March 2007

• Gaol Terms for Employers – new law
• Australian Citizenship Bill update
• DIAC – Department Name Change
• GSM News
• MODL – IT professionals – special requirements

Welcome

The beginning of 2007 had been relatively uneventful until Amanda Vanstone was replaced suddenly by Kevin Andrews as the Minister for Immigration and Citizenship (DIAC) – the new name for the Department since 30 January 2007. Two important Bills our readers should take notice are the Migration (Employer Sanctions) Act 2007 and the Australian Citizens Bill 2006 – both are expected to take effect in the middle of 2007. In this edition of Visa Alert, we therefore focus our attention on these two items, together with a number of other issues which may be of interest to our readers. As usual, we welcome your questions and feedback.

Abacus Visa also takes this opportunity to wish you all a safe and happy Easter.

Gaol Terms for Employers

DIAC has announced that The 'Migration (Employer Sanctions) Act 2007' is likely to take effect on 15 August 2007. Once enacted, it will be a criminal offence for a person to knowingly or recklessly allow an illegal worker to work; or refer an illegal worker for work with another business, and individuals who are convicted of these offences face fines of up to $66,000 per illegal worker. Where an illegal worker is also being exploited through slavery, forced labour or sexual servitude, the maximum penalties are five years imprisonment and/or fines up to $33,000 for individuals and $165,000 for companies per illegal worker.

Despite the lack of fanfare and publicity, the new law is significant and will have profound effects on all employers, HR personnel, recruitment companies, labour hire firms and indeed any companies or individuals who are in the business of employing, recruiting or referring people to some form of employment. DIAC's new Guide to this legislation explains that 'illegal workers' are “unlawful non-citizens” who are working, or “lawful non-citizens” who are working in breach of their visa conditions”.The second limb is even more alarming, as there are in effect hundreds of thousands of 'lawful non-citizens' present in Australia at any one time with or without work rights. Whilst it may not be difficult to detect an ''unlawful non-citizen”, it is extremely difficult to determine whether 'lawful non-citizens' are working in breach of their visa conditions without a sound knowledge and understanding of the current migration regulations and policy guidelines underlying these conditions. Let's take Working Holiday Maker visa as an example. There have been numerous changes in the past 2 years to this visa, the last major change was on 1 July 2006, when WHMs are permitted to work for up to six months for one employer. However, for those WHMs granted prior to 1 July 2006, they continue only to be allowed to work for up to 3 months for one employer. Since early 2005, WHVs have been given the option to apply for an extended 12 months visa (total 2 years) if certain conditions are met. Hence, there are virtually thousands of WHMs currently in Australia with varying visa conditions and different work entitlements! Without sound knowledge of the law governing this visa subclass, it is extremely difficult to determine if a WHM visa holder is complying with the visa conditions. Yet, it will now be incumbent upon employers and/or labour hire firms to ensure that these visa holders have complied with their visa conditions at the time of employment/referral. The WHM visas are but only one amongst many other temporary visas with work rights in Australia.

The new law is aimed not only at discouraging over-stayers, but also ensuring strict compliance with the visa conditions by visa holders. In the past, the emphasis has always been in catching the visa holder offenders, the onus will now be placed squarely on the employers and other associated personnel. The penalties for non-compliance will be severe. Although this new law will not be tested for some time, Abacus Visa urges all companies and associated individuals to implement appropriate measures to ensure strict compliance with this new law as soon as possible. Obviously equipping these personnel with the relevant knowledge would be essential. However, proper risk management procedures to ensure strict compliance is absolutely critical.

Abacus Visa is an immigration law firm specialising in advising clients with regards to compliance issues. Provision of ongoing advice to our clients is an essential part of our services. Regular workshops and briefings can also be provided to our business clients on an adhoc or ongoing basis. Should you wish to obtain a copy of the DIAC Guide or have any questions regarding this new law, please contact Abacus Visa's Principal Lawyer, Linda McCreath, on +612 9262 6244.

Australian Citizenship Bill update – Residency Requirements

On 26 February 2007, the Australian Citizenship Bill 2006 was passed by the Senate and has been referred back to the House of Representatives for consideration. Subject to the passage of the Bill, it is likely that the new Act will commence on 1 July 2007. The new residency requirements for Australian citizenship will require the applicants to have:

• 4 years 'lawful' residence in Australia immediately prior to making an application for Australian citizenship with at least 12 months as a permanent resident, and
• absences from Australia of no more than 12 months in total in the 4 years prior to application, and no more than 3 months in the 12 month permanent residency period prior to application.

These new residency requirements will only affect people who become permanent residents after it takes effect and existing permanent residents will only need to satisfy the current rules.

Department Name Change

On 30 January 2007, the Australian Department of Immigration and Multicultural Affairs (DIMA) officially changed its name to the Department of Immigration & Citizenship (DIAC).

