Tag Archive | "Visability"

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Getting a re-entry ban waived is very difficult

Co Antrim native and registered migration agent John McQuaid provides a uniquely Irish perspective on current visa and migration issues

Co Antrim native and registered migration agent John McQuaid provides a
uniquely Irish perspective on current visa and migration issues

Hi John,

I’ve just returned to Ireland from from Australia. When leaving, at the airport I was unexpectedly issued with a three-year re-entry ban as, unbeknown to me, my visa had expired in August. I’ve been on a student visa for more than two years. I followed all my student visa conditions and paid fees and kept up attendance. During my studies I had to move to a new college but the education office didn’t mention anything about extending my visa and I was not aware that visas and college courses did not go hand in hand. I had no idea I was in danger of not being allowed to return until I got to the airport and was told my visa had expired.  Is there any chance of me being able to return?



Hi Sarah,

Three year re-entry bans are typically issued to people who have overstayed their Australian visa by more than 28 days.

A three year re-entry ban is for temporary visas only.

So it may be possible to look at permanent visa applications such as partner, skilled or employer nominated visas.

Getting a three year re-entry ban waived to return as say a student or temporary worker is very difficult.

Student applications are subject to public interest criteria 4014; this means there must be compassionate or compelling circumstances to grant a new temporary visa to someone who has a ban period.

The Department of Immigration (DIBP) might consider waiving the exclusion/ban period, depending on the reason why the re-entry ban was imposed.

To claim this waiver, the factors in support of a return to Australia must outweigh those in favour of the exclusion from Australia.

DIBP will consider factors, such as compassionate or compelling circumstances that affect an Australian citizen, or compelling circumstances that affect Australia as a country.  Generally, considerations such as illness, pregnancy or other circumstances where assistance is required will be also taken into account.

DIBP will not accept a visa holder /unlawful citizen’s lack of knowledge or understanding of the law as an acceptable reason for having allowed their visa to expire.

DIBP considers this your responsibility.

If you are subject to a re-entry ban and you do not have  evidence to prove compassionate or compelling circumstances, so that a waiver of the ban can be considered, you need to wait until   the exclusion period expires before you lodge another temporary visa application.

While you can, in theory, lodge a valid visa application during the exclusion period, it is likely to be refused and visa fees will not be refunded.

When looking to study in Australia, it’s important to remember that education agents can assist people to find study courses and colleges to suit their needs. However, they are not permitted to give immigration or visa advice unless they are also a registered migration agent.

Applying to have a re-entry ban waived is a complex.

Before committing expensive visa fees, consider asking a migration agent for detailed advice about your eligibility for a particular visa type.

Visit www.mia.org.au


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Visability: Can I apply for PR myself?

Co Antrim native and registered migration agent John McQuaid provides a uniquely Irish perspective on current visa and migration issues

Co Antrim native and registered migration agent John McQuaid provides a
uniquely Irish perspective on current visa and migration issues

Dear John,

I am here in Australia on a temporary sponsored 457 work visa in a professional occupation. I have just been let go by my employer, the second time this has happened to me in the last two and a half years. There‘s plenty of work in my field so I think I can find a new job but I was banking on being nominated by my employer for permanent residence. I’ve been working here for over two years now, can I apply for permanent residence myself?

What are my options? I got my visa based on my work experience but don’t have a formal qualification.


Dear PJ,

One of the 457 visa conditions called 8107 means that ceasing work for more than 90 consecutive days is a breach of the visa, so best to find a new sponsor or lodge some other visa application quickly.

If you find a new employer who is already an approved sponsor, moving the 457 visa is a relatively fast process requiring only a new temporary nomination application by the employer. This can be processed by the department in two to three weeks. A new 457 visa application is not needed.

Moving from a temporary 457 to permanent residence visa requires a new application. Simply having worked in Australia for two or more years does not in itself give any right to permanent residence.

Those on 457 visas who have worked for two out of the last three years with their employers can be nominated by the employer for permanent residence under the Temporary Residence Transition Stream (TRTS). This is the typical path for people without formal qualifications as usually no skills assessment is needed to apply for the permanent visa.

So what happens when you change employer?

Under the current rules, unless you are a general manager or medical professional, you need to complete another two years with the new employer to become eligible for the TRTS option.

