Newsletter 166

Labour Market Testing – Duration requirement policy interpretation revision

Even though the total time that applications or expressions of interest were received was longer than four weeks, the labour market testing requirement is not satisfied by the advertising and acceptance of applications or expressions of interest across two or more non-consecutive periods.

The word “duration” is used in both subsections, indicating that the labour market testing would take place continuously rather than in discrete, non-consecutive periods. Furthermore, the temporal language used in the subheading makes it clear that the labour market testing will last for the whole four weeks after the initial advertisement is published, with a definite timeframe.

Two commercials that overlap

For instance, two ads are displayed on the same platform: the first one is shown for 21 days, from May 2, 2023, to May 24, 2023, and the second one is shown for 21 days, from May 23, 2023, to June 14, 2023.

By using overlapping advertisements, it is possible to ensure that applications or expressions of interest can be accepted (and, therefore, labour market testing occurs) for a continuous period of at least four weeks from the date an advertisement for the position is first published. This would comply with the LMT requirement.

Two consecutive commercials

For instance, there are two commercials that run: one from May 2, 2023, to May 24, 2023 (a span of 21 days), and the other from May 25, 2023, to June 5, 2023. This will not comply as the LMT is not being carried out over a continuing period of time. 

States and Territories – Nominations status – Subclasses 190 and 491 












190 – Not open 

491 – Open – Applications will be assessed under new eligibility criteria: – 

·        Priority occupation stream for offshore applications will be limited to 54 occupations listed on the new Offshore Migration Occupation List 

·        NT residents who have not worked in their nominated/related occupation for at least six months in the NT will only be considered if they have been working in the NT for six months in a critical sector (health, aged, disabled care, education and childcare, hospitality) 

·        NT graduates who hold sc 485 visa valid till at least 1 July 2024, or are eligible for such visa will not be eligible for nomination in this program year 






190 – Open – limited invitations and occupational sectors 

491 – Not open – Details on the criteria and application process for the 2023-24 program year will be updated shortly 






Open – Next invitation round will be held before 20 November 2023 






Open – WA state nominations lodged before 1 July 2023 will be assessed against the 2022-23 criteria 






Open – ROIs submitted before 1 July 2023 will remain valid for the 2023-24 program year 

New minimum eligibility requirements apply to ROIs and applications submitted from 5 July 2023 






Open – to be eligible for sc 491 nomination in the 2023-24 program, onshore applicants must be living and working in regional VIC at the time of nomination. As a result of this change, ROI’s submitted in 2022-23 year that were not invited, will need to submit a new ROI if still eligible 






Open – Will begin inviting selected applicants from end of September 2023, and hold invitation rounds at the end of each month for the remainder of financial year 






Open -SA will prioritise the retention of international graduates and temporary visa holders 

·        Experienced overseas workers with skills in high demand in SA such as Trades, Construction, Defence, Health, Education, Natural and Physical Science and Social and Welfare Professionals will be targeted 


TPV and SHEV holders – Further amendments to Resolution of Status eligibility 

The present changes provide the following categories with provisions: 

  • those who were previously ineligible to apply for a RoS visa but who held a TPV or SHEV on the “TPV/SHEV transition day” (February 14, 2023) but did not apply for a RoS visa before their TPV or SHEV ceased.
  • first-time TPV or SHEV applicants (those who are family members of someone with protection claims but do not themselves) who were previously unable to have their TPV or SHEV application converted to a RoS visa application in the event that the family member is shown to be in violation of protection requirements.
  • people who held a TPV or SHEV prior to the TPV/SHEV transition day but were not able to have their application changed to a RoS visa application; and these individuals.
  • those who have never held a TPV or SHEV but have previously submitted a valid application that was approved, as well as those who were previously unable to have their current TPV or SHEV application converted to a RoS visa application.

