Australia: Immigration Update: March 2015

Last Updated: 2 September 2015

There were several significant immigration events in March, in particular the Federal government's response to the earlier Independent 457 Integrity Report, Robust New Foundations. The Senate's surprise establishment of a new 457 visa inquiry and the Federal government's referral of permanent migration to the Productivity Commission which has the potential for several far reaching recommendations were also major announcements made through the month.

The main message for business is that the 457 visa programme remains in flux and the changes are likely to begin filtering through over the course of the next 12 months. Business sponsors should continue to pay attention to these changes and ensure that any changes are recognised and appropriate systems adopted.

Reforms following 457 Inquiry

As announced in an earlier email alert (available on our website here) the Federal government last week handed down its position on the recommendations of Robust New Foundations, the Independent Review Panel report into the integrity of the 457 visa programme. The government largely accepted the recommendations of the report with several caveats but limited detail was initially provided into the exact nature of the reforms.

The Department has subsequently released several proposed changes which are likely to flow from recommendations. These include:

– fixing the current Temporary Skilled Migration Income Threshold ('TSMIT') at $53,900 for the next two years;
– providing greater flexibility in relation to English language testing, in particular around IELTS test scores, to allow for an overall average score of 5.0 (with a minimum band score of 4.5) rather than a minimum score of 5.0 in each band;
– allowing applicants to demonstrate English ability by proving 5 years cumulative education in English rather than 5 consecutive years.
Labour Market Testing requirements to be eased but not abolished
– increasing the validity period of Business Sponsorships from 3 to 5 years and start-up businesses from 12 to 18 months;
– replacing the current Training Benchmarks with an annual contribution by the sponsor to the Department of Industry to fund training in areas of need such as youth unemployment and apprenticeships;
– creating criminal penalties for employers accepting payments to sponsor prospective employees;
– greater information sharing between the Department and ATO; and
notification periods for sponsors to be increased to 28 days in lieu of the current 10 days.

While these are only draft proposals at this stage many of the changes would be beneficial to employers and visa holders. It is clear that there is a renewed energy to ensure greater accountability by sponsors and reforms will include stricter penalties for deliberate fraud or illegal actions.

New Senate Inquiry into 457 programme

Within days of the Federal government releasing its position on the 457 Integrity Report the Senate voted to commence its own inquiry into Skilled visas. This move was led by the Greens and Labor and is in response to multiple allegations of wrongdoing within the sector as well as perceptions that employers are failing to address local training and skills shortages appropriately.

The purpose of the inquiry is to investigate the impact of the current temporary work programs on the Australian labour market and on temporary work visa holders. The review will examine whether temporary workers have sufficient protections, the effect of temporary work programmes on local skills and training, whether temporary workers receive the same benefits and entitlements as Australians and whether current monitoring and enforcement programmes are inadequate.

The announcement was welcomed by unions, including the CFMEU and ACTU, who stressed the need to ensure that temporary workers are not being exploited and that businesses engage in appropriate training and stated that the migration system should not be 'at the beck and call of big business'.

Eventus Immigration will prepare submissions to the Senate inquiry which is due to report in June 2015.

Productivity Commission Inquiry

At the same time the Federal government has invited the Productivity Commission to undertake a full inquiry into the use of fees and charges in Australian migration. The inquiry is likely to be far reaching and examine the benefits and costs of migration, the effect of financial charges on migration and migrant selection, the pros and cons of using charges as the primary basis for regulating the level and composition of migration, and the best method for achieving optimal balance between temporary and permanent migration.

Eventus Immigration will make submissions to the Productivity Commission once the issue paper is released. The report is not due to be released until March 2016.

High volume of immigration related workforce prosecutions

The year has seen large numbers of illegal workers identified and detained, many engaging in farm work, with the majority completing the work while in Australia on Visitor visas. Employers are reminded that it is a requirement under Immigration law that they check the work rights of every employee prior to allowing them to work. Penalties for employing an individual without work rights includes fines for the business and executive officers and criminal penalties in cases of deliberate abuse.

One of the worst cases of worker abuse to come to light in recent years was decided in the Federal Court on the 27th March with the former employer forced to pay $186,000 in wages and compensation. The employee was hired as a cook in a restaurant and was forced to work seven days per week with only one day off in 16 months. The employer went to great lengths to hide the abuse including creating false wage books, time records and opening and maintaining a false bank account in the employee's name. The employer was ordered to repay $126,431.22 in wages, superannuation and leave as well as $60,607.81 in interest.

Ruling on offshore workers

The Full Federal Court handed down its decision in the long running case between the Maritime Union and the Minister for Immigration and Border Protection. The decision reversed the earlier decision of the Federal Court and determined that the existing Legislative Instrument was invalid.