The potentially faster alternatives to permanent residence, Employer Nomination Direct Entry (DE) or Independent 189 or State Nomination 190 visas all require a formal migration skills assessment.

Currently, Vetassess, the skills assessors for most professional occupations, insist on a formal qualification to meet eligibility.

For anyone looking at the Employer Nomination TRTS pathway, there may be changes coming to the two year work rule.

A recent independent review of the 457 visa scheme commissioned by the government has resulted in a number of recommendations including allowing people who have worked for two years on a 457 and at least one year with an employer to access the TRTS.

Other positive recommendations include allowing partners of primary 457 visa holder’s access to the Employer Nomination TRTS. These recommendations, if implemented, may take several months to come into law.

If you haven’t found a new sponsor within 90 days you are in breach of conditions and the visa may be cancelled, however this is not an automatic process. Immigration will write to you sometime after the 90 day period as elapsed to ask what is happening before they take any action.

It’s really important not to miss this so best to make sure the department and your employers have your current address and email details.

If you decide to leave Australia you can ask sponsoring employers to pay your airfare back home. Sponsors are obliged to pay this where the request is made in writing.

Consider asking a registered migration agent for assistance.

This Migration Column is intended to provide general information on migration issues and does not constitute legal or migration advice. While all care is taken, no responsibility is accepted by the Irish Echo or John McQuaid for the accuracy of material in the column.

People seeking advice on migration law should seek advice from a registered migration agent. Send your immigration questions to John at visability@irishecho.com.au.


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Visability: Is a state nomination visa better?

Co Antrim native and registered migration agent John McQuaid provides a uniquely Irish perspective on current visa and migration issues

Co Antrim native and registered migration agent John McQuaid provides a
uniquely Irish perspective on current visa and migration issues

Dear John,

I am an Irish qualified bricklayer in Sydney on a temporary visa looking to apply for permanent residence. I see options for the state nominated or independent visas. Is there any advantage in applying via state nomination? Which is the better option for me?

Brian T

Dear Brian,

Yes, the “skill select” system’s independent or state nominated visa options are open to application from in or outside Australia.

To start, check if your occupation is on immigration’s current Skilled Occupations List (SOL). SOL occupations are eligible to
apply independently and through state/employer nominated routes.

Bricklayers are not currently on the SOL, but are on the bigger Consolidated Skilled Occupation List (CSOL). CSOL listed occupations are eligible to apply for the state or employer nominated permanent visas but not through the independent route. So as a bricklayer, the state nominated route is the next best option to employer nomination.

The Skill Select System requires you to have at least 60 points to make an “expression of interest” (EOI) application for the preferred visa. Points can be claimed for age, qualifications, work experience and English language ability.

Some positives for the state nominated option are that an extra five points are available for the nomination, and may be critical to getting to the 60 point minimum eligibility.

Getting a state nomination approval means immigration will invite you to apply for your visa right away.

One possible downside is that you must commit to living in the nominating state for the first two years of the visa. Each state has different lists of occupations they sponsor and in some cases additional requirements such as minimum years of experience. Some ask you to have access to ‘relocation funds’.

NSW is not accepting permanent nomination applications until the new migration program year starts in July. At this time, expect NSW and other state governments to release new lists of occupations they will sponsor.

If you are in Australia, it’s best to look at the state you are living in as you may have problems convincing another state government that you genuinely intend to relocate. Applicants outside Australia need to show that they have researched their preferred state in some detail.

If lodging an EOI for the independent visa (without a state nomination) you have to wait for an invitation to apply for the visa.

Every month, DIBP sweep the EOIs, picking the highest points scorers first. However, recent DIBP reports show many EOI applicants with the base 60 points getting

This independent route can mean waiting for several months for an invitation and unlike the state nominated option, there is no guarantee of receiving an invitation.

To make the free EOI application, a migration skills assessment and in some cases an English language test are needed. These steps will determine how you reach the 60
points score and eligibility. So there will be some costs to get to the point of EOI.

When you get the visa application in, DIBP processing is currentlyaround three months. Bridging
visas are granted to anyone who
has applied for the visa while in
Getting the migration skills
assessment can take from four
weeks to four months depending
on your occupation. Allow four
to six weeks to obtain the English
language test score.
Understanding how you can meet
the points is critical so consider
asking a registered migration agent
for a personal assessment

Send your immigration questions to John at visability@irishecho.com.au.


