Working Holiday Visa Overview
Working holiday and ‘Work and Holiday’ visas can be good rescue strategies for secondary visa holders caught in visa fiascos involving their parents’ visas or indeed any situation where the young person needs to recover with a temporary visa. The writer has done this will diverse countries such as Korea, Malaysia, Hong Kong & Ireland. In certain circumstances these visas are renewable hence at a good medium term fix while the migration pathway is re-configured. For both visas the applicant has to be over 18 and under 31 at time of application.
There are 2 types of these visas, one with wider benefits for certain ‘safe’ countries and one with lesser benefits for certain other countries. The latter is the subclass 462 Work and Holiday visas. Generally these working holiday visas are meant to be reciprocal for young Australians.
The first such visa can only be applied for when the applicant is offshore and can only be granted offshore hence no merit review rights accrue. But in the case of the 417 visa, the second visa can be granted onshore hence in these circumstances merit review rights accrue. The renewal criteria is quite complex and therefore can often require advice from a migration adviser and refusal can lead to an application for review to the Administrative Appeals Tribunal.
Fraud and exploitation
The renewal process for the subclass 417 Working Holiday visa has had a history of some fraud and pervasive exploitation. Visa applicants had to prove they had done certain types of work in order to be granted the second one year visa. Fraud occurred in the sense that farmers and other employers were giving false certificate saying that a person had worked in the appropriate capacity when in fact the visa applicant had not done any or not enough complying. Money usually exchanged hands for this ‘letter’. Inevitably when it emerged that particular employers had issued hundreds of these certificates Immigration investigated and many visa were cancelled but it also infected grants of future visas as false statements had been provided (because of the effect of 4020).
Exploitation occurred when many employers would not pay visa applicants for work done knowing that the visa applicant needed the work history in order to get the new visa.
That has now changed with the Migration Legislation Amendment (2015 Measures No 3) Regulations 2015 which inserted the following into the criteria for the subclass 417 visa from 1 December 2015, requiring any work done to be paid in accordance with Australian industrial law :
(5) If the applicant is, or has previously been, in Australia as the holder of a Subclass 417 visa, the Minister is satisfied that:
(a) the applicant has carried out (whether on a full‑time, part‑time or casual basis) a period or periods of specified work in regional Australia as the holder of the visa; and
(b) the total period of the work carried out is, or is equivalent to, at least 3 months full‑time work; and
(c) the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.
Item 4802 of the amending regulation has a useful saving for those claiming work done prior to 1 December 2015 in that the requirement for being paid proper wages will not apply for work done prior to that date. Hence any work done prior to 1 December 2015 can be voluntary work. Here is the exact terms of Item 4802 :
4802 Operation of Schedule 5
(1) The amendments of these Regulations made by Schedule 5 to the Migration Legislation Amendment (2015 Measures No. 3) Regulation 2015 apply in relation to an application for a visa made on or after 1 December 2015.
(2) However, to the extent that the application relates to work carried out before 1 December 2015, paragraph 417.211(5)(c) of Schedule 2 (as amended by the amendments referred to in subclause (1)) does not apply in relation to that work.
So the grant of the first visa is for one year.
The ‘specified work’ is as follows as set out in Legislative Instrument IMMI 08/048, (F2008L02264) made for the purpose of paragraph 1225(5) of Schedule 1 to the Regulations :
(a) plant and animal cultivation
(i) the harvesting and/or packing of fruit and vegetable crops
(ii) pruning and trimming vines and trees
(iii) general maintenance crop work
(iv) cultivating or propagating plants, fungi or their products or parts
(v) immediate processing of plant products
(vi) maintaining animals for the purpose of selling them or their bodily produce, including natural increase
(vii) immediate processing of animal products including shearing, butchery, packing and tanning
(viii) manufacturing dairy produce from raw material
(b) fishing and pearling
(i) conducting operations relating directly to taking or catching fish and other aquatic species
(ii) conducting operations relating directly to taking or culturing pearls or pearl shell
(c) tree farming and felling
(i) planting or tending trees in a plantation or forest that are intended to be felled
(ii) felling trees in a plantation or forest
(iii) transporting trees or parts of trees that were felled in a plantation or forest to the place where they are first to be milled or processed or from which they are to be transported to the place where they are to be milled or processed
(d) mining
(i) coal mining
(ii) oil and gas extraction
(iii) metal ore mining
(iv) construction material mining
(v) other non-metallic mineral mining and quarrying
(vi) exploration
(vii) mining support services
(e) construction
(i) residential building construction
(ii) non-residential building construction
(iii) heavy and civil engineering construction
(iv) land development and site preparation services
(v) building structure services
(vi) building installation services
(vii) building completion services
(viii) other construction services
The work has to be done in a regional area which is the outside the populous hubs of NSW, Victoria, Queensland and WA but includes the whole of South Australia, the Northern Territory and Tasmania. (Note that the concession making the whole of WA a regional area for the RSMS visa does not apply to the working holiday visa.)
