

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PRC nationals who are residents of mainland China are not eligible for this scheme because of foreign
exchange control rules that the HKSAR Government must uphold and respect as part of One Country,
Two Systems. However, they can readily acquire overseas permanent residence in a country of
convenience such as The Gambia in a matter of weeks and can then become eligible to apply as a
Chinese with overseas permanent residency.
According to the Hong Kong Immigration Departments latest statistics, as of December 31, 2013,
HK$167,304.89 million (about US$21,449.34 million) of new capital has been invested in the city since
the inception of the program as a result of the approval of 20,649 applicants out of a total of 35,719.
Financial assets such as shares and securities account for HK$124,847.78 million (US$16,006.12
million), with the remaining HK$42,457.11 million (US$5,443.21 million) invested in property105. In
addition, 2,390 applicants have received notification of their approval-in-principle but have not yet
completed their investments.
Chinese nationals with permanent residence overseas account for the largest number of applications,
31,841 of the total 35,719 applications to date. Foreign nationals account for another 2,861
applications while Taiwan residents made 531 applications.
Under the Rules for the Capital Investment Entrant Scheme, ID(E)968 106, an applicant must be at least
18 years of age and prove that he or she has net assets of at least HK$10 million to which he or she is
absolutely beneficially entitled for the two years immediately preceding his or her application.
The applicant must also invest least HK$10 million in permissible financial assets, such as equity
shares in Hong Kong Stock Exchange-listed companies, debt securities denominated in Hong Kong
dollars issued or guaranteed by the HKSAR government, certificates of deposits denominated in Hong
Kong dollars issued by authorized institutions under the Banking Ordinance, subordinated debt, and
eligible collective investment schemes (i.e. unit trusts or mutual funds) managed by a corporation
licensed under the Securities and Futures Ordinance and authorized by the Securities and Futures
Commission for sale to the public in Hong Kong.
Compared to the investment programs of other jurisdictions such as the US EB-5 program, the CIES of
Hong Kong is extremely flexible, as a investor can choose an investment portfolio among a wide range
of permissible assets, and may switch his or her investment within the class of permissible assets at
any time.
Any investments in permissible investment asset classes made six months before the entrants
submission of his or her application to the HKID, or within six months after the granting of approval-in-
principle by the HKID, may be counted toward the minimum investment threshold amount.
Applicants must also have no adverse (criminal or security) record in Hong Kong or their home country
and country or residence, and must be able to demonstrate that they are able to support themselves
and their dependents without relying on any return on the permissible investment assets, employment
or public assistance in Hong Kong.
Entrants who acquired their status by investing in specified financial assets are not permitted to realize
or cash in any capital appreciation of the qualifying portfolio. On the other hand, if the value of the
portfolio falls below the original HK$10 million, no topping up is required, either. Thus, unlike the U.S.

105
Statistics on the Capital Investment Entrant Scheme, http://www.immd.gov.hk/en/services/hk-visas/capital-investment-
entrant/statistic.html
106
Form ID(E)968, Rules for Capital Investment Entrant Scheme-English Version, available at
http://www.immd.gov.hk/en/forms/forms/id-e-968.html

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EB-5 program, there is no risk of loss of immigration status even if the investment sours and the
investor is forced to select a very safe and conservative investment portfolio such as bonds. However,
cash dividend income and interest income derived from permissible financial assets can be retained by
the entrant and need not be ring-fenced under the Capital Investment Entrant Scheme.
There is also an annual reporting requirement on the composition and value of the qualifying portfolio.
Since an applicant who decides to invest in specified financial assets is required to open a designated
account in his or her own name with a financial intermediary107 which can be managed on either a
self-directed basis by the applicant or at the discretion of the financial intermediary, any reporting
requirements would be handled by the financial intermediary.
Hong Kong has a straight-forward and easy-to-understand investment program and has set out its
welcome mat for foreign investors. Like the United States and other leading jurisdictions, Hong Kong is
concerned that the source of the funds invested in Hong Kong is clean. However, the HKID is not
fixated on tax returns and understands that many investors may have acquired their wealth through an
inheritance, capital gains on investments, etc., which are not necessarily reflected in tax returns in their
home countries.
Accordingly, the applicant is only required to show he or she has had uninterrupted control over at
least HK$10 million throughout the two years immediately preceding his or her application. Thus,
persons who suddenly win the lottery or receive a gift from a benefactor will not be eligible to apply
until the funds have been under their control for at least two years.

Conclusion
Many high net worth Chinese these days are, in addition to (or in lieu of) applying to the U.S. under the
EB-5 program, participating in the Capital Investment Entrant Scheme in Hong Kong because of the
flexibility of the program as the risks are substantially lower than that of the EB-5 program. This is
because EB-5 immigrant visas are issued on a conditional basis and the investors must assume the
risk of business failure of the commercial enterprise in which they have invested, prove their
investment capital has been sustained during the two years of their conditional permanent resident
status, and that the job-creation requirements have been met before the conditions imposed on their
status can be removed. CIES investors, on the other hand, can invest in a conservative portfolio of
securities or even certificates of deposits in Hong Kong dollars with Hong Kong banks under their own
names and the investment can be self-directed or managed by a financial intermediary of their own
choice and their status can be kept so long as their investment remains in place.
The PRC Chinese are attracted to Hong Kong as it is not only a low tax jurisdiction and a safe haven
but a world-class international financial center in a strategic location ideally suited to take advantage of
the trade and direct investment opportunities in China. The only disadvantage of this program is that it
takes seven years of residence to qualify for the right of abode/permanent residence in Hong Kong
and a HKSAR passport. However, once the HKSAR passport is obtained, the holder of such a
passport can enjoy visa-free access visa-on-arrival privilege to some 140 countries.

107
The financial intermediary must be an authorized institution as defined in the Banking Ordinance, a licensed corporation
licensed to perform Type 1, 4 or 9 regulated activities under the Securities and Futures Ordinance or an insurer authorized
to carry on Class C business as specified in Part 2 of the First Schedule to the Insurance Companies Ordinance
(http://www.immd.gov.hk/en/services/hk-visas/capital-investment-entrant/portfolio-maintenance-requirement.html)

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Does the UK Really Want to Welcome Entrepreneurs and


Investors?

Graeme Kirk, Gross & Co Solicitors

The current British Government has a much publicised policy to reduce net immigration to the UK from
the hundreds of thousands to tens of thousands each year. This ill-thought out policy failed to
recognise the fact that net immigration is affected by the number of British citizens leaving the UK,
the number of British citizens returning to the UK and the rights of all citizens of European Economic
Area countries to live in the UK exercising Treaty rights.
At the same time, the British Government through the UKTI, part of the Department for Business
Innovation and Skills, is on record as stating that the UK wishes to attract high-value immigrants and
Entrepreneurs to our shores. There is a clear contradiction in these two policies, which is reflected by
the differing approaches of the Home Office which has responsibility for immigration policy and the
Department for Business Innovation and Skills which is looking to attract business to the UK.
Politicians looking in opposite directions at the same time are of course not unusual!
The UK has two main routes for attracting Entrepreneurs and Investors to the UK, both within Tier 1 of
the Points Based System. In my candid view, the current operation of the Entrepreneur Scheme is a
classic example of how not to operate immigration policy.
When the Tier 1 (Entrepreneur) route was introduced several years ago, bluntly it was too straight
forward and capable of abuse. An individual applying to be an Entrepreneur did not have to provide
any evidence of previous business experience, but simply had to show that he or she had 200,000
(50,000 in some cases) available to bring to the UK to invest in a UK business, which could be a new
business, or in all or part of an existing business or businesses. The funds did not need to belong to
the applicant and only proof of availability of the funds to the applicant needed to be provided. On
initial application, the individual was not required to provide any information as to the proposed
business investment in the UK. The route did require an English language qualification showing
moderate ability in English and there was also a requirement to spend one hundred and eighty five
days a year in the UK, as well as a requirement to show a small amount of money separate from the
200,000 in the applicants own Bank Account for three months prior to the date of the application.
The initial visa was granted for three years four months (if applied for outside the UK) or three years if
applied for within the UK from a status which allowed switching. There was no checking of the
applicants progress until the time came to apply for an extension of the visa.
According to the Home Office, towards the end of 2012 it was discovered that a large number of
bogus applications were, or had been made, particularly from students in the UK wishing to switch to
the Tier 1 (Entrepreneur) route and there were certainly a flood of applications just prior to the rule
change which made it far more difficult for students to apply to switch to this status within the UK.
As a result of this, the Home Office panicked and introduced draconian new rules, introducing what is
called a Genuine Entrepreneur test, which meant in practice that applicants had to produce a detailed
Business Plan for their activities in the UK and provide evidence of their previous business experience.
It may be argued that there is nothing wrong in principle with this. However, it has made it very difficult

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for some individuals to enter the UK as Entrepreneurs with no previous business experience, unless
they can qualify under the Graduate Entrepreneur Rules. Secondly and more importantly, the Home
Office has not resolved satisfactorily how to operate the Genuine Entrepreneur test. In practice, what
this means is that applicants, particularly from third world countries, are being forced to undertake
interviews about their Business Plans at British Embassies abroad with Immigration Officers, who may
well not have had any businesses experience whatsoever themselves. It appears that the interviewing
policy is not being operated uniformly around the world and none of my US applicants, for example, in
the last year, has been interviewed in connection with an Entrepreneur visa. It has been suggested
that the Home Office might involve the UKTI representatives overseas in the interviewing process, but
this is clearly going to add to the time and cost of the application.
In view of my comments below about possible changes to the Tier 1 (Investor) Program, the Tier 1
(Entrepreneur) route is one of the few ways into the UK for business persons and it is essential that a
properly thought-out and operated set of rules should apply, if the UK is to meet its stated aim of
encouraging investment and job creation in the UK.
Before I turn to the Tier 1 (Investor) category, I must just mention the category known as Sole
Representative of an Overseas Company. This is a long standing part of the Immigration Rules,
outside the Points Based System, which allows an overseas Company which has no branch or
subsidiary in the UK to send one senior individual to open and run the UK branch or subsidiary of the
parent Company. This can be a very useful route, with no minimum capital requirement for investment
in the UK, but it is not possible for the owner or majority shareholder of the Company to act as the UK
representative and the rule works best for a Senior Manager or Junior Director/shareholder of the
Company who can prove his or her previous work experience with the Company for some time, who is
going to be able to act as the Managing Director of the UK operation.
I will now turn to the Tier 1 (Investor) category, which is the main category for high net worth
individuals to acquire residence rights in the UK leading potentially to permanent residence rights and
then British citizenship. Currently, the rules require an individual to prove that they have 1million of
their own money, or that they have a net worth of 2million and have borrowed 1million from an
authorised financial institution and that these funds are freely available to be transferred to the UK for
investment. The rules currently require a paper trail for the funds for three months prior to the date of
the application, so the due diligence undertaken by the British Government is minimal. On arrival in
the UK, the Investor has three months in which to bring the funds to the UK and to invest the funds in
accordance with the rules. Currently, the 1million has to be invested either in UK Government Bonds
or the Share Capital or Loan Capital of registered trading UK Companies not engaged in property
development. Although the rules allow investment in a UK private Company, in practice, the
documentary requirements on applying for an extension, which require a certificate of investment from
an authorised financial institution, make it very difficult for the investment to be made in a UK private
Company and investments should therefore, as a rule, be made in UK Companies listed on the
London Stock Exchange or AIM Markets, where a daily valuation is available.
The remaining 250,000 of the 1million can be invested in any asset class in the UK, but the full
1million has to maintain its value at all times, with the 750,000 investment separately having to
maintain a minimum value. If the value of the 750,000 investment drops below the minimum figure,
additional funds have to be brought in to make up the balance before the end of the next quarter
period.
There is a requirement to spend one hundred and eighty five days in the UK with this category, as with
the Entrepreneur category, but there is no English language requirement and the Investor is free to do

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anything he or she likes in the UK in terms of business, other than to become a Doctor or Dentist in
training and a professional sports person! Currently, the Migration Advisory Committee, headed by
Professor David Metcalf of the London School of Economics, which advises the Government on
migration issues, is carrying out a review of the Tier 1 (Investor) category, which has not yet reported,
although leaks of their ideas have appeared in the press. The full Report will be published in February,
after the date of this paper, but before the Sydney Conference.
Professor Metcalf is on public record as saying that he does not like the Tier 1 (Investor) application as
it stands at present, as he does not believe that the UK gets much benefit from its Investors. The funds
invested are basically a loan to the British Government or to British Companies, as the funds can be
repatriated overseas as soon as the Investor acquires permanent residence rights. Professor Metcalf
is on record as suggesting that the British Government should consider possible changes to the
scheme, for example, making the requirement to invest funds by way of donation rather than
effectively a loan and to institutions or investments where there is a public interest element, e.g.
donations to Oxford and Cambridge Colleges.
Whilst it is certainly true to say that the high net worth individuals coming to the UK with good tax
advice can mitigate UK tax liabilities very substantially because of our domicile law, foreign high net
worth individuals undoubtedly spend a huge amount of money in London, particularly in shops and
restaurants and steps which will make the UK and London less attractive to foreign high net worth
individuals do not stand easily with the Governments and also the Major of London proclamation that
London is the worlds greatest city, attracting everyone to these shores.
In addition, the British Government should be well aware of other residence programs offered by other
European countries, e.g. Spain, Portugal, Hungry, which offer residence rights in those locations for
less than half the funds required to invest in the UK.
In particular, the UK should be mindful of the recently announced Maltese citizenship program, which
will enable an Investor to acquire a Maltese Passport, which is a full EU Passport granting rights of
residence in any EU country, for a total investment of Euros 1.15million, almost equivalent to the
British 1million.
It will be very interesting to see how this policy develops over the next few months. However, there will
undoubtedly be changes, including very possibly an increase in the minimum investment required from
1million to 2million.
In conclusion, as the UK moves towards the next General Election in May 2015, every political party,
including the Labour Party, is falling over itself to sound tough on immigration. This is a highly
negative environment for sensible immigration policies to be developed and pursued and the situation
is unlikely to get any better until after May 2015.

