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Australian Visa Rejection on Medical Reasons: Guide to Medical Assessments

In this guide, we delve into the crucial role medical assessments play in the Australian visa application process. If you have concerns about how your health might affect your visa application, particularly due to Australian visa rejection medical reasons, don’t hesitate to get in touch with us at Longton Migration. We’re here to provide the support and guidance you need to traverse this complex area.

Understanding the Medical Examination Process for Australian Visas


Every applicant for a long term Australian visa is typically required to undergo a comprehensive medical examination. This mandatory step in the visa application process includes a thorough physical examination, a review of your medical history, and possibly additional tests pegged to the visa category you’re applying for.

The results of this health examination are critical as they directly influence the outcome of your visa application. Should the examination reveal a medical condition that might impose significant healthcare costs on the Australian community or limit public access to healthcare and community services, there’s a risk your application could be denied. Furthermore, conditions deemed a public health or safety risk may also lead to visa refusal. At Longton Migration, we’re committed to helping you understand and manage this process, ensuring you have the best possible chance for a successful application.

How the Department of Home Affairs Assesses Medical Conditions 


After your medical examination is complete, the panel physician will document your results and make a preliminary assessment of your health. These findings are then forwarded to the immigration authorities for a thorough review. At this point, your health status will be evaluated, and you might either satisfy the health requirements directly or your application may be escalated for further review.

Should there be any complexities in your health assessment, a Medical Officer of the Commonwealth (MOC) might step in to offer an expert opinion. The MOC could ask for more details from you or suggest additional medical tests to gain a clearer understanding of your health situation. Based on this comprehensive evaluation, the MOC will provide advice to the Department of Home Affairs (DOHA) regarding your health status, indicating whether:

  • You satisfy the health requirements,
  • You fulfill the health requirements contingent upon agreeing to a health undertaking,
  • You do not meet the health requirements, however, a health waiver might be applicable, or
  • You fail to meet the health requirements with no available health waiver due to Australian visa rejection on medical grounds.

Understanding Medical Conditions That Could Lead to Visa Rejections


One medical condition that will undoubtedly halt your visa process is active tuberculosis (TB). Applicants diagnosed with TB must undergo treatment and receive clearance from a Medical Officer of the Commonwealth (MOC) before their visa can be approved. Apart from TB, other medical conditions are evaluated on a case-by-case basis, assessing their potential burden on Australian healthcare and community services.

While not all health issues will necessarily lead to visa refusal, there are several conditions commonly associated with complications in the visa application process:

  • Tuberculosis (TB): This contagious disease is a major health concern. If you’re found to have active TB during your health check, your visa application will be deferred until you’ve successfully completed treatment.
  • HIV and Hepatitis: These conditions are generally not seen as public health threats. However, for applicants in healthcare roles who might engage in procedures where there is a risk of transmission, such as doctors or nurses, this could complicate even temporary visa applications.
  • Intellectual Disabilities and Mental Health Issues: These do not automatically disqualify an applicant, but severe cases requiring substantial public health resources could impact visa decisions.
  • Renal Disease or Failure and Cancer: These conditions, particularly if they require intensive treatment or ongoing management, might be scrutinised due to the potential high costs involved.

Remember, being diagnosed with one of these conditions doesn’t automatically mean your visa will be denied. Alternatives such as health waivers and health undertakings might still make it possible to obtain a visa. Our team is here to explore all possible avenues and assist you in prevailing over the health assessment process as part of your Australian visa application.

Understanding Health Undertakings for Australian Visa Applications


If your medical screening indicates exposure to tuberculosis or another significant health issue, you might be asked to sign a health ‘undertaking’. This agreement with the Australian Government requires you to seek follow-up care in Australia to manage your condition through further testing or treatment as necessary.

Under this agreement, you’re obligated to contact Bupa Medical Visa Services within 28 days of your arrival in Australia to arrange your follow-up care. The granting of your visa is contingent upon signing this health undertaking, as it demonstrates your willingness to meet the health requirements set by the Department.

Exploring Health Waivers in Australian Visa Applications


In certain cases, if an applicant fails to meet the standard health requirements, a health waiver might be considered, provided it’s applicable to the specific visa subclass. A health waiver allows for some flexibility if the applicant can convincingly demonstrate that their presence wouldn’t result in undue costs to Australian health care and community services, or limit the availability of these services to Australian citizens and permanent residents who need them.

It’s important to note that health waivers are not granted for conditions that pose a direct threat to public health, such as active tuberculosis.

You won’t need to apply for a health waiver proactively. If your health assessment results do not meet the requirements and your visa subclass qualifies for a waiver, the visa processing officer will reach out to us. We will then advise of your options and guide you through the process of making a compelling case for a waiver. This includes submitting a detailed justification that outlines why the Department of Home Affairs should grant you a waiver, considering any mitigating factors related to your health condition, a ‘cost benefit analysis’, and any compelling personal circumstances.