Note the following conditions to this visa :
[8547] The holder must not be employed by any 1 employer for more than 6 months, without the prior permission in writing of the Secretary.
[8548] The holder must not engage in any studies or training in Australia for more than 4 months.
Employers often have more than one company as part of any group hence the writer argues that in accordance with the orthodox principles of company law outlined in Soloman v Soloman (UK House of Lords 1897), a separate company is a separate legal entity hence is a different employer.
In a media release dated 30 October 2015, the Minister for Immigration & Border Protection, Mr Dutton said:
“…visa holders who secure work in certain high demand industries in northern Australia will be able to remain with their employer for up to 12 months from November 21.”
Under the change, both Working Holiday (Subclass 417) and Work and Holiday (Subclass 462) visa holders who undertake work in northern Australia will be able to apply to work for a single employer for up to 12 months, compared to the usual limit of six months.
The Minister for Immigration and Border Protection Peter Dutton said the changes – an initiative of the Government’s recent White Paper on Developing Northern Australia – will be of significant benefit to the agriculture and tourism sectors in the north of the country.
“These industries are highly seasonal and rely on short term workers to provide labour flexibility in peak periods,” Mr Dutton said. “The changes will also apply to work in northern Australia in aged and disability care, construction and mining.”
Because the 12 month rule is about the approval of the Secretary of the Department this change occurs by administrative process.
Subclass 417 – Working Holiday visa applies to people from the following countries:
Column 1
Item
Column 2
Kind of Passport
Column 3
Conditions
1BelgiumPassport must indicate that the applicant is a national of Belgium
2CanadaPassport must indicate that the applicant is a national of Canada
3DenmarkPassport must indicate that the applicant is a national of Denmark
4FinlandPassport must indicate that the applicant is a national of Finland
5FrancePassport must indicate that the applicant is a national of France
6ItalyPassport must indicate that the applicant is a national of Italy
7NorwayPassport must indicate that the applicant is a national of Norway
8SwedenPassport must indicate that the applicant is a national of Sweden
9The NetherlandsPassport must indicate that the applicant is a national of The Netherlands
10The Republic of IrelandPassport must indicate that the applicant is a national of the Republic of Ireland
11The United Kingdom of Great Britain and Northern IrelandPassport must indicate that the applicant’s nationality is British Citizen or British National (Overseas)
12EstoniaPassport must indicate that the applicant is a national of Estonia
13GermanyPassport must indicate that the applicant is a national of Germany
14JapanPassport must indicate that the applicant is a national of Japan
15MaltaPassport must indicate that the applicant is a national of Malta
16Hong Kong Special Administrative Region, People’s Republic of ChinaNil
17The Republic of CyprusPassport must indicate that the applicant is a national of the Republic of Cyprus
18The Republic of KoreaPassport must indicate that the applicant is a national of the Republic of Korea
19Passports issued by the authorities of TaiwanPassport must not purport to be an official or diplomatic passport
Note the provisions as to the effect of the visa being that a person has 12 months after visa grant to arrive in Australia and then after first arrival can come and go for 12 months.
417.5 When visa is in effect
(1) If the applicant is outside Australia at the time of grant — temporary visa permitting the holder:
(a) to travel to and enter Australia within 12 months after the date of grant of the visa; and
(b) to travel to, enter and remain in Australia until 12 months after the date of first entry to Australia.
(2) If:
(a) the applicant is in Australia at the time of grant; and
(b) the applicant holds a Subclass 417 visa at the time of application;
temporary visa permitting the holder to travel to, enter and remain in Australia until 12 months after the date that the visa mentioned in paragraph (b) would have otherwise ceased to be in effect.
