The Abandonment of the new visa framework

The NZ Minister of Immigration has today announced the abandonment of the new Accredited Employer Work Visa (AEWV) framework and associated mandatory accreditation standards that were due to come into effect on 1 November 2021.

Despite the excess in time and effort spent by Immigration New Zealand from hosting webinars and conducting employer roadshows to developing policy, processes, and a new online system to support the framework, the government has decided to defer the introduction of the new framework for the remainder of the year, with indications it may go ahead in mid-2022.

This may come as a relief to many employers who will now be afforded some breathing room from the requirements to obtain accreditation in order to support migrant employees.  However, it will also no doubt be frustrating for those employers who heeded Immigration New Zealand’s advice to not become Accredited or withdraw new or renewal Accreditation applications under the existing policy on the basis these would not be necessary or of limited value (in that they were due to cease on 31 October 2021 regardless of when issued).

Those employers who did get Accreditation before applications closed on 30 June 2021, or who hold Accreditation that remains valid for some time will be pleased their efforts were not wasted.  These employers will continue to be able to leverage the Work to Residence (Talent) visa pathway for as long as their Accreditation Certificate remains valid and until such time as the new framework is resurrected and implemented.

With the abandonment of the new framework, comes a pause to the government’s intention to replace six existing work visa streams, including the Talent (Accredited Employer) Work visa, the Long-Term Skill Shortage List (LTSSL) Work visa and the Essential Skills Work visa.  These visa categories will remain valid, and migrants can continue to apply for visas under these categories until at least mid-2022.

Approval in Principle, Labour Hire Accreditation and Talent Accreditation applications remain closed and there is no intention to reopen these categories at this time.

Loosening up of Essential Skills Requirements

The Minister also announced today a loosening up of Essential Skills requirements, effective Monday, 19 July 2021.  Specifically, those individuals on Essential Skills who apply for an Essential Skills work visa on the basis of no changes to their employer, role or location of employment will be eligible for the grant of a minimum 24-month visa, regardless of their remuneration level, and will not be subject to Labour Market testing requirements.  Those applicants who do earn at or above median wage ($27 from Monday 19 July) will remain eligible for a 36-month visa. Open work visa and Student Visa holders with valid work rights are also expected to benefit from this change.

Individuals who meet certain requirements will also not be required to produce a police or medical certificate, or a copy of their employment agreement to Immigration New Zealand in support of their Essential Skills work visa application assuming they have submitted these documents to Immigration New Zealand at some time in the past and there have been no changes to their terms of employment, standard of health or character since that date.

Note that those people who are applying for a first time Essential Skills work visa will mostly likely need to provide an employment contract and potentially a medical and police certificate given they unlikely to have provided these earlier to Immigration New Zealand.  However, those already on an Essential Skills work visa, who have not changed their employment, will benefit from this dispensation.

There are currently approximately 57,000 people in New Zealand on Essential Skills Work visas. It is expected approximately 19,000 will benefit from this new leniency in policy.

It is important to note; however, that the same leniency is not currently afforded to an applicant’s dependent partner or children who will need to continue to meet the medical and police certificate requirements of existing policy.

Border Restrictions

Border restrictions remain in place and are likely to continue for some time and to at least February 2022.

The government continues to review border settings to determine if and when groups of migrants may be able to travel to New Zealand.  From Monday, 12 July, up to 300 Early Childhood and primary/secondary teachers and their families will be able to apply for a border exception to enter New Zealand despite the current border closure.  This is the latest of ongoing changes to border settings and we are likely to see a slow broadening of the exception categories as time and New Zealand’s vaccine programme progresses.

If your employee or their family are offshore and wish to travel to New Zealand, we recommend regularly reviewing the border settings to keep up to date with any changes.

Lapsed Temporary Applications

The Minister of Immigration has made the decision to ‘lapse’ certain visa applications that have been submitted for processing but cannot be approved due to New Zealand’s ongoing border restrictions.

As a result, many offshore visa applicants, including family of some temporary visa holders in New Zealand, have been lapsed.  This impacts approximately 50,000 visa applicants.

A ‘lapsed’ application is not considered a decline and so it will not impact any future applications that an individual makes, nor does it need to be declared in any future applications.  However, it still comes as disappointing news to many who have waited over 12 months for a decision to be reached on their visa application and travel to New Zealand.

If you know anybody in this situation who are still wanting to come to New Zealand, they will need to submit a new visa application once our borders re-open, and Immigration New Zealand start to process temporary applications again.  For now, such applications and processing have been further suspended until 6 February 2022.

