Abacus Visa Newsletter

Dear Clients and Readers,

At year end, it’s always helpful to take a step back and reflect on the impact of major developments; to get our bearings so that we can better prepare for what’s coming next. This applies particularly well to migration law, where changes tend to occur rapidly, and almost on an endless basis.

In the final newsletter of 2018, we draw out key themes of the year and provide practical guideposts to individuals and businesses on important migration-related issues. We cover the new integrity measures catching out sponsoring employers; key sticking issues around nomination approvals and refusals; as well as the latest developments impacting citizenship applicants, migrants and those looking to reunite with family members.

We hope you find the summaries and tips useful. Abacus Visa will be closed from 21 December 2018 and return to office on Monday 7 January 2019 over the holiday season. We wish you a very relaxing Christmas and a Happy New Year.

Kind regards,

Linda McCreath
Principal Lawyer & Managing Director
Abacus Visa Immigration Lawyers
MARN: 0104387

Employers beware

Refusals and reviews

Citizenship and migrants

Employers beware

For many businesses hiring overseas workers, 2018 has been about navigating the many new and unfamiliar requirements of the Temporary Skill Shortage (Subclass 482) visa, which came into full effect on 18 March. They have also had to deal with corresponding changes to the Permanent Employer Nominated visas (Subclasses 186 and 187), which introduced tougher eligibility criteria on age, employment history, salary, English language, and available occupations.

While it is easy to get lost in the details (and we cover these details in the links provided), a key overriding theme is the higher standards to which employers are being held to ensure they fulfil their sponsorship obligations.

Enhanced integrity measures

New ‘enhanced integrity’ regulations that came into effect on 13 December 2018 allow the Minister for Home Affairs to publish information (including the business or trading name, the ABN or individuals’ personal information) about an approved sponsor or former sponsor who fails to meet the applicable sponsorship obligations. There is no requirement for the Minister to observe natural justice rules in publishing this information, and no civil liabilities can arise from the publication, in good faith, of such information. The new regulations also allow the Minister to go public with any sanctions actions taken on or after 18 March 2015.

In other words, businesses can be sure that any serious breach of their obligations will not only be met with potential fines or civil or criminal charges, but also regulated public shaming.

Data sharing arrangements

Furthermore, new data sharing arrangements between the Department of Home Affairs (DHA) and the Australian Tax Office (ATO) means that any business sponsoring an overseas worker who fails to perform ongoing visa checks or allows workers to breach visa conditions can now be caught in real-time and potentially face fines or even jail time.

For example, if payroll data for a given worker shows they are receiving a salary commensurate with working excess hours over what is permitted by their visa conditions, a breach would be immediately detected. Or if an employer submits payroll data to the ATO but has not carried out any ‘Visa Entitlement Verification Online’ (VEVO) checks to ensure workers have a legal right to work in Australia, the DHA would be flagged.

We have written more about this in our recent Newsflash. The key takeaway is that the responsibility for ensuring workers are not in breach of visa conditions falls squarely on employers and companies.

Tips

There’s no way around it – employers must familiarise themselves with the extensive legal obligations that come with sponsoring a worker either on the TSS visa or a permanent employer sponsored visa. It is recommended you seek legal advice from the very beginning of the process.
Ensure all relevant employees receive training and have a working understanding of the obligations around sponsoring overseas workers.
Whether it’s conducting 'Visa Entitlement Verification Online' ('VEVO') checks or inspecting a worker’s personal identification documents, there are steps businesses can take to show they are active in keeping within the requirements of the law.
Keep meticulous records of the checks and actions you take to fulfil your sponsorship obligations.

Refusals and reviews

It’s a challenge to process nomination and sponsorship applications on a normal day, but even more so in the aftermath of a major shakeup to the migration program. With both employers and Department officials still finding their feet in the wake of the TSS visa and changes to permanent employer sponsored visas, there remain several teething issues that have led to arguably unnecessary refusals of applications.

Skilling Australians Fund
One issue is the implementation of the Skilling Australians Fund (SAF), which began on 12 August. Employers sponsoring workers on certain visas are required to pay the SAF ‘Training Contribution Charge’ (known as a levy) at the time of lodgement of each nomination. These visas include:

Temporary Skill Shortage (TSS) visa
Employer Nomination Scheme (ENS) (subclass 186) visa
Regional Sponsored Migration Scheme (RSMS) (subclass 187) visa
Nominations to transfer an existing Subclass 457 (or 482) visa holder to a new employer
Temporary Activity visa (subclass 408)

A major sticking point has been the fact that payment of the levy is a ‘time of application’ requirement. That is, employers must pay upfront, before an actual decision on the nomination has even been made. This has caused numerous issues, particularly for employers whose nominations end up being refused at a later date.

While there are situations in which refunds can be made (such as if a sponsorship and nomination is approved but the associated visa is refused based on health or character grounds), not all employers can recover their costs. For example, sponsors of ENS Subclass 186 or RSMS Subclass 187 visa holders who leave within 12 months of employment are not entitled to refunds.

Overall, the SAF has increased the administrative burden on employers who have no choice but to sponsor overseas workers. With an election year coming in 2019, it remains to be seen whether the government will act to help reduce this burden.

Labour market testing
Another area of contention is the application of Labour Market Testing (LMT) requirements.