We are experienced in crafting a thorough submission that addresses all necessary factors, from financial implications to compassionate grounds, especially if you are facing Australian visa rejection on medical grounds.

Switching from Tourist to a Partner Visa in Australia 

Applying for a Partner visa while you’re in Australia on a Tourist visa? It’s an exhilarating yet daunting journey. Achieving the ability to live together in Australia is a huge milestone for any couple, marking an exciting chapter in your lives. Yet, the path to securing that visa, Switching from a tourist visa to an Australian partner visa, is loaded with paperwork, risk and processes that might feel overwhelming.

Fear not, you’re not navigating this alone. The complexities of visa applications often trip people up, leading to unnecessary stress and sometimes, unsuccessful applications. That’s where Longton Migration steps in—to streamline your journey with a clear, straightforward approach that maximises your chances of a smooth approval.

Step 1: Understanding Partner Visa Types and Assessing Your Eligibility

 

Visitor visas are typically short-term, expiring after either three or twelve months, depending on the specifics of your case. Opting to apply for a Partner visa while you’re still in Australia on a Visitor visa can be hugely beneficial. 

Why? Because it means you can stay onshore, close to your partner, as you work your way through the application process. Once you submit a subclass 820/801 Partner visa, you’ll likely receive a Bridging visa, allowing you to remain in Australia until a decision is reached by the Department of Home Affairs.

However, eligibility for the Onshore Partner visa (subclass 820/801) hinges on several key factors:

  • You must be in a genuine, ongoing relationship with, or be legally married to, an Australian citizen or permanent resident.
  • Your Australian partner must sponsor your application.
  • You must meet specific health and character requirements.

Assessments are then made using the following ‘four pillars’ principle:

  1. The Nature of the Household – How you manage your domestic living arrangements.
  2. Financial Aspects of the Relationship – How you support each other financially.
  3. The Nature of the Commitment – Your commitment to each other in the long term.
  4. Social Aspects of the Relationship – How you are perceived as a couple in society.

What if your partner is currently abroad? In such cases, it might be prudent to explore other visa options, such as the Prospective Marriage visa or an Offshore Partner visa, which are tailored to different relationship circumstances. This transition from tourist visa to partner visa Australia requires careful planning and a thorough understanding of the legal and policy requirements involved.

Feeling overwhelmed? Don’t worry, this is quite common. Each couple’s situation is unique, which is why at Longton Migration, we recommend contacting us for a personalised consultation. We’re here to help clarify your specific eligibility criteria and ensure you’re on the right path to applying for the right Partner visa for your situation.

Step 2: Check Your Visitor Visa Conditions

 

Are you in Australia on a Visitor visa? It’s crucial to check the specific conditions attached to your visa before planning to apply for a Partner visa. Notably, if your Visitor visa includes a “No Further Stay” condition, typically marked as Condition 8503, this could complicate your plans. Under this condition, you are generally not allowed to apply for another visa without leaving Australia, except under very limited exceptions.

If you find yourself facing this stipulation, you might need to consider applying for an Offshore Partner visa (subclass 309 or 300) once you’re outside the country.

If you have not yet submitted an application for an Australian visitor visa, it is HIGHLY recommended that you seek professional assistance to minimise the chance of any discretionary No Further Stay condition being applied to your visa.

Step 3: Gathering Documents for Your Partner Visa Application

 

Getting your documents in order is a crucial step in your application for a Partner visa. It’s wise to start compiling the necessary paperwork as early as possible. At Longton Migration, we suggest putting together a comprehensive file that includes evidence of your authentic relationship. 

This typically involves photos, shared financial responsibilities, a record of your communications, and personal references through statutory declarations from your acquaintances and relatives. It’s less about happy snaps, and more about shared assets and liabilities. Remember, you will also likely need to repeat this process at the two year mark where you will typically be able to convert your provisional (subclass 820) visa into a (subclass 801) permanent residence visa.

As you begin your own ‘partnership’ with us, we’ll equip you with a detailed checklist. This list will guide you through each type of document you’ll need to gather, simplifying the process and ensuring you have the best possible preparation for your application. Gathering these documents well in advance can significantly streamline your visa application process.

Step 4: Apply Electronically with Longton Migration’s Assistance

 

Once your documents are prepared, the next step is the online application. Longton Migration will manage the submission process for you, ensuring that all your evidence is accurately collated and presented to the Australian Department of Home Affairs. This approach is designed to alleviate the pressure from you, making the process as stress-free as possible.

We act as your primary liaison with the Department of Home Affairs. Should they require additional documents or further information, we coordinate closely with you to respond promptly and effectively. This direct communication streamlines the process, helping to avoid delays and increase the likelihood of a favourable outcome.

Step 5: Biometrics and Health Examination Process

 

As part of your Partner visa application, you might be required to complete a biometrics capture and a comprehensive health examination. These steps are crucial to ensure you meet the health standards mandated by Australian immigration laws.