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Panel 3: Fraud and Compliance: Unpicking PIC 4020

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Public Interest Criterion 4020

Application, avoidance, waiver and case law

Introduction
PIC 4020 was first introduced into Schedule 4 of the Migration Regulations 1994 (the Regulations) on
2 April 2011 (Migration Amendment Regulations 2011 (No. 1) (Select Legislative Instrument No 13 of
2011)) to strengthen the integrity of Australias immigration program by detecting and preventing visa
fraud. Clearly, the Department is happy with the way it has been operating and has, over the past
three years, vastly expanded the number of visas to which it applies such that it now applies to over 80
onshore and offshore visas in the student, skilled, temporary and family visa caseloads (see annexed
list of visas in respect of which it is a criterion). It is here to stay and is being expanded in scope.
PIC 4020 is expressed in the negative and so requires a decision-maker to be satisfied that an
applicant has not provided, or caused to be provided, either a bogus document or information that is
false or misleading in a material particular in support of the visa application being determined or in
support of a visa granted and held in the 12 months before making the application. I will dissect the
language of the criterion and consider the relevant case law later in this paper.
In brief, the effect of the PIC is to impose a 3 year ban on applications for certain (ever expanding)
classes of visas where the applicant has been the subject of a PIC 4020 decision and the visa to be
applied for is subject to PIC 4020. The 3 year ban is to be calculated from the date of the primary
decision to refuse under PIC 4020 until the time of decision on the further application. There is a
discretionary power to waive PIC 4020 in respect of both the decision to refuse (under PIC 4020) to
grant a visa and any later application made before the expiry of the ban, but only in cases involving
compelling circumstances that affect the interests of Australia or compassionate or compelling
circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an
eligible New Zealand citizen that justify the granting of the visa.
Thus, the wording of PIC 4020 ultimately differed substantially from the initial proposal as set out in
Davids paper in that it provides only for a very limited waiver. In my view, a waiver that requires the
establishment of circumstances affecting Australia or Australian citizens/permanent residents is far too
limited and does not provide for an adequate discretion in all cases, particularly in light of the strictness
of the application of it, as I will discuss later. Further, the PIC operates like a reverse onus in that
where a bogus document or misleading information is suspected, albeit based on some evidence, it
is for an applicant to prove that there is no probative evidence that such a document or information
was provided. Again, this is contrary to the stated purpose and intention of the PIC, including in
current policy. Finally, as we know, the case law establishes that the intention and knowledge of the
applicant is irrelevant and that innocent applicants are also caught by this provision. Certainly, there
are cases where the application of PIC 4020 is too strict and it does not allow decision-makers
sufficient latitude to determine if it should be applied and, if so, when it can be waived. I hope that any
decision-makers and policy makers reading this will consider those potential unjust cases before
making sweeping findings based on the deterrent purpose of the PIC regardless of things such as an
applicants knowledge of the fraud or the materiality of the bogus document, as it is, without doubt, a
punitive provision. Finally, I would note that the issues surrounding PIC 4020 in connection with fraud

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are becoming increasingly legally complex and some of the varying approaches will be discussed
herein.

Visas subject to PIC 4020


As set out in the annexure, the implementation of PIC 4020 was initially applied retrospectively to GSM
and subclass 457 visa applications ie both to new applications and those pending ie not finally
determined as at 2 April 2011 and was subsequently expanded to apply to all Student, permanent
employer sponsored entry program and Business Skills visa applications on 5 November 2011. On 23
November 2012 PIC 4020 was extended to the 400 series visa program. It was further extended on 1
July 2013 to apply to all Family Stream and Partner visa applications made or pending as at that date.
Most recently, agents have been advised by the Identity Branch, Risk Fraud & Integrity Division of the
Department that PIC 4020 will be amended as from 22 March 2014 so as to provide that an applicant
refused a visa under PIC 4020 on identity grounds will be subject to a ten year exclusion period for
the grant of another visa. Apparently, the features of the proposed identity requirement are:
a visa must not be granted unless the Minister is satisfied of the identity of the person; and
a decision to refuse to grant a visa where the Minister is not satisfied as to the identity of an
applicant would not be subject to waiver; and
a ten year exclusion period for grant of another visa would apply where an applicant is refused a
visa under PIC4020 on identity grounds ie her identity cannot be proven to the satisfaction of
the Minister.
The Department asserts;
A ten-year exclusion period would better align with the policies of Australias Five Country
Conference (FCC) partners [biometric data sharing countries Australia, New Zealand, UK, US
and Canada the countries party to the intelligence operations alliance known as Five Eyes]. It
would also reduce Australias potential status as a country of last resort, where an individual
may exhaust their options for migration to other FCC countries before applying to Australia.
The forum shopping justification is hardly the driving force here and it is yet another example of the
governments tough on immigration stance it seems to think will get them votes, notwithstanding the
moral and human cost. Below is a recent news report regarding prosecutions over the last 12 months
for identity fraud that reveal the propaganda value of these matters.
Interestingly, the expanded version of PIC 4020 will require Departmental satisfaction as to identity
rather than the absence of false or misleading information/bogus documents. This is justified as
follows;
The new identity requirement is designed to encourage cooperation and compliance by visa
applicants with the Department to ensure accuracy in establishing their identity. The new
identity requirement would also cater for an applicant who does not cooperate and provide
information or documents where requested to assist the Department to be satisfied as to their
identity. This is because under the new identity requirement, the Minister must be satisfied as
to the identity of an applicant to grant a visa. If insufficient information/documents are provided,
or an applicant becomes uncooperative, the visa would be refused. The Department would
have discretion to consider a range of identity-related documents (not only a passport), as well
as individual applicant circumstances (such as the availability of identity documents to the
applicant) in determining whether it is 'satisfied' as to the identity of an applicant.

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Most importantly, the proposed amendments will not impact on the refugee, humanitarian and
protection visa caseloads as these visas are not currently subject to PIC 4020 (give them
time!). However, it is not clear yet whether additional visa categories will be subject to the new and
improved PIC 4020.
According to a recent news report;
The department continues to develop specialised capabilities in the areas of facial recognition,
document examination and fingerprint analysis to assist with the investigation of fraud offences
as well as maintaining the integrity of the migration program, the spokesman said. This
includes the expansion of biometric collection points and sharing of data with partner countries
and government agencies.
These developments have led to several recent successful prosecutions against people found
to have used false information, including identity details, as part of visa application processes.
Over the past 12 months, eight individuals have been successfully prosecuted for offences
relating to identity fraud used to subvert immigration channels. These cases have resulted in
numerous convictions federal offences under the Migration Act, Criminal Code Act and Foreign
Passports Act.
Where DIAC becomes aware of fraud, the matters are fully investigated, resulting in both
criminal and administrative penalties. A person who uses a false identity to obtain a visa and/or
Australian citizenship will be considered for criminal investigation or revocation of citizenship. A
person who provides incorrect information to the department in relation to a visa application
may have his or her visa cancelled.
The department works closely with other government agencies, both federal and state, to assist
in the identification and prosecution of these people. [emphasis added]
http://www.newsroom.immi.gov.au/channels/NEWS/releases/six-months-jail-for-identity-fraud
As to what matters constitute the identity of the person, current policy states under false identities
and/or bogus documents;
This instruction aims to provide general principles to assist officers in circumstances where a
non-citizen may have provided bogus documents and/or may have assumed a false identity.
This is a very difficult and complex topic and it is not possible to provide guidance for all
situations that may occur. [...]
False identity
An individual who represents themselves as another person or as a fictitious person or
who changes, omits or otherwise falsifies one or more of the following key identity elements:
name
date of birth
place of birth
citizenship or nationality
address
photograph

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other personal identifiers (as defined in s5A(1) of the Act)


in order to obtain an immigration outcome.
Accordingly, incorrect answers and/or bogus documents in respect of each of the above matters could
potentially lead to the ten year ban under PIC 4020 although we await specific policy once the
amended PIC is introduced. One would certainly hope that intention to mislead or provide a bogus
document will be required to enliven this limb of the PIC.
Background and purpose
So, where did it all start? According to Hansard on 23 June 2011;
Integrity screening (including document and identity fraud detection and prevention) is a central
component of the skills assessment process. There is ongoing dialogue between DIAC and
DEEWR on fraud prevention issues in both the skills assessment system and the broader visa
system. The process of appointing new assessing authorities and monitoring existing authorities
includes evaluation of their capacity to manage integrity processes.
Importantly, on a practical level, there is ongoing interaction and information sharing between
DIAC visa processing centres, DEEWR and various skills assessing authorities on document
and identity fraud issues, trends, detection and prevention strategies.
On 2 April 2011, an amendment to the Migration Regulations 1994 (the Regulations) took effect,
introducing a new Fraud Public Interest Criterion (PIC) 4020. This PIC enables DIAC to refuse a
visa application where the applicant has supplied to the Department or to a third party (including
an assessing authority) false, misleading or incorrect information or bogus documentation in
conjunction with their visa application or in relation to their skills assessment.
Assessing authorities are strongly encouraged to report to the Department, emerging trends in
relation to possible false or misleading information or bogus documentation being presented by
the client, to achieve a positive skills assessment. [emphasis added]
Thus, it seems to have been the relatively widespread fraud around the previous 900 hours work
experience requirement for TRA skills assessments that initially prompted the introduction of PIC 4020
to GSM visa categories. This was a truly misconceived assessment process by TRA which allowed
for, indeed encouraged, unpaid work by international students for a period of 45 weeks (ie over 11
months) at 20 hours per week which turned into a vast amount of slave labour supplied to the
Australian economy. Rather than sacking the TRA Board, the government has blamed the victims.
Most applicants relied on their employers to keep records of their hours and were employed by less
than upstanding employers who, when confronted by the Department regarding their references,
became concerned about their own clear breaches of award entitlements and employment laws and so
clammed up.
While it is true that certain registered migration agents operated scams and some visa applicants were
knowing participants, the 900 hours work experience requirement and the precursor to PIC 4020 ie
clauses 885.223, 886.223 and 485.223 also impacted on a considerable number of innocent
applicants who had not only been exploited but had no redress against their employers. That criterion
provided that;
No evidence has become available since the time of application that the information given or
used:
(d) to obtain the skills assessment mentioned in subclause 885.222(1);

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was false or misleading in a material particular.


An example of one complete mess was one of our clients who is an educational institution that
provided hairdressing, graphic pre-press and other voluntary work experience opportunities to students
studying in those fields (thus providing free labour on top of paying international student fees!).
However, record-keeping in those places of employment was less than adequate and, after time-
consuming and extensive reviews of their records, numerous students were later discovered to have
done insufficient hours but often in excess of 850 hours instead of the required 900 hours. What was
the Department to do with these people? Certainly it was not their fault but their references were false
or misleading in a material particular and their lack of knowledge or complicity was irrelevant. The
business was later sold by the owner and so we never found what happened to all those hapless
international students.
The advent of PIC 4020: skills assessments
The above XXX.223 visa criteria were ultimately determined by the Department to be insufficient to
deal with fraud in the context of visa applications and, as s 501 was thought to be too draconian (and
had been widely criticised), PIC 4020 was introduced as an overarching public interest criterion.
Departmental policy states;
PIC 4020 is intended to significantly increase the level of integrity in visa applications by
providing a strong disincentive to those considering giving, or causing to be given, a bogus
document or information that is false or misleading in a material particular.
Thus, PIC 4020 is yet another means to not only refuse a visa but to punish applicants for providing
false or misleading information or bogus documents through the addition of the element of a ban, albeit
a temporary one. Its primary aim has been found by the Courts to be to operate as a disincentive to
others and thereby maintain the integrity of the system. The rationale for its introduction as stated in
Davids paper emphasises the need for a basis to refuse, not merely cancel a visa after it is granted
and in light of the evident unsuitability of a permanent ban under s 501 for that purpose. However,
where a false or misleading document or information is provided it must have been material to the visa
criteria in order to fall foul of PIC 4020 and so there are limited situations where that false information
would not also constitute a basis to refuse the visa application for simply not meeting a particular
criterion (ie unless it was found in respect of a visa held in the past 12 months). I will deal with some
of the other cancellation powers, and the discretions that apply to them, later in this paper.
As stated, one circumstance that was clearly frustrating for the Department and a prime driving force in
the development of the PIC was where the much better resourced investigations capacity of the
Department identified scams in the production of false or misleading work references to TRA for the
purposes of skills assessments and TRA was not able or willing to revoke favourable assessments.
PIC 4020 has a wide reach and allows the Department to investigate information provided to certain
third party decision-makers in order that the Department can go behind findings made by those
organisations, thus enabling officers to determine the materiality of evidence submitted in respect of
medical checks and skills assessments. The latter could even include looking at the range of tasks
and duties of asserted work experience, not merely whether it was done at all. There is an obvious
danger here; not only are delegates not qualified to make such specialised judgements, but it requires
them to administer and apply the often nebulous and sometimes quite arbitrary guidelines and policies
of those skills-assessing authorities and MOCs.
Delegates would previously have been hamstrung by the fact of a favourable skills assessment where
that was the only visa requirement ie before the introduction of the XXX.223 criterion. There was also

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the pesky problem of the fact that TRA had not been approved as an assessing authority by the
Education Minister or the Employment Minister as its specification as a relevant assessing authority by
the Minister for Immigration in instrument IMMI 11/034 was found to be invalid by reason of regulation
2.26B(1A) and that position was not rectified until instruments of approval by the Minister for Tertiary
Education, Skills, Jobs and Workplace Relations and the Minister for Immigration, dated 15 September
2011 and 28 September 2011, respectively. (see Singh v Minister [2012] FMCA 2145 (24 April 2012),
per Driver FM at [65]) See also Batra v Minister for Immigration and Citizenship [2013] FCA 274 at
[55];
I accept the appellants submissions that:
(a) TRA had not properly set a skills standard applicable to the occupation of Pastry Cook;
(b) TRA did not properly assess the appellants skills against a standard; and
(c) the Skills Assessment was not effective as a skills assessment for the purpose for which it
was made by TRA.
However, at [60];
The definition of bogus document in s 97(c) includes a document that was obtained because
of a false or misleading statement. In my view it is plain in the present case that the Skills
Assessment was obtained because of the false work reference. The Skills Assessment simply
picked up the 900 hours of work experience which the appellant falsely claimed to have. That
the Skills Assessment is of no legal effect for its specific purpose is immaterial as to whether or
not it falls within this definition.
The Department has clearly been keen to outsource decision-making and insulate it from merits and
judicial review but wants to have its cake and eat it too by ensuring that it nevertheless has the
capacity to investigate evidence submitted to those third parties who are, as a result, clearly going to
themselves become much tougher as regards their internal requirements and processes. PIC 4020
sends a message to MOCs, skills assessing authorities and even the MRT that they are not
independent of the Department and that all evidence they consider may be reviewed and, effectively,
their decision overturned by the Department.
However, the far greater investigative resources of the Department and their capacity to locate bogus
or misleading information does not justify the very broad scope and strict wording of PIC 4020 and the
effective lack of waiver. Like s 501 before it, we should be worried about potential excesses of
government action through its use. It is not just used with respect to clearly bogus IELTS results or
work references that have sometimes, not always I hasten to add, been clearly false. Rather, it has
already been used in respect of answers to forms concerning basic visa criteria that should really just
have led to the visa being refused under the relevant criterion on the basis that it was not met or to an
earlier visa being cancelled under s 109 of the Act.
PIC 4020 has the capacity to become a sledgehammer used to crack a nut, as we are already seeing.
Much greater thought needs to be given as to whether the Department is using its own and visa
applicants resources wisely in sending Notices of Intention to Refuse visa applications under PIC
4020 in certain instances and whether a three-year ban outcome is fair in all the circumstances. There
are many powers available to the Department and PIC 4020 is not a one size fits all response. Just
because it can be used, doesnt mean it has to be used. As we all know, visas need only be refused on
one basis! And if the facts of the case are such that a visa cancellation under s 109 would not likely
result ie where a bogus document is immaterial to the criteria for the visa or the circumstances of the

