Newsletter 169

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Overseas Organ Transplant Disclosure and other Measures Bill 2023. 

Under the Overseas Organ Transplant Disclosure and Other Measures Bill 2023, the Migration Act would be amended to make participation in the trafficking of human organs a criminal offense based on the character test. Through the Criminal Code Amendment (Trafficking in humans Offences) Act 2005, trafficking in humans for the purpose of organ removal was first made illegal under Commonwealth law. 

Entering Australia, individuals will have to respond to inquiries about international organ transplants on their incoming passenger card. If they have had an organ transplant outside of Australia in the previous five years, they must disclose it. If so, they will have to disclose the name and location of the hospital where the organ transplant was performed. 

High Court Update – Indefinite detention 

According to media reports this week, the High Court ruled in favor of not allowing Australia to detain indefinitely people who have been denied visas due to their character, but who are either stateless, unable to return to their home countries, or both.  Although it is anticipated that they may be released into the Australian society, the government has not yet provided details on how it would handle these detainees in light of this verdict.

Health requirements – temporary visa applicants in Australia – changes 

The Department has declared on its website that the COVID-19 temporary visa measures that exempted applicants from getting chest x-rays and medical examinations have been discontinued.  This kind of applicant will now need to retake the health examinations.  Visit the Department’s website for additional details. 

NSW – Skilled Regional Work Subclass 491 Update  

The NSW Regional Development Australia clearance procedures for the Subclass 491 visa have been eliminated as part of these modifications.  The NSW government will assume responsibility for this role. 

The following modifications to the visa nomination requirements and processes are now available on the NSW website. They were made with the intention of enhancing application experience and clarity.

Overview of the Routes

• Obtaining NSW nomination for the category 491 visa can be done in one of two ways:
• Pathway 1: Direct Application to Investment NSW – Applicants that have a track record of employment with a regional firm in NSW 
• Pathway 2: Invitation from Investment NSW: Investment NSW invites candidates based on the need for their skills in New South Wales.

Rounds of invitations and direct applications

• In the near future, NSW Investment will start inviting applications for “Pathway 2” and take direct applications for “Pathway 1.”
• To handle any applications that are presently being held by the RDAs, Investment NSW is collaborating with them. 

The Investment NSW website has additional information.

 Hamas-Israel Conflict: Visa Support 

For individuals who are directly touched by the Hamas-Israel conflict and have an urgent need to travel, the Department has provided emergency information and is giving priority to visa assessments for these individuals.

On its website, the following details are included on the visa help page:

• Making a visa application to travel to Australia 
• Extending your stay in Australia 
• Making an appointment for an immigration medical assessment 
• Children travelling with one parent 

Productivity Commission – Refocus and restructure 

Simultaneously with the appointment of Danielle Wood, a former CEO of the Grattan Institute, as the next Productivity Commission, the government has produced the first Statement of Expectations.  The Statement lays out the expectation that the Productivity Commission will diversify its data capabilities, analytical frameworks, and skill set in order to better influence, provide timely, and constructive advice, and refocus on the key factors influencing Australian economic progress. Additionally, it would be expected of the Commission to enhance its governance structures, communication, and external participation.

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.”

Verdict in for Qantas’ unlawful termination of health and safety rep 

The NSW District Court handed down a verdict in the first criminal prosecution brought against Qantas for standing down a health and safety representative at the start of the COVID-19 pandemic. 

Judge David Russell found the major airline guilty of unlawfully standing Theo Seremetidis down over a direction he made to staff to cease cleaning planes that had landed from COVID-19 “hotspots”. 

It is the second ruling made against Qantas’ treatment of staff in nine weeks, with the High Court upholding a finding in September that it had illegally fired 1,700 ground staff at the end of 2020. 

The decision was welcomed by the Transport Workers Union (TWU), which brought the matter on behalf of Mr Seremeditis. 

TWU president Richard Olsen told media outside the court that the decision “puts a question mark over the legacy of Alan Joyce”. 

National secretary Michael Kaine added Qantas is a company “deep in crisis” and is “still trying to make excuses”. 

The court heard Mr Seremetidis had been concerned by the lack of proper protective gear, COVID-safe training or appropriate cleaning equipment when he gave the directive in February 2020. 

Qantas then isolated Mr Seremetidis, stood him down from his position and illegally terminated him 11 months later. 

A SafeWork inspection confirmed Qantas workers were being made to clean multiple tray tables with only one rag and water. 

Emails submitted to court also revealed Qantas managers were concerned Mr Seremetidis could take action against them as a health and safety representative (HSR) as he had been vocal on social media about the risks of COVID-19. 

Judge Russell found Mr Seremetidis had “attempted to carry out his duties as [an] HSR conscientiously and carefully”. 

“This landmark decision will make workplaces safer,” Mr Kaine said. 

“How Qantas responds to this verdict will be one of the first tests of the promise made by the airline that it has turned over a new leaf. 

“Historically, Qantas has dragged out every possible legal challenge, with [chairman Richard Goyder] still refusing to accept that illegally outsourcing 1,700 ground and fleet presentation workers was wrong.” 

The matter will return for sentencing at a later date.