New integrity measures

  • If an invitation to provide identity information is sent, and the applicant either fails to provide the requested information, or presents a fake document or false or misleading information (without providing a plausible explanation or taking reasonable action to obtain the information), the RoS visa application must be denied; and
  • If the applicant would be eligible for a protection visa, or if there are compelling or compassionate circumstances for granting the RoS visa, the applicant will only be eligible for the grant of the visa if there are significant concerns with prior identity findings (e.g., the applicant has falsely claimed to be from a particular country and this was accepted by a previous decision-maker).

This commenced on 19th October 2023


Skilled Migration Assessing Authorities – Best Practice Principles and Standards – Have your say 

Authorising the appropriate assessing authorities to conduct skills assessments is the responsibility of the Minister for Skills and Training. The Minister is supported by the Department of Employment and Workplace Relations, which also oversees the governance of the assessment authorities. Organisations looking to become assessing authorities must meet criteria outlined in the Government’s Guidelines for Skilled Migration Assessing Authorities, which also provide a framework for continuous assurance of assessing authorities. 

New Framework to Guide Refugee Settlement Outcomes in Australia 

the introduction of the Refugee and Humanitarian Entrant Settlement and Integration Outcomes Framework, which consists of two guiding principles and eleven interconnected domains that work together to provide a structured approach to successful settlement and integration outcomes. Each domain and principle represents a crucial area for these outcomes.

The framework’s purpose is to:

  • strengthen the settlement services
  • improve the success of refugees’ and humanitarian entrants’ settling
  • assist in providing services that are coordinated and logically delivered within the larger settlement area.
  • create a way to gauge development in relation to each domain.

Gazette Notice – Data matching ATO and Home Affairs 

The Australian Taxation Office (ATO) will be obtaining visa information from the Department of Home Affairs for the fiscal years 2023–24 through 2025–26, as announced in a Gazette Notice.

Among the data items are:

identifying information (past addresses for sponsors and applicants for visas) contact information for visa applicants and sponsors; address information for immigration agents; contact information for immigration agents; active visas that satisfy the requirements; all visa grants; the status of each visa grant at any given time; migration agents (those who prepare visa applications and help with the processing of the application); all international travel movements (arrivals and departures) made by visa holders; sponsor information; 457 visa; and visa subclass name.

Every financial year, records pertaining to over nine million people are expected to be acquired.

Overseas Service Delivery Partner (SDP) 

With the completion of the Overseas Service Deliver Partner (SDP) Request for Tender (RFT), the Department of Home Affairs has assigned VF Worldwide Holdings Ltd (VFS) and TLS Group (TLS) to provide SDP services beginning on January 1, 2024.

The same visa support services that SDPs presently offer will be included in the new SDP arrangements. These services will include digital application lodgement and payment assistance, in addition to biometric collection for the Overseas Biometric Collection Programme. If the department wants to, they will also permit it to utilise SDP for certain other services. The Department’s website has additional details. Both VFS and TLS are seasoned suppliers of comparable services to governments globally.

From 1 January 2024:

VFS will provide services in the Americas, Mekong, Middle East and North Africa, Pacific, North Asia, Southeast Asia and South Asia.

TLS will provide services in Europe and Sub-Sahara Africa.

Current arrangements with CSRA LLC in the Americas and with VFS elsewhere will cease on 31 December 2023.

30,000 Kiwis sign up for Australian citizenship in 100 days

Within 100 days of the Albanese Labour Government’s direct pathway to citizenship opening on July 1, 2023, over 30,000 New Zealanders who have been residents of Australia for more than four years submitted an application for citizenship. 

More than one-third of applicants are Kiwis from Queensland, closely followed by those from Victoria and New South Wales.  

Families like the Adlingtons, who have been employed in Queensland’s health, hospitality, and correctional services industries for more than ten years, are among the 30,000. After contributing to their community, paying taxes, and working in places with severe shortages during the pandemic, the family will now be able to have a sense of belonging to the nation they have called home for longer.