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case would, on applying the considerations in Reg 2.41, likely lead to a decision not to cancel, but are
not in line with the limited waiver requirements for PIC 4020, the PIC should not be used.
As well as having the capacity to overturn a decision of the third parties mentioned in the PIC, it is
also the basis for the Departments insistence upon arrangements providing for integrity standards
and information sharing by those third parties. IDP IELTS Pty Ltd, for example, is the subject of a
Deed of Agreement with the Department which provides for online data sharing, security
arrangements, integrity standards, and other verification services/methods. The former Minister
Chris Bowen stated in Parliament on 8 May 2012;
IELTS is an independent commercial enterprise and the department does not have a contract with
IELTS or any agency contracted to conduct the IELTS test. Issues relating to identity/verification
checks undertaken as part of IELTS testing are a matter for IDP International as administrators of
the IELTS test.
A Deed of Agreement for the provision of access to online test score verification services exists
between the DIAC and IDP International English Language Test System (IELTS) Pty Ltd for the
provision of English language test results for Student visa purposes. This agreement describes
intellectual property rights, security arrangements, protection of personal information and described
required services to enable the department to verify IELTS test score results.
The Deed of Agreement also includes a number of integrity standards that IELTS is expected to
conform to, including measures to minimise the risk of identity substitution and ensure appropriate
document fraud prevention measures are in place.
The department works closely with IDP International to ensure we are promptly notified of all fraud
attempts and detection in relation to the IELTS test, and takes action as appropriate.
see:http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fh
ansardr%2F1c0dbef0-05d4-42fa-89c8-ae7e3958767b%2F0144%22 )
Interestingly, in the above exchange, the Minister conceded that statistics are not maintained regarding
the number of visa refusals based on the provision of fraudulent IELTS test results. More general
questioning by Michaelia Cash on 13 February 2012 in the Legal and Constitutional Affairs Legislation
Committee revealed;
Senator CASH: How many visas were cancelled or refused over the last five years as a result of
the detection of fraud?
Mr Kukoc : As Deputy Secretary Southern said, our system does not record so it is very difficult
to report these percentages unless we manually examine each file.
Senator CASH: Has that always been the case, that you do not record on your systems that
fraud is the reason the visa is cancelled?
Mr Metcalfe : It would be reported on the individual case but the officer is saying that it is not
aggregated.
Senator CASH: There is no collation.
Thus the Department increasingly outsources aspects of its decision-making such as skills
assessments and language testing and maintains on the one hand that integrity checking is a matter
for those external entities yet insists on standards for integrity checking and information sharing as
well as ensuring that it can, through the application of PIC 4020, investigate and determine alleged

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fraudulent activities concerning those third parties. This is an all care and no responsibility approach
whereby review by applicants of such third party decision-making is almost impossible (and would
have to have a contractual basis) yet the Department keeps a tight hold on processes and the control
of information. Where such decisions are so fundamental to visas, I would argue that there should be
an internal or even external review process that allows aggrieved applicants to put their concerns
regarding the fairness of the processes and have those determined by an impartial party. The
outsourcing of government functions leads to abuse where there is no transparency one only has to
look at G4S on Manus Island to see what can happen.

PIC 4020(1) construction and analysis


There are five components to PIC 4020(1), all of which must be met for 4020(1) to have effect; that is,
in order for an applicant to fail to meet it;
1. there is no evidence before the Minister that
2. the applicant has given, or caused to be given
3. to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a
Medical Officer of the Commonwealth
4. a bogus document or information that is false or misleading in a material particular' and
5. that bogus document or information must be in relation to the application for the visa, or a visa
that the applicant held in the period of 12 months before the application was made.
Policy helpfully states that, in order for an applicant to fail to satisfy 4020(1), there must
be evidence that all of these components are met.

1. there is no evidence before the Minister that


In the matter of Talukder v Minister for Immigration [2009] FMCA 23 (23 April 2009) regarding the term
evidence in clause 880.224 (but which has been relied upon in later PIC 4020 FCC cases), the
applicant argued that the provision was outside the scope of the regulation making power conferred by
s.504 of the Act in that it excludes applicants for visas on the basis of suspicion and untested
evidence, rather than the satisfaction of the decision-maker ie if there is any evidence of falsity from
any source. His Honour Driver FM held;
18. I reject the applicants contention that the clause compels the rejection of a visa
application if any evidence whatsoever becomes available of false or misleading information
having been provided. The evidence must point to information having been false or misleading
in a material particular. That goes to both the strength of the evidence and its relevance. An
intellectual process is required from the decision maker as to whether the evidence available
points to the information having been false or misleading in a material particular.
19. The word evidence is undefined in the Migration Regulations. The third edition of the
Macquarie Dictionary offers seven alternative meanings:
a. ground for belief; that which tends to prove or disprove something; proof;
b. something that makes evident; an indication or sign;

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c.law the data, in the form of testimony of witnesses, or documents or other objects...
identified by witnesses, offered to the Court or jury in proof of the facts at issue;
d.to make evident or clear; show clearly; manifest;
e.to support by evidence;
f.in a situation to be readily seen, plainly visible, conspicuous; and
g.law (of an accomplice in a crime) to become a witness for the prosecution against the
others involved.
20. The last specialised definition may be discarded. Also, in my view, the drafter of the
clause did not intend to impose on decision makers under the Migration Act the strictures of
proof applicable in a court by using the word evidence. In my view, the drafter intended that
the word evidence should carry its ordinary or natural meaning in general parlance. In my view
also, the word evidence was chosen deliberately as the word information is used elsewhere
in the clause. The use of the word evidence in my view establishes that the clause requires
something more than the mere existence of information suggestive of falsity. It requires some
probative information. In other words, a decision maker cannot simply take any information
suggestive of falsity as sufficient for the purposes of the clause. The decision maker must
satisfy himself or herself that the information is acceptable as evidence pointing to false or
misleading information having been given for the purposes of establishing the validity of the visa
application and that the falsity or misleading information was material to the visa application.
21. This proposition may be tested by reference to a hypothetical situation. If, for example, a
decision maker was confronted by a dob in letter the decision maker could not simply accept
that letter as sufficient for the purposes of the clause. The decision maker would have to be
satisfied that the allegation in the letter pointed to information having been given in support of
the visa application that it was false or misleading in a material particular and that the allegation
constituted evidence in other words, that the allegation was probative of what it asserted. A
decision maker could not blindly accept information as evidence of the truthfulness of the
assertions contained in it. On its face, an allegation is simply evidence that an allegation has
been made. In order to satisfy himself or herself that the information was evidence for the
purposes of the clause, a decision maker must consider the strength and credibility of the
information that has become available. It is only then that the decision maker could accept the
information as evidence; that is, information probative of the fact that other information given or
used as part of the assessment referred to in paragraph 1128CA(3)(k) of Schedule 1 is false or
misleading in a material particular.
His Honours reasoning was upheld on appeal by Edmonds J in Talukder v Minister for Immigration
[2009] FCA 916 who held [at 35];
In my view, the word evidence is used, in contradistinction to the word information, which is
also used in the clause, to impose a requirement that, whatever facts are conveyed by the
material relied upon to establish that the information given to meet the requirements of item
1128CA(3)(k) of Schedule 1 was false or misleading in a material particular, are sufficiently
probative to lead to that conclusion.
In respect of facts that you will no doubt be aware of, his Honour Manousaridis J in Sharma v Minister
for Immigration [2013] FCCA 1280 (6 September 2013) held;

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36. Applying this passage to PIC4020, evidence is used in PIC4020 to impose a requirement that
whatever facts are conveyed by the material relied upon to establish that information given in
connection with the application for a skilled visa was false or misleading in a material particular,
they must be facts that are sufficiently probative to lead to that conclusion. Stated more simply,
evidence, as that word appears in PIC4020, means material that is sufficiently probative to
lead to the conclusion that information given in connection with the application for a skilled visa
was false or misleading in a material particular. [..]
41. The Tribunal said it placed some weight on the information relating to the Departments
investigation into work references from Axilleon Cakes.[41] The applicants submit that this
information does not constitute evidence. That is so because the information DIAC provided to
the Tribunal was vague and was made without any proper basis; the reference of the applicants
name in a seized document was not probative of any wrongdoing by the applicant; and the
differences between the Axilleon reference letter and the letter seized by the DIAC pointed to
the Axilleon reference letter not being connected with the letters that had been seized.[42]
Further, counsel for the applicants submitted that the DIAC information did not have the
qualities of the information Judge Driver in Sandhu v Minister for Immigration[43] found entitled
the Tribunal to conclude there was evidence.
42. The applicants submission overlooks one important piece of information to which the
Tribunal refers in paragraph 62 of its reasons for decision. That information is that Axilleon
Cakes provided letters to many others who did not actually work there.[44] This is not
information DIAC simply provided to the Tribunal. It was a fact accepted by the applicants
through their migration agent. As I set out earlier in these reasons, at the hearing before the
Tribunal, the applicants migration agent said he was aware that Axilleon has provided letters to
so many other people who have not worked there.
43. In my opinion, it was reasonably open to the Tribunal to regard this fact, together with the
other information DIAC provided to it, as constituting material that was sufficiently probative to
lead to the conclusion that the Axilleon reference letter contained a statement that was false or
misleading in a material particular. That is so because, from the fact that a particular entity,
Axilleon, provided letters to so many people falsely stating that people had worked at Axilleon,
it could reasonably be inferred that a particular letter (the Axilleon reference letter) stating that a
particular person (the applicant) had worked at Axilleon was also false. It was certainly
evidence such as to make it reasonable for the Tribunal not to conclude there was no
evidence before the Minister that the applicant has given, or caused to be given, to the Minister
. . . a bogus document or information that is false or misleading in a material particular. [...]
46. The applicants submit that the information the Tribunal identified in paragraph 63 of its
reasons for decision was of little relevance to prove, in an objective and rational manner,
whether or not the applicant supplied a bogus document.[47] In my opinion, this submission
overlooks the potential relevance of the Tribunal finding that the applicants evidence was
inconsistent and vague. It was open to the Tribunal to consider these findings as being relevant
to the credibility of the applicants evidence. That, in turn, was potentially relevant to the weight
the Tribunal could reasonably give to the information it received from DIAC, including the fact
that Axilleon Cakes provided letters to many others who did not actually work there.[48] That is
so because the statements contained in the Axilleon reference letter related to matters about
which the applicant could give first-hand knowledge; and the less credibility it was open to the

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Tribunal to accord to applicants testimony about those matters, the more weight it was open to
the Tribunal to give to the information it received from DIAC.
Despite assertions by the Department that the standard of evidence required to enliven a consideration
of PIC 4020 is high, in my view it operates in practice like a reverse onus in that, rather than the
Department having to be satisfied that the applicant has provided a bogus document/misleading
information, the applicant must disprove the relevance or non-genuine nature of the material in
circumstances where intent is irrelevant and, in the case of bogus documents, so is materiality. The
case law makes it clear that the evidence available to the Department, though sufficiently probative,
may be weak and circumstantial, despite Briginshaw and the potentially very serious consequences
that flow such as the ban on further visas and, potentially, prosecution.
Policy provides that the suspicion that an application is affected by fraud, if not backed by evidence,
cannot be a basis to determine that PIC 4020 is not satisfied. This is because PIC 4020 is satisfied
unless there is evidence to the contrary. The Department, in the policy below, seems to be elevating
the term evidence in quite a material way, and there is nothing at all to suggest or require the
Department to have evidence of any particular strength and, certainly, the usual Departmental
investigations as we see every day with respect to whether criteria are met will suffice but with far
more serious consequences.
Examples of circumstances that might warrant further investigation by the delegate are noted in policy
as;
The applicant has previously withdrawn an application after being asked to provide
comment on the suspected genuineness of a document given to the department.
The applicant continues to request extensions of time in response to requests for further
information by the department.
The applicant has been assisted with their application by a person who is known to the
department to have previously been associated with known or suspected fraudulent
activity such as the giving of false or misleading information or bogus documents.
The applicant has an immigration history that suggests they have provided false or
misleading information in relation to previous visa applications.
The applicants movements in and out of Australia while holding a temporary business
visa suggest that further investigation is warranted regarding their genuine intention to
undertake the employment relevant to their visa.
The applicant's claims are inconsistent with claims made previously by their sponsor in
relation to their own migration history.
These examples seem to fly in the face of the warning in policy that an applicants entire immigration
history cannot (lawfully) be clawed back given the limited terms of the waiver. The fact of a
withdrawal of an earlier visa application or a dodgy immigration history does not at all mean that he or
she has provided false information in support of the visa application under consideration or a visa
recently held. However, the above examples illustrate very clearly a practitioners obligation to FOI
movement records and copies of documents on all files relevant to a visa applicants or her sponsors
immigration history and including his or her family members that have an immigration history here
even if they are not specifically relevant to the application that is to prepared. The dire consequences
of the provision of a bogus document, even unwittingly and regardless of its relevance to the visa
criteria, also make it essential that all documents and their provenance be carefully considered.