We guide you through what these appointments will entail and how to prepare for them. Whether it’s arranging your biometrics session at an approved centre or navigating the health check process, we’re here to make sure you know exactly what to expect and how to proceed. This thorough preparation helps to streamline your application process, ensuring no detail is overlooked.

Step 6: Bridging Visa Compliance and Processing Wait Times

 

Once you’ve applied for your onshore Partner visa from a tourist visa, you’ll be entitled to a Bridging visa. This visa allows you to legally stay in Australia while your application is processed. It’s critical to understand and adhere to the conditions of your Bridging visa because any breaches could jeopardise your application.

At Longton Migration, we emphasise the importance of compliance. We’ll help you understand the specific conditions attached to your Bridging visa, ensuring you remain within legal boundaries during your wait.

Remember, the processing time for a Partner visa can vary and can be as much as 1- 4 years (at the time of writing). Factors that influence the duration include the complexity of your individual case and the current volume of applications the Department of Home Affairs is handling. We keep you informed at every step, so you have a clear understanding of the timeline and what to expect when transitioning from a tourist visa to a partner visa in Australia.

Boost Your Visa Approval Chances After a Refusal

It’s a significant setback. You might wonder, “how long after a visa refusal can I apply again?” One option is to appeal via the Administrative Appeals Tribunal. 

If that’s not viable, it’s crucial to know when to reapply and how to enhance your subsequent application. At Longton Migration, we guide you through these essential steps, ensuring you’re fully prepared to reapply.

How Long After a Visa Refusal Can I Apply? Key Steps to Take


Ever wondered, “How long after a visa refusal can I apply again?” It’s not a one-size-fits-all answer. The waiting time to reapply varies based on the visa type and the reason for refusal. For instance, applicants for certain offshore visas might find they can reapply immediately, while others, especially those applying from within Australia, might face a waiting period.

Navigating these waters can be tricky. It’s wise to consult a migration expert who can provide tailored advice depending on your situation and visa subclass. Here at Longton Migration, we emphasise the importance of getting professional guidance to not only understand your waiting period but also to enhance your application for the next try.

Sometimes, the reason behind your visa refusal dictates the waiting period. For example, issues like submitting incorrect information could bar you from reapplying for up to three years, and in more severe cases involving identity fraud, you might be looking at a decade. In certain situations, these stringent restrictions might be waived under specific criteria.

Boosting Your Chances of Visa Approval


Facing a visa refusal can be disheartening, but it’s crucial to be upfront about past refusals when reapplying. You might ask yourself, “how long after a visa refusal can I apply again?” It’s essential to approach your next application strategically to avoid a repeat refusal. Longton Migration is here to guide you through strengthening your application.

To enhance your prospects, gather more comprehensive documentation that clearly meets the eligibility criteria. It’s also beneficial to critically evaluate and amend your previous application, focusing particularly on addressing any issues that led to the initial refusal.

Once you partner with us, we will uplift information on hand with the Department through Freedom of Information channels, before thoroughly reviewing your application and supporting documents. We then outline a clear, step-by-step strategy aimed at maximising your chances of success. Our goal is to guide you smoothly through the reapplication process, and lift the bar when it comes to lifting yours!

Understanding Family Migration Costs: A Practical Guide

Getting a clear picture of the costs associated with family migration to Australia cost is an important step. These family visas are tailored to fit different family structures, allowing your spouse, children, or other close relatives to join you to live, work, and study in Australia. The costs can differ significantly, as each subclass of family visa comes with its own financial considerations, dependent on the applicants’ unique scenarios.

Navigating these costs and the application process can be daunting, but you don’t have to go through it alone. Longton Migration, with its team of experienced registered Agents and lawyers, offers clear guidance to demystify these expenses and streamline your journey. Whether it’s understanding the direct costs, additional charges, or the nuances of financial planning for your visa, Longton Migration stands ready to assist you every step of the way.

Breaking Down the Costs of Family Visas in Australia

 

First off, there’s the base Visa Application Charge (applicable to the primary applicant) —this is the fee paid directly to the Australian government when you lodge your visa application. It’s like the ticket price for your visa journey. This charge varies depending on the type of visa and your specific situation, but think of it as the baseline cost of getting your application processed.

Where there are dependent applicants, the applicable lodgment fees are referred to as ‘secondary’ visa application charges and these are dependent on whether the dependent is under 18 (e.g. a dependent child), or over 18 (in the case of a spouse). In some visa categories, there is even a ‘second’ visa application charge applied before visa grant where an adult applicant does not meet the ‘Functional English’ test. These can be very expensive, and have hovered between $5,000 and $10,000 for many years.

The Contributory parent visa categories also require payment of a substantial contribution to offset the likely costs of health and community services. These are currently $43,600 per person on the application (and yes, this also includes all dependents on the application, even if they are considerably younger and unlikely to require health care in the near term!).