Skilled Migrant Residence Category

Selection of Expressions of Interest under the Skilled Migrant Category remain suspended.  However, indications are that the updated policy has been signed off by the Minister and, whilst an initial planned reopening of selections next month no longer seems viable due to delays within Immigration New Zealand, it is a positive sign that we are edging closer to the reopening.

Much has been said in the media and on social media on the Skilled Migrant category with some speculating the category will remain closed for another year or, in some cases, indefinitely.  We do not believe this to be the case, but it is possible that while Immigration New Zealand work to reduce the current Residence applications on hand, a delay in the reopening of the category is likely to be seen for at least the next couple of months.

Some employees may be concerned about their future and the changing nature of immigration policy.  Encourage employees to not be panicked by, in many cases, misleading information on social media and news platforms.

If you would like to discuss the Minister’s latest announcement in greater detail and how it may impact your business and employees, or have any questions on the updates provided, please do not hesitate to contact us.

DISCLAIMER This information is current as of date of publication and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

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The Department have now clarified that Working Holiday (subclass 417) and Work and Holiday visa holders (subclass 462) in the hospitality and tourism are permitted to work for more than 6 months in one location and/or employer without needing to ask for permission from the Department of Home Affairs.

This took effect from 8 May 2021 however was not fully clarified until 30 June 2021 on the Department’s website for Working holiday makers: https://immi.homeaffairs.gov.au/what-we-do/whm-program/specified-work-conditions/6-month-work-limitation

Whether or not a business is in the Tourism and Hospitality sector is determined by the Australian and New Zealand Standard Industrial Classification (ANZSIC) system.  Businesses can check this on their initial details when they first registered for an ABN to double confirm – this information is not published publicly for each business.

This includes roles and companies whose primary purpose is to directly provide a service to tourists.

Please contact your Ajuria advisor if you have any questions.

DISCLAIMER This information is current as of date of publication and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

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Our updates all lately seem to be qualified with ‘this is constantly changing and we will keep you updated’.

This morning the Federal Government announced a reduction of commercial caps by 50% by 14 July 2021 or earlier in some States. What does that mean for entries to Australia over the coming months?

What will the international caps be?
International arrivals will now be capped at 3,035 people a week, down from 6,370. It is inevitable that this will lead to flight disruption and the current quarantine rules still apply, although the Government also announced that they will trial allowing vaccinated travellers quarantine for seven (7) instead of 14 days. We will keep you updated!

Temporary visa holders

On what grounds can temporary visa holders enter Australia?
All temporary visa holders continue to need a travel exemption to be allowed to enter Australia, which is processed by the Australian Border Force Commissioner (ABF).

It is difficult to get these applications approved unless the application falls under one of the limited exemptions.

What are the current exceptions to the Inward Travel restrictions?
These are very limited:

• have critical skills required to maintain the supply of essential goods and services (such as in medical technology, critical infrastructure, telecommunications, engineering and mining, supply chain logistics, agriculture, primary industry, food production, and the maritime industry).
• be delivering services in sectors critical to Australia’s economic recovery (such as financial technology, large scale manufacturing, film, media and television production and emerging technology), where no Australian worker is available.
• be sponsored to work in Australia in an occupation on the Priority Migration Skilled Occupation List (PMSOL)

What if I am a temporary visa holder already in Australia, can I depart?
Yes, temporary visa holders can depart at any time – but will have difficulty in returning to Australia unless you can get a travel exemption.

If I really have to go overseas, do I have to apply for permission to re-enter whilst I am overseas, or can I apply before I leave so I know whether I will be allowed to come back?
You can apply for an in-bound exemption before you depart Australia and we recommend doing this before you depart.

If you depart without a travel exemption approval, you may not be able to come back, even if your company supports you and really wants you back.

Before you leave, you should apply for an exemption:

• strong compassionate or compelling reasons to leave Australia supported by relevant documentary evidence, for example:
  • attending the funeral of a close family member overseas, visiting a close family member who is seriously or critically ill, or seeking necessary medical treatment not available in Australia, or
• travel is essential for business purposes; AND
• you meet the requirements for Australia’s Inward Travel Restrictions (see above).

If the reason why you are departing Australia is to visit your family or for a holiday, your travel exemption will most likely be refused.

Why is it so hard?
Because only around 3,000 incoming passengers are allowed into Australia each week. This number includes returning Australians.