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2. The applicant has given, or caused to be given mens rea


This is especially problematic where an applicant asserts that they had no idea a bogus document or
misleading information was being given by their fraudulent (migration) agent. The typical fact scenario
is that of Mr Jeetinder Singh Ajju of S and S Migration who held himself out as both a migration agent
and lawyer (he was neither) and who engaged in the making of a great many subclass 485 visa
applications by inserting false TRA references in the electronically lodged application allegedly
unbeknownst to his clients. I will deal with matters affected by fraud under a separate heading later.
The current state of the case law is clear that it is not necessary for an applicant to know that the
document they give, or cause to be given, is a bogus document or false or misleading statement.
As was determined in obiter by his Honour Driver J in Vyas v Minister for Immigration [2012] FMCA 92
(17 May 2012) in respect of bogus IELTS test results, both limbs of PIC 4020 do not contain a
mental element. His Honour held;
59. Here, the context is as follows. The critical words are given, or caused to be given in
PIC 4020. The question is whether the provision of a document to the Ministers Department
requires the person doing so to know the document is a bogus document. Section 97 has a
different focus. It concerns the creation of the bogus document. The person involved in its
creation may or may not have knowledge of its inaccuracy. They may or may not be the same
person who provides the document to the Ministers Department. The question of whether the
latter person must have knowledge remains open.
60. PIC 4020 does not simply refer to the giving of a bogus document. It also refers to the
giving of information that is false or misleading. In Murphy v Farmer,[43] the High Court was
considering a provision in customs legislation using those terms as a trigger for forfeiture of
goods to the Crown. The Court held that:
o the word "false", when viewed in isolation, is a latently ambiguous one. As the
dictionaries confirm, it can mean merely "untrue" or "wrong". Or it can involve both
subjective and objective elements and mean "purposely untrue".[44]
61. The High Court was moved to read false as purposely untrue because the forfeiture
provision was penal or quasi-penal in character and should be construed, in an ambiguous
case, against the imposition of a penalty. It was thus a narrower penalty with a knowledge
requirement rather than a wider penalty without one.
62. It would be consistent with Murphy for some provisions of the Migration Act to have a
mental element. For example, ss.234 and 234A create offences relating to the provision of false
documents and false or misleading information. Both attract heavy fines or imprisonment. As
Murphy suggests, such penalties should flow from a guilty mind rather than unknowing
conduct. It is unsurprising, therefore, that a mental element is introduced into ss.234 and 234A
of the Migration Act by s.5.6 of the Criminal Code.[45]
63. Other legislation creating offences relating to the provision of false information
specifically mention a mental element. A pertinent example is s.11 of the Statutory Declarations
Act 1959 (Cth), which states:
o A person must not intentionally make a false statement in a statutory declaration
o Penalty: Imprisonment for 4 years

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64. By contrast, some provisions concerning false information outside of the criminal context
do not expressly contain a knowledge requirement. Nor is one implied. One example of a
federal legislative provision where a mental element has been neither expressed nor implied
was s.52 of the Trade Practices Act 1974 (Cth)[46], which prohibited misleading or deceptive
conduct by corporations.[47] Doubtless, the importance of the consuming public not being
misled or deceived was considered to outweigh the importance of restricting the civil liability of
corporations.
65. PIC 4020 is comparable. Its purpose is not penal or quasi-penal. Rather, it seeks to
ensure that an applicant for a visa truly fulfils the criteria for the visa. The provision of a
document that is bogus or false or misleading information would, left unchecked, enable a
person who falls short of visa criteria nonetheless to be granted a visa. In this respect, it does
not matter whether the document is provided by the applicant knowingly or unwittingly. Either
way, a prohibition on the provision of relevantly defective documents is required. Otherwise,
undeserving applicants could receive a visa.
66. This is borne out by the Explanatory Statement (ES) to the MAR, which states:
o It is intended that the reference to information which is false or misleading in a
material particular in the new subclause 4020(1) will capture any information which is
false or misleading that the applicant provides if it is relevant to the purpose for which it is
made, namely the purpose being the assessment of the applicant against any of the
criteria for the grant of the visa. (emphasis added)
67. The ES thereby describes information broadly, emphasises the importance of the
fulfilment of visa criteria and makes no mention of the state of mind of the party providing the
information.
68. It follows that, in using the words given or caused to be given, PIC 4020 should not be
construed as importing a mental element.
In Trivedi v Minister for Immigration [2013] FCCA 578 (17 July 2013) Emmett J in ratio agreed with
Driver J that PIC 4020 should not be construed as importing a mental element and held that;
35. I accept the first respondents submission that PIC 4020 is doing no more than clarifying
the criteria that an applicant must satisfy for the grant of a visa. It is not imposing a penalty for a
breach of some obligation. It neither creates a right nor takes away from any right. It is merely
stating the mandatory nature of criteria to be met for the grant of a particular visa.
36. Further, I accept the submissions of counsel for the first respondent that the explanatory
statement exposes an obvious policy goal to discourage the provision of false information in
support of visa applications. I agree with counsel for the first respondent that the possibility of
hypothetical unjust cases as suggested by the applicant may readily be thought to be
outweighed by the need to discourage provision of false information in support of visa
applications. I also accept that for the MRT to need to be positively satisfied in each case that
the false information was provided knowingly by a visa applicant would significantly limit the
practical application of PIC 4020, given that there would often be no objective evidence on the
issue. I also accept Mr Reillys submission that the facts of this case illustrate that point. [bogus
IELTS tests results that the applicant said she was not aware were bogus]
That judgment has been the subject of an order granting leave to appeal out of time to the Federal
Court by Rangiah J on 14 November 2013 and lets hope that the matter will be dealt with by a 3

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member bench! In the meantime, FCC Judge Nicholls in Sran v Minister for Immigration & Anor [2014]
FCCA 37 (17 January 2014), to which I will return, has voiced agreement in this way;
116. It is the case that I am not bound by either of these two judgments. But, having regard to
the analysis in Vyas, I am respectfully of the view that the relevant view taken there of the
construction of PIC 4020, as agreed with in Trivedi , is correct. I too agree with Judge Driver on
this issue.
117. Once it is accepted that PIC 4020 is not also directed to imposing a penalty for the
breach of some obligation, but rather seeks to ensure that an applicant for a visa truly fulfils the
criteria for the visa (Vyas at [65]) or as Judge Emmett put it, PIC 4020 is doing no more than
clarifying the criteria that an applicant must satisfy for the grant of a visa (at [35]), then the
applicants submissions now are of no assistance to him.

3. to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority
or a Medical Officer of the Commonwealth
Despite the meaning of the above being seemingly self-evident, policy in respect of bogus documents
scarily notes that;
It is policy that if a visa applicant includes a reference in their visa application to another
document, to which the s65 delegate can and will access (either directly or through a third party)
in order to form a view as to whether the applicant satisfies criteria for visa grant, they are taken
to have caused that document and/or information to be given to the delegate.
This would extend the delegates powers to look into documents provided to bodies and persons not
specifically mentioned as the third parties in the PIC itself and might include evidence provided in
support of all third party evidence relating to criteria such as the genuineness of a marriage,
dependence issues etc. Of course, evidence of, say, overseas work experience relied upon in respect
of a visa criterion to be assessed by a delegate (such as additional points under the points test or an
assessment of an applicants skills for a subclass 457 visa) has always been the proper subject of
consideration by a delegate and a potential basis for refusal. As I have stated before, there ought to
be careful consideration given as to whether or not PIC 4020 is appropriate in all the circumstances or
whether a visa refusal under the criterion not met is adequate. There will no doubt be examples of
inadvertent errors in CVs. The PIC 4020 waiver criteria establish such a high bar that the imposition
of a decision under PIC 4020 may create grave injustice and hardship where it is simply not warranted.
A better approach would have been to provide delegates with a much broader discretion to waive PIC
4020 or, better yet, clear policy guidelines as to when not to refuse a visa under it in the first place.

4 a bogus document or information that is false or misleading in a material particular


4.1 a bogus document
The term "bogus document" has the same meaning as in s 97 of the Act; namely,
in relation to a person, means a document that the Minister reasonably suspects is a document
that:
purports to have been, but was not, issued in respect of the person; or
is counterfeit or has been altered by a person who does not have authority to do so, or

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was obtained because of a false or misleading statement, whether or not made


knowingly.
Understanding the definition of a bogus document is critical because, although there is clear
opportunity for an applicant to correct incorrect information (whether due to incorrect answers or
change in circumstances), there is no provision for an applicant to correct the giving of a bogus
document. The applicant will fail to meet PIC 4020(1) unless they satisfy the delegate that the
document is not bogus and the delegate has considered the other three elements of PIC 4020(1).
Provision of a later skills assessment, for example, based on genuine work experience documents will
not alter the fact that a bogus one has been provided earlier and thus the triggering of PIC 4020.
Further, unlike the definition of information that is false and misleading in a material particular, the
definition of a bogus document in s 97 is silent on the document needing to be relevant or material
to any of the criteria being considered when making a decision on the application. Policy states: If a
bogus document/s is detected, PIC 4020 should be applied immediately!
The authority for this is the decision of Tracey J in Mudiyanselage v Minister for Immigration [2013]
FCA 266 (27 March 2013):
28. I have been persuaded, by the Ministers submissions, that the construction for which the
appellant contends cannot be accepted. In the first place it would require PIC4020(1) to be read
in an ungrammatical fashion: a bogus document ... in a material particular ... or a bogus
document ... that is false or misleading in a material particular. The former rendition is plainly
ungrammatical. The second is less obviously so. Nonetheless, it may be thought inapt to speak
of a document being false or misleading. That which may be false or misleading will be the
contents of the document, not the document itself.
29. Secondly, the use of the disjunctive or suggests the existence of two separate ways in
which an applicant may be found to have failed to meet the relevant criteria: either by submitting
a bogus document or by providing information that is false or misleading in a material particular.
30. It is also significant that PIC4020(5) contains a definition of information which is to be
regarded as false or misleading in a material particular while the term bogus document is
separately defined in s 97 of the Act and then picked up by the Migration Regulations. The
concept of materiality plays no part in the latter definition. Were PIC 4020(1) to be read in the
manner for which the appellant contends it would add this qualification to the statutory definition
of bogus document. The qualification would have the potential to narrow the scope of the
defined term. A document may, for example, be a bogus document because it is a counterfeit
notwithstanding the fact that its contents are true and correct in every particular. Similarly, a
document may be bogus because it has been altered by the insertion of some immaterial
information by a person not authorised to amend the document. In either case there would be a
bogus document but, because it did not contain information that was false or misleading in a
material particular, the public interest criterion prescribed by PIC4020 would, nonetheless, be
satisfied. The existence of the separate definitions of words and phrases appearing in PIC4020
tends strongly against a reading of PIC4020 which would deny those definitions their full force
and effect.
31. The construction contended for the appellant strains the language of PIC4020. That
contended for by the Minister does not: it flows from the ordinary and natural meaning of the
text. PIC4020 is engaged if an applicant gives to a relevant entity either a bogus document or
information that is false or misleading in a material particular when applying for a visa. The mere

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submission of a bogus document as defined in s 97 of the Act is sufficient to attract the


operation of PIC4020(1) regardless of the contents of such a document.
34. The construction which I have placed on PIC4020(1) is supported by the terms of the
explanatory statement which accompanied the promulgation of the amending regulations in
2011. The explanatory statement relevantly said that:
Sections 97 to 106 of the Act, in general, place obligations on applicants to provide
correct information and to correct any incorrect information whether at the time of
application or subsequently prior to visa grant. In circumstances where incorrect
information is provided, the Minister may cancel under section 109 of the Act any visa
that has been granted. The application of section 109 of the Act depends on a visa
having been granted.
Section 65 of the Act provides that after considering valid visa application, the Minister
must grant the visa if the applicant has satisfied the prescribed criteria, provided that
there are no statutory bars to the visa being granted. Currently, the power to refuse a
visa application on the basis that the visa applicant (sic) has false or misleading
information is extremely limited. The relevant Schedule 2 criteria are not of general
applicability, and relate only to false or misleading information provided by a primary visa
applicant to satisfy certain specific requirements. Further, it is common practice that a
visa applicant will seek to withdraw the bogus documents, or false or misleading
information or find alternative methods of satisfying the relevant visa criteria without
relying on the false information. In circumstances where this occurs, a decision maker is
required to accept the request to withdraw the information and continue to process the
application.
35. One of the stated purposes of the amendment was, then, to frustrate applicants who
submit bogus documents when making a visa application in the hope that they will not be
detected but that, if their deceit is exposed, they are able to eschew reliance on the document
without prejudice to the success of their application. It may well be that this vice was overcome
in any event by the former criterion in para 485.223 which required that, at the time at which a
decision was made on an application, there must exist no evidence that information that was
false or misleading in a material particular had been given or used to satisfy the primary criteria
or to obtain a skills assessment. Whether that be so or not, the introduction of a materiality
qualification to the definition of bogus document would plainly undermine one of the central
stated purposes of the amended regulations.
Examples of counterfeit documents in policy include a passport, birth certificate, marriage certificate,
educational certificate, adoption order, work reference or financial document, documents regarding
custody or dependency, work experience documentation relating to skilled work undertaken in their
nominated occupation (either in Australia or outside Australia, or both), prior to application lodgement,
photo-shopped photos to support claims of a relationship. I am reminded here of a photo-shopped
photo of my engaged clients for a Prospective Partner visa that the Department investigated. The
photo pictured them together but was clearly photo-shopped and neither asserted that they had in fact
been together at the engagement parties at which this photo was the centrepiece. In fact, it was their
respective families overseas that had arranged the marriage who enjoyed the parties while the
betrothed languished one in a refugee camp in Nairobi, the other in Melbourne as the only member
of her family to have made it here. The point is, not everything is intended to deceive yet intention is
irrelevant!

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4.2 or information that is false or misleading in a material particular


PIC 4020(5) defines information that is false or misleading in a material particular to mean information
that is;
false or misleading at the time it is given and
relevant to any of the criteria considered when making a decision on an application,
whether or not the decision is made because of that information.
Although the possibilities are endless, policy states that examples of incorrect information include;
variances in birth dates provided on the application form and birth certificate
information about a secondary and/or non-migrating dependants relationship to the
primary applicant
an employment reference in support of an applicants work experience claims
But policy helpfully states that delegates should consider whether the incorrect information could in
fact just be a typographical error!
One matter I was involved in concerned a 900 hours work reference relied on in support of a TRA
skills assessment in respect of which the Department asserted that the author did not work for the local
council cited on the reference letter. The visa applicant stated that he did not know where or for whom
his employer worked (he was, like most, employed on a voluntary, unpaid basis) as the employer
had both a private contracting landscaping business as well as (the applicant had been given to
understand) working for the council. The uniform his employer wore and the logo on his truck were
that of the council and the applicant was sent to various public parks and gardens to undertake
maintenance and gardening work, all of which was consistent with his employer having been engaged
by the council, either directly or as a contractor. The applicant asserted that this question of who his
employer worked for was not material to whether or not he had actually undertaken the 900 hours of
experience and the nature of that experience. Like most applicants working for free, these matters
became difficult to prove as he had kept no records himself, had no pays slips or relevant bank
deposits and the person he had worked for had flown the coop. Given the breaches of industrial
awards and employment law obligations by him, this was not surprising.

5. in relation to the application for the visa, or a visa that the applicant held in the period
of 12 months before the application was made.
My view is that PIC 4020 cannot be used in respect of representations or documents provided to Skill
Select in support of an expression of interest as it may or may not lead to an invitation to make a visa
application and thus, arguably, is not information that could be said to be in relation to a visa
application. We can await the verdict of the courts on that one. As to the 12 months issue, see the
heading temporal issues below.

Fraud, validity and complicity


One very interesting area in which PIC4020 findings are made is where applicants have been
represented by agents who have acted fraudulently. These applicants, often non-English speaking

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and with little education, have been found to have caused to be given the false or misleading
information or the bogus document where, in fact, such information was strictly given by an agent or
someone purporting to be an agent without the applicants knowledge or consent.
For example, many cases have involved S&S Migration, a business operating out of Collins Street. An
employee of S&S falsely purported to be an agent and a lawyer. In one such case, he assured a
hapless client who sought his advice that he was eligible for a visa. This agent made the application,
providing a fake TRA reference without the applicant even knowing that a TRA assessment was
required, and certainly never having represented that he had undertaken such an assessment. The
contents of the unsigned online visa application form were not known to the visa applicant, the agent
having assured him that he met the criteria for a temporary visa. In this case, a finding of PIC 4020
was made against the applicant and upheld by the Tribunal.
The decision of the High Court in SZFDE v MIAC [2007] HCA 35 (2 August 2007) is the high water
mark for consideration of the effect of fraudulent advice by a purported registered migration
agent/lawyer on the Tribunal and on an applicant. I will examine the development of the law from this
decision until the present time, as interesting developments on those limited principles have occurred.
By way of background, in SZFDE, the RRT had affirmed a decision refusing an application for
Protection visas and the appellants did not attend the Tribunal hearing as a result of fraudulent advice
given by their purported registered migration agent and lawyer who had been de-
registered/suspended. The High Court found that the decision made by the Tribunal is properly
regarded, in law, as no decision at all because the Tribunals jurisdiction remained constructively
unexercised. Their Honours quoted French J in the Full Court with approval; there are sound reasons
of policy why a person whose conduct before an administrative tribunal has been affected, to the
detriment of that person, by bad or negligent advice or some other mishap should not be heard to
complain that the detriment vitiates the decision made.
Their Honours enunciated the principles involved, quoting Lazarus Estates Ltd v Beasley [1956] 1 QB
702 at 712-713;
No court in this land will allow a person to keep an advantage which he has obtained by fraud.
No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained
by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly
pleaded and proved; but once it is proved, it vitiates judgments, contracts and all
transactions whatsoever.

