Mark Northam

Hi Nissa - This gets to another common question I get - "What happens if I don't live and work in the state that nominated me for my 190 visa?". For the 489 visa, it is a condition (usually 8539) of your visa that "While the holder is in Australia, the holder must live, study and work only in an area specified by the Minister in an instrument in writing ", however from the DIBP point of view, you are not limited to living in a "specific" designated area, and essentially can live/work/study in any designated area that is on the list of designated areas in effect when you were granted the visa. However it is very likely you are also bound by whatever agreement you made with the state sponsorship authority to live/work/study in the state (and perhaps the area of the state) that you were sponsored by. Importantly, this agreement with the state is not a condition of your visa like 8539 is, and may be subject to some negotiation with the state if you find you are unable to satisfactorily live/work/study in the state as you originally planned. Breaching the agreement with the state also occurs, but this creates a bit of a grey area as the only recourse to the state would likely be some sort of civil action for breach of contract, which I haven't seen done - also, the question arises as to what the exact nature of the "agreement" is between you and the state - ie, is it an enforceable contract? For the 190 visa, there is no condition on your visa relating to a restriction on live/work/study geographically, however the same "agreement with the state" issue exists as it would for the 489 visa as described above. For either of these visas, there seems to be lingering concern among some that a blatant breach of the sponsorship agreement with the state could be brought up at a later time, perhaps when assessing character issues for an Australian citizenship application. Given the character requirements of citizenship are substantially more general and less detailed than for visas, this may be a legitimate concern, however I have not heard of people failing at citizenship due to breaching a state sponsorship agreement - that certainly doesn't mean that it hasn't happened or can't happen in the future. My best advice is to honour the agreement with the state if at all possible - if you find yourself unable to do so, consider gathering as much evidence as you can (ie, documentation of good faith job search that resulted in no job offers) in the area you agreed to live/work/study in as this may be helpful later on if any issues arise. Hope this helps - Best, Mark Northam

Hi SalH - Your proposed request text looks fine, however I expect a file request is bound to cause some concern with the agent, especially if the clients have expressed dissatisfaction previously regarding what's happened so far on the case. Probably worth lodging the FOI request I mentioned in addition to requesting a complete copy of their file from the agent - by putting both together you'll likely have a good picture of what's happened so far. Best, Mark Northam

Hi SalH - Your friends have a right to get a copy of their file including all correspondence to/from DIBP and any documents lodged with DIBP or received from DIBP per the MARA Code of Conduct - usually a polite call will get this done. Once that's in hand, it should be fairly clear what has been lodged (and not), plus there is also the option of obtaining a copy of their file from DIBP directly using Freedom of Information access (use DIBP form 424A). Re: recourse if improper advice, etc has been given, MARA is likely the best avenue to follow for that, however getting the clients proper advice at this point would be top priority in my view. Please feel free to contact me directly if I can assist in any way with your friends. Best, Mark Northam

Hi Furballs21 - You can ignore the SkillSelect email if your visa has already been granted - EOI's are valid for 2 years and the SkillSelect system may not be aware that a visa has been granted as a result of the EOI, or it may be a duplicate EOI you may have entered - either way, safe to ignore. Best, Mark Northam

Hi Interllectual86 - Sorry, am confused - can you specify - was your visa application refused due to DIBP requesting a skills assessment and you not being able to provide one? Need more details in order to address your questions.

Hi Nick - Would also be happy to see you at a consultation - complete details and booking link on our website listed in my signature. Key issue will be getting the employer on board with this as co-operation of an employer is vital in the nomination process. Best, Mark Northam

Hi Nick - George makes a very important point - the legislation and policy related to business that change ownership and/or ABN, etc regarding related companies, etc is complex and not something that can be answered with a quick note on an anonymous forum - the factors involved and the assessment of the business pre-sale and post-sale involves a very careful look at a number of aspects of the business and the owners of the business(es). The employer and/or you have thousands of dollars at stake on a nomination and visa application, which can all end up down the drain if the employer does not correctly navigate the myriad of regulations and DIBP policy that exist in this area. There is simply no shortcut for professional advice given the number of ways this can go wrong. Best, Mark Northam