What if I have had COVID-19 or have already been vaccinated?
It makes no difference with the travel exemptions at present. The Australian Government is applying the same rules for everyone although the Government stated they are going to trial letting vaccinated travellers quarantine for seven (7) days instead of 14 days. More updates to come on this!

If I apply for a travel exemption, how long does it take to receive an answer?
The travel exemption requests are applied online and generally take between a few days and up to 3 weeks to be processed.

Before travelling and COVID-19 (PCR) Test
If you are travelling to or transiting through Australia, you must provide evidence of a negative COVID-19 (PCR) test to your airline, taken 72 hours or less before your scheduled departure.

If you do not have evidence of a negative COVID-19 (PCR) test, you should not go to the airport as your airline will not allow you to board the aircraft.

Everyone travelling to Australia is required to complete the Australia Travel Declaration at least 72 hours before departure for Australia.

The Australia Travel Declaration collects contact details in Australia, flight details, quarantine requirements and health status.

Quarantine when arriving in Australia
Under the current arrangements, unless arriving on a quarantine-free flight from New Zealand, all travellers arriving in Australia, including Australian citizens and permanent residents, are subject to mandatory quarantine for 14 days at a designated facility, such as a hotel, in their port of arrival.

Travellers will be required to pay for their quarantine costs, which varies between the different States & Territories of Australia.

Is it possible to self-isolate at home and avoid quarantine?
No, it is almost impossible to get an exemption for quarantine. There are very limited exemptions that may apply (e.g. travelling from New Zealand or serious medical reasons).  We are all watching this space anxiously and will send a further update as soon as we have any news!

Outbound – Australians leaving Australia

Am I allowed to leave if I am an Australian citizen or permanent resident?
If you are an Australian citizen or a permanent resident you cannot leave Australia due to COVID-19 restrictions unless you have an exemption to depart.

To get an exemption, you must meet at least one of the following:

• your travel is as part of the response to the COVID-19 outbreak, including the provision of aid
• your travel is for your business/employer
• you are travelling to receive urgent medical treatment that is not available in Australia
• you are travelling outside Australia for a compelling reason for 3 months or longer
• you are travelling on compelling or compassionate grounds
• your travel is in the national interest.

What evidence do I need to provide if I will be leaving Australia for three months or longer?
If you are seeking to leave Australia for three months or longer, your proposed travel must be for a compelling reason and you must provide evidence to support your claims, in the form of a Commonwealth Statutory Declaration. If this is not provided, your request will be refused.

Can I request to leave Australia for a holiday/visit family overseas if I am a dual citizen?
No. If the reason why you are departing Australia is to visit your family or for a holiday, your exemption request will be refused. Exemptions are only granted if you meet the above listed reasons for Australian citizens and permanent residents.

What if I usually live in another country? 
An automatic exemption may apply if you are considered to be ordinarily resident in a country other than Australia, when you check-in at the airport. This is when it can be demonstrated that you have spent more time outside of Australia than inside the country for the last 12 to 24 months.

What if I need to travel to India?
Due to the current health situation in India, the ABF may only approve an exemption to allow Australian citizens and permanent residents to travel from Australia to India in the following limited circumstances, where supporting evidence is provided:

• critical workers providing assistance to India’s COVID-19 response
• people travelling in Australia’s national interest
• people seeking urgent medical treatment for a critical illness that cannot be treated in Australia
• people travelling due to the death or funeral of a close family member
• people visiting a close family member who is critically ill
• people seeking to travel to India to escort an Australian citizen or permanent resident minor back to Australia

Travel to New Zealand

Outward travel exemption and quarantine may not be required for those residing in Australia, if travelling on a quarantine-free flight. These rules are subject to constant change, depending on the State/Territory of residence.
See here for the most up-to-date information.

DISCLAIMER This information is current as of date of publication and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Have more specific questions about your visa? Get in touch with Ajuria Lawyers today.

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2020 has certainly been a difficult year and our team of professionals has handled it brilliantly.

With the support of our fantastic clients and a lot of hard work we have managed to grow and are looking forward to supporting business as Australia emerges from the pandemic and are again able to access the world’s best talent.

As part of our growth we are very excited to announce the following promotions:

           Karen Lo – Partner

 

          Navpreet Kanwar – Partner

 

          Karen Pearson – Special Counsel

 

        Tamanna Hashemee – Senior Associate

 

Congratulations to each of you on a well-deserved step in your professional career.
We know that you will continue to help make Ajuria the best immigration law firm.

Have more specific questions about your visa? Get in touch with Ajuria Lawyers today.