Validity of the primary application


Many cases have since expanded on the principles set out in SZFDE. First is the question of the
validity of a primary application. Section 98 of the Act provides that;
A non-citizen who does not fill in his or her application form or passenger card is taken to do so
if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
In SZGJO v MIMIA & Anor [2005] FMCA 1349 (15 November 2005) Driver FM found that a Protection
visa application containing false claims fabricated by an agent was valid on the basis of the above
provision and distinguished the facts here from those in NAWZ v MIMIA [2004] FCAFC 199 in which
the applicant had actively colluded with the agent to deceive the Minister with a false application. Here
there was no such fraudulent common purpose but the primary application was nevertheless validly

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made as an agency had been established. Such a relationship, held Driver FM, can be created where
a person;
engages a migration agent to assist in an application for a long-term visa with work rights;
was interested only in that outcome, and
was not too particular how he got it ie he was indifferent (at best careless and, at worst,
recklessly so) as to the contents of the application
Bennett J on appeal in SZGJO v MIMIA [2006] FCA 393 (11 April 2006) upheld the decision below and
found that s 98 of the Act does not require a covert purpose to mislead and that an applicant can be
fixed with responsibility for the content of a false application made on his behalf even where he does
not expressly authorise the inclusion of incorrect or incomplete information. His Honour held that,
despite containing false information, it was, in formal terms, a valid application.
Essentially, in most cases, fraud will not vitiate a primary application because of the operation of s 98
and the case law we have just discussed. However, I will look at the issue of the scope of an agency
and the notion of complicity later in this presentation as the law is far from settled.

Fraud and the Tribunals


I now turn to the possible effects of fraud on applications for Tribunal review, including whether an
application to the Tribunal can be rendered invalid by agent fraud and also whether any general
principles can be derived from these cases which may be relevant PIC4020 cases.
SZGJO provides that an application to the Tribunal may be invalid because it was not made by the
applicant or upon his authority and was not signed by him. It is key that the applicant did not know the
application was made. The remedy given was a writ of certiorari, not mandamus as there was nothing
to compel given there was no valid review application before the RRT.
In SZMME v MIAC [2009] FMCA 323 (27 April 2009), the applicants deregistered former migration
agent did not even tell him the nature of the visa application to be lodged on his behalf but rather said
Even if I told you, you wouldnt understand and that he was doing permanent residency for him.
However, on the basis of findings that were open to the Tribunal ie that the applicant was prepared to
leave all the details to his agent but was not aware of the refusal decision and review application to
the Tribunal, a similar decision was reached both as to the validity of the primary application and
decision and the invalidity of the review application, Scarlett FM quoting Driver FM and Bennet J in
SZGJO.
In SZLHP v MIAC [2008] FCAFC 152, their Honours Branson, Lindgren and Graham JJ considered the
nature and effect of fraud, referring to SZFDE and, in particular, the crucial principle at [49] that it was
essential that the fraud had the immediate consequence of stultifying the operation of the legislative
scheme to afford natural justice to the appellants: Essentially, because the Tribunal acted on the
assumption of regularity, its jurisdiction was constructively unexercised as a direct result of the fraud of
the applicants agent thus resulting in the description fraud on the Tribunal (SZFDE at [51] [52]).
The High Courts decision was expressly limited due to the;
particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal
of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly
emphasised that there are sound reasons of policy why a person whose conduct before an
administrative tribunal has been affected, to the detriment of that person, by bad or negligent

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advice or some other mishap should not be heard to complain that the detriment vitiates the
decision made[66]. The outcome in the present appeal stands apart from and above such
considerations.
In the Full Federal Court decision of MIMIA v SZFDE [2006] FCAFC 142 (3 October 2006), French J at
[74] set out the relevant questions in any consideration of the effect of fraud as follows;
What was said that was fraudulent?
How was it fraudulent?
How was it acted upon?
This is an excellent starting point if you are faced with a case of migration agent fraud, or fraud more
generally.
In SZLHP, the Court found the agent had acted perhaps negligently but not fraudulently, whereas in
SZFDE the inference was well open that the agent was motivated by self-protection lest in the course
of a Tribunal hearing there be revealed his apparently unlawful conduct in contravention of restrictions
imposed by Pt 3 Div 2 of the Act, particularly by s 281. That is, in SZHLP there was held to be no
evidence that the agents advice not to attend the RRT hearing (and thereby reveal that the applicant
was not, in fact, Indonesian national) was not considered by her to be correct ie the representation
made by the agent to the applicant was not knowingly and plainly false. Further and in any event,
Graham J found in SZHLP that, even if there was such fraud on the Tribunal as a result of the
agents representations to him, he was clearly complicit and thereby denied the right to complain about
it.
Whether or not fraud actually affected the statutory function of a decision-making body is, therefore,
crucial. In order to have a hope of a successful remedy, it must have prevented a lawful exercise of
jurisdiction.

Scope of agency relationship


The fact that fraud is illegal and that an agent may have committed a criminal act in assisting an
applicant to prepare and lodge a visa application, does not mean a client is not liable for an agents
fraudulent acts provided they are within the scope of the agency:
Under the general law of agency, a principal might be liable for the conduct of an agent
acting within the scope of his authority, even if the agents act amounts to fraud. (Lloyd
(Pauper) Appellant v Grace [1912] UKHL 1; [1912] AC 716)
In Sran v Minister for Immigration & Anor [2014] FCCA 37, the applicant argued that the agent had
acted outside the scope of his agency in submitting a false TRA reference without his knowledge or
consent and that, therefore, no agency relationship existed between him and the agent or, at the very
least, that the fraud went beyond that relationship of agency.
Nicholls J disagreed and applied the principles set out in SZGJO and SZMME concerning validity and
the creation of an agency relationship. The deficiency in the applicants argument was, according to
Nicholls J, that;
he did not satisfactorily explain to the Court the relationship between the provision of the
false and misleading information and how the Act and Regulations would operate to limit
the scope of the authority given by the applicant.

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This allows for implied agency relationships and provides what appears to be a simple answer to the
question surrounding the meaning of caused to be given in PIC 4020 itself. By engaging the agent,
the applicant caused the visa application to be lodged by him, which included the provision of the
offending material, despite this being done without his knowledge.
Plainly, there is an unresolved issue in cases where fraud has been perpetrated by a migration agent
regarding the scope of authority given to an agent by an applicant and how that is to be delineated.

The principle of complicity


Some assistance with the question of scope can be derived from a consideration of complicity. Their
Honours in SZLHP, distinguished that case from SZFDE with reference to the principle of complicity;
SZFDE had been a victim of fraud whereas SZLHP was privy to or a party to fraud... (per
Graham J at [86])
The Federal Magistrates findings, properly understood, were to the effect that the appellant was
a knowing, independent and voluntary co-perpetrator of the fraud on the Tribunal. On this basis,
his Honour correctly distinguished SZFDE. (per Lindgren JJ).
As Graham J succinctly summarises;
[93] Even if there was such fraud, the appellants complicity in it would deny him the right to
complain about it.
This complicity thread has been taken up in a number of authorities, but there appear to be two
different approaches. The facts of SZLHP concerned actual knowledge by the applicant of the false
information in his application and thus the fact that the applicant was misled by his agent into believing
that he had to lodge a Protection visa application based on that false information ie that he was an
Indonesian not a Chinese national, was held not to constitute evidence of fraud on the applicant, the
Department or the Tribunal (the review application being invalid in any event). Cases such as Sran,
and the authorities cited in it, simply point to an applicants indifference and to the Tribunals findings
with respect to that state as being open.
A helpful exploration of the issues is undertaken in1306854 [2013] MRTA 2748, in which Tribunal
Member Jenny Beard draws out the principle of complicity in fraud from SZFDE and finds collusion in
the fact that [the applicant] retained an agent to act on his behalf and paid him to lodge what he
reasonably ought to have suspected was a dubious application. She also sets out the factual matters
relevant to a finding of complicity.
In Sran, the applicant knew that there existed work and study visas and made no enquiries of his own.
He presented a picture of an innocent with no knowledge of the fraud who had been duped by his
agent, but Tribunal was not persuaded of this given his education and other factors.
The present trend in decisions indicates that a very strict view is being taken of applicants
indifference despite even the most egregious fraud and the convincing behaviour of people
purporting to be migration agents and even lawyers. It appears that an applicants complicity can be
inferred even from a failure to enquire sufficiently as to the visa requirements despite their lack of
English, the complexity of the Regulations and the assurances received from the agent.
This renders the PIC 4020 regime even more rigid and uncompromising. I also wonder if there isnt a
subconscious element of racism in these cases; had the purported agent in Sran not been of a Punjabi

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background (the same background as the applicants), I sincerely doubt that a finding of collusion
would have readily resulted, certainly not in so many cases and without direct evidence of such
complicity by the applicant. In one S and S Migration case that I was involved in recently in the MRT
(in which the Tribunal affirmed a PIC 4020 finding), the applicant stated that he had asked numerous
questions that were brushed away by the agent who had repeatedly assured him confidently of his
eligibility, called the agent for updates numerous times, and checked VEVO regularly (through a
friend as his own English was poor). Despite having spoken Punjabi with the agent, the Tribunal held
that his English was good enough to have informed himself of the criteria for the visa as he had
engaged an agent!
As stated in the decision of Jacobson, Edmonds and Logan JJ in SZQBN v Minister for Immigration &
Citizenship [2013] FCAFC 94, the cases dealing with this issue;
[50] are authority for the proposition that the courts will not allow a person to maintain an
advantage obtained by the persons own wrong.
Now, the approach has mutated and goes beyond this in my opinion, this development is
inappropriate and undesirable.
The question is, what must one do to avoid being found complicit in fraud? This is a serious finding
and one with serious effects on an applicants future including potential criminal prosecution. What is
enough to show your interest and exclude the possibility that you were in cahoots with a duplicitous
agent or should have reasonably suspected that what he was offering was too good to be true?
Asking questions of an agent, but being rebuffed and reassured?
Asking an English-speaking friend to regularly check VEVO for you?
Calling the agent to follow up after lodgement, but being unable to get through?
Demanding to check all forms before lodgement?
Subscribing to Legend and completing a migration agent qualification?
In my view, it is simplistic and unjust to find complicity in an applicant who is at a significant
disadvantage (in terms of English skills and knowledge of immigration, etcetera) where there is no
direct evidence to suggest any intention to deceive whatsoever. This is clearly an area which needs
development.
To make just decisions, decision-makers must stand in an applicants shoes. It is also not accurate to
assume that a person has received the benefit of time in Australia as a result of lodging the visa
application for which they were not entitled, the effect of such agent fraud is that an applicant has
quite possibly lost an opportunity to apply for an alternative visa onshore that they were eligible for, i.e.
a Student visa. To apply PIC 4020 to unknowing applicants is an overreach and unwarranted
deterrence. What should occur, is far greater regulation and policing of the migration advice
industry and those operating at its fringes so that unscrupulous person are not allowed to operate in it
for so long and affect the lives of so many.

Waiver of PIC 4020


Finding a client whose circumstances fit policy examples for compelling circumstances affecting the
interests of Australia is highly unlikely ie;

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Australias trade or business opportunities would be adversely affected were the person
not granted the visa (Note: under policy, gaining employer sponsorship is not considered
sufficient grounds for a waiver); or
Australias relationship with a foreign government would be damaged if the person is not
granted the visa; or
Australia would miss out on a significant benefit that the person could contribute to
Australias business, economic, cultural or other development (for example, a special skill that is
highly sought after in Australia) if the person was not granted the visa.
It is departmental policy that compelling circumstances affecting the interests of Australia would
not include circumstances where the applicant merely claims that, if granted the visa, they
would:
work and pay taxes in Australia or
pay fees to an education provider or
spend money in Australia.
Examples of compassionate or compelling circumstances affecting the interests of an Australian
citizen, permanent resident or eligible New Zealand citizen in the Explanatory Statement to the PIC
are;
family reasons (for example, unexpected serious or fatal family situations over which the
applicant had no control, such as the incapacitation or death of a partner or child or another
member of the family unit);
that family members in Australia would be left without financial or emotional support; and
a parent in Australia would be separated from their child (for example, if the child was removed
with their non-resident parent and would therefore be subject to an exclusion period).
Policy, however, applies a strong caveat by stating that;
To waive the requirements of any or all of PIC 4020(1)(a), 4020(1)(b) and 4020(2), the
applicant's claims must have a compelling or compassionate element particular to that
individual case that are beyond those usually present in that visa caseload.
For example, applications under the Family Stream are based on a close family relationship,
and the possible separation of family members should a visa be refused would not generally be
considered sufficient to waive the requirements of PIC 4020.
Factors for considering a waiver of any or all of PIC 4020(1)(a), 4020(1)(b) and 4020(2), would
include, but are not limited to, the following:
a child who is an Australian citizen, permanent resident or eligible New Zealand citizen
residing in Australia who would be adversely affected by a decision not to waive. Factors
to consider would include:
existing family networks already in Australia
whether the applicant is part of the child's immediate family
whether there are any significant health or welfare issues affecting an Australian citizen,
Australian permanent resident or eligible New Zealand citizen. Factors to consider:

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absence of other carers in Australia


whether the illness of the Australian citizen, permanent resident or New Zealand citizen
is debilitating, permanent and requires ongoing care (that is, it is not a temporary illness,
or an illness that does not require continuous care)
where a decision not to waive would result in the continuing separation of immediate
family members, because of an inability of the Australian citizen, permanent resident or
eligible New Zealand citizen to reside in the applicant's country of residence or a third
country. Factors to consider include:
the applicant's country of residence is a war zone or the sponsor has been found to be a
person to whom Australia owes protection.
the nature and extent of the fraud. Factors to consider include:
the extent of false or misleading information or documents (for example, multiple falsities
or misleading information)
a past history of attempting fraud against Australia's migration program.
With respect to minors, policy self-evidently notes;
Under policy, if an applicant was a minor when they were included as a family unit member in
an application where false or misleading information and/or a bogus document/s was given, the
minor should not be penalised if they subsequently apply for a visa in their own right as a
primary applicant.
This is because it would be difficult to find that a minor can be taken to be attributed the actions
of a parent/s, such that the minor fails to satisfy PIC 4020(1) and therefore fails to satisfy
PIC 4020(2) for the following three years.
It is also to be noted that decisions refusing to waive PIC 4020 are very hard to appeal as can be seen
from the decision of Hartnett J in Lakhani v Minister for Immigration [2013] FCCA 451 (12 June 2013);
28. The Applicant argues that the Tribunal error in its interpretation of the phrase compelling
circumstances that affect the interests of Australia in PIC 4020(4)(a) by refusing to properly
consider the interests of the Applicants employer, the Royal Victorian Eye and Ear Hospital. It
is argued this error of law resulted in jurisdictional error.
29. There is no definition of compelling or compassionate circumstances in the Act or
Regulations. This is very much a question of fact finding and weight given to the relevant
evidence by the Tribunal. In the exercise of its discretion, the Tribunal, in a not unduly restrictive
approach, was not persuaded that the application of PIC 4020 ought to have been waived. This
was open to it on the evidence which was absent, any direct evidence from the Applicants
current employer save as to evidence of employment, and it is not for this Court to engage in a
review of the merits (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6;
(1996) 185 CLR 259).