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Visability: Is there a visa that lets you work longer than six months?

Dear John,

I am in Ireland and will finish my masters in mechanical engineering in the next month. I’m looking for visa options to find a year or two of work experience in Australia. I can get the working holiday visa as I’m still under 31, but I heard the working holiday visa has a six month work limitation. Are there any other options that allow me to work for longer periods?

Patricia D.

Dear Patricia,

The 12 month 417 working holiday visa has a work limitation allowing a maximum six months’ work with any one employer. So, it is possible to change employers and continue to work for the entire 12 months.

A potential alternative for engineering students to consider is the Recognised Graduate visa (476 visa).

This visa allows an 18 months stay in Australia with unlimited work rights. You can travel in and out of the country and work in any industry.

The main aim of the visa is to give engineering graduates a chance to find work experience in their chosen field. This in turn, can often lead to options for sponsorship or, perhaps gaining sufficient points to apply for an independent skilled visa at a later stage.

Although the aim is for graduates to find work in their field there is no requirement to have a job offer or any obligation to work in engineering.

To be eligible for the Recognised Graduate visa you need to be under 31 year old when applying and have completed a degree, masters or post graduate diploma in engineering from an eligible institution within the last two years.

An eligible institution is one that has engineering qualifications accredited under the ‘Washington Accord’, which is an international agreement among bodies responsible for accrediting engineering degree programs. It recognizes the substantial equivalency of programs accredited by those bodies and you can find a list here or if you studied in the UK, the list can be found here.

Your qualification must contain a major sequence of study or specialisation in an engineering discipline. Specialisations include but are not limited to: civil or structural, chemical, environmental, electrical and electronics engineering, mechanical, production and plant engineering. The visa costs $360, processing takes about three months.

This visa has other benefits as family members can join the visa application, so unlike the working holiday visa, a partner and children can be included on the 476 graduate visa.

This is also a really good option for anyone that has yet to come to Australia and has recently finished or is set to finish an engineering qualification. If you have not yet had a working holiday visa, it could be a strategic plan to take the recognised graduate visa, and keep your options for a working holiday visa for later years.

Another option for experienced and engineering graduates is to look at applying for skilled migration visas through the points tested Skill Select program.

These points tested visa options will take longer processing times, allow at least nine months. Application costs are significantly higher as they are typically for permanent residence.

Allow plenty of time to review your options and consider consulting a registered migration agent to review your circumstances to help you decide which visa option will work best for your situation, needs and budget.

Submit a question to John McQuaid.


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Visability: At aged 48, what options have I visa-wise?

  Dear John,

I have been offered a senior role in Australia on a temporary four year sponsored visa. I’m keen to take up the offer, but my wife and I are wondering what our options are for further visas as we are both now 48 years old. We have been told you cannot get a skilled visa after the age of 50. Is this true? Would we have to leave at age 50? We also have a 10 year old son, how would he be affected?

SK in Ireland

Dear SK,

The temporary sponsored 457 visa program does not have any upper age limit. It is the permanent skilled visas that have an upper age limit of 50 years of age. So 457 visa applicants and visa holders can be over 50 years of age and continue to be sponsored and work.

If you are granted a 457 visa for four years at age 48, you could look to obtain a further four year visa at age
52, and so on.

Australian Immigration policy notes that temporary 457 visa applicants over 60 years of age may come in for more

Eligibility for a permanent residence skilled visa once you reach 50 years has very limited exceptions, so best to look at whether there is an option for the employer to nominate you for permanent residence well before you reach your 50th birthday. Options include the Employer Nomination Scheme (ENS) or the similar regional alternative; RSMS.

Moving from the temporary 457 visa to an ENS permanent visa has two main pathways; the temporary transition path or the direct entry path.

The Direct Entry path may be good option for anyone approaching 50. To be eligible, you need to be able to get migration skills assessment and show you have at least three years full time post qualification experience in the job. Work in any country counts here.

To get migration skills assessment in a professional occupation, generally a formal qualification is needed. The qualification level depends on the occupation; most require degree level, with a few occupations allowing diploma level. Trade applicants may have options to apply for skills assessment without formal qualifications.

