Changes to Australia’s Migration Regulations

Migration changesBy Emma Swenson, Migration Consultant, MARN:9801418, Independent migration consultant to Patterson Houen & Commins, Lawyers, Sydney.

On 19 November 2016 a number of significant changes to the Migration Regulations came into effect and here we summarise those important changes.

Temporary Activity Visas

The Temporary Activity visa program has been overhauled, repealing a number of temporary visas and consolidating them into two visa types:

  • Subclass 407 Training visa
  • Subclass 408 Temporary Activity visa

Under the previous system, some of the visas required businesses to first be approved as temporary work sponsors (under various sponsor categories) and then nominate applicants for particular types of visas before the visa application itself was lodged.

The changes have streamlined this process. Sponsorship is only required for applications from inside Australia, or applications from outside Australia where the period of stay is more than 3 months.

If sponsorship is required, businesses are approved under a single sponsorship class – the temporary activity sponsor. Nomination applications will only be required for occupational trainee visas.

The applications will now be lodged and processed online, through immi account.

Member of the Family Unit

There have been substantial amendments to the definition of “member of the family unit” (“MOFU”), which restrict the inclusion of family members as secondary applicants on most visa applications. These amendments do not apply to refugee or protection visas.

Reg 1.12, which defines “member of a family unit” has been amended significantly so that family members can only be included as MOFU if they are:

  • the spouse or de facto partner of the primary applicant OR
  • minor children (under 18) OR
  • financially dependent children over the age of 18 but only up to the age of 23 OR
  • children who are over 18 and dependent on their parents because they are mentally or physically incapacitated for work (no age limit)

This means that adult children who are full time students may not be included in their parents’ visa application, if they are 23 or older.

The definition has been further amended to limit family members to “direct” family members – that is spouse and children of the primary visa applicant. It is no longer possible to include other relatives who reside in the same household as the primary visa applicant and are financially dependent on that person.

There are some exceptions to allow applicants who were included as MOFU on certain temporary residence visas to maintain their eligibility for permanent residence, even though they may no longer meet the new definition of MOFU due to their age.

These amendments will have a significant impact on visa applicants and their ability to include their family members in their application.

Subclass 457 (temporary skilled work) visa conditions

The subclass 457 visa has a condition which requires visa holders to work only for their sponsor. If they cease working for their sponsor, they must either find a new sponsor and transfer their sponsorship to that sponsor, or make arrangements to depart Australia. If they do not find another sponsor, they will be in breach of the conditions of their visa, which can result in cancellation of the visa.

Before the changes on 19 November, visa holders had 90 days from the date on which they ceased working for their sponsor to find another sponsor or depart. This has been reduced to 60 days from the date of ceasing work for the original sponsor.

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