Deepening connections in our region through the pacific engagement visa 

The Australian Senate passed a bill that will allow the Albanese administration to fulfil its electoral pledge to provide a new Pacific Engagement Visa.

Up to 3,000 citizens of Timor-Leste and Pacific Island nations will be allowed to immigrate to Australia as permanent residents thanks to the Pacific Engagement Visa each year.

It will enhance diaspora communities and promote more business, cultural, and educational exchange by giving people from the Pacific and Timor-Leste new chances to live, work, and receive an education in Australia.

The fulfilment of this promise directly addresses the persistent requests from these nations for more access for their citizens to Australia.

A pre-application ballot will be able to be used to randomly select candidates for the Pacific Engagement Visa programme according to legislation that the Senate passed today.

Gordon Legal files competing KFC class action 

The fast food chain KFC is the target of a second class action lawsuit alleging that up to 100,000 current and former employees were underpaid.

A class action lawsuit was filed today in response to claims that tens of thousands of Australian team members—many of whom are under the age of eighteen—were subjected to wage exploitation while employed by the multinational corporation twelve months ago.

In an attempt to recover unpaid pay for up to 100,000 KFC employees, both current and former, Gordon Legal launched the class action. The fast-food restaurant, which employs over 40,000 people, is accused of neglecting to give its employees paid rest periods for the previous six years.

According to Gordon Legal, thousands of KFC employees, both present and past, could be eligible for compensation if the claim is successful. This could put the total claim value in the tens of millions of dollars.

“While the Colonel’s 11 spices and herbs are kept a secret, Fair Work laws are not.” Partner Andrew Grech claimed that KFC exploited people who were frequently just starting out in their professions and either didn’t know their rights or were scared to speak up.

Neel Kashap and Roshanpal Singh, the representing applicants, stated in a joint statement:

“We feel disappointed that our inexperience was exploited when we started at KFC because we were both young and inexperienced.”

Anyone who worked at KFC from 25 October 2017 until now could be eligible for the class action, and the firm urged further applicants to come forward.

Judgment delivered in Ruby Princess class action 

The Federal Court has handed down its decision in a class action over the Covid-riddled Ruby Princess cruise. 

Carnival Plc and Princess Cruise Line, the companies responsible for the Ruby Princess cruise ship, was found to have breached consumer law when it embarked on a trip that ended in the deaths of 28 passengers and saw 600 others contract the coronavirus. 

However, lead applicant, Susan Karpik, did not reach the threshold for damages for personal injuries. Although she was found to be entitled for damages related to distress and disappointment, this will be at no more than the $4,400 refund already provided by Carnival. 

Referring to communication with passengers prior to departing, in which Carnival reassured them about their safety, Justice Stewart said they made “misleading representations that it was reasonably safe”. 

The judgment set out that Carnival should have warned passengers about the heightened risk of contracting the virus, should have implemented screenings and physical distancing, and isolated the ill passengers onboard from 11 March onwards. 

The matter has been listed for a further case management hearing and final orders on 10 November. 

Judge says defamation costs order could have been reduced 

A Federal Court judge stated that if the national broadcaster had not given such unrestricted consent, the former soldier’s defamation victory versus ABC might not have resulted in an indemnity costs judgement being granted.

On Tuesday, October 24, Heston Russell, a former soldier who was deemed to have been falsely accused in an ABC piece written by reporters Joshua Robertson and Mark Willacy, was awarded costs of the lawsuit on an indemnity basis. The proposed order was approved by the ABC.

This comes on top of the $22,315.48 in interest and $390,000 in damages that were granted to Mr. Russell earlier this month.

Because Mr. Russell provided the ABC with “deliberately false evidence,” Justice Michael Lee stated he would have “made a different order” if they had not agreed to it.

This switch relates to the ABC’s rejection of an offer made by Mr Russell’s lawyers four days after the lawsuit was filed.

His barrister, Sue Chrysanthou, had previously told the court the offer would have seen a judgment in the sum of $99,000.