In addition to the above, there is usually a credit card surcharge (generally 1.4%) payable on the above fees and charges.

It might be tempting to ‘DIY’ an application, but despite these costs, it is always advisable to seek professional support to ensure your investment is not forfeited by way of a visa application being refused.

For personalised advice tailored to your unique situation, feel free to reach out to us. Our team at Longton Migration is equipped to help you understand all the fees associated with your visa process, ensuring no hidden surprises along the way.

Costing Out Your Visa Journey

Typically, a family visa application will involve the following base and secondary lodgment fees:

  1. New Zealand Citizen Family Relationship (Temporary) visa (subclass 461)
    • Main Applicant Cost: AUD $420
    • Additional Applicant Cost (over 18): AUD $215
    • Additional Applicant Cost (under 18): AUD $105
    • Payment Timeline: The total amount is payable in full at the time of lodging your application.
  2. Child visa (subclass 802)
    • Main Applicant Cost: AUD $3,055
    • Additional Applicant Cost (over 18): AUD $1,530
    • Additional Applicant Cost (under 18): AUD $765
    • Payment Timeline: Full payment is due upon application lodgement.
  3. Carer visa 
    • Main Applicant Cost: AUD $4,120
    • Additional Applicant Cost (over 18): starting from AUD $3,095
    • Additional Applicant Cost (under 18): starting from AUD $2,580
    • Payment Timeline: You’ll pay in two instalments – the first at lodgement and the second is due before the final visa decision.
  4. Remaining Relative visa 
    • Main Applicant Cost: AUD $7,055
    • Additional Applicant Cost (over 18): AUD $4,560
    • Additional Applicant Cost (under 18): AUD $3,315
    • Payment Timeline: This visa also follows a two-instalment plan, with one part due at application and the remainder before visa grant.
  5. Aged Dependent Relative visa
    • Main Applicant Cost: AUD $7,055
    • Additional Applicant Cost (over 18): AUD $4,560
    • Additional Applicant Cost (under 18): AUD $3,315
    • Payment Timeline: Like the other two-step payment visas, half is paid upfront, and the balance is paid prior to the visa grant.
  6. Aged / Parent (Permanent) visas
    • Main Applicant Cost: AUD $4,765
    • Additional Applicant Cost (over 18): AUD $1,605
    • Additional Applicant Cost (under 18): AUD $805
    • Payment Timeline: Payment is due upon application lodgement, with the $43,600 contribution (in the case of contributory subclasses) payable immediately prior to visa grant.
  7. Partner (Permanent) visa 
    • Main Applicant Cost: AUD $8,850
    • Additional Applicant Cost (over 18): AUD $4,430
    • Additional Applicant Cost (under 18): AUD $2,215
    • Payment Timeline: Payable at lodgment.
    • NB: a lower fee is payable if applying from the Prospective Marriage Visa
  8. Prospective Marriage visa
    • Main Applicant Cost: AUD $8,850
    • Additional Applicant Cost (over 18): AUD $4,430
    • Additional Applicant Cost (under 18): AUD $2,215
    • Payment Timeline: Payable at lodgment.

Remember, it’s always wise to consult with us at Longton Migration to ensure you’re on top of your payment schedule and to get the full details on additional costs that may apply to your unique situation. These may include the annual indexation which occurs on 1 July each year (which we expect to be an increase of around 2.75% for 2024/2025). 

We’re here to make your visa application process as smooth as possible!

Essential Extras: Understanding Additional Visa Application Requirements

 

Stepping through the visa application process is more than just filling out forms. You’ll encounter a few extra steps that come with their own price tags. To ensure you’re clued up on these additional requirements so you can budget accordingly, you will also need to factor in the following ‘disbursements’:

Health Checks: Each member of your family included in the visa application must undergo a health examination. Adults typically hand over about $400, and for the little ones, it’s closer to $350. These payments go directly to the medical professionals rolling up their sleeves to give you the all-clear.

Biometric Identification: You might need to give a bit of yourself – quite literally – in the form of biometrics. We’re talking fingerprints and facial snapshots, folks. The fee for this futuristic identification? It goes to the tech-savvy Biometric Collection Centres.

Police Clearance: Ever felt like a character in a detective novel? You will now, as you may need police checks from any country where you’ve resided for a year or more in the last decade. This is your backstory check, and it’s paid to the law enforcement agencies that hold the pen to your past.

Document Translation: If your life story is written in a language other than English, you’ll need a translator to retell it. The cost for translation varies and is paid to the linguistic experts who ensure your story reads well to the Australian authorities.

Remember, these prices were spot on as of 1 July 2023, but like a chameleon, they can change. Always double-check the latest fees for a parents visa in Australia with Longton Migration or take a peek at the Australian Government’s website for the freshest info.

Your Guide to Understanding Parent Visa Australia

Introduction:

Australia’s Parent Visa program serves the dual purpose of facilitating family reunification while also contributing to the nation’s economic and social fabric. Understanding the technical nuances and strategic implications of this program is important for potential applicants, and crucial for their immigration advisors to understand.