Hi Nick - You are correct. Best, Mark Northam

Hi BadgerLady - Assuming you're applying for the subclass 186 or 187 employer sponsored PR visa, the position would need to remain open to you up until the point of grant for the PR visa, so switching employers prior to the grant of the 186 nomination AND visa would disrupt the 186 visa process and result in a refusal based on the position no longer being available. There is an obligation for the sponsoring employer to provide a contract of at least 2 years (or open ended with no fixed end date) which also must be available to you as of the grant of the visa. Your employer would be notified of the grant of the 186 nomination, and you (or your nominated migration agent) would be notified of the grant of the 186 visa. We're seeing these taking anywhere from 4 to 8 months to process currently. Hope this helps - Best, Mark Northam

Hi Lakhwinder - As long as your BVA has no work restrictions on it, you are able to work as long as the BVA remains in place. If you go onto the BVC after the BVA lapses, you may be able to add work rights to the BVC if it does not have them initially by making a claim of financial hardship. Best, Mark Northam

Hi Lakhwinder - Based on what you've said the BVA you would have received from the 187 application should still be in effect until the 187 is decided. You likely received a BVC for the student visa extension, but the A will still be in effect and the C will stay dormant until the BVA ceases 28 days after the 187 decision. Hope this helps - Best, Mark Northam

Hi - If your wife and kids were to arrive with you on a visitor visa for tourism purposes and you then decided to lodge an onshore partner visa (subclass 820/801), that could be an option - bridging visas granted upon application would allow them to remain in Australia for the duration of the processing period (typically ranging from 12 to 18 months, whether lodged onshore or offshore). This assumes that the visitor visas were granted without condition 8503 (no further stay) and that there were no other impediments to lodging.

Hi Castling - Assessing likelihood of success at a skilled visa can be complex, primarily because you're dealing with potentially three different sets of rules and requirements - the skills assessor's, the state sponsorship authority's, and the immigration department's rules. If you're looking for options or a confirmation of the advice from your agent, I'd recommend contacting another agent (or even 2 if you'd like) who are familiar with the skilled visa program and offer consultations, and getting essentially a second opinion. Many agents charge a nominal fee for consultations since the time and effort to do a proper assessment of eligibility for a skilled visa is not a simple or quick task if done correctly and thoroughly, taking into account all three sets of rules. But a thorough assessment is what's needed (in my view), as in the migration realm, sometimes what seems like a very small detail may end up causing substantial consequences later on. I hope you don't take this post as me trying to "drum up business" for myself or other agents - it's not - in this case, however, what you need is a detailed, thorough assessment to see which one of you is the better candidate for primary applicant given all the factors at play. Whether you do the research yourself with the various authorities or engage professional assistance, the key is to end up with all the facts you need to make an informed decision about whcih way to proceed with your plans to migrate. Hope this helps - Best, Mark Northam

Hi NorthernLights - PR still comes down to either a skilled visa (189 - SOL list, 190 - CSOL list subject to state sponsorship) or an employer sponsored PR visa (186 - ENS, 187 - RSMS). Many find that the employer sponsored route is easier, but that requires an employer who will agree to sponsor. SOL changes generally once per year, and changes are not necessarily limited to the review list although in reality most changes occur after an occupation is on the review list for one or more years.

Hi Woodsey185 - My apologies - for some reason when I saw your message the last 2 lines re: looking at a partner visa did not display. Partner visas while holding a bridging visa, as George pointed out, can be very challenging. The Schedule 3 criteria can be very difficult to overcome especially if there are no children, health issues, or issues beyond your control involved. The bar is quite high for this particular waiver - about half of my work is representing clients who have received Schedule 3 s57 letters, and in some cases coming up with criteria that can get over the line for Sched 3 can be impossible. A big part of this is the "opinion" of the case officer, which can be hard to predict. In my experience many clients typically have a better chance at a Schedule 3 waiver at the AAT Tribunal, but this again can depend on convincing the AAT Member that there are sufficiently compelling reasons that exist for waiving the Schedule 3 criteria. It can be a long and expensive road, and if it all possible you may want to consider an offshore partner visa application to avoid the Schedule 3 process. In the end, will all depend on your particular circumstances - as George said, getting professional help and advice re: likelihood of success in these types of matters where there is no black & white requirement to meet, only a legally meaningless word such as "compelling" can be important in making an informed decision regarding how to proceed. Best, Mark Northam

Hi Woodsey85 - No particular requirement that you withdraw your remaining relative visa prior to lodging another visa, however if you are lodging a PR visa, DIBP may require you to withdraw the remaining relative visa just prior to granting you the new PR visa.