Update on Processing Times – 457 visa

Lengthy processing time continues to be a concern for the 457 visa. DIAC's current service standards are 4 weeks for ETA visa applicants and 6 weeks for non-ETA visa applicants – with fully documented applications. DIAC has reported that in the second quarter of 2006/2007, 54% of ETA visa applications were processed within service standards and 75% of non-ETA visa applications were processed within service standards.

(Tip: We continue to urge our business clients to lodge their 457 visa applications as early as possible in order to meet commencement deadlines. Priority Processing Requests are only available under exceptional circumstances.)

Employment Contracts – 457 visa

DIAC has asked that full employment contracts be provided at the sponsorship, nomination and visa application stages to assist decision makers, thus enabling the faster processing of your applications.

(Tip: We suggest a preliminary simplified form of signed contract containing relevant information regarding direct employer requirement, the minimum salary level, position title, location of employment, hours of work per week in compliance with the Work Choice and other related IR laws should be provided.)

Form Changes and the July Fee Changes

Migration law requires that the latest version of forms are to be submitted with a visa application.Migration law and regulations change regularly, and so do the forms. It is important that outdated forms are not used as this may lead to an application being declared invalid.Clients please also note that the Government Lodgement fees are due to be changed on 1 July 2007. To avoid any increase in fees, applications should be lodged prior to this date.

(Tip: Applicants are encouraged to return the signed forms and supporting documentation as early as possible to enable prompt lodgement of their applications. Prompt lodgement will avoid any unexpected -changes in law or other circumstances which may adversely affect your application. Additional costs are also likely to be incurred as a result of undue delays in returning the signed forms to us.)

IELTS (English) Test shortages

There continues to be a strong demand for IELTS tests in Australia and all centres are booked months in advance. We urge you to book your IELTS test as early as possible. Check with individual IELTS centres for their test schedule as new places regularly become available through cancellations (or double bookings!). If you are on holidays in your home country, you may consider sitting this test while you are there.

General Skilled Migration Program News

Professor Bob Birrell, Director of the Centre for Population & Urban Research at Monash University published his report in 2006 on the 'Evaluation of the GSM Program', which identifies that good English and relevant work experiences are the two major factors to enable migrants to integrate successfully into the Australian society. He made the following recommendations in relation to the GSM program:

• Threshold English requirement should be raised to 6 in all 4 IELTS test components.
• 25 points given to applicants with Competent English (IELTS 6 in all 4 test components).
• Recent work experience of 12 out of 24 months before applying.
• A new temporary visa introduced to allow certain overseas students to apply for permanent residency.
• 5 bonus point to be given for $100,000 investment only.

A further study by Professor Birrell on 29 January 2007 found that 34% of overseas students who obtained permanent residency under the GSM were unable to demonstrate competent English. This study tends to reinforce his earlier findings.

Proposed changes to the GSM by DIAC would see most if not all of the recommendations made in the Birrell reports adopted to assist the GSM program to achieve improved labour market outcomes. We will keep you posted on these changes.

MODL Points for Computing Professionals – Special Requirements

The MODL (Migration Occupations in Demand List) contains a number of computing professional occupations with ASCO Code 2231-79. It is however important to note that NOT ALL occupations with this ASCO Code will attract MODL points. DIAC has provided guidance as follows:

“If you nominate one of the above specialist computing occupations, you will only be awarded MODL points if your skills assessment from the relevant Australian assessing body – the Australian Computer Society (ACS) states you have met the criteria to be recognised in one of the above (MODL) specialisations.”

Skills assessments (from the ACS) provided to successful applicants will state:

• The ASCO Code for Computer Professional not elsewhere classified (nec) with the specialisation stated in brackets – e.g. 2231-79 (SAP).
• The statement: “Based on the provided certified documentation, it is my opinion that the applicant has 12 months experience in (name of specialisation, e.g. SAP)”.

If you have a skills assessment which only states that ASCO Code for “Computer Professional nec 2231-79”, you are not eligible to be awarded MODL points. A new assessment with the above information will be required if you wish to claim MODL points. Please check Abacus website for the MODL specialisations.

ANZCO Dictionary replaces ASCO

The new ANZCO Dictionary now replaces ASCO, and is available at the Australian Bureau of Statistics website. DIAC has not yet made any announcement as to when the ANZCO will replace the ASCO Dictionary.

Caution to Students who wish to fast track their degrees

Students who undertake 'fast-track' bachelors degrees – that can be completed in two academic years, may meet the two year rule – but then find themselves falling foul of other requirements under the relevant regulations. Regulation 2.26A of the Migration Regulations requires that a bachelor degree for general skilled migration purposes be “not less than 3 years of full-time study, or the equivalent period of part-time study”.

(Tip: it has been reported that some universities are offering students such “fast track' degrees. As the requirements for the Skilled Overseas Students Visas are complex and full of grey areas, students are encouraged to be extra careful to ensure that all, but not merely some, of the requirements for these visas are satisfied. Please contact our office should you have any questions in this regard.)