Visa Categories:

There are a number of ways to group the visas available in Australia’s parent visa program. These include onshore v offshore (where the applicants must be when they apply), contributory v non-contributory (if a financial contribution is required), aged parent v younger parent, as well as temporary v permanent. We have set these out in subject matter order for ease of understanding.

  • Parent Visa (Subclass 103, 143 and 173): These are the most popular parent visas and differ in processing times and financial requirements. Subclass 103 is queue-based, resulting in long waiting periods, whereas subclass 143 is capped but requires a substantial financial contribution, leading to ‘expedited’ processing. Both confer Australian Permanent Residence status on visa grant. The subclass 173 is a 2-year temporary visa which allows applicant(s) to amortise the cost of the second (subclass 143 visa) stage, by introducing a two-step process.
  • Aged Parent Visa (Subclass 804, 864, 884): Similar to the ‘Parent’ visa categorises above, but these two subclasses are specifically designed for parents over the indexed retirement age in Australia. The Subclass 804 is the ‘Non-Contributory version’ taking substantially longer to process than the Contributory Aged Parent visa subclass 864 requiring the substantial financial contribution. The subclass 884 is a 2-year temporary visa which allows applicant(s) to amortise the cost of the second (subclass 864 visa) stage, by introducing a two-step process. The strategic advantage of the   Aged Parent visa category is that onshore applicants are able to secure a Bridging visa for the duration of processing.
  • Sponsored Parent (Temporary) Visa (Subclass 870): This visa allows parents to stay in Australia temporarily for up to 5 years at a time, with a maximum of 10 years in total. It provides flexibility for parents who may not meet the requirements for or have a need for permanent visas. A word of warning: If you have applied for, or hold a subclass 870 visa, you are prevented from submitting an application in other Parent visa categories.
  • Balance of Family Test: The general requirement across the subclasses requires at least half of the applicants’ children to be settled residents in Australia. This emphasises the importance of family ties in Australia, and aims to ensure that parents have a strong support network in the country and are less likely to rely on social services.
  • Health and Character Requirements: These criteria reflect Australia’s stringent standards for immigration, focusing on public health and safety considerations.
  • Financial Capacity: The Contributory subclasses serve to ensure that sponsored parents can financially support themselves and not burden the Australian taxpayer.
  • Assurance of Support (AoS): For some categories, the sponsor must provide an AoS to financially support the parent(s) for a defined period, typically 10 years. This also serves to mitigate potential social welfare costs.

Government’s Policy Perspective:

  • Economic Impact: The Parent Visa program has a significant socio-economic impact. In many (often indirect) ways Subclass 143 visa holders make substantial contributions to the Australian economy, while all parent visa holders contribute through consumption, taxes, and sometimes directly through employment if they choose to work.
  • Social Cohesion: Family reunification is a core value in Australian society. The Parent Visa program reinforces this value by allowing families to live together, enhancing social connections and cultural diversity.
  • Policy Debate: The Parent Visa program is often a subject of debate, with discussions focusing on balancing family reunification goals with concerns about potential strain on social services and infrastructure, especially in the context of limited Aged Care services.
  • Queue Management: The long processing times for these visas pose a challenge and have been highly controversial. Policymakers say they are exploring more equitable ways to manage the queue and potentially streamline the process without compromising the integrity of the program. However, it comes as a surprise to most people to learn that a parent may be waiting between 12 and 30 years for their permanent visa to be finalised.

Key Strategies for Applicants:

  • Objectives: Seek the advice of a competent immigration adviser to discuss the overall objectives, timing considerations, and financial implications. Is permanent residence necessary? Are work rights important?  Is a bridging visa an option whilst waiting in Australia? Will the applicants need Medicare coverage sooner than later?
  • Professional Guidance: A competent immigration advisor in Australia means an immigration lawyer or registered migration agent experienced in these visa categories who can help you navigate the intricacies of the visa system and maximise the chances of success.
  • Early Preparation: With the benefit of strategic migration planning, begin gathering the necessary documents well in advance to avoid delays in the application process.
  • Financial Planning: If considering the contributory visa categories, ensure you have the financial resources or financial planning to meet the contribution requirement.
  • Realistic Expectations: Understand that the non-contributory parent visas may involve a significant waiting period.

Conclusion:

The Australian Parent Visa program is clearly a complex yet vital pathway for family reunification. Understanding the technical aspects and strategic implications can enable potential applicants to make informed decisions and navigate the process more effectively than applicants who go into the process on a ‘wing and a prayer’.

Contact us now. Our migration professionals are standing by to help you plan for parent visa in Australia. 

