1st September 2007

English for 457 visa
Employer Sanctions Act
8112 – Business Visas
New GSM Program
New MODL List
TRA/Vetassess/NIA News
Australia Needs Skills Expo - DIAC

Our June Visa Alert foreshadowed a number of important changes which have all since taken effect.The new English Language Requirements for subclass 457 applicants were introduced on 1 July 2007.The Migration Amendment (Employer Sanctions) Act 2007 commenced on 19 August 2007, making it a criminal offence to knowingly or recklessly employ a person who is either illegally in Australia or is working in breach of their visa condition.Changes to the General Skilled Migration Program took effect on 1 September 2007.Abacus Visa's website has been updated to include information on these changes.The GSM has in effect undergone a total reform with changes to both the structure and eligibility requirements for many visa subclasses.We encourage prospective applicants to review their eligibility carefully, and contact our office for further information.

457 Visa / Employer related News

English Requirements for 457 visa – from 01/07/2007

From 1/7/07, 457 main applicants are required to have English proficiency equivalent to an average band score of IELTS 4.5. A higher level of English is required for occupations which require registration or licensing.

Exemptions may apply as follows:

• Passport holders from Canada, New Zealand, Ireland, UK, or the USA;
• the occupation is within the ASCO Group 1-3;
• paid at least a base salary of $75,000; or
• have completed at least 5 years of continuous full time secondary and/or tertiary education, where at least 80% of instruction was in English.

Notwithstanding the above, DIAC continues to have the discretion to ask the applicant to undertake an IELTS test.Current visa holders who apply for a further 457 after 1/7/07 will need to meet the English language requirements.

The Migration Amendment (Employer Sanctions) Act 2007

We have discussed this new Act previously.Further information is contained on pg 7 in a joint presentation called “The Future of Work” by Linda McCreath, our Principal Lawyer and Elizabeth Devine, an employment lawyer at Devine law at Work to the CPA Women's Discussion Group in June 2007.This publication is a useful compendium for all employers and HR personnel.

Adverse Information on Employers/Sponsors

From 1/7/2007, a new law was passed to prevent the DIAC from approving sponsorships, accepting nominations or granting the 457 visas where adverse information is known to the DIAC about the business background of the sponsor or prospective sponsor, or, the sponsor or prospective sponsor is under investigation for an alleged breach of a sponsorship undertaking or of a law of the Commonwealth, a state or territory.

This is no doubt another added measure to strengthen the Government's resolve to crack down on rogue employers.

Condition 8112 – Revised Policy from 19 August 2007)

8112 states that “The holder must not engage in work in Australia that might otherwise be carried out by an Australian citizen or an Australian permanent resident”.8112 is a mandatory condition on the following business visitor visas 456, 459, and ETAs 956, 977.These visas allow business people to visit Australia to conduct business (e.g. attend conferences, business negotiations, exploratory visits in conjunction with a holiday), or work for short periods in limited circumstances.

In the past, many people have treated this condition as providing 'unlimited work rights' when this had never been the intention of the condition.DIAC has now revised its policy guidelines to clarify and tighten the circumstances under which work may be allowed.

Under the revised policy,work may be allowed if the employment is one of the following:

• highly specialized (ASCO 1 to 4) and not ongoing (no more than 21 days);
• an emergency or an urgent situation and not ongoing;
• in Australia's interest.

Short stay business visitor visas are not appropriate for unskilled or semi-skilled labourers, or individuals wishing to work in Australia for long periods or on an ongoing basis.The revised policy does not affect those coming to undertake visitor-related business activities (e.g. attend meetings/conferences).Please be aware that subclass 456 and 459 applicants intending to work in Australia and/or their employers may be requested to provide additional evidence that the activities they propose to undertake will not have adverse consequences for the employment or training opportunities, or conditions of employment, for Australian citizens or permanent residents.

NoteVarious DIAC overseas posts have been issued directives to tighten their application guidelines, including China.You would have found applying for 456 visas became more problematic in the past few months. Please contact our office should you wish to obtain more information.

GSM News

The GSM Reform – from 1/09/2007

Basic information regarding the new GSM program is now available here.

Tips:For offshore applicants and some onshore applicants, English proficiency evidence (IELTS results) and the Skills Assessment results must be lodged at the time of application.This is critical for those applicants who may need to meet the age requirement – for both the threshold and points test.Early planning is therefore essential to ensure a successful application.

Delays at the ASPC

The Adelaide Skilled Processing Centre announced on 29/8/07 that the ASPC is currently experiencing large number of applications and are experiencing delays and they are allocating resources to address the existing backlog of applications that have yet to be receipted and acknowledged.If your postal/courier service can provide confirmation that your application was received, there is no need for concern, and you will hear from the ASPC in due course.

Changes to certain Trades Skills Assessment

From 1/9/2007, applicants who are residents of the UK, South Africa, India, Sri Lanka or the Philippines can now have the following trades assessed by Vetassess in their respective countries; General Electrician, General Plumber, Refrigeration and Air Conditioning Mechanic, Motor Mechanic, Carpenter and Joiner, Carpenter, Joiner, Electrical Powerline Tradesperson, Cable Jointer, Brick Layer.

Applicants from other countries continue to have their skills assessed by the Trades Recognition Australia (TRA).Please contact our office should you require more information.

TRA – changes to Work Experience Skill Pathway

TRA has recently announced changes to the Work Experience Skill Pathway D option when conducting assessments.Until further notice TRA will not accept applications that predominantly rely on work experience and would normally be assessed under Skill Pathway D of the Uniform Assessment Criteria (UAC).Any applications that have been received by TRA until 30 September, and are affected by the new changes, will be returned with the application fee.

This decision was announced with little notice.The Migration Institute of Australia has taken the issues with the DIAC.We will keep you informed of further developments.

NIA – changes from 06/09/2007

Applicants have normally been required to provide evidence regarding the satisfactory completion of 9 of 12 core study areas.Two of these study areas have been 'Australian Company Law' and 'Australian Taxation Law'.Effective 6/9/2007, applicants may now choose to provide evidence in relation to the satisfactory completion of 'Company Law' and 'Taxation Law' completed in their degree program in the home country (ie. non Australian Company Law and non Australian Taxation Law).

This change will apply to assessment applications already lodged and currently in process with the NIA. (National Institute of Accountants).

'Australia Needs Skills' Expo - 29/09/2007

The Expo, organized by DIAC, will be held on 29 September 2007 at the Sydney Convention and Exhibition Centre, Darling Harbour.The key focus of the expo in Sydney is to help NSW employers connect with skilled workers at home and overseas.

We encourage potential applicants to visit this expo.