Visa Newsletters

15th June 2008

457 ERG Report and Recommendations
New MSLs for 457 workers
Changes to MODL and SOL
Student and Parent Visa news
DIAC Policy Corner -“Bridging Visas discussion”



457 External Reference Group Report

Following our discussion in our previous Alert, the ERG final report has been released. The DIAC Minister's Media Releases together with the full report are available at the following links:

Briefly, The ERG report made 16 recommendations, 14 of which were accepted by the Rudd government. Whilst the ERG recognises the apparent labour and skills shortages in Australia, it is also mindful of the importance of maintaining the integrity of the 457 program.The recommendations are therefore only part of a package of measures to address Australia's skills gap in the medium and long terms.Implementation work has started and we have already seen some improvements in the processing time of the 457 applications.The ERG stresses the importance of training Australian employees as one of the most essential elements of a medium/long term strategy to overcome our skills shortages, and that the 457 visa program is not suitable for semi or unskilled labour – except through the use of labour agreements for semi skilled workers.We envisage that the government will encourage the wider use of the labour agreement in this context.

We welcome the creation of the three Centres of Excellence – Sydney, Melbourne and Perth – especially if more transparent, clearer and faster application and assessment processes become and continue to be available.To avail ourselves of these new initiatives from the DIAC, we encourage our business/individual clients to observe the following tips:

  • ensure complete (decision-ready) applications are lodged with full supporting documents;
  • ensure your HR/Line managers and the individual applicants are aware of these requirements;
  • strict compliance with the sponsor's undertakings, migration and othr related laws.

Abacus Visa provides a full immigration advisory service, not only ensuring that complete applications are lodged, but critically, we assist your business to develop policies and procedures to ensure on-going regulatory compliance and update you on changes in migration laws and policies.

New Minimum Salary Levels (MSLs) for 457 workers – effective 1 August 2008

We issued an interim alert on 25/5/2008 regarding this increase, the details of which are repeated as this is an important announcement affecting many businesses, existing and new 457 holders.

For Non Regional Australia: (generally Metropolitan cities)
Non-ICT occupations = $43,440, ICT occupations = $59,480

For Regional Australia
Non-ICT occupations = $39,100,ICT occupations = $53,530

Employers must note that these new MSLs will apply to 457 visas granted on or after 1 August 2008, as well as to all existing 457 visa holders who are already in Australia.

The inclusion of existing 457 holders in the new change will have a significant impact on employers whose 457 holders are paid below the new MSLs.Employers must ensure that the new MSLs are paid to all existing 457 holders by 1 August 2008.Failure to do so will constitute a breach of the Sponsor's Undertakings, and therefore the migration legislations. There will, however, be no impact on those existing 457 holders whose base salaries are above the new MSLs.

The Minister's Media Release can be accessed by clicking this link. New MSLs for 457 Visa Holders

Tip: Employers must therefore implement timely and appropriate measures to ensure compliance with the new law.

New Migration Occupations in Demand List (MODL) – effective 17 May 2008

12 occupations have been added to the new MODL, including 4 Computing Professional specialisations, Electronics Engineer, Optometrist and Dental Technician, as well as the trade occupations of Binder and Finisher, Landscape Gardener and Tree Surgeon.Computing Professional – specialising in Sybase SQL Server has been removed from the List.

Changes to the Skilled Occupation List (SOL) – effective 26 April 2008

The new SOL has included 7 trade supervisor ocupations in the offshore skills assessment regime, conducted by VETASSESS.The occupation of Seafarer – Ship's Surveyor (ASCO 2542-17 was removed from this List.

See: New SOL

New Permission to work arrangements for Student Visa holders – from 26 April 2008

From 26 April 2008 people granted a student visa will receive permission to work with their visa grant. This will apply to both the primary student and any family members travelling with them on their student visa. As a result, most student visa holders will no longer need to apply separately in Australia for permission to work.

Work rights for student visa holders haven’t changed. Students are still not allowed to work until they have started their course and the hours they can work have not changed. They can work up to 20 hours a week while their course is in session (excluding any work undertaken as a registered component of their course of study or training) and they can work unlimited hours during scheduled course breaks. Family members of students are not allowed to work until the student begins their course. They are allowed to work up to 20 hours per week at all times. Family members of students who have started a masters or doctorate course may work unlimited hours.