 

Casual Employee Rights Australia: Lessons from the Din Tai Fung Case

The Exploitation of Vulnerable Migrant Workers by Din Tai Fung: A Cautionary Tale for Employers

In a recent decision by the Federal Court, Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 4) [2024] FCA 34, the Fair Work Ombudsman secured $4 million in court-ordered penalties against the former operators of a popular Taiwanese restaurant chain known as “Din Tai Fung”. This case highlights the importance of understanding casual employee rights in Australia, as it underscores the need for compliance with labour laws to protect vulnerable workers.

This marks the second-highest total amount penalties ever to be secured by the Fair Work Ombudsman (‘FWO’), underscoring not only the FWO’s hardline approach to protecting vulnerable workers from underpayment and exploitation, but also the Court’s readiness to hand down significant penalties to deter unscrupulous employers.

Overall, the decision serves as an important reminder for employers to comply with their obligations in relation to employee pay, entitlements and working conditions, as failing to do so, whether intentionally or not, may attract serious penalties.

 “Serious Contraventions” of the Fair Work Act (Cth)

In delivering her judgment, Justice Katzmann found that Din Tai Fung committed multiple “serious contraventions” of the Fair Work Act 2009 (Cth) (‘the FWA’), which was the very kind of conduct Parliament sought to deter as part of a set of reforms to the FWA in 2017.

Underpayment of Wages

It was found that Din Tai Fung deliberately and systematically underpaid 17 employees $157,025 under the Restaurant Industry Award 2010. This included withholding of entitlements in relation to minimum rates for ordinary hours, weekend penalty rates and overtime rates.

Unreasonable Work Hours

Din Tai Fung also required certain employees to work unreasonable hours. In one extreme case, an employee was required to work more than 38 hours a week for 98% of the weeks he worked over a period of nearly four years.

Falsification of Records in Relation to Employee Wages

In addition to the deliberate underpayment of employees, Din Tai Fung concealed its wrongdoing by falsifying employee records, including pay slips and time sheets, which it kept and provided to Fair Work inspectors.

Seriousness of Wrongdoing – Deceitful and Unscrupulous Exploitation of Vulnerable Migrant Workers

In determining the seriousness of Din Tai Fung’s conduct, Justice Katzmann placed considerable weight on the following factors:

  1. The conduct was not merely deliberate but also systematic, deceitful and unscrupulous;
  2. The employees were particularly vulnerable to exploitation, as they were mostly:
    1. Migrant workers, primarily from Indonesia or China;
    2. On temporary visas, including student and employer-sponsored visas; and
    3. Under 30 years of age.

Lessons for Employers

Employers must ensure they comply with their obligations under the FWA, specifically with respect to pay and work conditions, maintaining accurate employee records, and issuing accurate pay slips.

Deliberate contravention or recklessness as to whether such a contravention may occur constitutes a “serious contravention” of the FWA, which may attract significant penalties of up to 10 times more than that which would ordinarily apply.

Fair Work Inspectors are also empowered under a 2013 inter-agency Memorandum of Understanding with (the then precursor to) Home Affairs to attend on business sponsors to monitor compliance with certain enforceable sponsorship undertakings. Notably, this includes regulation 2.79 of the Migration Regulations 1994 requiring a sponsor to ensure its sponsored workers are engaged on no less favourable terms: ‘…than the terms and conditions of employment that are provided, or would be provided, to an Australian citizen or an Australian permanent resident…’.

Any employer who sponsors, (or otherwise employs) migrant workers must also understand the limitations on their workers’ visas and apply the principle of equal treatment under the law. This was a defining feature on DFT’s malfeasance in the case given the premeditated and systemic practice of employing and exploiting mainly temporary visa holders (constituting around 90% of the total workforce) in favour of local workers.

Understanding your Employees rights

Visa holders and migrant workers have the same workplace entitlements and protections as all other employees under the Fair Work system in Australia. Despite this, they are particularly susceptible to underpayment and exploitation by unscrupulous employers.

For legal advice and immediate support in relation to your obligations as an employer please call for an initial free consultation on (02) 8355 9999.

Our lawyers have comprehensive knowledge and experience in proceedings with the Fair Work Commission and proceedings in the Fair Work Division of the Federal Circuit and Family Court of Australia and Federal Court of Australia, especially regarding casual employee rights in Australia.

 

  1. Fair Work Ombudsman ‘$4 million penalties, second-highest ever secured, against former Taiwanese restaurant operators for “a calculated scheme to rob employees”’ (10 April 2024, Webpage, accessed online on 15 April 2024) <https://www.fairwork.gov.au/newsroom/media-releases/2024-media-releases/april-2024/20240410-dtf-world-square-penalty-media-release>.
  2. Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth); Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 4) [2024] FCA 341 at [29].
  3. Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 4) [2024] FCA 341 at [25]; FWA, s 45.
  4. Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 4) [2024] FCA 341 at [25]; FWA, ss 62 and 44.
  5. Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 4) [2024] FCA 341 at [25]-[26].
  6. Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 4) [2024] FCA 341 at [25].
  7. Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 4) [2024] FCA 341 at [28], [33]-[39].
  8. Fair Work Act (Cth), s 557A(a).

