10th October 2006

Employers to check visa status
457 – sponsor's undertakings
Abacus can assist with Private Health Cover
English requirement for 457 holders
New MODL – 20/9/2006
CRICOS Course – mandatory for Skilled Visas
Employers to check Visas – to become law next year

The Minister for Immigration and Multicultural Affairs recently announced that the Parliament is currently considering new laws that will make it a criminal offence to knowingly or recklessly hire people who do not have a right to work in Australia with fines of up to $66,000 and two years imprisonment.The proposed offences would also apply to labour supply companies that refer people for work.In addition, people found to be working without 'work rights' can be removed from the workplace without any notice.

The new offences are expected to commence around April 2007 and employers can check the work rights of all prospective workers by using the DIMA's EVO system at http://www.immi.gov.au/managing-australias-borders/compliance/info-employers/evo-orgs.htm, or call our office for information.

Tips:The onus is on employers/labour hire firms to check the work rights of prospective employees.It is important that employers start incorporting work rights checking into their recruitment procedures.

457 Visa – Business Sponsor's Undertakings and various matters

There has been plenty of media coverage given to the 457 visa lately, most of them relate to non compliance of the Sponsor's Undertakings by the employers/sponsors.While the 457 visa performs well overall, allegations have been made that some skilled workers are being brought in to work in regional Australia at below the prescribed mininum salary levels.The lesser English fluency of many of these workers also has given rise to concerns in relation to workplace safety.

As a result of these problems, DIMA will no doubt continue to be vigilant in monitoring compliance of immigration law by business sponsors and 457 visa holders. We therefore urge all business sponsors to take seriously their sponsorship responsibilities and ensure strict compliance with immigration law, and the related taxation and workplace laws pertaining not only to the 457 but all temporary visa holders in your company.Even inadvertent non-compliance e.g. employment of unlawful citizens or visa holders without the requisite work rights, constitutes a breach of immigration law, and could result in penalty and/or sanctions imposed by the DIMA, and/or adverse publicity for your company.It is therefore critical for the HR or related personnel to be familiar with the current and the fast changing immigration law.Again the onus is on employers to check the immigration status of their employees – ignorance of the law cannot be used as an excuse.

Tips:please find our link to the relevant Sponsor's Undertakings and Abacus Visa's comments on these Undertakings. http://www.abacusvisa.com.au/visa457notes.html Abacus Visa and its legal team provides specialist advice to businesses to ensure strict compliance with Australian immigration law.

Abacus Visa can now assist Temporary Visa Holders with Private Health Cover

You will note from the above discussion that Health Cost is part of the Business Sponsor's Undertakings under the 457 visa program.Interestingly, private health insurance is not mandatory for a 457 visa holder.However, should any health costs be incurred by a 457 visa holder (and family members) that are not paid, the sponsors/employers become liable.As health costs can be expensive in Australia, it is therefore important for employers to institute procedures that will ensure that their 457 visa holders take out private health insurance, either before or immediately after entry into Australia.

The Migration Institute of Australia (MIA) and Medibank Private have recently signed an agreement to facilitate MIA members to assist their clients with private health insurance, prior to or after entry to Australia.Abacus Visa is pleased to announce that we are in the process of entering into an agreement with Medibank Private to enable us to provide our clients private health cover solutions during their stay in Australia.

Three main types of Private Health Cover Packages are available from Medibank currently:

• Medibank Private's Visitors Cover Packages (for most visitors and temorary residents)
• Medibank Private's Executive Vistors Cover (ideal for 457 holders)
• Medibank Private's Overseas Student Health Cover

Please contact our office for more information.

Tips:Incorporating health cover proceures at the time of visa application will eliminate the risks of the 457 visa holders not taking out private health insurance upon arrival.

The 457 visa and English Requirement

In addition to the minimum salary level and compliance issues, there have been recent proposals to impose an English requirement for the 457 visa applicants.This stems from concerns that lack of English may compromise Australian workplace safety standards, and vocal union campaigns against the huge growth in the 457 visa program.The Australian Chamber of Commerce and Industry, however, has questioned such proposals as an excessive English requirement could potentially undermine Australia's competive postion as a destination for scarce skilled migrants.

Currently, the 457 visa does not have a mandatory English requirement (unlike the Skilled Migrant Visas).This is because a 'work visa' is primarily a visa to facilitate speedy movement of foreign skilled workers into Australia for a temporary period of time.Priority processing and speed are key considerations by employers.Excessive English requirements e.g. an English test will unduly delay the process and would defeat the objective of the visa.

The work visa is not unique to Australia but exists in nearly every country in the world.It is questionable whether Australian workers would be able to work in other countries, if they were required to be fluent in the language of the destination country.No doubt, some basic knowledge of English and understanding of the Australian workplace laws are not only desirable but necessary.Our view is that some measures will be introduced by the Government some time in the future, e.g.Employers are to demonstrate that the 457 visa applicants have undertaken, or will undertake,training in English and Australian workplace regulations prior to or upon their arrival in Australia. There is a need for DIMA to consult with industries. Employer groups are therefore encouraged to register their concerns with the DIMA on these issues.

Tips:For employers who have the need to sponsor foreign workers with limited English, it is recommended that appropriate measures (e.g. English and workplace safety training) be introduced.

Migration Occupation in Demand List (MODL) – new list effective 20 September 2006

19 new professions have been added to the MODL, and 4 occupations have been removed

There are now 35 managerial & professional occupations, 1 associate professional, 9 computing specialisations and 41 trades occupations.

Please view the full list at here

CRICOS Course – Amendments affecting Overseas Students in Australia – from 1/7/06

One of the requirements for a skilled visa application is the mandatory inclusion of a Skilled Assessment at the time of lodgement of the application.On 1 July 2006, the Migration Amendment Regulation 2006 (No.4) took effect quietly, without the fanfare that typically accompanies DIMA's good news stories.These important changes adversely affect ALL skilled onshore and offshore visa applications (134, 136, 138, 139, 495, 496, 861-863, 880-882), as a result of the addition of the following 'time of decision criteria':

“If the skills assessment application/approval is made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of full time study of a registered course....”

More alarmingly, under the Transitional Provision, these changes apply not only to those applications lodged on or after 1 July 2006, but also to ALL EXISTING applications currently before DIMA or the MRT which have not yet been finally determined.

Briefly, this means that any Skills Assessments which were obtained based on a non-registered course (ie non CRICOS course) CANNOT meet the time of decision criteria, and therefore these applications will be rejected at the time of decision, even though the applications were valid when lodged.

Applicants most likely affected are those students who completed a non CRICOS course, e.g. Hairdressing, cookery etc in addition to their main approved course of study in Australia. They will find that their visa applications will be rejected because they will not meet the time of decision criteria, as a result of the new changes..

Tips: The restrospective aspect of the transitional provision is most unfortunate to many existing applicants.We therefore encourage all applicants who have lodged their visa applications prior to 1 July 2006 to check that their skills assessments were obtained based on a CRICOS course.Should this not be the case, you are advised to discuss alternative options with your agent/legal adviser immediately, to ensure that appropriate actions are taken as soon as possible.DIMA advised that there are currently about 500 such lodged applications that are yet to be decided.