NAB, MLC allegedly ‘ripped out’ millions in super fund scheme, court told 

A court has been informed that thousands of beneficiaries of the MLC Super Fund were charged $165 million in fees for no service in order to allegedly further the interests of the board and the National Australia Bank.

The Federal Court was told that MLC members were charged fees and premiums to their superannuation accounts between 1 July 2016 and 23 September 2020 in an alleged “sorry state of affairs” to fund the commissions “given in full” to financial services licensees.

The commissions “came with no requirement for advisors to do anything” in exchange, according to the group members’ legal counsel.

“The group members had the privilege of paying for that, and the advisor can sit back in a comfortable chair and just watch the money hit the bank account,”

A trustee for the MLC Super Fund named NULIS Nominees is the target of the class action lawsuit. MLC was a division of the National Australia Bank (NAB) until it was sold to IOOF Holdings in May 2021.

In the framework of ownership, NULIS “ripped out” $165 million from members before stopping just a few months shy of a “hard ban” proposed in a January 2021 legislative.

The fact that NULIS filings focused on its fee-charging procedure but were silent on how charging members would benefit them, according to the attorney, was “ironic but perhaps not surprising.”

“That silence is deafening,” he declared.

NT’s bid to overturn grant of land to traditional owners fails 

A suggestion that a number of land concessions be handed to the Aboriginal traditional owners was not overturned by the Northern Territory.

The proposal to transfer land in the north-west, close to the West Australian boundary, to persons the Aboriginal Land Commissioner (ALC) determined were traditional owners, was challenged in court by the territory’s government with support from the Commonwealth.

The NT’s request for review was denied on Thursday, October 5 in the late afternoon by Justice Mordy Bromberg of the Federal Court, who added that the case had “fascinating issues” presented.

Where does the sea end and the land begin is a crucial question. The Australian Northern Territory’s request for judicial review raises this intriguing dilemma, according to Justice Bromberg.

The ALC recommended the “Legune Area Land,” which comprises the estuaries of the Keep River and Victoria River, and the “Fitzmaurice River Region,” which includes the Fitzmaurice River estuary, under the terms of the Aboriginal Land Rights (Northern Territory) Act of 1976.

The NT claimed that the ALC misinterpreted the legislation and overstepped its authority when it recommended a grant of “land in the NT” as part of its narrowly defined role.

The Northern Territory Land Council, the third respondent, argued that the coastal low-water mark serves as the “boundary of the sea” for the purposes of the statute and marks the beginning of the land.

Justice Bromberg found the reasoning to be “consistent” with the ALC’s concentration “upon the line of the coast constituting the demarcation between land and sea” in reference to an argument in Risk v. Northern Territory of Australia, which considered whether the seabed of bays and gulfs in the NT can be the subject of a traditional land claim.

‘Extremely serious’ claims question Federal Court judge’s career history 

A man made “extremely serious” allegations that a Federal Court judge’s early career affected her judgement during the course of his racial discrimination complaint against the Fair Work Commission.

Loi Toma’s request for leave to appeal a judgement rendered by Justice Elizabeth Raper was denied by Justice Robert Bromwich of the Federal Court on the grounds of perceived bias resulting from Raper’s former professional and social connections.

Mr. Toma attempted to bring a claim of racial discrimination against the Fair Work Commission to the Federal Court after filing a complaint with the Australian Human Rights Commission.

As there was “no articulation or evidence of how the conduct constituted racial discrimination in the requisite sense and it sought to reagitate matters that had already been reviewed in court,” Justice Raper denied his motion in October of last year.

Mr. Toma cited Justice Raper’s swearing-in ceremony, which took place after the first return date of the case and was attended by the Fair Work Commission’s current president, in his attempt to obtain permission to appeal Justice Raper’s ruling. He said that no one informed the parties of this.