There is often confusion between the designated growth areas eligible for sc489 visa and the regional areas eligible for sc187 visa. For the 187 visa, generally all of Australia is eligible except the Gold Coast, Brisbane, Newcastle, Sydney, Wollongong and Melbourne. All of WA, ACT and SA are considered eligible for the 187 visa.

I should add that for certain trade occupations, a 457 skills assessment is required - see DIBP and TRA, etc for more info

Hi Sarahloudoo - For the 457 visa program, ultimately DIBP has the right to require a skills assessment if they are not convinced that an applicant has the skills to perform the job, however outside of a couple of occupations that are prescribed for a skills assessment in DIBP policy (Program and Project Administrator, Contract Administrator and a couple of others), normally a skills assessment is not normally required for the 457 visa.

Hi Big Girl - Nope, there are 2 options for the sc489 visa - either state sponsored or family sponsored, but you don't need both. Hope this helps - Best, Mark Northam

Excellent post, Westly. The carnage in 457 refusals over the last 6-12 months is clear and unmistakable - I've seen several of the circumstances described in your post. I've been fortunate enough to be able to successfully turn some of these around via AAT review, where the apparent prejudice against marketing positions, smaller businesses, etc seems to be less, perhaps due to the difference in training and accountability between a case officer and an AAT Member, but it's a huge cost and time imposition on small businesses to have to go through the visa application AND review process.

Hi Dan - Refusal for "genuine position" generally refers to a 457 nomination (or sometimes 186/187 nomination) and is about the business and the position, not about you. However if the 457 nomination is refused, you will have the choice of either having your 457 visa refused, or withdrawing your 457 application. Once your 457 app is refused (if you choose to allow that vs withdrawal), you can lodge an appeal of that 457 refusal and the business can lodge an appeal of the nomination refusal, and both together will generally be heard by the AAT Tribunal. However once your 457 app is refused, you would be barred by section 48 of the Migration Act from making a further onshore application on this visit to Australia - this would prevent you from making an onshore 189 application. Re: points for employment, success of that or not would depend on looking at the actual tasks/responsibilities of your paid work vs the ANZSCO definitions for that nomination. However, having a 457 refusal based on genuine position would not necessarily cause a problem for work previously done in that position for that employer - the key of the genuine position legislation is whether or not the business has a need for a full-time xxxx (your occupation), not whether or not the work you were doing as you worked in that position fully met the ANZSCO requirements. That being said, I would expect DIBP to take a close look at any work done in a position that was later deemed a non-genuine position - one way you might hedge against any problems would be to have your skills assessor assess the work you did in that position - normally DIBP defers to the opinion of a skills assessor in determining whether work experience is relevant to your occupation. Hope this helps - Best, Mark Northam

Hi Stuart - Your employer can open a free ImmiAccount at http://border.gov.au, then start a new application and choose the Nomination option for the 186 visa. Please advise if any questions, thanks. Best, Mark Northam

Would need more data, however based on what you've said, if you apply for your visa now by accepting your invitation, you'll get a bridging visa immediately and be able to remain in Australia when your 457 expires as the bridging visa would cover your stay here. Re: agent, the main things that can go wrong with skilled visas are inaccurate calculation of points, lack of appropriate documentation for work experience, and timing problems (ie, IELTS, etc not completed at time of invitation). If you didn't want to have an agent assist you through the entire process, you might consider having an agent review your EOI and application to avoid potential points issues and perhaps review the documentation you planned to submit to justify whatever other points you're claiming. Hope this helps - Best, Mark Northam

Hi Feejay - Might help, however as NSW and other states don't publish much about their internal selection criteria, internal quotas by occupation, etc, it's hard to predict if/when an invitation to apply for state sponsorship might be given. Best, Mark Northam