ANZAC Day and the ‘Other’ Anzacs

By Anne Nguyen

In honour of Anzac Day last week, did you know there were many migrants who served as soldiers in the Australia and New Zealand Army Corps (ANZAC)? If you’re wondering, ‘Can I join the Australian Army as a foreigner?’, read on to find out more about the diverse backgrounds of these soldiers.

The ANZAC Legend was born from some 16,000 soldiers from the Australian and New Zealand Army Corps (ANZAC) who landed under fire on the shores of Gallipoli (now, known as modern day Turkiye) on 25 April. Hence, from 25 April of every year, ANZAC Day is commemorated and one of the most sacred, non-religious public holidays in Australia.

Whilst the Australian Imperial Force (“AIF”) was largely Anglo-Saxon, there were some 1000 Indigenous Australian Diggers who were thought to have served in the AIF on both the Gallipoli and the Western Front. Whilst Indigenous Australian soldiers received equal treatment ‘during’ World War I, they were subject to ongoing discrimination laws and regulations that prevented them from enlistment under the Defence Act 1903 or that if they did enlist (when laws were amended in 1917), they returned home to a country where they were not recognised as citizens, denied soldier settlement grants and refused war pensions. Whilst the author reflects on the sacrifices on all service men from Anglo-Saxon to First Nations people, this article shines a spotlight at ANZACs who are first or second generation Australians from culturally diverse backgrounds.

Many non-Anglo Saxon soldiers were descendants from Belgium, China, Denmark, France, Germany, Greece, Holland, India, Italy, Japan, Lebanon, Norway, Poland and Russia. Many of these men faced discrimination to enlist in the Australian Imperial Forces mainly because their ancestry was not of European origin. As a result, many of these men walked hundreds of kilometres to enlist many times or simply or they changed and Anglicised their names just to be enlisted.

Amongst the ANZACS were Asian Australians, who joined the force. There were at least 12 Australians of Indian descent enlisted in the Australian Imperial Forces. Whilst over 500 Australians of Chinese descendance enlisted, 19 of these soldiers who served were awarded medals for bravery.

It was perhaps the German-Australian ANZACs who faced the greatest prejudice during World War 1. Despite many of the German-Australian ANZACs being of second – if not third – generation descent, they still faced ill-feeling when the war against Germany broke out.

Anglo-Saxon or not, many soldiers displayed patriotism to serve this great country of ours. We remember those who made the ultimate sacrifice for this country so that we can enjoy the freedom and liberties today.

Whilst we hope for a peaceful world, there are pockets of civil or military unrest. If you would like to serve in the Australian Defence Force, it is mandatory that you are an Australian citizen (except for a few limited circumstances). Perhaps you are an Australian permanent resident and have been a member of the Australian Defence Force, then you may be eligible for an exemption to the residence requirement.

Unsure or simply want to see if you’re eligible for Australian citizenship, especially if you’re considering whether you can join the Australian Army as a foreigner? Let one of our seasoned lawyers assess your eligibility requirements.

Tightening the Screws on the Temporary Graduate Visa Programme

By Alex Kaufman

The Australian Government’s recent Migration Strategy portended significant changes to the Temporary Graduate (Subclass 485) visa programme, impacting international graduates seeking work experience under the 485 visa new rules 2024.

According to Home Affairs, these changes aim to better align graduates with Australia’s skills needs. The Department has all but confirmed its intention to implement the changes on 1 July 2024, following the publication of the proposal on 24 April 2024.

Key Changes:

  • Stream Renames:Both Graduate Work and Post-Study Work streams will be renamed to reflect the level of education: Post-Vocational Education Work and Post-Higher Education Work streams, respectively.
  • Age Limit Reduction:The maximum eligibility age for both streams reduces to 35 years old (except for Hong Kong and British National Overseas passport holders who remain eligible up to 50).
  • Focus on Vocational Skills:The Post-Vocational Education Work stream now prioritises applicants with qualifications (associate degrees, diplomas, trade certifications) directly related to Australia’s Medium and Long-term Strategic Skills List (MLTSSL). This stream is no longer open to those with bachelor’s degrees or higher, who must apply through the Post-Higher Education Work stream.
  • Post-Study Work Stream Adjustments:The two-year extension for select degrees is eliminated. Standard stay periods are introduced, ranging from two to three years depending on the qualification level. Exceptions remain for Indian nationals under the AI-ECTA.
  • Replacement Stream Closure:The Replacement stream is being discontinued.

Impact:

These changes signal a shift in Australia’s temporary graduate visa landscape. The focus is on attracting graduates with vocational qualifications that align with in-demand skills. This will almost certainly create challenges for international students pursuing higher education pathways but opens opportunities for those with trade or diploma qualifications. It’s crucial for prospective applicants to carefully consider their eligibility under the revised streams.

