15th December 2009

GFC and Visa Reforms
2010 Outlook: Compliance is Key
Migrant Application Rise Hits Reform Wall
VEVO and Criminal Offences
GSM Process Priority Listing
Compliments of the Season

All of us at Abacus Visa wish you a Merry Christmas and a prosperous New Year. We would like to thank all our clients, associates and friends for your ongoing support this year, and we look forward to assisting you in 2010.

Please note that Abacus Visa will be closed from 23 December 2009 until 01 January 2010. Skeleton staff will be available for urgent matters only during this time.

2009 IN REVIEW

With 2009 drawing to a close, we are taking a brief look back on this year’s Migration Program tightening, and will give you a preview of what trends and modifications to policy employers and visa applicants can expect for 2010.

The central concern of the changes and reforms introduced in 2009 - and further expected for 2010 - is a higher importance and stricter enforcement of full company compliance.Sponsoring companies will experience increased scrutiny by the Department of Immigration and Citizenship (DIAC).Integrity and a meticulous adherence to compliance procedures will be rewarded with faster processing times, while those with a poor compliance management regime will be penalised, may be barred as a sponsor, or could even face criminal charges.

For 2010, the key strategy for all sponsors and applicants is a strict compliance with immigration law and regulations.This will require in-depth skill and understanding of the reforms and associated laws, as well as patience.In this difficult environment, Abacus Visa can provide the necessary expertise and proven approach to help you achieve the best possible results and processing times for your visa applications.

In 2009, the Global Financial Crisis (GFC) continued to affect many aspects of business and our personal lives.While, on a global scale, the end of the year sees Australia escaping these tumultuous times relatively unscathed, the future seemed a lot less certain at the beginning of 2009.

As a result, the federal government tightened its immigration policy in March.This included a major tightening of the 457 visa requirements, and a reduction of the General Skills Migration (GMS) 2008/2009 intake by a 14% to 115,000.As the year progressed and Australia’s economy emerged as more robust than many other countries’, the rate of people seeking to migrate to Australia increased significantly.This double effect of reduced intakes and simultaneous surge in applications under stricter requirements resulted in an extreme delay in processing at the DIAC.Subsequently, the Minister for Immigration and Citizenship announced a Priority Processing Direction for applications not yet decided and those lodged on or after 23 September 2009, favouring Employer Nomination Scheme (ENS) and Regional Sponsored Migration Scheme (RSMS) applications.This has lead to a dramatic decrease of skilled migrants.

Students Visas for overseas students wishing to study in Australia experienced a lot of bad publicity as a result of closures of many sub-standard colleges in Australia and isolated attacks on Indian students.This has tarnished the reputation of Australian education around the world, and especially in India.

All in all 2009 has been a harsh year, and we expect the government in 2010 to place even more stringent requirements on visa sponsors and applicants.

The key for a successful 2010 is strict compliance discipline combined with knowledge of the law and reforms.

457 VISA NEWS

The number of approved 457 visa applications has fallen significantly this year as a response to the slowing economy and the reform measures introduced in September 2009.According to the DIAC, the year-on-year 57% drop in 457 primary applications lodged in October 2009 was largely due to the stricter reform measures. Interestingly, the rate had fallen 6% since the reform month of September 2009.Year-to-date, the total number of primary 457 applications lodged at the time of writing is 49% lower than the same period in last program year.

Abacus Visa has reported extensively on the 457 reform in September 2009 (see Abacus Visa Alert, 8^th and 10^th September issues).The main thrust of the reform is to ensure overseas workers are neither exploited nor employed ahead of local workers.Since the introduction of the reform, the DIAC has conducted extensive campaigns via email, calls and visits in an attempt to educate all sponsors about the new laws, while at the same time monitoring and auditing sponsors.

Many of you would have already been contacted or visited by the Department and these visits would have been of a friendly nature and purely for educational purposes to ensure sponsors understand the new laws and specifically the new Sponsors Obligations.Once these education campaigns are over, however, I envisage that the Department will start to get tough on both sponsors and visa holders: Should either be found to be in breach of immigration, workplace and other related Australian laws, they will be duly warned or sanctioned. After the DIAC’s extensive and pain-staking education campaign to improve the compliance management standard of sponsors, employers will now be deemed to be fully aware of the new laws and no lenience will be shown towards companies in breach of any regulation or law.

As part of the reform measures, a sponsor must have no adverse information against its name, i.e. the entity must be of good standing in respect to compliance and training requirement adherence.Sponsors that have a good record/standing with the DIAC are now given processing priority.Conversely, poor or unsatisfactory compliance record-keepers will be given stricter scrutiny and possible processing delays.The government intends to thus provide greater incentive for sponsors to take their compliance obligations seriously.

The areas which the DIAC focuses on more rigorously now include the maintaining of good records, paying visa holders market salary rate, ensuring visa holders work in the nominated occupations and compliance with reporting requirements such as the reporting of 457 visa terminations within 10 days.We therefore urge all sponsors to treat these sponsorship obligations seriously.