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The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Alex Hawke MP has today announced the inclusion of a further 22 skilled occupations on the Priority Migration Skilled Occupation List (PMSOL).

Having an occupation on the PMSOL allows skilled workers to be eligible for a travel exemption although a formal request must still be lodged with the Australian Border Force Commissioner.  The visa process and quarantine rules continue to apply.

The addition of the new occupations (in bold)brings the PMSOL to 41 in total:

• Accountant (General) (221111)
• Accountant (Management) (221112)
• Accountant (Taxation) (221113)
• Analyst Programmer (261311)
• Cartographer (232213)
• Chef (351311)
• Chief Executive or Managing Director (111111)
• Civil Engineer (233211)
• Construction Project Manager (133111)
• Developer Programmer (261312)
• Electrical Engineer (233311)
• External Auditor (221213)
• General Practitioner (253111)
• Geotechnical Engineer (233212)
• ICT Security Specialist (262112)
• Internal Auditor (221214)
• Maintenance Planner (312911)
• Mechanical Engineer (233512)
• Medical Laboratory Scientist (234611)
• Medical Practitioner nec (253999)
• Midwife (254111)
• Mining Engineer (233611)
• Multimedia Specialist (261211)
• Orthotist / Prosthetist (251912)
• Other Spatial Scientist (232214)
• Petroleum Engineer (233612)
• Psychiatrist (253411)
• Registered Nurse (Aged Care) (254412)
• Registered Nurse (Critical Care and Emergency) (254415)
• Registered Nurse (Medical) (254418)
• Registered Nurse (Mental Health) (254422)
• Registered Nurse (Perioperative) (254423)
• Registered Nurses nec (254499)
• Resident Medical Officer (253112)
• Social Worker (272511)
• Software and Applications Programmers (261399)
• Software Engineer (261313)
• Structural Engineer (233214)
• Surveyor (232212)
• Transport Engineer (233215)
• Veterinarian (234711)

Please contact us for assistance.

DISCLAIMER This information is current as of date of publication and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

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The end of the Australian Financial Year means staff review time for many businesses.

It is important to remind businesses who employ 457/TSS visa holders, that these visa holders have been approved to work only in their nominated occupations. While a promotion within the same occupation classification (and any associated salary increase) will generally comply with their 457/TSS visa conditions, a move into a different role must be carefully considered.

If deemed to be in a different occupation, it will be necessary for the business to lodge a new nomination application, with any required Labour Market Testing, before the visa holder commences work in the new role. If the employee is a TSS visa holder, a new TSS visa application will also be required to confirm that they meet the skill requirement for that occupation.

Please feel free to discuss any proposed role changes with your Ajuria adviser to ensure that your visa holders will continue to be compliant.

If you want to discuss permanent residence options, including the Global Talent Program for those on salaries above the Fair Work High Income Threshold, please contact us as below.

DISCLAIMER This information is current as of date of publication and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

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From 1 July 2021, the superannuation guarantee rate will increase to 10 per cent.

When the superannuation guarantee increases, employers must ensure that they are not reducing the Guaranteed Annual Earnings (GAE) of their sponsored workers.

Earnings are defined in the Migration Regulations as wages, amounts applied on the person’s behalf, and the value of non-monetary benefits. Earnings do not include amounts that cannot be determined in advance, reimbursements and contributions to superannuation.

Business Sponsors have an ongoing obligation to ensure that subclass 457 or 482 visa holders are being paid in accordance with the GAE indicated in their approved nominations, and that the sponsored workers are not being paid less than what an equivalent Australian worker would receive in the same position.

Please reach out to your Ajuria Lawyers adviser if you require further information.

DISCLAIMER This information is current as of date of publication and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Have more specific questions about your visa? Get in touch with Ajuria Lawyers today.

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As an Immigration law firm every year we eagerly await the Federal Budget to understand the government’s planning levels which impact the policy settings around our migration program and to see if there are any little gems or new announcements.

The budget assumes that borders may not be reopened until mid-2022. This means:

1. Travel restrictions and quarantine will continue. Only occupations on the Priority List or those to be in critical skills or with border exemptions will be likely to be able to come to Australia on temporary visas. Outbound permission requests for Australian Citizens/Permanent Residents will continue to be needed.
2. Increased importance of the Global Talent and other permanent visa options as a way to bring highly talented employees to Australia because they are exempt from travel restrictions.
   Join our webinar on 18 May to learn all the latest on Global Talent from the Special Envoy to the Prime Minister, Peter Verwer AO.
3. Increased competition for those temporary workers already in Australia along with increased complexity and compliance to manage temporary visa holder populations

The numbers behind all this are startling. The pandemic has meant our incoming international passenger numbers are down by 99% and our net migration (the number of people coming to Australia for more than 12 months less the number of people leaving for more than 12 months) is expected to fall from around 154,000 persons in 2019-2020 to be around -72,000 persons by the end of 2020-2021, before gradually increasing to around 201,000 persons in 2023-2024.

