186 Direct Entry Visas for Medical Practitioners Working As Contractors.

The nature of the relationship between an employer and a contractor has been the subject of much scrutiny from the ATO and Courts, with both institutions finding that contractors can be deemed employees for taxation and other legal purposes despite the contractual relationship between the parties.

Private medical practices and some hospitals engage medical practitioners as independent contractors under Service Agreements, mainly due to tax and insurance purposes. It is industry standard that General Medical Practitioners (GPs) are engaged as independent contractors. Locum doctors may work for hospitals as contractors. The Services Agreements are deliberately drafted to avoid the deeming of an employment relationship between medical practices and doctors.

All migrants sponsored under the subclass 482 and 186 programs must work for the sponsor in a relationship of employment. However, legislative Instrument IMMI 18/035 exempts medical practitioners from employment relationships for 482 Nominations, and this exemption carries forward to Subclass 186 Temporary Residence Transition Nominations.

However, there is currently no similar express statutory exemption for medical practitioners sponsored under the Subclass 186 Direct Entry program.

As a consequence, it has been the view that a Subclass 186 Direct Entry nomination is not possible under these types of contractual agreements.

Regulation 5.19 (5) (j) states that Subclass 186 Direct Entry nomination application must identify a “need for the identified person to be employed in the position, under the direct control of the nominator”. The Regulation 5.19 procedural instruction provides that ‘direct control’ exists within a employment relationship, and is not typically a feature of principal / contractor engagements.

The Regulation 5.19 procedural instruction tabulates ‘direct control’ indicia, such as the engagement being full time, rights of dismissal, provision of tools and training and insurance coverage. In assessing the nature of “direct control”, the Department considers these indicators to establish the nature of the relationship between the principal and the contractor. Where “direct control” is proven, the Nomination of a Medical Practitioner who is a contractor can be approved.

We have recent experience of conducting successful 186 DE Nominations for General Practitioners engaged as contractors, managing both the Nomination and advising on the contract of engagement between the principal and contractor. We welcome the opportunity to talk to Health Organisations and Medical Practitioners seeking nominations in this category.

Skilling Australians Fund levy

Skilling Australians Fund levy (Nomination Training Contribution Charge).

Our FOI revealed that Commonwealth Departments of Home Affairs and Education and Training have netted in excess of $8M in levies from refused and withdrawn Nominations in the Subclass 482 visa program, paid by business big and small and the likes of not for profit health care providers and State health departments.

The Migration Regs permit a refund of the levy in very limited circumstances.

Many 482 Nominations are refused for trivial non compliance, such as submitting an unsigned employment contract. An extreme example, if a Nominee dies and a Nomination is withdrawn – the Regs do not permit a refund of the levy.

The Australian published the below on 9 May 19, and quoted our FOI figures and an example of a non profit health care provider forfeiting $4,800 in levy for trivial non compliance with 482 Nomination criteria. We are looking constitutional validity angles and lobbying to amend Reg 2.73AA (which stinks).

Partner Visa Update

Partner Visa Update

We expect the changes to the application procedures for Subclasses 820/801/300 partner visas to commence on 17 April 2019. Yesterday the Government proclaimed that the Migration Amendment (Family Violence and Other Measures) Bill 2016, as passed both Houses on 28 November 2018, will commence on 17 April 2019. However, accompanying Regulations are yet to be enacted so there could be a further delay until the Regulation based procedures are in effect.

Under the new system, Australian Citizen or Permanent Resident Sponsors must apply for and be approved to Sponsor a family member before that family member can apply for the visa. This will have a big impact on the ability of people to apply onshore for partner visas before the expiry of their current visa, and in having the benefit of a bridging visa during visa processing. See below:


Schedule 3 Criteria and Singh

A note on Migration Regulations 1994 Schedule 3 Criteria and Singh v Minister for Home Affairs [2019] FCAFC 3 (Singh).

In summary, Schedule 3 criteria provides that a person must show compassionate and compelling circumstances to be granted partner visa lodged while the person was unlawful (i.e. with no visa) for more than 28 days after the expiry of their previous substantive visa.

The Department’s procedures advice manual says the following about what an applicant must do to show compassionate and compelling circumstances:

‘Compelling reasons may stem from compassionate factors or may arise, for example, from the applicant’s circumstances or the circumstances of another person.  

Circumstances beyond the applicant’s control may also constitute compelling reasons for granting the visa. For example, if the applicant became an illegal entrant, or without a substantive visa, due to a serious accident or illness, such might, depending on the circumstances.’

Singh made an application for partner visa more than 28 days after the expiry of his last substantive visa. The case officer deciding the visa application called on Singh to show compassionate and or compelling circumstances such that the Schedule 3 criteria could be waived and the visa granted. He submitted that his partner had chronic mental and other health issues, and that he was required to care for her as a result. However, the visa was refused and that decision was affirmed at the Tribunal. The Federal Circuit Court then dismissed Singh’s application for judicial review of the legal reasonableness of the Tribunals decision. Singh then applied to the Full Federal Court.

The Full Federal Court found that the Tribunal’s conclusion was not legally unreasonable. There was no evidence that Singh’s wife was unable to attend her medical appointments without Singh. Also, Singh’s wife was able to take medications herself and obtain ongoing treatment and medication.

The Court considered the facts of Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515. There the Court accepted that the Applicant’s sister had a history of psychiatric disturbance, had attempted suicide on two occasions and had experienced horrific abuse as a child. There was a doctor’s report stressing the importance of the sister’s relationship with the Application to her wellbeing. As such, the applicant adjudged to be uniquely important and beneficial to her condition.

This firm assisted a client who made a partner visa application more than 28 days after the expiry of a working holiday visa. The Department made an invitation to comment on Schedule 3 factors.

We demonstrated compelling circumstances that effected the interests of Australian citizens. The Applicant was a director and owner of a recruitment business, and at the time of the invitation to comment employed two Australian citizens. These circumstances were consistent with the department’s policy on compelling circumstances. The visa was granted.

Singh sets a high bar for what constitutes compassionate circumstances. A relationship with a citizen is certainly not enough. A relationship with a person who was sick before the relationship began, and was managing that illness, is probably not sufficient without demonstrating a unique reliance.

By Samuel Brouff with Iris law, Paralegal, contributing research and drafting