Currently, for a nomination to be approved, the DHA must be satisfied that a suitable qualified and experienced Australian worker is not available to fill the nominated position. Actions employers must take to satisfy this requirement include:

Advertising the position in Australia within 4 months of lodging a nomination application;
Ensuring the advertising runs for at least 4 weeks;
Ensuring the advertising is targeted so that a significant proportion of suitably qualified and experienced Australians will be informed of the position;
Ensuring applications or expressions of interest for the advertised position must be accepted for at least 4 weeks.

However, inconsistencies with how time periods are interpreted have resulted in some unexpected nomination refusals. For example, some visa processing officers insist on four weeks of print media advertising to satisfy the requirement that adverts permit applications to be received over the 4-week period. A different interpretation holds that that print ads only need to give a closing date for applications that ends 4 weeks later.
Given the costs of running these ads, there appears to be some disconnect between what the law requires and the commercial realities many businesses face.

Review rights
New regulations also clarify who has the right to apply for a review of a decision in TSS or 457 visa applications.

If the applicant was onshore at the time of application, a decision is only reviewable if, at the time the decision to refuse to grant the visa is made:

the visa applicant is the subject of an approved nomination that has not ceased; or
there is an application to review the decision not to approve the sponsor (i.e. the sponsorship application was refused) pending; or
there is an application to review the decision not to approve the nomination (i.e. the nomination was refused) pending.

The same applies to the case of an applicant who was offshore at the time of application, with the exception that the person that nominated the visa applicant is also an Australian business. If the sponsor is an overseas business, the decision is not reviewable.

Furthermore, an application for review of an onshore application can be made by the applicant. An application for review of an offshore application can only be made by the Australian business who applied to become the sponsor or who nominated the visa applicant ie. An offshore visa applicant is not eligible to lodge the application for review.

Tips

Submit complete applications. Applications that contain all required documents, including where necessary SAF levy payments and evidence of LMT, are far more likely to be approved. Given the strict interpretations of certain nomination requirements, it is better to err on the side of caution than have to rely on a subsequent review process.
Employers must keep clear records as evidence of meeting nomination requirements. For instance, sponsors must retain records to substantiate the figure for annual turnover of the business, in order to facilitate the assessment of the applicable nomination contribution training levy.
To help show you have met LMT requirements, you should retain on file a copy of the ad, the dates of advertising, invoices from the recruitment service you used, the number of applications received, number of applicants offered a position, and reasons why other applicants were deemed not to be suitable.

Citizenship and migrants

Tougher asks for citizenship
The fight over citizenship continues, with the failed Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 looking likely to reappear in the new year.

Under the proposed bill, prospective citizens would have faced tougher English requirements and character checks. They would have also been required to accrue four years of residency instead of one, demonstrate commitment to ‘Australian values’, as well as prove their capacity to integrate into Australian society. The bill would also greatly expand the powers of the Immigration Minister to make determinations on citizenship applications.

Concerns hang over the subjectiveness of some of the criteria, as well as the necessity of increasing English requirements already seen by some to be adequate.
We reported on the implications of the bill in more detail in our Newsflash.

Tips

Australian citizenship applicants should be prepared to wait. With citizenship conferrals reaching 15-year lows, as well as a backlog of over 240,000 cases, some migrants have had to wait 17-19 months or more for determinations on their applications.
A policy of complete honesty and frontloading as much information as possible in your citizenship application is wise, particularly given the current climate of ‘enhanced integrity’ measures and tightened character checks.
Engage a reputable immigration lawyer or agent to help with the process. Seemingly small omissions or missteps during the application process can significantly lengthen the application process, or worse jeopardise your chances at citizenship.

Waiting times for social benefits
From 1 January 2019, newly arrived migrants will face new or increased waiting periods for certain social benefits and assistance.

A watered down Social Service and Other Legislations Amendment (Promoting Sustainable Welfare) Act 2018 makes the following changes:

increases the period from 104 to 208 weeks for specific social security benefits and concession cards
introduces a 208 week waiting period for bereavement allowance
introduces a 52 week waiting period for carers allowance
increases the period from 104 to 208 weeks for farm household allowance

Also introduced are:

a waiting period for 52 weeks for Family Tax Benefit Part A
a waiting period of 104 weeks for parental leave or dad and partner pay

Stalled family reunions
After teasing the new Temporary Sponsored Parent visa back in May 2017, the government again announced that applications for the long-awaited visa will open in the first half of 2019.

The visa will purportedly allow parents and grandparents of migrants to stay in Australia for up to 5 years at a time. The May 2017 announcement envisioned a three-year visa for a fee of $5,000, or a five-year visa for $10,000, with the opportunity for a single renewal for another five years at the same price. However, no specific policies have been rolled out yet, so it is unclear whether the government will stick to the original proposal.

The delay was in part due to the need to first pass the Migration Amendment (Family Violence and Other Measures) Bill 2016.

Due to concerns about power imbalances between newly arrived visa applicants and their sponsors, the Bill extends the sponsorship framework that currently applies to the temporary work sponsored visa program to the family sponsored visa program. Amongst other things, it:

requires the assessment and approval of sponsors (separate to the visa application process);
imposes statutory obligations on sponsors;
provides for civil penalties and administrative sanctions for breaches of sponsorship obligations; and
facilitates the sharing of information between relevant parties.

Sponsors will be responsible for meeting the prescribed medical, hospital, aged care or other health related expenses incurred by a visa holder or a former visa holder.

While increased scrutiny of sponsors is welcome, there is still uncertainty over exactly how the new framework will impact applicants. For instance, there is some concern that the time needed to process sponsor applications may exceed the time intending visa applicants have available to stay in Australia on a short term visitor visa.

We will keep our readers updated as new information becomes available.

Links to useful information

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