Capping of Contributory Parent category visas

The DIAC announced on 11 April 2008 the capping of a series of Contributory Parent visa categories in light of continued high demand for these visas.Caps are determined by the Minister for DIAC and used to ensure that the planning levels for various components of the migration program are not exceeded.The numbers for particular subclasses were determined by the relative demand for each visa subclass as a proportion of the total planning level.Once a specified visa class cap is reached, no more visas can be granted for the remainder of the migration program year. Caps for the current year(to 30 June 2008) have already been allocated.

It is important to note the capping power does not affect visa grants for applicants who have previously been granted a temporary Contributory Parent visa and who are now applicants for the corresponding permanent Contributory Parent visa.

Government Lodgement Fees increase – 1 July 2008

GLFs generally are revised each year in July.
Clients are encouraged to lodge your applications prior to this date – if possible – to avoid additional costs.

DIAC POLICY CORNER

Some Bridging Visa Issues

Bridging visas issues are complex and yet frequently encountered by visa holders.Any misunderstanding could lead tounintended consequences.We will explore some of these issues experienced by many visa holders.

By law, a non-citizen in Australia without a current visa is unlawful and must be detained.The purpose of a bridging visa is to provide temporary lawful status tonon-citizens to remain in Australia under certain circumstances where they do not hold a substantive visa (unlawful).The BVA and BVB are the most commonly used bridging visas, and we therefore focus on some issues specific to them.

A BVA is for applicants who hold a substantive visa when they apply for another substantive visa whilst in Australia. A BVB (the travel visa) is for those who have a BVA (or a BVB) and must travel overseas during processing of their visa applications.

A BVA is generally granted automatically to a person making a visa application in Australia whilst holding another substantive visa, and there is no need to make a separate bridging visa application.A BVA has the following characteristics:

  • It becomes effective only when the previous visa held has expired;
  • It ceases on grant, refusal or merit review of the visa application;
  • It does not permit travel overseas (except BVB);
  • It carries the same work conditions as the previous visa held.
  • A bridging visa holder may apply for unlimited work rights, if they can demonstrate a 'compelling need to work'.

As a BVA is only effective on actual expiry of a previous visa, applicants therefore cannot apply for permission to work prior to its expiry.Diac policy is reasonably lenient towards applicants for spouse visas, as processing of these visas could be lengthy. For 457 holders who terminated with their employers, they generally continue to hold a valid visa despite the termination.Lodging a new 457 visa application(or other applications) does not evoke the BVA, and Diac therefore has no authority to grantpermission to work for another employer as the 8107 condition, which is specific to a 457 visa, will continue to operate until the grant of the new visa. In addition, Diac has a strict policy towards 457 applications because of their relatively short processing time.

For BVA holders who had held a 417 Working Holiday visa – when the BVA became effective (ie when the 417 visa has expired),it is considered as another visa, the 6 months work condition can start again.This will allow the holder to work for the same employer for a further six months, even though they may have already worked for them previously.

Overseas travel – BVA holders must apply separately for a BVB for travel overseas during processing of their visa applications.Travel is intended to be for short duration and for emergency purposes.For prolonged travels, applicants should lodge their visa applications offshore.In circumstances when visa applicants continue to hold a valid visa, e.g. a multiple ETA, they can travel overseas and return to Australia on a valid ETA.However, they must be aware that 'leaving Australia' will cease their BVA immediately.Upon return to Australia on their valid ETA, they will only be allowed to remain in Australia for the permitted period of stay under the ETA (3 months).They will become unlawful should they remain beyond this period. The BVA can only be re-instated on application to the Diac office.A clear understanding of this characteristic of a bridging visa is important to avoid becoming unlawful inadvertently.

S48 of the Migration Act states that an unlawful non-citizen who is refused a visa or whose visa is cancelled may only apply for a limited classes of visas in Australia (generally refugee visas!).In the event that a BVA holder's visa application was refused, the BVA will cease 28 days from the date of visa refusal – which may result in a s48 bar, therefore preventing that person from further visa applications inside Australia.For this reason, our clients are encouraged to avoid going on bridging visas, if at all possible, as there is no guarantee for a positive visa outcome in any visa applications!

The above are just some of the issues relating to bridging visas and not intended to be comprehensive. Abacus Visa provides comprehensive advice regarding all bridging visas and related issues when we assist with your visa applications.