Going Forward:

The updated visa structure, particularly under the 485 visa new rules 2024, aims to create a more targeted approach to attracting skilled graduates who can contribute to Australia’s workforce needs. It’s important to stay updated on the latest developments and explore alternative visa options if necessary. The best way to forge a path through a rapidly changing visa landscape is with the help of a qualified Immigration Professional. Contact one of Longton Migration’s Immigration Lawyers or Agents for a confidential assessment today.

 

Crackdown on Immigration Compliance Ramping Up

by Alex Kaufman

In the past year, the Australian Government has rigorously enforced an immigration crackdown, introducing many changes to the migration program. This shift effectively wound back the concessions and ‘amnesties’ on strict compliance that were initially introduced to mitigate the challenges posed by the COVID-19 pandemic.

Our prediction of a shift toward immigration-related compliance and enforcement on the part of Australian Broder Force/Department of Home Affairs has been borne out by last month’s Federal Court case of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Tao [2024] FCA 292.

The ‘cash for visas case’ was prosecuted under sections 245AS and 245AR of the Migration Act 1958 with pecuniary penalties imposed on the parties in a multi-party commercial arrangement to supply and nominate workers under a regional sponsored (subclass 187) permanent visa.  Although the contraventions occurred in 2017/2018, this case follows the recently published Nixon Review into Exploitation of Australia’s Visa System, and new powers and sanctions introduced under the Migration Amendment (Strengthening Employer Compliance) Bill – as amended – which passed both houses on 7 February 2024.

Broadly speaking, these new powers:

  • Establish criminal offences and associated civil penalty provisions for:
    • Employers/Sponsors who unduly influence, pressure, or coerce a non-citizen to breach a work-related condition of their visa.
    • Employers/Sponsors who impose on a non-citizen to accept exploitative work arrangements to meet their visa conditions.
  • Enable the Minister to:
    • Prohibit certain employers from hiring additional non-citizens.
    • Introduce associated offence and civil penalty provisions.
  • Require the minister to publish certain information about prohibited employers.
  • Increase and align maximum criminal and civil penalties for:
    • Current and proposed work-related breaches.
    • Employer-sponsored related breaches.
  • Trigger enforceable undertaking provisions in the Regulatory Powers (Standard Provisions) Act 2014.
  • Provide for enforceable compliance notices where an officer suspects a contravention of work or sponsorship-related offences or related provisions.
  • Remove the criminal offence of breaching a work-related visa condition and insert an avoidance of doubt clause for remaining work-related offence provisions.

Suffice it to say, if the contraventions identified in the ‘Tao’ case were tried under the current compliance framework, the sanctions would have been substantially more severe for the Respondents in the case.

To assess your immigration compliance with the current and emerging employer sanctions framework amid the ongoing immigration crackdown, contact the Longton Migration team for a confidential assessment and pre-audit health check.

 

 

Changes to Labour Market Testing for Nomination applications and Subclass 482 visa applications

by Maria Rodriguez

When a company sponsors a foreign national on the Subclass 482 visa, the company must first meet the stringent requirements of 482 labour market testing (LMT) before the nomination application can be lodged.

From 11 December 2023, it is no longer mandatory to advertise with Workforce Australia (formerly JobActive) to enable the company to nominate a foreign national on the Subclass 482 visa.

The changes now also apply to Labour Agreement applications by businesses in Category 2 locations meaning that only 2 job advertisements will be required to support an associated nomination application. This was previously 3 which included advertising with Workforce Australia.

Nevertheless, the process for Labour Market Testing is still complex and very prescriptive. There are particular timelines as to when and for how long the Labour Market Testing must be conducted. Sponsoring employers should be aware that the Government’s plan to extend the LMT validity period from 4 to 6 months, did not actually materialise in the amending instrument (LIN 23/072).

Under International trade obligations (ITO), Labour Market testing is not required if the worker you nominate is a citizen of Brunei, China, Japan, Mexico, Peru, Thailand, Vietnam, and most recently – Malaysia. Labour Market testing is also not required if the worker you nominate is a citizen or permanent resident of Canada, Chile, South Korea, New Zealand, Singapore or the United Kingdom.

The standard exemptions also remain for high salary earners, and WTO country citizens who have worked for their sponsoring employer for at least 2 years. However, no exemptions apply to nominations lodged under the Labour Agreement and Subclass 494 Skilled Employer Sponsored Regional Provisional visa.

It is crucial for sponsors to understand that failure to meet the Labour Market Testing requirements will result in the refusal of the nomination application and forfeiture of the extensive Skilling Australians Fund levy.

Contact us today if you have any questions regarding 482 Labour Market Testing and other related requirements.

 

 

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Thank you longton Migration and education for your assistance more especially Maria Rodriguez for your time and effort to see this through up to the end, me getting the subclass 482 Visa and am so excited. The experience was quiet helpful all along the process and the response was up to speed.once again thank you Longton Migration I really appreciate for everything and for not giving up on me.
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