Another important area affected by the reform is the use of the DIAC’s Visa Entitlement Verification Online (VEVO) facility that enables employers to check immigration status and work rights of their current and prospective employees – which are statutory requirements for all employers in Australia as commanded by the Employers Sanctions Act.A breach of this law could lead to a criminal offence, and the DIAC focussing on this area now.

Many of our clients have been contacted by the DIAC to encourage these employers to register with VEVO.Employers who have no record of using this facility have been contacted and warned by the Department that continued failure to use this facility would not be regarded favourably, or possibly even adversely.My view is that this is draconian, as the VEVO facility is not the only way an immigration status of a prospective employee can be checked.However, we do encourage our clients to make use of this facility to avoid unnecessary complication with the DIAC.

ELECTRONIC TRAVEL AUTHORITY (ETA) & BUSINESS (SHORT STAY) 456 VISA

The use of ETA and 456 visas for work in Australia are now discouraged by the DIAC.I trust many of you who have been travelling to Australia for work on these visas on an ongoing basis would have been questioned by the DIAC on entry recently.If you have not been questioned yet, I think you will be likely to encounter this in the near future.The alternative now is to enter on a 457 visa, as the reform has reduced the minimum stay for the 457 visa to 1 day from the 3 months (the maximum stay of 4 years remains). This is making it hard for workers who need to enter Australia for a short period of time.As the new 457 visa provides for short term work period, the business visas pathway will be closed, or scrutinised strictly from now on.Many of our clients have experienced this problem and their workers are required to apply for the 457 visas from now on.

OVERSEAS BUSINESS SPONSORSHIP (OBS)

OBS visas are available for overseas businesses which do not have a registered office or trading in Australia.However, many overseas firms used the OBS option even though they also have an operation in Australia.The September reform has closed this option, as it is difficult for the DIAC to undertake audit and indeed impose sanctions on firms overseas.Since the reform, all overseas firms with an operation in Australia must use the Australian business as a Standard Business Sponsor.

The above show that as a result of the reform, the 457 visa remains one of the very few options for overseas workers to work in Australia.It is imperative that the sponsors and visa applicants understand the new laws, and continue to comply with them whilst they are in Australia.

GENERAL SKILLED MIGRATION (GSM)

Processing Priority Listing

The September 2009 visa reform saw the introduction of a Processing Priority Listing that aims to lessen the impact of the large application backlog created by the 14% cut in migration intakes paired with a surge of skilled migration.The Priority Processing Direction introduced by the Minister for Immigration and Citizenship applies to applications not yet decided or lodged on or after 23/9/2009.

The following processing priorities lists apply:

1. Employer Nomination Scheme (ENS) or Regional Sponsored Migration Scheme (RSMS);
2. Critical Skills List (CSL) andState/Territory sponsored;
3. CSL andfamily sponsored;
4. CSL
5. Non-CSL and State/Territory sponsored
6. Migration Occupations in Demand List (MODL) or Non-CSL andfamily sponsored
7. All other applications

The current processing time for List 1 is approximately 6 months, while you should expect 12 months or more for List 2. List 7 applications are not expected to be processed before at least the end of 2012.

An unfortunate consequence of the introduction of the Processing Priority Listing is that some applications that were at the final stages in September 2009 have now came to a halt, and may not be finalised till end of 2012.

Onshore overseas students now face huge uncertainties, despite being granted bridging visas:Whilst they are permitted to work, employers tend to be reluctant to employ anyone with uncertain immigration status.

Strategies and Implications for Applicants Affected by the Processing Priority Listing

Persons whose application has been priority downgraded, should seek employer and state/territory sponsored visas.Applicants who have lodged a skilled visa may have their visa fees waived if an ENS application is lodged.However, the demand for ENS has already increased and is expected to increase further.As a result, it is also envisaged that this scheme will be re-aligned with the 457 changes, and requirements are likely to be tightened.

The increased demand for state/territory sponsorship has also resulted in most states increasing their sponsorship requirements.Readers are encouraged to research requirements for each state or territory carefully.

GSM Trends for 2010: More Changes & Need for High Eligibility Standards

The last major reform of the General Skilled Migration program took place in September 2007, and the writer sees the GSM due for another reform next year.

One thing is certain– changes are on the way.

Some of the reform measures may include:

• A new CSL model – to address short term demand;
• Increased English standard, education length and work experience;
• Introduction of a job-ready test (early 2010 rumoured)
• Review of the Points Test;
• Review of the MODL
• Review of ENS/RSMS
• A pathway to GSM for 457 holders (a longer term approach)

With such wide-sweeping changes possible, onshore students of hairdressing, cooking or similar areas in the vocational sector, and who have chosen their subject purely with a view to Australian migration need to seriously reassess their visa situation. They may end up spending a lot of money and time studying for a qualification that will not be eligible under the new visa requirements, and may further result in no permanent residency option due to policy changes.