The president, Adam Hatcher, who was vice president at the time, was not the “guest of honour,” as Mr. Toma suggested, but it “almost certainly would not matter” if he were, according to Justice Bromwich.

“None of these circumstances have been shown to amount to any basis for a fair-minded lay observer to reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of what Her Honour was required to decide,” said Justice Bromwich.

Furthering his arguments, Mr. Toma claimed that Justice Raper’s conduct “confirms that her conflicts affected her judgement” and that the rejection of his appeal had demonstrated real bias.

“Such an allegation is extremely serious and should never be made upon the basis of nothing more than a party’s failing case, which is all that is in substance proffered,” Justice Bromwich stated.

“A merely negative outcome, which is all that is left, will not do.

“This aspect advanced for the grant of leave to appeal has no chance whatsoever of success, and to refuse leave to appeal on this basis could not possibly occasion any injustice,” the statement reads.

NULIS slams allegations of $165m super ‘scheme’ with NAB 

A superannuation trustee accused of taking $165 million from beneficiaries as part of a grandfathering commission “scheme” said the allegations were “inaccurate, unfair and contrary to principle”. 

“(We) categorically reject (the applicants’) assertion that NAB and NULIS had a plan in place starting in September 2015 to retain the grandfathering of commissions.

The submission of a scheme or a done deal has been described in a number of ways, and it has also been claimed that a procedure appeared to exist.

“Those allegations are very serious,” Mr. Thomas stated.

In his opening remarks, Mr. Thomas said that Mr. Brady’s member package “relatively remained unchanged” and that he was in “exactly the same position” following the subsequent financial transfer.

“The account remained the same, the benefits remained the same, the investment options remained the same, and the fees payable by Mr. Brady remained the same,” stated Mr. Thomas.

Regarding the applicant’s claims that the decision to permit the grandfathering of commission was hurried through and made in favour of NULIS and NAB, Mr. Thomas refuted those claims.

Instead, he emphasised how “careful, considered, and robust” the choice was.

According to Mr. Thomas, the material from the commission was presented to NULIS in April 2016; however, they declined it because they were dissatisfied. The court was informed that the commissions were only approved after NULIS obtained more pertinent information.

“This was to the board’s credit and is inconsistent with grandfathering being a ‘done deal’ after 2016,” Mr. Thomas stated.

Piper Alderman flags competing Qantas class action 

Piper Alderman, a business, informed the court that it was just a matter of weeks before it will file a competing class action lawsuit against Qantas for failing to reimburse consumers in full for cancelled flights during the epidemic.

Thomas Bagley, lawyer for Piper Alderman, said the company has spent six months looking into the large airline and may be ready to bring its own cases within the next two weeks when he appeared in the Federal Court on Thursday (12 October) morning.

The possible class action filed by Piper Alderman will conflict with those filed two months ago by Echo Law.

According to both companies, Qantas “enjoyed significant financial benefits at its customers’ expense” by offering travel credits or vouchers in lieu of full cash refunds for its cancelled COVID flights.

Due to “significant restrictions” and the possibility of expiration, the vouchers, according to Echo Law, were “much less valuable to customers than the refunds to which they were entitled.”

Piper Alderman’s class action was challenged by Echo Law attorney Dr. Oren Bigos, who informed the court that Piper Alderman “simply turned up and said they want in” without having identified a lead applicant or filed any paperwork.

According to Dr. Bigos, allowing Piper Alderman to interrupt the meeting will impede the process of developing a schedule.

“If the case is postponed, it will create a precedent where someone might show up without starting their own case. He has shown up without having his own proceeding. Dr. Bigos said.

However, Justice Murphy warned the two enterprises from acting contrary to the interests of the group members by merely pursuing a plurality fight rather than taking into consideration integrating the two.

It is almost never in the best interests of the group’s members, according to Justice Murphy; instead, “it’s in the funders’ or the lawyer’s”

Justice Murphy signalled that he would issue an order requiring the filing of any rival class actions before the court within the next two weeks

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