The original legislation prevented non-citizens from working on the offshore gas and oil sector. The existing Legislative Instrument exempted non-citizens from the legislation, thus allowing them to work on fixed platforms and boats. The Full Court has now ruled that the existing Instrument was too broad and reversed the Parliament's intention (to prohibit non-citizens from working in the offshore sector) by exempting all parties.

In response to the ruling Assistant Minister Cash has made a new Instrument which allows non-citizens to work and be covered by Australian migration and workplace law on offshore oil and gas rigs which are fixed to the seabed. As a result employers and workers do not need to take further action and work rights remain available for non-citizens working in the sector.

Limitation on 457 visa appeals

In December 2014 the Federal Circuit Court handed down a decision in the case of Minister for Immigration and Border Protection v Lee and Ors [2014] FCCA 2881. The ruling determined that where an applicant for a 457 visa had been refused there was a legislative requirement to either hold a valid nomination at the time of appeal, or for the Business Sponsorship upon which the 457 application was based to have been refused and appealed. Significantly, an applicant will not meet the legislative requirement to be 'sponsored' at the time of appeal if there is no valid 457 nomination, either as a result of refusal or expiry.

The decision reverses the long-standing position of the Migration Review Tribunal which allowed persons to appeal a decision to refuse their 457 nomination and visa together. The decision creates a scenario where applicants can only appeal a refusal where the Business Sponsorship was refused (thereby resulting in refusal of their 457 nomination and visa) or where the 457 nomination was approved but the related 457 visa was refused.

The short term impact will be on refused visa applicants who had lodged an appeal to the MRT on the basis of the earlier legal position (i.e., the 457 nomination and 457 visa were refused). In many instances these people will no longer have a legal basis for appeal and will be forced to depart Australia and lodge a further application while offshore.

The long term effect of the ruling is likely to be a reduction in the number of people who have the ability to lodge an appeal against the refusal of their 457 visa. Parties should seriously consider applying for 457 nominations in advance of any visa expiry date to prevent this type of scenario.

New position on trade qualifications for RSMS visas

Following a decision by the Migration Review Tribunal the Department of Immigration and Border Protection has revised its internal policy on reliance on Certificate III, IV and Diploma qualifications for trade occupations applying for the Subclass 187 Regional Skilled Migration Scheme visa.

Previously the Department's internal policy stated that Certificate IV and Diploma qualifications which encompassed the Certificate III content would only be accepted if the holder had completed 2 years work experience in line with Australian apprenticeship requirements.

The new policy removes this requirement and trade occupations require only a Certificate IV or Diploma in accordance with the ANZSCO definition as evidence of the appropriate qualifications for the visa.

SkillSelect Skilled Nominated visa cap

The Department of Immigration and Border Protection advised the migration profession in late March that the number of Skilled Nominated visas was nearing the cap for the financial year. This will only affect persons applying for Subclass 190 and 489 visas. The Department has advised that processing of these Skilled applications will slow as the number of visa grants approaches the annual cap. Once the cap is reached further places will only become available after 1 July 2015.

Systems are already in place to limit the number of grants in certain occupations for the Skilled Independent Subclass 190 visa. Each year the Department allocates a certain number of places to eligible occupations, this is known as the 'occupation ceiling'. The Department has ceased processing ICT Business and Systems Analysts for the current financial year. Pro rata arrangements are also in place for Accountants and Software and Applications Programmers with remaining places highly limited until July 2015.

Report into Business and Innovation and Investment Programme

The Joint Standing Committee on Migration tabled its report on the Inquiry into the Business Innovation and Investment Programme (BIIP) on the 24th March. The Inquiry did not cover the high profile Significant Investor visa programme.

Overall the report found that little empirical evidence was available to determine whether the BIIP is meeting its intended objectives. The report recommended that further investigation be undertaken to determine the suitability and attainability of the objectives of the BIIP and how the programme is to be measured as part of the 2015-16 migration programme and other current reviews into skilled and permanent migration.

Finally, the report also found that the fact that consideration of the Significant Investor Visa programme was outside its scope was a significant limitation, particularly in light of the announcement by the Federal government of its intention to further expand the SIV programme.

Expansion of biometrics collection to Sponsored Family Visas

From 6 May 2015 applicants for Sponsored Family Visas from designated countries will be obliged to provide biometric data (fingerprints and photographs) as part of the visa application process.

Applicants will need to attend the closest Australian Visa Application Centre or Australian Biometrics Collection Centre in person to provide biometrics after the application has been lodged.

Applicants are obliged to cover the cost of this process and must take the official correspondence from the Department instructing them to complete the checks. A list of countries and subclasses which require biometric testing is available here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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