Category Archives: Immigration Law

Are you eligible for 494 visa?

You must meet the following:

• Your employer must be located in a designated regional area of Australia and have obtained approval from the Regional Certifying Body (RCB) in your area.
  • (NOTE: The entire State of Western Australia becomes regional area on 16 November 2019)
• Your position is on the relevant occupation list. There is over 700 occupations listed in the instrument for 494 visa.
  • The position must be full-time, genuine and likely to be available for five years
  • You must be paid at the market salary rate
• You hold and obtain positive skills assessment.
• You have at least three years of full time and relevant skilled work experience.
• You are under 45 years of age
• You must demonstrate Competent English

Pathway to Permanent Residency!

You can apply for subclass 191 (Permanent Residence (Skilled Regional)) visa if you meet the following requirements:

• You hold 494 or 491 visa.
• You have worked in the designated regional area for at least three years.
• Either you or your partner made an income of at least $53,900 annually for past three years.

Difference between 494 Visa and 187 Visa

There are 2 main differences compared to the subclass 187 (RSMS) visa:

1. 494 visa is a provisional visa, not a permanent visa.
2. You do NOT require the employer’s nomination to apply for the 191 visa.

Are you on 482 Visa?

IF:

1. You are on 482 visa (especially short-term 2 year visa);

AND

2. You are on the new 494 visa occupation list;

You should consider switching to 494 visa as soon as possible, as the new 494 visa will give you a pathway to permanent residency through subclass 191 visa, whereas the subclass 482 (short term) visa does NOT allow you to apply for permanent visa.

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“I’ve lived here my whole life, why should I apply for Australian citizenship?”

This is a common question we receive from our clients when the subject of citizenship is raised in the course of providing migration assistance.

For many of our clients who have lived in Australia for the majority of their lives, it is hard to imagine a situation where this could change, and for them to imagine themselves as anything other than Australian, as in the recently reported case of Edward McHugh.

The answer to this question is quite shocking. Since the amendments to the Migration Act 1958 (“the Act”), passed in December 2014, there has been an alarming increase in the number of visa cancellations, in the order of 1400%.

The Department of Home Affairs’ powers to cancel visas are extremely broad. Cancellations under Section 116(1)(e) of the Act, on the basis that the visa holder’s continued presence in Australia is a threat to a segment of the community or good public order, are becoming more and more common, and enable the Department to cancel visas before a finding of criminal guilt is even determined.

Meaning that you could have your visa cancelled before even being found guilty of the offence you are being charged with, and even if you are acquitted at trial, an application for merits review before the Administrative Appeals Tribunal (AAT) is required to reverse the consequential visa cancellation.

This is in addition to the powers under Section 501 of the Act to automatically cancel visas upon the finding of criminal guilt, where you are sentenced to a period of imprisonment of a period of 12 months or more, and which may come with a lifetime ban from re-entering Australia. This ground has been used to cancel the visas of over 1,000 New Zealand citizens over the last two years.

To ensure that a heavy price is not paid for what can often be “one mistake”, a grant of Australian Citizenship is the best safeguard you can obtain to make sure you are not deported from the place where you have expended so much energy to make your home.

Am I Eligible for Australian Citizenship?

The eligibility requirements are fairly straightforward:

• Satisfy the residency requirement: Be present in Australia for at least 4 years prior to the application, and present as a Permanent Resident for at least 12 months prior to the application.
• Satisfy the “Character Test”: In order to be successful, you must demonstrate that you have obeyed the laws of Australia over your residence, and that you possess the moral qualities that the Australian community would expect of those wanting to become citizens.
• Permanent Residency: This is the most challenging aspect for someone to wanting to become an Australian Citizen to overcome. for this, you must either –
  • Hold a Residence visa, allowing you to remain in Australia indefinitely; or
  • In the case of New Zealand Citizens, be present in Australia on, or prior to 26 February 2001.

Although the close diplomatic ties between New Zealand and Australia entitle New Zealand Citizens to a Special Category (Subclass 444) Visa, which enables them to remain in Australia for as long as they choose with unlimited work and study rights, this is only a temporary visa, and those wishing to obtain Australian Citizenship must look to obtaining Permanent Residency first.

There are also various exceptions, which may be available to you if you do not strictly meet the eligibility criteria. For more information on these options, contact us for more information.

Certain additional requirements may be imposed by reason of age and mental capacity. For more information on these requirements, contact our office.

I Have Previous Convictions In Australia or My Home Country, Am I Still Eligible?

The matter of character is more complicated in the context of Applications for Australian Citizenship, the answer is, it depends, but you may still be eligible for Australian Citizenship.

The “character test” for citizenship is more concerned with someone’s behaviour as a whole, and whether an overall assessment of the individual’s conduct is conducive to the view that the person exhibits the moral qualities the Australian Community would come to expect from them.

This is an assessment, which would come down to an assessment of the individual facts of each case.

For more information about applying for Australian Citizenship, appealing from decisions to refuse an application for Australian Citizenship, permanent residency, character concerns, and any other enquiry you may have in relation to the process of applying for Australian Citizenship, we strongly encourage you to contact our experienced migration lawyers for a discounted initial consultation to obtain assistance for your citizenship matters.

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ABOUT THE WRITER