Visa Newsletters

6th July 2007

457 CHANGES FROM 1 JULY 2007

SPONSORS MUST READ

In our 24 June Abacus Visa Alert, we alerted our readers to some major changes to the 457 visa including the commencement of an English language requirement from 1 July 2007; and the introduction of a new Sponsorship Obligations Bill into the Parliament. Whilst the new English requirement was expected to be included in the new 457 application form on 1/7/2007, migration advice professionals, including the Migration Institute of Australia, was taken by surprise by the swift inclusion of some arbitrary declarations in both the 457 Online Nomination and Application forms. For your reference, a sample each of the nomination and visa form containing these new declarations are attached for your reference. As this new inclusion may have serious implications for many sponsors, I urge all sponsors to examine these questions carefully and formulate a strategy to complete these questions appropriately to avoid any non-compliance. Providing incorrect or inaccurate information to the DIAC is a breach of the Migration Act.

Total Salary component
The question relating to the Total Remuneration Package is a concern. It requires a breakdown of non-salary benefits. These benefits may or may not be provided to a 457 holder by a sponsor (or indeed to an Australian employee by any employer in Australia). If provided, non-salary benefits such as commission and allowances can generally be varied during the period of employment. It is unreasonable to request an employer to provide this information in adance. This disclosure is not required under the current law and we do not believe that it will be required even if the new Bill has been passed. We are of the view that such inclusion isa transgression into the management of a business. We are seeking opinion from employ law experts on this point. We also encourage our readers to do so with their employment lawyers.

Base Salary component
The question relating to the Base Salary component remains largely unchanged, with an added explanation to pro-rata calculation. From an immigrationperspective, the Base Salary is the most important salary component, as under current and the proposed sponsorship obligations law, a sponsor must pay at least the minimum salary level (MSL). Failure to do so will be prima facie a breach of the sponsorship obligations law, and it is the 'MSL' that a DIAC compliance officer will scrutinise during a monitoring audit. Hence an understanding of this salary component by the sponsoris very important.

Recruitment and migration agent fees
This question says : Has the visa applicant agreed to pay the employer or the employer's agent for any purpose whatsoever including, but not limited to, recuitment, travel, visa application, agent fees? If yes, detail the purpose and value of the payment.

Under the current sponsorship obligations, a sponsor must 'ensure that the cost of return travel by a sponsored person is met”. Under the sponsorship obligations Bill, sponsors are to “pay travel costs for the sponsored worker and their family from Australia”. To pay clearly provides less flexibility than to ensure, and we will need to await detailed DIAC' policy guidelines before making further comments.

Whilst the intention may have been designed to flush out a small number of rogue sponsors, unfortunately this will also have serious impact and is a grave imposition on the majority of law abiding sponsors.

Importantly, sponsors must be aware that these questions are reflected in the visa application form, and any inconsistencies between the nomination and visa application forms will have negative impact on the visa application.

English requirement questions
These questions must be completed carefully and documentary evidence demonstrating English proficiency of the applicant must be provided in support of the application. One major concern is that the decision maker continues to have discretion to require an IELTS (English) test, even an applicant meets the reqirement for exemption. This will create great uncertainty to the applicants and sponsors, and make it difficult, if not impossible, for migration agents to provide appropriate advice to their clients. (also see page 3 of our June Alert)

The abovediscussions provide only a brief (and rather rushed) overview of the current status regarding the 457 visa. Our readers should also find the following news Bulletin from the Migration Institute Australia (MIA) echos our sentiment. We hope that this will throw some light on the current view of the migration advice industry as a whole. I urge all business and industry groups, and sponsors to actively lobby the government to implement and administer the new law in a fair and reasonable manner. We are happy to provide a copy of the draft MIA submission to the JSCM (mentioned in the Bulletin News below) if you email our office. We also welcome your urgent feedbacks for inclusion with our inputs to the MIA.

MIA NEWS BULLETIN - July 4, 2007, 6.00pm

Dear Members  

457 visa and MIA lobbying of Government - request for member input  

The MIA is seeking to lodge a submission with the Joint Standing Committee on Migration in relation to the Migration Amendment (Sponsorship Obligations) Bill 2007. This has been prepared quickly and to aa tight deadline but I would like to reflect as much member input as possible in the submission. Accordingly, a short draft is available and I would be grateful to receive any comments that you might have on the Bill by 8 July.

Please see Draft MIA submission - JSCM - Migration Amendment (Sponsorship Obligations) Bill 2007 http://mia.org.au/secure/news.htm  

This submission will complement the detailed submisions that the MIA made to Immigration and Citizenship Minister Andrews and to the Joint Standing Committee on Migration regarding the 457 visa (which are in the "Submissions" section of the MIA website) and our ongoing efforts to lobby Government in regard to this visa.

Members might also be interested to know that I wrote to DIAC as recently as this morning expressing MIA concern about the implementation of the 1 July changes to the 457 visa and seeking answers to questions and briefing for MIA members on how the new policy setting will be applied. The text of this is as follows:

"The 457 changes announced by Minister Andrews to come into effect from 1 July are very important to the large number of MIA members engaged in 457 work. Members have been perplexed by some of the changes and have had difficulty in following the legislative underpinnings for some of them. I would like to quickly get advice to members that will inform them of the true position and answer important questions that they have been posing.

I would therefore be grateful if you could provide the MIA with some answers in relation to the following:

How Is the Instrument IMMI07/044 issued by Minister Andrews on 28 June 2007 that specifies a level of salary for the purposes of 457.223(6)(a), and specifies English language exemptions for subclause 457.223(11) underpinned by Regulation as Migration Amendment Regulations Nos. 4, 5 and 6 does not appear to touch on the English language provisions or subclauses 457.223(6) and 457.223(11)? The Legislative Change page of the DIAC website makes it clear that the Regulations will be amendedby the insertion of Subclause 457.223(6) and Subclause 457.223(11) yet subclauses 457.223 (6) and (11) do not appear to have yet been regulated. In these circumstances, how can the Minister specify provisions related to these subclauses? 2. Why do the latest versions of the 457 online forms incorporate questions that relate to the Migration Amendment (Sponsorship Obligations) Bill that has not been passed? The same changes do not appear to have been included in the paper forms 1196 and 1066. 3. A question on the online 457 form asks for details of the migration agent fee. This question was inserted without consultation with the MIA and is contrary to all previous discussion with the MIA (eg during the last Migration Advice Profession Review in 2002 when it was formally agreed that information on fees would be "average fee" only). If, as I suspect, the intention was to satisfy the decision-maker that the fee had been paid by the sponsoring employer (a position that the MIA disagrees with) then the question could have been more direct (eg was the migration agent fee paid by the sponsor?). I would appreciate your advice about the suitability of a response such as "details are commercial-in-confidence but fee paid by sponsor" until the form can be amended.

I must admit that the MIA has been very disappointed with the lack of consultation with it as a key stakeholder on implementation of the 457 visa changes and at the incredibly short lead time for agents to advise their clients in regard to the changes. To help redress this, I would like to suggest that DIAC undertake a series of seminars with the MIA to inform Registered Migration Agents on the details, including how they might expect decision-makers to apply the new policy settings. I have in mind, a series of seminars similar to those led by Greg Mills, Peter Speldewinde and Miranda Lauman in relation to the GSM last month."

Efforts to lobby Government on the 457 visa as well as other matters of importance to members will continue.

Regards

Bernie Waters

Chief Executive Officer

The Migration Institute of Australia Limited