If your employer is in a regional area of Australia, the RSMS permanent option can provide a sometimes simpler path, however you must commit to living and work in the regional area for at least the first two years of the 187 visa.

The Temporary transition ENS pathway requires visa applicants to have worked with their nominating employer for at least two years on the 457 visa. As you would be over 50 at this point you have to look at the age exception rules. An exception exists for 457 holders who have worked for their employers for four years on the 457 visa and earning at least the Fair Work High Income Threshold (FWHIT) for each year.

FWHIT is currently set at $129,300 per year, this rises by about five per cent in July each year.
Bonuses and superannuation do not count towards this benchmark salary, but car allowances and living away from home allowances will count. Some limited exceptions also apply only to specific religious medical, research and senior academic roles.

In some states in Australia, notably NSW and Western Australia, 457 visa holders are required to pay school fees for their children. Expect fees to be around $5,000 per year for state schools. The ‘private’ catholic school systems charge varying fees for temporary and permanent residents check locally and budget accordingly.

Consider asking a registered migration agent for a detailed review of your profile and assessment of your options.


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Visability :: My boss wants to sponsor me but can’t

Latest figures point to new Irish exodus to Oz

Dear John, My wife and I have been in Australia since September 2008 on 457 visas sponsored in my trade. In June 2012 we applied for permanent residence through employer nomination (ENS). My application was fine but the employer application was refused as my employer had been sanctioned by Immigration for non-compliance on his temporary sponsorship obligations.  Because of the employer’s problem, my PR application was refused. The application was appealed in the MRT but has just failed again as the employer’s ban has not been lifted yet. The age limitation and waiver rules for Employer Nomination changed in July 2012 so we are now over the age limit for a new nomination by any other employer. Our three adult children all live in Australia, as do our grandchildren. One of our children is a permanent resident; another is in the process of applying for permanent residence. With all our family here, we don’t want to leave Australia. What are our options to stay now? Name Withheld

Dear NW,

Employer Nomination applications have two parts, the first part being the employer’s. This must be successful for the employee’s visa application to succeed.

One of the requirements for the employer’s part is that there is “No Adverse Information” about the employer.

If an employer is found to have not met their temporary sponsorship obligations, this can constitute adverse information.

Approved employer sponsors sign off on a number of obligations, and it’s really important for the future of the sponsored employees and the business continuity that employers don’t ignore their obligations during the approval period. Read more here.

As you can see, the consequences of non-compliance can be disastrous.

I always recommend a pre-application check on the employer’s part to ensure they are likely to meet the ENS requirements. Where there is some doubt, the employer part of an ENS can be lodged prior to the visa application, and then wait to see if part one is successful before committing to the visa application itself.

In your case it seems there may have been some haste to ensure you applied for the visa prior to flagged law changes on age coming in on July 2012.

At this point as you are over 50, you can of course look to get further 457 visas with other employers.

With three children in Australia, when your second child becomes a permanent resident, you would meet the “balance of family test” requirement and be able to look at parent visa options to get to permanent residence.

There are a number of parent visa options to consider. In general, to lodge a parent visa while in Australia the applicants need to be “aged” (pension age).

There are offshore applications options for younger parents. The contributory parent visa stream is processed in around 18-24 months but has high cost of application. There is a temporary to permanent option that can see these significant costs spread over several years.

See more here.

Parent visa regulations are complex so consider asking a registered migration agent for professional assistance with your application. Find an agent here.



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Visability :: How soon can I become a citizen?


Dear John, I’m Irish and have been a permanent resident in Australia for nearly a year. I was on a working holiday visa and then a 457 temporary visa before becoming a permanent resident. Am I eligible for Australian citizenship? Do I have to give up my Irish passport if I become an Australian citizen? What is the benefit of citizenship and how do I go about getting it approved? Thanks, Ger T

Dear Ger,

There are a number of good reasons to take out Australian citizenship. The good news is Irish and UK citizens do not need to give up their passports to do so and effectively become dual citizens.

Permanent Residence visas allow you to stay in Australia for ever but the travel component to leave and come back to Australia is for a five year period from date of grant.

After this date, you must get a resident return visa if you travel overseas and want to return to Australia as a permanent resident.