Temporal issues
PIC 4020(1) applies such that there can be no evidence that an applicant has provided
bogus/false/misleading documents/information in relation to the visa application under consideration or

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in respect of an earlier visa granted and held by the applicant in the 12 months prior to the application
under consideration having been lodged.
PIC 4020(2) provides that the applicant and each member of the applicants family unit (whether they
are included in the application for the further visa or not) must not have been refused a visa because of
a failure to satisfy PIC 4020(1) during a specified period. That period starts three years before the
(further) visa application was made (ie the one being considered) and ends when a decision is made to
grant or refuse the application (that is, a decision under s65 to grant or refuse a visa). The question of
when the 3 year ban period commences, however, depends on the interpretation of has not been
refused in PIC 4020(2)(b) and it was not clear immediately whether this included a later decision of
the MRT to affirm a PIC 4020 decision of the Department. Our view was that it did not and this has
been confirmed by the Department ie the time spent in the Tribunal reduces the overall operation of
the 3 year ban. Thus it is the date of the delegates decision that will be recorded on CMAL.
Finally, it should be noted that the PIC applies as a one fails, all fail criterion. However, if a decision is
made to refuse a visa to the primary applicant on the basis that a family unit member fails PIC 4020, it
is not correct to state that that primary applicant has failed to satisfy PIC 4020. Rather, the primary
applicant has not satisfied, for example, clause 186.213(3) (ie. the one fails, all fail) criterion.

Procedural matters
It should not be forgotten that the codified natural justice provision in s 57 only applies with respect to
onshore visa applications and in respect of which there is merits review available. It is, however,
Departmental policy that a similar degree of procedural fairness is to be accorded to offshore visa
applicants albeit that this obligation is not enshrined in law.
Interestingly, the Departments policy states that the Department should only act under PIC 4020
concerning the provision of false or misleading information/bogus documents in respect of a visa held
by an applicant within the last 12 months where there is evidence that;
the giving of false or misleading information or a bogus document/s was proven and this
was put to the applicant, that is, the applicant was given procedural fairness at the time;
or
the giving of false or misleading information or a bogus document/s was proven as part
of a departmental investigation.
This suggests a higher level of satisfaction is required with respect to this ability to claw back to an
earlier visa granted to an applicant, although we should query the Departments use of the word
proven in respect of a Departmental investigation! The example is illustrative;
Mr Jack Brown, currently holds Working Holiday (subclass 417) visa; he lodges an application
for a Business (Long Stay) (subclass 457) visa on 30 March 2011.
In his current application, Mr Brown states that he had an aggravated assault charge in 2006
which resulted in him receiving a 12 month jail sentence. Mr Brown failed to declare this
information in a previous application for a subclass 417 visa.
As there is evidence to suggest that Mr Brown gave information that was false or misleading in
a material particular in relation to visa held in the 12 month period before the application for a
Subclass 457 visa was made, he should be invited to comment.

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If, after receiving Mr Browns response, the decision maker remains of the view that the
information provided on the Working Holiday 471 visa was false or misleading in a material
particular and, if Mr Brown is not able to demonstrate compelling and/or compassionate
circumstances in accordance with PIC 4020(4), his current application should be refused.
Note: Decision makers should not routinely request previous files for the purpose of
investigating or verifying the veracity of information or document/s for the purposes PIC 4020.
However, further action is warranted if the applicants case records in ICSE indicate
inconsistencies or matters that were part of a departmental investigation.
Thus where there has been a failure to provide correct answers on a previous visa application it is no
longer a useful strategy (not that it probably ever was) to simply bang in a Notice of Incorrect Answer,
hope for the best and lodge a further application with the correct answers, particularly where the
person might not have been granted that earlier visa had the correct information been known. Rather,
in the event it was a temporary visa, the client should wait until 12 months after the expiry of the visa
before applying for the further visa see below.

Strategies
1. Lodge an appeal on the MRT.
As the 3 year ban is calculated from the time of the visa refusal by the Department, the time it
takes for the Tribunal to hear and determine the review will effectively come off that period
provided the applicant does not hold a bridging E visa as a result of a visa cancellation decision
at some point. Thus, if there is any waiver material, a review in the MRT would be beneficial
from that point of view. However, clients should be advised when considering appealing to the
MRT that it has vastly improved its triage processes and hopeless/weak cases are being
identified as and dealt with by MAHL processes, often within a 3 to 6 month period of lodging a
review application.
2. Wait and withdraw.
If the applicant provided false or misleading information or a bogus document in support of a
visa application and that visa was granted but has ceased close to 12 months ago and, before it
ceased, he or she applied for an intervening visa that has taken, or may take, over 12 months to
decide it may be appropriate to wait until 12 months after the expiry of the last substantive visa,
withdraw the intervening visa application and then apply for, say, an onshore ENS visa which
can be applied for from a bridging A provided an applicant is not subject to s 48 of the Act. The
ENS application would of course need to be lodged with non-bogus documents (including the
documents used to get those documents) and 100% accurate information. There are not many
visa categories that allow for applications to be made 12 months or more since the applicant
last held a substantive visa but Partner (subject to waiver of Schedule 3 requirements) and ENS
visas are two that do. An offshore visa may also be warranted such as a subclass 457 or
Student visa application but remember that each of those have genuine temporary entrant
criteria that could be used against an applicant even if PIC 4020 cannot be relied upon by the
delegate. And expect that the application will be gone through with a fine tooth comb!
3. Withdraw and re-lodge
In cases involving false or misleading claims regarding the dependence of family unit members,
it may be that the only available option is to withdraw the offshore visa application and reapply

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and not include the non-dependent family member in the visa application. Of course, the
Department will be miffed and will look very, very closely at all of the answers and documents
submitted in support of the later application. Prosecution under various provisions of the Act
also remains an option and clients should be warned about them.
4. Consider non- PIC 4020 affected visa categories
Where an applicant has been refused a visa under PIC 4020 there may be a visa that is not
subject to the PIC that he or she can apply for. Examples currently include a Protection visa,
Confirmatory visa and Distinguished Talent visa not much!
5. Go slow on processing
Alternatively, note that as PIC 4020 is a time of decision requirement, the 3 year ban might
have elapsed by the time of the visa decision so the average processing times might be
factored into your calculations and the Department might be requested not to make a decision
until after a certain date such that the PIC does not apply. Good luck with that!
6. Alternative basis for refusal
Argue that the visa should be refused on an alternative basis, particularly in the cases of
innocent applicants defrauded or at least misled by their agents or others who were unaware
of the provision of the false information. The Explanatory Statement provides that;
The existing provisions provide grounds for refusal of a visa application in circumstances
where a primary visa applicant has provided false and misleading information to satisfy
the requirements listed in the provision.
This amendment ensures that a primary visa applicant is not required to satisfy a
separate visa criterion in addition to the new clause 4020, which seeks to prevent the
same mischief as the clause 4020.
However, as I have argued, in my view PIC 4020 should not be applied in each and every case
where it is open to do so and policy should identify and decision-makers should consider where
it is too heavy-handed an approach, such as in the 900 hours cases where applicants did not
know they fell just short and they later made up the hours and obtained genuine TRA skills
assessments. If your case is in the MRT, you could argue that the Tribunal should direct that
the applicant meets PIC 4020 (ie it is waived) but affirm the decision on another basis ie failure
to meet clause 485.221, such that the 3 year ban does not apply.
7. Dont seek Ministerial intervention
This would enliven the operation of PIC 4014 another 3 year ban but starting on the date the
applicant departs Australia due to the applicant holding rolling bridging E visas throughout the
Ministerial consideration process.

PIC 4020 and other potential powers to refuse or cancel visas: section 501
PIC 4020 thus now sits alongside s 501 (the character provision) which can be used to refuse or
cancel a visa, as well as various visa cancellation powers in the Migration Act, not to mention the
numerous criminal provisions under the Migration Act.
With respect to s 501, which is broad enough under its past and present general conduct limb, to be a
basis for the refusal of visas on the same basis, it is clear that there has been a shift by the

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Department (and the Minister when acting personally) whereby s 501 is being used primarily, if not
exclusively, for applicants and visa holders who have criminal convictions or who have engaged in
criminal (and adverse national security) behaviour that is suspected and/or pending in the Courts.
This is a good thing as a permanent ban for the provision of incorrect/misleading information is surely
too harsh. Having had a very sick, pregnant Cambodian client in immigration detention with an
Australian husband and an Australian citizen child on the way, who could not be released on a bridging
visa throughout an extensive AAT appeal process that was ultimately successful, whose only crime
was to have provided incorrect information in her Visitor visa application, PIC 4020 would have been a
welcome alternative to s 501 (see Ieng Ly v MIMA [2000] FCA 217 per North J at para 10 Parliament
has enacted a regime which does not give the Court power to do so [release the applicant on a
bridging visa], even in compelling circumstances.)
Apart from the permanence of the ban under s 501, PIC 4020 cannot be used to cancel an applicants
visa once the visa has been granted, whereas s 501 covers refusal or cancellation of a visa on
character grounds. The exercise of the power is governed by Ministerial Directions (currently No. 55)
as to which it is noteworthy that;
Senator CASH: Did ministerial directive 41 [replaced by 55] also abolish references to non-
citizens providing bogus documentation or providing a misleading statement or declaration as
relevant to the consideration of a person's general conduct when considering whether they are
of good character?
Mr Illingworth : Yes. There is an issue in drafting documents such as a ministerial direction on
character considerations. There is always a tension and it is one that plays out in the courts
when they try to interpret documents such as this.
Legal and Constitutional Affairs Legislation Committee, 24/05/2011
Section 501 also has a pretty broad waiver provision that can be exercised despite a person being
found not to meet the character test, albeit that the Minister has the final say and can overturn AAT
decisions in the national interest.
According to extrinsic materials and case law, the purpose of PIC 4020 is ostensibly to ensure that a
person truly does meet the criteria for a visa, whereas the purpose of s 501 is to ensure that all
persons who wish to enter or remain in Australia meet certain standards of conduct and character and
improve the ability of the Government to deal effectively with persons who cause, or may cause, harm
to the Australian community. Thus PIC 4020 concerns primarily the integrity of our migration
program, whereas s 501 is about risk and minimising threats to the community and assessing the
national interest on a case-by-case basis.

General cancellation powers


The Department makes visa cancellation decisions for breaches of visa conditions and other reasons
under specified powers within the Act (for example, under sections 109, 116, 128 and 137J). Sections
109 and 116(1)(d) of the Act provide a specific power to cancel a visa where a holder has given the
Department a bogus document (as defined in section 97 of the Act) in support of their visa application.
Section 109 also allows for the cancellation of a current visa based on provision of a bogus document
in relation to any previous visa held.
The Department makes visa cancellation decisions for breaches of visa conditions and other reasons
under specified powers within the Act (for example, under sections 109, 116, 128 and 137J). Section

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109 provides a specific power to cancel a visa where a holder has given the Department a bogus
document (as defined in section 97) or incorrect answers (defined under s 101). Section 109 also
allows for the cancellation of a current visa based on provision of a bogus document or incorrect
information in relation to any previous visa held.
Section 101 contains the obligation on visa holders not to supply incorrect answers in relation to a
visa application, and provides;
101. A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
By virtue of s 100 of the Act, a visa holder or applicant may have provided incorrect answers, whether
or not they were aware that the answer was incorrect. This language is helpful in understanding the
application of the power and it is troubling that similar language was not expressly used in respect of
PIC 4020, yet the Courts have not deemed this to be significant in finding the lack of a mental
element in PIC 4020.
Section 109 of the Act provides the power to cancel a visa where the obligation under s 101 has been
breached. The power contained in s 109 is exercised in two stages, requiring the decision-maker first
to make a positive finding regarding the particulars of the breach alleged, then take into account
certain prescribed circumstances, before exercising the cancellation power. For the purposes of s
109(2), the relevant prescribed circumstances are set out at Regulation 2.41 of the Migration
Regulations, an include the following broad-ranging considerations;
(a) the correct information;
(b) the content of the genuine document (if any);
(c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the
correct information or the genuine document;
(d) the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations
under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non-compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non-compliance;
(j) any breaches of the law since the non-compliance and the seriousness of those
breaches;
(k) any contribution made by the holder to the community.
Thus, while the obligation not to provide incorrect answers under ss 100 and 101 does not require a
mental element and arises whether or not the visa applicant knew the information to be incorrect, the
question of the visa holders state of mind and degree of culpability must be closely considered prior to
the cancellation of a visa under s 109. Departmental policy further expands the matters that may be
taken into account under Reg 2.41 as follows;

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It is policy that delegates also consider the following matters, where relevant:
whether the visa would still have been granted if the correct information had been given -
if so the visa should not be cancelled
whether there are persons in Australia whose visas would, or may, be cancelled under
s140 - see Act, s140 - Consequential cancellation
whether Australia has obligations under relevant international agreements that would or
may be breached as a result of the visa cancellation
any other matters raised by the visa holder in their response.
The above considerations are essential. Deterrence is one thing but case officers should have
adequate capacity to determine when it is appropriate to make an example of someone and when it is
not.

Criminal prosecution
It is very important to be mindful when advising clients in this area to be aware of the myriad provisions
in the Migration Act and various Criminal Codes that provide for the criminal prosecution of persons
who have provided false or misleading information or bogus documents to the Department and others
in connection with a visa application. These will be dealt with in some detail later. Certainly, as is
evident from the proposed expanded terms of PIC 4020, offences in relation to identity fraud seem to
be of particular concern to the government and prosecutions have taken place in this area and can
even result in the removal of citizenship.
The main general provision in the Act under which a person can be prosecuted for providing
information or documents that would run afoul of PIC 4020 is s 234. It provides;
False documents and false or misleading information etc. relating to non-citizens
(1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of
a non-citizen (including that person himself or herself) into Australia or with an application for a
visa or a further visa permitting a non-citizen (including that person himself or herself) to remain
in Australia:
(a) present, or cause to be presented, to an officer or a person exercising powers or performing
functions under this Act a document which is forged or false;
(b) make, or cause to be made, to an officer or a person exercising powers or performing
functions under this Act a statement that, to the person's knowledge, is false or misleading in a
material particular; or
(c) deliver, or cause to be delivered, to an officer or a person exercising powers or performing
functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of
the Commonwealth, a document containing a statement or information that is false or
misleading in a material particular.
(2) A person shall not transfer or part with possession of a document:
(a) with intent that the document be used to help a person, being a person not entitled to use it,
to gain entry, or to remain in, Australia or to be immigration cleared; or
(b) where the person has reason to suspect that the document may be so used.