(3) If:
(a) the applicant is in Australia at the time of grant; and
(b) the applicant does not hold a Subclass 417 visa at the time of application;
temporary visa permitting the holder to travel to, enter and remain in Australia until 12 months after the date of grant of the visa.
Note the confusing effect of paragraph 417.511(1)(2)(b). Sometimes people apply for their second Working Holiday Visa close to the expiry of the first Working Holiday Visa. Grant of the second Working Holiday Visa would therefore occur possibly some weeks after the expiry of the first Working Holiday Visa with the applicant being on a bridging visa up until grant. However the 12 months term of the second Working Holiday Visa runs from the expiry of the first Working Holiday Visa NOT from the grant of the second Working Holiday Visa. This confuses many second Working Holiday Visa holders who think they have 12 months from the date of grant. The result they then stumble into being illegal at the end of the term of the second Working Holiday Visa. All of this has extra relevance for Tribunal reviews of decisions to review the refusal of the second Working Holiday Visa (usually on issues over whether they worked or not to meet the requirements). Migration advisors need to seek an expedited hearing of the review so that the grant ultimately occurs during that 12 months period. If a favourable Tribunal decision occurs after that 12 months period then the visa, on remittal would probably not be granted because it could not come into effect.
Note that the no further stay condition 8503 may be imposed but is not usually imposed.
The Work and Holiday Visa subclass 462 visa
Confusingly there are two quite distinct visas, with similar names. The Work and Holiday Visa subclass 462 visa depending on the passport country requires some educational qualifications.
In a media release dated 30 October 2015, the Minister for Immigration & Border Protection, Mr Dutton also said:
“Further changes will follow in 2016 which will allow Work and Holiday (Subclass 462) visa holders to extend their stay in Australia by a further 12 months if they work for at least three months in agriculture or tourism in northern Australia.”
The government has announced agreements with Greece, Israel, Vietnam and Hungary but these are yet to be made law in the subclass 462 Work and Holiday visa. Usually quite tight quotas are set for these visas which are based on reciprocal arrangements with the other countries. The Greece agreement limits the total numbers in any one year to 500 young adults while the Poland agreement is restricted to 200, Israel – 500, Portugal – 200, Spain – 500, Vietnam – 200, Slovenia – 200, Slovakia – 200, Hungary – 200.
On 22 September 2015, Minister for Immigration and Border Protection Peter Dutton announced that 1500 visas would be available for China immediately with the quota for the year being 5000.
The following countries have the requirement of having completed at least 2 years of undergraduate university study or hold tertiary qualifications : Argentina, Bangladesh, Chile, China, Indonesia, Iran Thailand, Malaysia, Poland, Portugal Turkey, Slovenia, Slovakia, Spain & Uruguay. There is a concession for the USA whose citizens only need secondary school qualifications and there is no cap for US passport holders.
Note that although Iran is listed as a country the Memorandum of Understanding with Australia expired in 2007 hence no new visas have been issued since then. Note also the cap for Thailand and Uruguay are zero hence no visas would be issued for passport holders of those 2 countries.
Item 1224A(3)(b)(iii) and 462.213 prescribe that unless the applicant is a member of a class of persons specified in the legislative instrument (currently only Chinese and US citizens), they must provide evidence that their government has agreed to their stay in Australia under the arrangement. Generally, acceptable documentary evidence is a letter from the nominated agency (these agencies are set out in the PAM for Item 1224A(3)(b)(iii).
The subclass 462 applicants need sot have ‘functional English’. Note the 8503 (no further stay condition may be imposed and ordinarily would be imposed from developing countries.
The visa is a one off visa as only Iranians may apply in Australia but no Iranian visas are now issued! Although as stated above changes are foreshadowed in 2016 to allow for a second 462 visa to be granted.
The ‘genuineness’ test is somewhat relaxed as the PAM indicates :
A person who intends to apply to extend their stay in Australia after their 462 visa ceases, for example, by applying for a visa as a skilled worker or a spouse or de facto partner, may still be considered to be a genuine visitor for the purpose of a Work and Holiday visa application.
Genuine visitor and 462 work rights
Condition 8547 allows the 462 visa holder to work for up to 6 months with each employer. The Work and Holiday visa is not, however, the appropriate visa for a person whose primary intention is to work in Australia.”
Hence there is no prohibition on an applicant applying for a subclass 457 visa if the ‘no further stay provision is not imposed’.