Taking out citizenship allows you to apply for an Australian passport; you will then avoid having to keep the permanent residence /resident return renewed.

It is possible to hold Australian and Irish passports at the same time.

As an Australian citizen you have the right to vote in elections, apply for work in the Public Service or Defence Forces, and importantly, you will be able to register children born overseas as Australian citizens by descent. This is worth remembering if you are planning spending long periods outside Australia. To apply for citizenship as a ‘migrant’ you need to be able to meet the current Australian Residence requirements.

This is based on the time you have lived in Australia and the time you have spent outside Australia.

You need to have been living in Australia on a valid visa for four years immediately before applying, with at least the last 12 months as a permanent resident, so time spent here on temporary visas counts towards the four years.

So in your case if you were here for three years on temporary visas prior to becoming a permanent resident, you could be eligible to apply for citizenship.

You must not have been outside Australia for more than one year in total in the four-year period, including no more than 90 days in the year before applying.

It’s important to check all the dates you have been in and out of the country on all visas.

There is a helpful Residence Calculator on the Department of Immigration website here.

Once you have checked you meet the residence period you can start to prepare your application.

You will need to take a citizenship test as part of the process so best to do some homework on the questions by getting the test resource book from the Department of Immigration here.

You may also need to get new police checks from the Australian Federal Police.

After you lodge your citizenship application, DIBP (immigration) will send you an appointment date to sit the citizenship test.

You then have to wait for the results.

When your citizenship application is approved, you will be able to complete the process by attending a citizenship ceremony.

Ceremonies are held periodically in local suburb town halls and Immigration offices and at special events such as Australia Day celebration venues.

The application fee is $260; expect the process to take at least three months.

Once you have citizenship you can apply for an Australian passport.

Consider asking a registered migration agent for help with assessment of your eligibility. Find a registered migration agent here.

To submit a question to John McQuaid, Email Him Here

This Migration Column is intended to provide general information on migration issues and does not constitute legal or migration advice. While all care is taken, no responsibility is accepted by the Irish Echo or John McQuaid for the accuracy of material in the column. People seeking advice on migration law should seek advice from a registered migration agent.


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Why is my 457 visa application taking so long?

John McQuaid answers your visa questions.

John McQuaid answers your visa questions.

Hi John,  

I’m work for a company in Europe, which has a base in Australia. They offered me work on a project in Australia that started at the end of July. My company sent in the documents for a 457 sponsored visa in the second week of June and have not heard anything from the Department of Immigration. Should it take this long to get any correspondence from the department? 

Peader Mc

Dear Peader,

The stated standard processing time for this visa type is two months and often the result will be faster.

However, major rule changes and fee hikes flagged for the 457 programme as of July 1 resulted in a high number of applications in June.  This slowed processing times.

Despite the delays, if you have not heard from immigration within their processing time, chase them. This can be frustrating and will need to be led by your employer as they lodged the paperwork.

Immigration will only talk to the person listed as the point of contact, so even though you are the applicant, officials may not talk to you directly. When making contact, have your application receipt number at hand.

Expect a long wait if calling and several days wait for a response to web messages.  Paper-lodged applications will take longer to be processed.  There is also the possibility that a paper-based application posted or couriered to immigration did not get delivered.

Check if your employer or you received an acknowledgment of application letter or check the credit card used to see that the application fees were deducted.  Since July 1, all 457 visa applications must be made online.

Send your visa questions to visability@irishecho.com.au.


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How to switch from a 457 to partner visa

John McQuaid answers your visa questions.

John McQuaid answers your visa questions.

Dear John,  

I have been on a 457 visa now for fifteen months, sponsored by my employer.  My Australian partner of over twelve months has suggested we look at lodging a partner visa.

Can I apply for this now or do I have to work with my sponsoring company until I have two years of my sponsorship completed?  Also, I am leaving Australia with my partner for a month next April – will this cause a problem?


Dear NM,

For partner visa applications, there is no requirement to have worked for any length of time on a 457 visa.  The two-year rule you refer to applies only to people looking to move from a 457 visa to employer nominated permanent residence visas through the Temporary Resident Transition Scheme.

To look at applying for a partner visa, you need to be able to show that you and your partner are in a genuine and ongoing de facto (living together) or married relationship.  This generally means having good evidence of living together for at least 12 months.