So what does migration in 2021/2022 look like?

The budget provides some high-level indication of where the Department of Home Affairs will focus its attention, but for the real detail on occupations, training levies etc we will need to wait for the outcome of the Joint Standing Committee inquiry into skilled migration which is due to report in July this year.

• Overall planning levels – will be set at 160,000 permanent residence places for 2021-2022. This is a ceiling rather than a target. Temporary visas are not included and are demand driven.
• Skilled visas – around 50% of the total 160,000 program will be dedicated to skilled visas and giving priority to highly skilled migrants in the employer sponsored, Business Innovation and Investor Program and Global Talent visa cohorts.
• Family and Skilled stream places will be maintained at their 2020-21 planning levels, with a continued focus on onshore visa applicants. In a change of tact the government plans to reduce the onshore Partner visa pipeline.
• Family visas – the number of places available will be set at 77,300 places for 2021-22.
• Humanitarian Program will be maintained at 13,750 places in 2021-22.

Global talent visas

The Government’s focus for attracting Global Talent continues:

$550 million will be committed over the next 4 years to attract talent and business from overseas. The ATO will provide fast track tax advice to foreign investors and individual tax residency rules will be simplified.

Streamlining of visas will occur to target highly skilled individuals when circumstances allow, no further details of this streamlining were announced but following on from the Joint Standing Committee’s on Skilled Migration’s Recommendations we may be seeing a new Global Talent Temporary visa being introduced.

Other

Subclass 408 Temporary Activity – The requirement for applicants for the Subclass 408 Temporary Activity visa to demonstrate their attempts to depart Australia if they intend to undertake agricultural work has been removed.

The period in which a temporary visa holder can apply for the Temporary Activity visa has also been extended from 28 days prior to visa expiry to 90 days prior to visa expiry.

Student visa holders – In line with recent announcements, employers in the tourism and hospitality sectors are allowed to employ student visa holders to work more than 40 hours per fortnight. It is not known how long this concession will be in place for.

Pacific labour mobility – Pacific workers already in Australia will continue to have their visas extended until April 2022.

Sponsored Temporary Parent visas – The validity period for Sponsored Parent (Temporary) visas will be extended by 18 months for individuals who are unable to use their visas due to COVID-19 travel restrictions.

Supporting migrant and refugee women – Funding to improve migrant and refugee women’s safety and a pilot program to support temporary visa holders experiencing family violence to explore visa options that are not reliant on their partner.

Immigration Detention – Further funding to increase the capacity of the onshore Immigration Detention Network.

Adult Migrant English Program – New delivery model for the Adult Migrant English Program from 1 July 2023 to improve English language.

DISCLAIMER This information is current as of date of publication and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Have more specific questions about your visa? Get in touch with Ajuria Lawyers today.

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The Australian Government has announced two significant changes to address critical skills shortages in the hospitality and tourism sectors:

1. Student visa holders employed in tourism and hospitality will be allowed to work full-time. Currently, student visa holders in these sectors are only allowed to work up to 40 hours per fortnight except during their holidays.
2. Any temporary visa holder employed in tourism and hospitality will be able to apply for a pandemic visa that will permit them to remain and work in Australia for an additional 12 months. This pandemic visa is currently available to those working in agriculture, food processing, health care, aged care, disability care and, child care. The pandemic visa can be applied for any time within 90 calendar days of expiry of the employee’s current visa.

There has been no announcement of when these changes are to take effect and we will update you all as soon as we know.

The changes will also allow some of these visa holders to accumulate 24 months of relevant work experience, which could create additional pathways for TSS visas and permanent residence. We can work with you to develop a plan for any employees you would wish to retain on a longer term basis.

We believe that these changes have been made in large part due to the many submissions made by employers and their representative bodies to the Joint Standing Committee on Migration’s inquiry into the skilled migration program. If you are interested in reading our submission you can do so here.

We expect further changes to be announced in the coming months and will keep you informed. In the meantime, reach out to your Ajuria contact to see how this might help your business.

DISCLAIMER This information is current as of date of publication and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Have more specific questions about your visa? Get in touch with Ajuria Lawyers today.

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