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Penalty: Imprisonment for 10 years or 1,000 penalty units [currently $170.00 ie $170,000.00], or
both.
There are also the numerous provisions under Division 12, Subdivision B Offences relating to abuse
of laws allowing spouses etc which go to the much broader circumstance where a person is in a
contrived married or de facto relationship or arranges such a relationship or provides evidence in
support of such a relationship knowing it to be untrue. These provisions thus also concern fraudulent
mis-statements. However, as they impose criminal penalties, a mental element is introduced into
these provisions by s.5.6 of the Criminal Code.
PIC 4020 issues also have even more serious ramifications: the same behaviour can constitute a
breach of the Criminal Code. There are a plethora of dishonesty offences set out. Even the offence
of general dishonesty attracts a penalty of imprisonment for five years, which offence is set out at s
135.1:
Obtaining a gain
(1) A person is guilty of an offence if:
(a) the person does anything with the intention of dishonestly obtaining a gain from
another person; and
(b) the other person is a Commonwealth entity.
Penalty: Imprisonment for 5 years.
Causing a loss
(3) A person is guilty of an offence if:
(a) the person does anything with the intention of dishonestly causing a loss to
another person; and
(b) the other person is a Commonwealth entity.
Particularly pertinently, s 136.1 makes an offence of the provision of false or misleading statements in
applications:
(1) A person is guilty of an offence if:
(a) the person makes a statement (whether orally, in a document or in any other
way); and
(b) the person does so knowing that the statement:
(i) is false or misleading; or
(ii) omits any matter or thing without which the statement is misleading; and
(c) the statement is made in, or in connection with:
(i) an application for a licence, permit or authority; or
(ii) an application for registration; or
(iii) an application or claim for a benefit; and
(d) any of the following subparagraphs applies:
(i) the statement is made to a Commonwealth entity;

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(ii) the statement is made to a person who is exercising powers or performing


functions under, or in connection with, a law of the Commonwealth;
(iii) the statement is made in compliance or purported compliance with a law of
the Commonwealth.
Penalty: Imprisonment for 12 months.
These offences are absolute liability offences and are prosecuted; see,
Bourakov and Minister for Immigration and Citizenship [2007] AATA 1093 (1 March
2007)
o Character test AND s 234 considered false application with false documents
Chea and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA
1315 (2 December 2004)
Dobie v Commonwealth of Australia [2013] FCA 1224 (19 November 2013)

Citizenship revocation
Relevantly to instances of fraud, section 34(2) of the Australian Citizenship Act 2007 gives the Minister
the discretion to revoke a persons Australian citizenship by conferral where any of the following apply;
(i) the person has been convicted of an offence against section 50 of this Act, or section 137.1
or 137.2 of the Criminal Code, in relation to the person's application to become an Australian
citizen; [...]
(iii) the person obtained the Minister's approval to become an Australian citizen as a result
of migration-related fraud within the meaning of subsection (6);
(iv) the person obtained the Minister's approval to become an Australian citizen as a result
of third-party fraud within the meaning of subsection (8); and
(c) the Minister is satisfied that it would be contrary to the public interest for the person to
remain an Australian citizen.
The Minister may do so in such circumstances regardless of whether the applicant would be stateless
as a result.
Thus the fraud under (i) is to relate to the persons citizenship application. However, paragraph (iii)
concerns migration related fraud committed at any time prior to the persons acquisition of citizenship
as defined in subsection (6)(a); namely, where the person has been convicted of an offence against;
(i) section 234, 236 or 243, or former section 244 (as in force before its repeal by the Same-Sex
Relationships (Equal Treatment in Commonwealth Laws--General Law Reform) Act 2008), of
the Migration Act 1958 ; or
(ii) section 134.1, 134.2, 135.1, 135.2, 135.4 or 136.1 of the Criminal Code;
and where;
(b) the act or omission that constituted the offence was connected with the person's entry into
Australia or the grant to the person of a visa or of a permission to enter and remain in Australia.

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(7) Subsection (6) does not apply to a person in respect of an offence if the Minister is satisfied
that the act or omission that constituted that offence was not in any way (whether directly or
indirectly) material to the person becoming a permanent resident. [emphasis added]
The further ground under paragraph (iv) relates to third-party fraud as defined in paragraph (8);
(8) For the purposes of this section, a person (the applicant) obtained the Minister's approval to
become an Australian citizen as a result of third-party fraud if and only if:
(a) at any time, another person was convicted of an offence against section 50 of this Act, or
section 134.1, 135.2, 135.4, 136.1, 137.1, 137.2, 139.1, 141.1, 142.1, 142.2, 144.1, 145.1,
145.2, 145.4, 145.5 or 149.1 of the Criminal Code, that the other person committed at any time
before the Minister gave the approval; and
(b) the act or omission that constituted the offence was connected with the Minister approving
the applicant becoming an Australian citizen.
Section 36 also gives the Minister the discretion to revoke a childs Australian citizenship where a
responsible parent has ceased to be an Australian citizen under s 34.
A recent news article in The Age concerning the prosecution of a man and subsequent potential
revocation of his citizenship shows that the Minister clearly intends to up the ante in these cases and
we may be seeing more such action by the Department and the OPP;
AN Indian man convicted of identity fraud faces becoming the first person in seven years
to be stripped of Australian citizenship and deported.
Immigration Minister Scott Morrison revealed his department was examining the case of
Victorian businessman Randeep Singh Waraich.
Mr Morrison said Mr Waraich was found guilty in the Heidelberg Magistrates' Court last week of
supplying false information in his applications for Australian visas and citizenship documents
and was fined $5000 and ordered to pay court costs.
"The conviction means Mr Waraich may be liable for revocation of his Australian citizenship," Mr
Morrison said.
"The Department of Immigration and Border Protection identified that this Thomastown resident
had assumed a false identity in an attempt to circumvent Australia's border control and
migration laws."
If his citizenship is revoked, Mr Waraich would become just the 15th person to suffer that fate in
64 years.
Mr Morrison said he welcomed the successful prosecution under the Migration Act and the -
Australian Citizenship Act.
"Where the department becomes aware of fraud, the matters are fully investigated and can
result in both criminal and administrative penalties."
Mr Morrison said it should be a clear warning to others.
"My department works closely with other government agencies, both federal and state, to assist
in the identification and prosecution of people committing such identity crimes," he said.
http://www.news.com.au/national/victoria/indian-man-could-be-first-person-to-have-citizenship-
stripped-in-seven-years-after-fraud-ruling/story-fnii5sms-1226774472231

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In response to a request as to what proportion of the 14 citizenship revocations were for fraud, I
received this table from Robert Day, the Director of the Citizenship Section of the Department;

Old Act 1948 New Act 2007 Total


We can
Number of cases 10 4 14 expect the
numbers to
Convictions for 5 3 8
increase. Cl
migration and
ients should
citizenship fraud
be warned
of this
Convictions for 5 1 6
potential
serious offences
consequenc
e. They should be well represented in any prosecution which could trigger any of the
above provisions. Be aware that a plea of guilty could be used by the Department as evidence of an
admission for PIC purposes. Further, because the plea is often entered by the solicitor or barrister
representing the client, lawyers should be aware of s 87 of the Evidence Act 1995 (Cth) concerning
admissions, including arguably those made through a persons lawyer. The provision states;
Admissions made with authority
(1) For the purpose of determining whether a previous representation made by a person is
also taken to be an admission by a party, the court is to admit the representation if it is
reasonably open to find that:
(a) when the representation was made, the person had authority to make statements
on behalf of the party in relation to the matter with respect to which the
representation was made; or
(b) when the representation was made, the person was an employee of the party, or
had authority otherwise to act for the party, and the representation related to a
matter within the scope of the person's employment or authority; or
(c) the representation was made by the person in furtherance of a common purpose
(whether lawful or not) that the person had with the party or one or more persons
including the party.
(2) For the purposes of this section, the hearsay rule does not apply to a previous
representation made by a person that tends to prove:
(a) that the person had authority to make statements on behalf of another person in
relation to a matter; or
(b) that the person was an employee of another person or had authority otherwise to
act for another person; or
(c) the scope of the person's employment or authority.
Where no prosecution has been initiated, this provision can also make the lawyers job very difficult
when dealing with the Department in a PIC 4020 matter. A client may be advised not to make
admissions about criminal conduct but may nevertheless wish to seek a waiver of PIC 4020. To avoid
s. 87(1), submissions may need to appear rather obtuse and simply address a waiver, without dealing

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with the alleged fraud at all. My advice is to have a competent criminal barrister on your speed dial so
as to ensure you are giving your client adequate warnings and also not run the risk of making
admissions on his behalf that will later be used in a prosecution with you as the star witness!

Conclusion
Sadly, the cases we are seeing more and more are those involving refugee families who have tried to
bring orphaned family members as closer relatives than they in fact are (despite the definition of
member of the family unit being broad enough for them to have just told the truth) or otherwise trying
desperately to reunite close family members in the face of the removal of other pathways for such
family reunification, particularly to those who arrived by boat. The inclusion of a bogus document to
establish the false relationship will, without further assessment, bring PIC 4020 into operation and the
applicant will be forced to rely on the waiver. As the policy makes it clear that the interests of
Australian citizens that would inevitably be affected by virtue of the visa category being applied for
are not to be taken into account, including, for example, husbands, wives and children, I am afraid that,
despite these highly compassionate factors, the waiver is so limited that it may not save such a family
and, indeed, they may be found to be subject to the ten year ban under the new PIC 4020 due to
identity fraud in the current application (the subclass 309 visa was granted, the subclass 100 is
pending).
Where the visa application is in the family stream, policy states that the possible separation of family
members, including Australian citizen family members, should a refusal generate a PIC 4020 finding,
would not generally be considered sufficient to waive the requirements of PIC 4020. Surely, in
circumstances where Australia potentially has non-refoulement obligations, unaccompanied minor
children in war zones and the potential separation of immediate family unit members, including
Australian citizen children, even the threat of PIC 4020 is too much, let alone the application of it. The
work required to identify information from files, prepare statements and draft detailed submissions
including country research for mini-protection claims is prohibitive for these families. As I have said,
greater care needs to be taken before a NOIR under PIC 4020 letter is sent as they will simply further
traumatise split families simply seeking security and protection for their family members.
The balance between the integrity of the migration program and basic human needs and frailties must
be able to be considered and assessed with compassion. PIC 4020 does not permit this and is
another overreaction by the government that has the capacity to work grave injustice and to be applied
in a discriminatory manner.

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Fraud & Compliance: Unpicking PIC 4020

David Wilden, Assistant Secretary,


Skilled Migration Policy Branch,
Migration and Citizenship Policy Division,
Department of Immigration and Border Protection

Issue:
Integrity and compliance checks have always been an important part of immigration regulation. PIC 4020
has become a key part of this regime has been progressively rolled out to skilled, student, and business
streams is now part of the processing requirements for family stream visas.
This session considers PIC 4020 in its historical and legislative context. This Panel will examine the
background to PIC 4020 and compare it with previous integrity and compliance provisions, the
Department of Immigration and Border Protection will discuss current policy and practice and Panellists
will review how the Tribunals and the Courts have approached this provision.
Background:
Character checks are an integral part of the visa assessment process under all visa programmes
accessible to overseas migrants. Government policy requests that persons entering Australia must be of
good character and this requirement is prescribed against Public Interest Criteria (PIC) 4001 within
Schedule 4 of the Migration Regulations 1994 (the Regulations). The overall objective of the character
requirement is to exclude from Australia persons whose conduct or association with individuals or
organisations is such that the presence of such persons in Australia would not be in the interests of the
Australian community or a segment of that community.
In 2001, Ernst and Young conducted an internal departmental audit of the character assessment process
for visa applicants. They identified concerns with the existing framework for addressing immigration fraud
in the visa caseload which largely relied upon use of the character powers within section 501 of the
Migration Act 1958 (the Act) (see Attachment A).
These powers within s501 of the Act focus on determining whether an applicant should or should not be
excluded from the grant of a visa on the basis of issues relating primarily to character most commonly
serious criminal offences. This power within the Act had not proven to be a good fit in terms of
addressing caseload fraud which commonly fails to meet the threshold for triggering a refusal on
character grounds.
The Administrative Appeals Tribunal and the Federal Court had made, prior to the implementation of
Public Interest Criteria (PIC) 4020, adverse findings regarding the inappropriate use of section 501 in
cases involving immigration fraud, that is, the nature of the immigration fraud and its bearing on a
persons character. Again, prior to the implementation of PIC 4020, immigration fraud issues could only

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be dealt under the character powers available within the Act, with Ministerial Direction 21 (which provides
guidance for decision makers on how decisions under section 501 should be made) defining immigration
fraud as a very serious offence. This did not distinguish between conduct that reflects on a persons
character and more minor conduct which does not.
Section 109 of the Act provides for visas to be cancelled for the provision of incorrect information. It does
not allow for refusal of an application. The Ernst and Young audit recommended that the department
should consider introducing a separate and specific power to refuse visas where applicants have
provided false or misleading information. The phrase provision or false or misleading information was
proposed in order to cover a range of conduct concerns of a visa applicant including, but not limited to:
The presentation of bogus documentation (a term defined in the Act) in connection with a visa
application;
The presentation of false claims in order to satisfy the eligibility criteria for a visa; and
Identity fraud (for example, an individual changing one or more aspects of their identity
information, or representing himself or herself as another person or as a fictitious person to obtain
an immigration outcome in representations made to the department within their application for a
visa).
Example of deficiency in legislative framework prior to the implementation of PIC 4020:
The outcome of the 2006-08 Operation Blueberry Investigation into work experience fraud in the onshore
General Skilled migration (GSM) caseload and conducted across a minimum number of states provided
rise to the implementation of PIC 4020.
This investigation uncovered a systemic pattern involving the production and use of false and misleading
work references which were used to claim skilled work experience points under the GSM points test (now
known as the Points Tested visa programme). Notwithstanding that such fraud was identified, many of
the applicants concerned were still able to meet the pass mark by other means, such as designated
security points.
As applicants were able to meet the requirements of the GSM regulations, despite the provision of false,
misleading and/or bogus information and/or documentation, there was no lawful reason to refuse those
applications. As well as being obviously anomalous, this scenario conveyed an unfortunate message to
the market place.
Recognising that this situation was untenable, the changes that were introduced under the GSM
programme in 2007, whilst providing more effective powers to address fraud in part of the caseload, it
was noted that (a) the ambit of that power is no longer considered sufficient; and (b) there is a need to
develop provisions which can be applied more broadly across most visa classes.
Implementation of PIC 4020 under the Skilled caseload
In late 2007, the then Migration and Temporary Entry Division was tasked with taking forward the
implementation of PIC 4020 and to ensure the effective roll out of this PIC. Extensive consultation was
had with a number of stakeholders internal to the department, including the service delivery network,
legal and the border security and compliance divisions, to set the scope of the powers that would be
provided under the PIC, and ascertain the most appropriate way to legislate this power to give it effect.