However, in some Australian states such as New South Wales, Queensland and Victoria, the need to show 12 months relationship can be reduced by registering your relationship with the local Births Deaths and Marriage office. Strong evidence of a genuine and ongoing relationship is still needed.

The Department of Immigration application fee for a partner visa lodged onshore is now $4,575. If there are any dependent children to be added, there will be additional costs.
The Department of Immigration currently have a large back log of partner visa applications and have advised that processing can take 12 months or more.

When applications are lodged onshore, a bridging visa is granted, which will only come into force when the previous visa expires. If your 457 has another two or more years on it you will stay on it until the partner visa is granted. This means you must meet the visa conditions: you can only work for the nominating employer or move the 457 visa to a new sponsor.

If the 457 visa expires, the bridging visa will allow you open work rights. Be careful here, if you leave your employer while on a 457 visa, you have 90 days to find a new employer to take over the visa. If the 457 visa were to be cancelled for non- compliance, the bridging visa is also cancelled – this could lead to you becoming unlawful.

When the temporary partner visa is granted it will override any other visa held, allowing open work rights. Two years after you apply for the initial visa, you need to resubmit evidence of the relationship for PR. People in long-term relationships have options to apply directly for the permanent partner visa.

I recommend those in a strong relationship with an Australian permanent resident, citizen, or eligible New Zealand citizen, to consider this visa. If you are eligible, apply now.

The alternative option of waiting for employer nomination may be there, but this means relying on people outside your family unit.

Travelling abroad on a 457 visa while waiting for partner processing is not an issue.

Find an agent: mia.org.au/


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New Australian visa fees under the spotlight

John McQuaid answers your visa questions.

John McQuaid answers your visa questions.

Co Antrim native and registered migration agent John McQuaid provides a uniquely Irish perspective on current visa and migration issues. This week, John responds to a reader’s question about the new visa application fees introduced on Monday.

Hi John,

We are here in Australia on 457 visas for the past year and working towards lodging our skilled visa application for permanent residence. I’ve been told the new visa application fee rules mean we have to pay extra for each family member. Is this correct? My wife and I have two children here. How will they be affected?

Pádraig T.

Dear Pádraig,

The Department of Immigration has introduced new visa application fees from July 1.

Typically, visa application fees rise each year by about five per cent. But this year, for the first time, the government has introduced significant additional visa fees where there are family members on the application. Under this new “user-pays” system, there will be an extra fee for each additional family member.

For permanent skilled visa applications such as the independent 189 visa or employer nominated 186 visa, where there is a partner on the application, there will be an extra fee of $1,530. There will also be a charge of $765 for each child on the application.

So for a family of four, the total extra fee will be $3,060. This is on top of the “base application charge” of $3,060.

Immigration claims this new pricing structure brings Australia’s visa pricing into line with that of other countries such as Canada, the US and Britain. The structure of the new visa application fees is complex, so it is important to take care and calculate the visa application fees correctly.

Paying the wrong fee can mean a visa application is deemed invalid. An invalid application will be returned unprocessed.

Temporary visa applicants with family will also be affected by the new fee rules.

The popular sponsored 457 visa fee is now $900. An extra $900 fee is payable for a partner and $225 for each child on the application. Under the new rules, people applying for their second temporary visa while in Australia will find they have to pay a “subsequent temporary application charge” (STAC) of $700 a person.

The STAC would not apply to people applying for their second working holiday visa, as the first working holiday visa is always granted outside Australia.

However , it seems that a person on a second working holiday visa granted in Australia would be liable for the STAC fee if they then apply for a further temporary visa such as a 457 or student visa while in Australia.

The STAC fee does not apply if a person is outside Australia at the time they apply. Immigration is also bringing in an extra $80 fee for some visa applications that are not made online.

This fee will apply to the working holiday visa, so save some dollars by applying online.

Although the base application fees for visas look set to remain unchanged from last year, these additional fees will put pressure on families budgeting for Australian permanent residence and on people seeking to remain in Australia on other temporary visas.

It is now more important than ever to plan ahead and set your visa strategy as early as possible. To work out your visa options and fees, consider consulting a registered migration agent.

Find an agent at www.mia.org.au

Do you have a question for John? Email it to visability@irishecho.com.au


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