Newsletter 168

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Expanding pathways to PR for temporary skilled sponsored workers 

The Australian Government will make changes to the Temporary Skill Shortage (TSS) (subclass 482) and Temporary Residence Transition (TRT) stream of the Employer Nomination Scheme (ENS) (subclass 186) visas starting on November 25, 2023* (subject to the approval of regulation changes). The purpose of these changes is to give TSS visa holders a more straightforward and clearer path to permanent residence.

The modifications will guarantee that Australia attracts and keeps the talented skilled workers it needs and will give companies and TSS visa holders more certainty. 

PR for temporary skilled sponsored workers – changes from 25th November 2023

Temporary Skill Shortage (subclass 482)

From 25 November 2023* the Government plans to remove the limit on the number of Short-term streams TSS visa applications that visa holders can make in Australia.

This change is intended to apply to new TSS visa applications made on or after 25 November 2023. Short term-stream TSS holders with visas expiring before 25 November 2023 will need to travel outside Australia to lodge a third short term-stream TSS application.

Employer Nomination Scheme (subclass 186) Temporary Residence Transition Stream

Changes planned for TRT stream nomination requirements include:

• allowing employers to nominate holders of all streams of TSS visas (including Short-term and Labour Agreement streams).
• removing the requirement for nominated occupations for the TRT stream to be assessed against a skilled migration occupation list. The nominated occupation will need to be listed in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and the nominated worker will need to continue to work in the occupation nominated for their TSS visa(s).
• reducing the period of time a TSS visa holder must hold their visa and work in their nominated position or occupation to be eligible to be nominated by their employer for the TRT stream to two out of the three years before nomination.

Modifications to the TRT stream nomination requirements are meant to apply to newly submitted nomination applications for the ENS and Regional Sponsored Migration Scheme, as well as those that are still pending as of November 25, 2023*.

The following will change in terms of TRT stream visa application requirements:

• modifying age exemptions to provide a two-year pathway for applicants seeking to become regional medical practitioners and high income earners 45 years of age and older.
• removing age exemptions linked to COVID-19 that will be unnecessary because of the two-year route.

Sydney man indefinitely disqualified from profession for trust account misconduct 

The Law Society has criticized an accountant who established a boutique legal practice in Sydney for mismanaging trust funds without permission and prioritizing his personal financial gain over the interests of his customers.

Eric Shu-Wah Ip, a licensed accountant and registered tax practitioner who formed Onward Legal and served as its director, has been permanently barred from managing or working for a legal business and receiving compensation in connection with the practice of law.

Between 2017 and 2018, Mr. Ip—who has never practiced law—and his company were hired to help with the unit sales.

Mr. Ip moved thousands of dollars in and out of trust accounts while doing that work. None of the buyers had given their consent for the transactions to be executed, and Onward Legal had been holding the funds as deposits for the units.

In order to repay himself for payments he had made on his personal credit card for one of the projects, an additional payment of more than $22,000 had been made to that credit card. It was also determined that this payment to himself violated the Uniform Law.

The NSW Civil and Administrative Tribunal (NCAT) concluded that “Mr. Ip’s conduct was both a substantial and consistent failure to maintain a reasonable standard of competence and diligence that the public is entitled to expect of a reasonably competent lawyer in conduct occurring in connection with the practice of law.”

Mr. Ip acknowledged all of his wrongdoing and said it proved he wasn’t a suitable candidate to be in the field.

The members stated that Mr. Ip’s actions would have constituted both unsatisfactory conduct and professional misconduct if he had been a lawyer.

“We acknowledge the necessity of denouncing Mr. Ip’s behavior in order to discourage others engaged in the legal profession—whether as solicitors or lay associates—from acting in a similar fashion.”

ASIC takes Telstra Super to court over complaint deadlines 

A judge will hear a case against Telstra’s superannuation division for allegedly neglecting to respond to consumers’ complaints in a timely manner.

On Monday, November 6, the Australian Securities and Investments Commission (ASIC) announced that it had filed Federal Court civil penalty proceedings, citing Telstra Super’s failure to adhere to internal dispute resolution requirements as a violation of the Corporations Act 2001.

The regulator said that 337 complainants did not receive proper responses between December 2021 and May 2023.  

Sarah Court, deputy chair of ASIC, stated that “effective dispute resolution procedures” should be in place in the financial services sector and that it was crucial for these businesses to have “systems and resourcing to ensure they are being put into practice.”

According to Ms. Court, in order to adequately safeguard their clients, financial service providers must give priority to dispute resolution processes.

In forty percent of cases, according to the regulator, Telstra Super did not follow its internal policies. 106 complainants, for example, did not receive a response from the company within the allotted 45 days.

22 complainants were not notified of their entitlement to take their complaint to the Australian Financial Complaints Authority, and a further 85 customers were not told why there was a delay.

Additionally, ASIC claimed that Telstra Super lacked the necessary resources to follow its internal dispute resolution procedures and that it was inefficient, dishonest, and unfair when it sent complainants delayed notifications “when it was not justified to do so.”

ASIC is  seeking declarations, pecuniary penalties and other orders against Telstra Super. 

Tribunal reviews power to appoint manager to firm 

Len Gandini questioned the Western Australian Legal Practice Board’s decision to appoint two managers to Chapmans Barristers and Solicitors, and the matter was the subject of a stay application before the State Administrative Tribunal.

Mr. Gandini requested a reexamination of the board’s ruling, arguing that the Uniform Law precluded the board from designating more than one manager of a law practice at a time.

The tribunal stated that Mr. Gandini’s request for a review required it to “form its own understanding of… the legal framework for the decision,” even though it was pointed out that it lacked the authority to make “any binding determination” regarding the scope of the statutory power.

The single worker qualified for practice did not possess a certificate of practice that would have made him Chapmans’ principal or qualified him to handle trust funds.

The panel found that while Mr. Gandini claimed that appointing more than one manager at once would “lead to results which are unworkable or absurd,” the “practicalities of such concurrent appointments can be resolved in a variety of ways.”

Furthermore, a manager’s job is not one that can be done by one person at a time by nature.

Convicted terrorist Abdul Nacer Benbrika wins High Court bid to restore his Australian citizenship 

The High Court has decided not to cancel the citizenship of Abdul Nacer Benbrika, one of Australia’s most prominent convicted terrorists.

Key Points:

• The former government was unable to revoke Abdul Nacer Benbrika’s Australian citizenship, according to the High Court.
• Benbrika’s incarceration ends shortly before Christmas, and a Victorian judge has not decided whether to prolong it or release him under supervision.
• Anthony Albanese, the prime minister, said he is consulting with experts over the fallout from the decision.

Speaking shortly after the ruling, Prime Minister Anthony Albanese said the government would seek advice on any implications of the decision. 

“We will examine the ruling and respond appropriately,” Mr Albanese said.

“Quite clearly there was an issue with the former government’s legislation, which is what this ruling relates to.

“When it comes to the legal consequences, we will seek advice for the ruling and respond appropriately,” he added.

Asked whether the ruling demonstrated overreach by the former government, opposition spokesman Simon Birmingham defended the Coalition’s actions and urged the Albanese government to consider “whatever means are necessary” to ensure Benbrika would not pose a risk to the community.