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Based on these consultations, the department considered that the best way to give effect to the proposed
provision was to develop a new PIC under Schedule 4 of the Migration Regulations (the Regulations). It
was proposed that the PIC would:
a) provide for a discretionary decision on whether an individual application should be refused;
b) stipulate a requirement that each application is to be assessed on its own merit;
c) clearly outline that the provision of the false or misleading information in the visa application
process would have to have occurred in the context of the application on hands and be both
material to the decision and, clearly evident as opposed to merely suspected; and
d) be open to the decision maker to find that, on balance, the circumstances of the provision of the
false or misleading information were not of such weight as to warrant refusal of the application (ie.
the insertion of a waiver provision).
Roll-out of PIC 4020
PIC 4020 was inserted into the Regulations with effect from 2 April 2011, applied to the Skilled caseload
and was retrospectively applied.
On 5 November 2011, the PIC was rolled out to the Student visa programme, and then on 1 July 2013,
the Family visa programme. In all instances, the PIC was applied retrospectively.
It was scoped in the initial drafting of the PIC that, over time, it would be rolled out to all visas to which a
persons seeking to migrate to Australia is able to apply for, regardless of the period of stay in which a
person was seeking to achieve (ie. temporary, provisional or permanent) however would exclude such
visas as, but not limited to:
a) Bridging visas
b) Criminal Justice Visas
c) Protection Visas; and
d) Tourist Visas.
At February 2014, PIC 4020 has been rolled out under the following visa subclasses:
a) The points tested visa programme;
b) The permanent employer sponsored entry visa programme;
c) The business skills visa programme (including the Significant Investor visa);
d) The Subclass 457 visa programme;
e) The student visa programme (including the Skilled Graduate (subclass 485) visa;
f) The 400 series visa programme; and
g) The family/partner visa programme.
and has a universal application (ie. the requirements of the PIC do not deviate dependant on the type of
visa in which an applicant is seeking to apply for).
A copy of the current version of PIC 4020 is provided at Attachment B.

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Finalised Year Role
2011/2012 2012/2013
2011/2012 Total 2012/2013 Total 2013/2014 2013/2014 Total
Outcome Subclass Refusal/Withdrawal Reason Principal Secondary Principal Secondary Principal Secondary
Rejected 175 Fraud PIC - 3 year Exclusion applies 20 29 49 21 14 35 8 15 23
Fraud PIC - Fraudulent documentation 14 17 31 45 56 101 32 49 81
175 Total 34 46 80 66 70 136 40 64 104
176 Fraud PIC - 3 year Exclusion applies 16 36 52 12 4 16
Fraud PIC - Fraudulent documentation 14 17 31 25 21 46 10 18 28
176 Total 30 53 83 37 25 62 10 18 28
475 Fraud PIC - 3 year Exclusion applies 5 10 15 14 11 25 3 7 10
Fraud PIC - Fraudulent documentation 10 12 22 28 24 52 10 12 22
475 Total 15 22 37 42 35 77 13 19 32
487 Fraud PIC - 3 year Exclusion applies 9 6 15 3 3 4 4 8
Fraud PIC - Fraudulent documentation 2 2 4 3 7 1 3 4
487 Total 11 6 17 7 3 10 5 7 12
495 Fraud PIC - Fraudulent documentation 1 1
495 Total 1 1
496 Fraud PIC - Fraudulent documentation 1 2 3
496 Total 1 2 3
880 Fraud PIC - 3 year Exclusion applies 4 2 6 6 4 10 1 1
Fraud PIC - Fraudulent documentation 6 2 8 3 3
880 Total 10 4 14 9 4 13 1 1
885 Fraud PIC - 3 year Exclusion applies 15 9 24 22 16 38 18 20 38
Fraud PIC - Fraudulent documentation 4 2 6 15 6 21 27 17 44
885 Total 19 11 30 37 22 59 45 37 82
886 Fraud PIC - 3 year Exclusion applies 25 4 29 11 3 14 5 5 10
Fraud PIC - Fraudulent documentation 8 2 10 8 1 9 6 4 10
886 Total 33 6 39 19 4 23 11 9 20
Rejected Total 153 150 303 217 163 380 126 154 280
Grand Total 153 150 303 217 163 380 126 154 280

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856, 857 Refusals PIC 4020

SubClass RQST_ROLE_TYPE_CD Rfsl_rsn 2010/2011 2011/2012 2012/2013 2013/2014


Fraud PIC - 3 year Exclusion
856 1 applies 2 2
Fraud PIC - Fraudulent
856 1 documentation 1 1
Fraud PIC - 3 year Exclusion
856 2 applies 3 2
Fraud PIC - Fraudulent
856 2 documentation 1 1
Fraud PIC - 3 year Exclusion
857 1 applies 1 3 1
Fraud PIC - 3 year Exclusion
857 2 applies 5 1
TOTALS 2 8 12 2

Subclass 457, 570-573 and 580 visa granted between Subclass 457, 570-573 and 580 visa applications refused
1 April 2011 and 31 December 2013 between
1 April 2011 and 31 December 2013 where fraud document was
recorded
Visa
Total Granted Total Refused -
Subclass Visa
Fraud doc
457 329 011 Subclass
recorded
570 79 579 457 82
571 26 662 570 209
572 178 657 571 61
573 335 569 572 589
580 3 020 573 600
580 12

109
Outcomes on PIC 4020 Departmental Refusals and the Migration Review
Tribunal (to 18 December
2013)

Decided cases from 1 April 2011 to 18 December 2013 which include PIC
4020 profile

Decided cases with issue of PIC 4020 by case category and visa subclass
1 April 2011 to 18 December 2013
%S/A by % S/A of
Visa subclass/issue S/A Aff NJ Total issue total
(row) cases
Permanent business refusal
856
PIC 4020 0 1 1 2 0.00% 0.00%
857
PIC 4020 0 4 1 5 0.00% 0.00%
Skill linked refusal
176
PIC 4020 0 0 1 1 0.00% 0.00%
485
PIC 4020 2 40 14 56 3.60% 3.60%
880
PIC 4020 1 5 0 6 16.70% 16.70%
885
PIC 4020 4 11 0 15 26.70% 26.70%
886
PIC 4020 4 3 0 7 57.10% 57.10%
Student refusal
570
PIC 4020 0 2 0 2 0.00% 0.00%
571
PIC 4020 0 1 0 1 0.00% 0.00%
572
PIC 4020 2 9 5 16 12.50% 12.50%
573
PIC 4020 1 5 0 6 16.70% 16.70%
580
PIC 4020 0 0 1 1 0.00% 0.00%
Temporary work refusal
457
PIC 4020 2 3 7 12 16.70% 16.70%
Total 16 84 30 130
Key
S/A: Set aside
Aff: Affirmed
NJ: No Jurisdiction

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Active cases from 1 April 2011 to 18 December 2013 that are with MRT
members and include PIC 4020 issues

Issue Visa Subclass Total


PIC 4020 121 (Employer Nomination Scheme) 1
176 (Skilled - Sponsored) 2
309 (Spouse (Provisional)) 1
457 (Business (Long Stay)) 13
457 (Temporary Work (Skilled)) 2
485 (Skilled - Graduate) 20
570 Independent ELICOS Sector 4
572 Vocational Education and Training Sector 45
573 Higher Education Sector 9
600 (Visitor) 1
845 (Established Business in Australia) 2
856 (Employer Nomination Scheme) 7
857 (Regional Sponsored Migration Scheme) 6
880 (Skilled Independent Overseas Student) 1
885 (Skilled - Independent) 16
886 (Skilled - Sponsored) 3
PIC 4020 Total 133

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Active unallocated cases as at 18 December 2013 which include PIC 4020 profile

Visa subclass/Issue Distinct case count % of cases % of issues Oldest case (days) %>180 days

Family refusal
Subclass 114
PIC 4020 1 100.0% 100.0% 43 0%

Subclass 117
PIC 4020 2 100.0% 100.0% 23 0%

Subclass 445
PIC 4020 1 100.0% 100.0% 62 0%
Family refusal total 4

Partner refusal
Subclass 309
PIC 4020 4 100.0% 100.0% 75 0%

Subclass 820
PIC 4020 15 100.0% 100.0% 92 0%
Partner refusal total 19

Permanent business refusal


Subclass 119
PIC 4020 12 100.0% 100.0% 362 67%

Subclass 121
PIC 4020 1 100.0% 100.0% 239 100%

Subclass 163
PIC 4020 1 100.0% 100.0% 328 100%

Subclass 187
PIC 4020 2 100.0% 100.0% 107 0%

Subclass 845
PIC 4020 1 100.0% 100.0% 308 100%

Subclass 856
PIC 4020 6 100.0% 100.0% 465 67%

Subclass 857

112
PIC 4020 3 100.0% 100.0% 364 67%
Permanent business refusal total 26

Skill linked refusal


Subclass 176
PIC 4020 2 100.0% 100.0% 315 50%

Subclass 189
PIC 4020 1 100.0% 100.0% 15 0%

Subclass 190
PIC 4020 1 100.0% 100.0% 7 0%

Subclass 475
PIC 4020 1 100.0% 100.0% 156 0%

Subclass 485
PIC 4020 63 100.0% 100.0% 567 87%

Subclass 487
PIC 4020 6 100.0% 100.0% 257 33%

Subclass 489
PIC 4020 1 100.0% 100.0% 23 0%

Subclass 880
PIC 4020 2 100.0% 100.0% 519 50%

Subclass 885
PIC 4020 32 100.0% 100.0% 533 47%

Subclass 886
PIC 4020 21 100.0% 100.0% 429 43%

Subclass 887
PIC 4020 1 100.0% 100.0% 526 100%
Skill linked refusal total 131

Student refusal
Subclass 570
PIC 4020 6 100.0% 100.0% 282 50%

Subclass 572

113
PIC 4020 112 100.0% 100.0% 670 65%

Subclass 573
PIC 4020 27 100.0% 100.0% 566 48%
Student refusal total 145

Temporary work refusal


Subclass 457
PIC 4020 23 100.0% 100.0% 426 57%
Total 348

Note:
- Decision for review: All
- Worksteps included in the report: constitution, case allocation, application consolidation, case initiation.
- Age of cases in calendar days since lodgement.
- Sponsor approval refusals and Nominated Activity or position refusals are specifically excluded from this report.
- The 'Distinct case count' counts the number of cases that have the issue. The 'Distinct case count' may not sum up to the total for the visa subclass as cases
can have more than one issue.
- % of cases = Cases with the issue as a percentage of all cases for the visa subclass. Total will exceed 100% if cases have more than one issue.
- % of issues = Occurrence of issue as a proportion of the total number of issues identified for the visa subclass caseload.

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Attachment A
Section 501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not
satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2) The Minister may cancel a visa that has been granted to a person if:
a) the Minister reasonably suspects that the person does not pass
the character test; and
b) the person does not satisfy the Minister that the person passes
the character test.
Decision of Minister natural justice does not apply
(3) The Minister may:
a) refuse to grant a visa to a person; or
b) cancel a visa that has been granted to a person;
if:
c) the Minister reasonably suspects that the person does not pass
the character test; and
d) the Minister is satisfied that the refusal or cancellation is in the
national interest.
(4) The power under subsection (3) may only be exercised by the Minister
personally.
(5) The rules of natural justice, and the code of procedure set out in Subdivision
AB of Division 3 of Part 2, do not apply to a decision under subsection (3).
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by
subsection (7)); or
(aa) the person has been convicted of an offence that was
committed:
(i) while the person was in immigration detention; or
(ii) during an escape by the person from immigration detention;
or
(iii) after the person escaped from immigration detention but
before the person was taken into immigration detention again; or
(ab) the person has been convicted of an offence against
section 197A; or
(b) the person has or has had an association with someone else,
or with a group or organisation, whom the Minister reasonably
suspects has been or is involved in criminal conduct; or

115
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in
Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in
Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment
of that community; or
(v) represent a danger to the Australian community or to a
segment of that community, whether by way of being liable to
become involved in activities that are disruptive to, or in violence
threatening harm to, that community or segment, or in any other
way.
Otherwise, the person passes the character test.
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal
record if:
a) the person has been sentenced to death; or
b) the person has been sentenced to imprisonment for life; or
c) the person has been sentenced to a term of imprisonment of 12
months or more; or
d) the person has been sentenced to 2 or more terms of imprisonment
(whether on one or more occasions), where the total of those terms is
2 years or more; or
e) the person has been acquitted of an offence on the grounds of
unsoundness of mind or insanity, and as a result the person has been
detained in a facility or institution.
Periodic detention
(8) For the purposes of the character test, if a person has been sentenced to
periodic detention, the persons term of imprisonment is taken to be equal to the
number of days the person is required under that sentence to spend in detention.
Residential schemes or programs
(9) For the purposes of the character test, if a person has been convicted of an
offence and the court orders the person to participate in:
a) a residential drug rehabilitation scheme; or
b) a residential program for the mentally ill;

116
the person is taken to have been sentenced to a term of imprisonment
equal to the number of days the person is required to participate in the
scheme or program.
Pardons etc.
(10) For the purposes of the character test, a sentence imposed on a person, or
the conviction of a person for an offence, is to be disregarded if:
a) the conviction concerned has been quashed or otherwise nullified; or
b) the person has been pardoned in relation to the conviction concerned.
Conduct amounting to harassment or molestation
(11) For the purposes of the character test, conduct may amount to harassment
or molestation of a person even though:
a) it does not involve violence, or threatened violence, to the person; or
b) it consists only of damage, or threatened damage, to property
belonging to, in the possession of, or used by, the person.

117
Attachment B

Public Interest Criteria 4020


The Fraud Pic
(1) There is no evidence before the Minister that the applicant has given, or
caused to be given, to the Minister, an officer, the Migration Review
Tribunal, a relevant assessing authority or a Medical Officer of the
Commonwealth, a bogus document or information that is false or
misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the
application was made.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse the
application;
the applicant and each member of a family unit of the applicant has
not been refused a visa because of a failure to satisfy the criteria in
subclause (1).
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister
became aware of the bogus document or information that is false or
misleading in a material particular because of information given by the
applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a)
or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests
of an Australian citizen, an Australian permanent resident or
an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means
information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making
a decision on an application, whether or not the decision is made
because of that information.
Note Regulation 1.03 defines bogus document as having the same meaning
as in section 97 of the Act.

118