Introduction Preamble

 
 

This paper aims to fill the following objectives:

  • Important practice points on issues raised in previous seminars;
  • Recent developments in terms of amendments to regulations and recent decisions of the tribunals and the courts;
  • What I call the ‘text book’ part of the paper, which is a comprehensive covering of the issues in the temporary work visas regime.

By covering the issue this way it means that experienced migration advisers will get immediate benefit from the paper while migration advisers in their early years of practice will get the benefit of seeing how recent developments mould into the whole temporary work visas scheme.  Experienced migration advisers will also benefit from a comprehensive revision of the topic.

The companion paper to this area is the Employer Nomination Scheme paper and ideally these should be studied together.  The subclass 457 visa is the natural transition visa for permanent residence.

Note also that the accompanying material contains a wealth of useful resources. Not every accompanying document will be referred to in this paper.

 

PREAMBLE[1]

 

The current government is committed to the subclass 457 visa and sees it as a genuine transition to permanent residence visa.

The former Minister for Immigration & Border Protection, Scott Morrison in an address to the Migration Institute of Australia National Conference, Canberra on 21 October 2013, gave an insight into the approach of the government:

The primary purpose of our immigration programme is economic, not social, in our view. Immigration is an economic policy, not a welfare policy.

The government favours a transition from subclass 457 visa to permanent residence via ENS:

The employer sponsored programme shows significant benefit to Australia, with migrant employment rates of 98 per cent on any given year…the best performing element of the programme by far.

More skilled people now arrive on a temporary visa and then having proven themselves and decided they’d like to stay in Australia, they find an employer who is willing to back them. These are exactly the productive migrants we want to encourage to stay. They have worked in our country. They have paid taxes from day one. They have improved their language skills through engagement in the workplace and in the community and off the clock and they are living and enjoying the Australian way of life they came to this country to enjoy, to experience, to be part of and to contribute to.

 Here is the government’s attitude to the subclass 457 visa:

In relation to the 457 visa programme, we made our position very clear in the previous Parliament and you will hear more from me and Minister Cash in coming months on this front as we work through these issues.

But I do not think there is any doubt where the Coalition stands in support of skilled migration in this country.

Of course you know, as I do, fine-tuning our programme and visa streams and evaluating the effectiveness of compliance measures is a constant process. It’s a never ending process that arises as we work through the issues associated with implementation. That reflection is critical to ensure the generous opportunities we offer as a nation are not abused or taken for granted.

So while you hear me say very clearly the Coalition Government under Tony Abbott is supportive of skilled migration, and has been consistent in thick and thin through various attacks particularly from the previous government when we were in opposition, I say this; if you abuse it, then you can expect me in my first responsibility for law enforcement in immigration to be as tough on that as people smugglers find that I will be tough on our borders. Because I know if the 457 programme is abused, it will be undermined and its critical value to Australia will be diminished. I want to protect it and I’m asking you and I’m asking industry and employers to help the government protect this vital asset for the Australian economy by making sure it is used properly in the right circumstances and it is not abused.

There is a difference between nuanced and effectively targeted law enforcement and heavy handed regulation and red tape that stifles business productivity, ingenuity and creativity, which is how I would have characterised the laws the former Government brought in earlier this year.

Temporary skilled migration when it is managed well under a process with integrity and clarity not only helps employers and businesses fill short to medium-term skill shortages that are genuine, it creates Australian jobs.

457s have been a mainstay of Australia’s skilled migration programme since their inception in 1996. The programme is flexible and responds to the economic cycle in line with employer demand. The Coalition has always approached this issue from the perspective that Australia’s migration programme is intended as a supplement, not a substitute, to the Australian workforce and there are particular challenges at the moment with changes in the resources sector and the level of peak employment that’s been experienced there and in other parts of the construction sector where people who were working in those roles are returning to their suburbs and communities around Australia and are seeking employment back in those places. Many of those jobs when they were away working somewhere else would have been taken up by others who may have accessed this programme. So that is an environment we need to be very, very conscious of and the government is sensitive to those issues out in the community as we speak. That’s why the 457 programme has to be managed carefully and sensitively with integrity.

If you run your immigration programme properly then immigration creates jobs. That is our history, that is our experience and that is our future.

It was that very notion that Prime Minister Tony Abbott conveyed as Opposition Leader some months ago that 457s in that respect can continue to provide a mainstay for our programme. That’s what we were talking about.

People coming to the country temporarily initially, proving themselves and then making an application for permanent residency. This is a positive pathway that hands the control of the decision to a sovereign country and these are the aspects we will continue to pursue. That pathway from temporary to permanent if managed well has great opportunities for this country. It is probably one of the best ways to manage the integrity of the programme and to ensure that those who do get permanent residency are well suited to it, well qualified for it. They have earned it. They have demonstrated that, rather than the simple processing of applying one day offshore and then turning up some months later in Australia. My preference is the other pathway because it gives greater surety around not just the national security and integrity issues that are so relevant but also the economic and social participation issues that are vital to social and economic cohesion.

What’s important is that we understand, both as policy makers and those working in this field, that there is though a temporary labour market within Australia in how we deal with this issue. There are at any given time around one million temporary entrants to the country living here in Australia, many of whom have work rights. They are students, working holiday makers, they’re 457 visa holders and various elements of these programmes have different protections which are attached to them.

There is an existing temporary labour market within Australia and the role of the government is to ensure we have the appropriate controls and processes around those programmes to prevent against abuse, to ensure the ongoing integrity of that programme and also to ensure that those who are migrants in that situation are not vulnerable themselves.

The answer to that is not more regulation to tie business or practitioners up in more union red tape but to have more effective enforcement methodologies and practises and resources.

Critically it is about recognising that unless you can provide a proper pathway then there is the great risk that people will find themselves in the temporary labour market illegally and they will be subject to very serious vulnerabilities. And we need to be aware of that. To pretend that there is not some sort of unofficial temporary labour market out there operating in Australia today is naïve. It exists. And we need to ensure that we are running a proper process to have people moving through a proper programme that is connected with a legitimate end that exists within the economy, and are not putting migrants or the community more generally at risk.

We need to find and encourage pursuit of legitimate pathways with appropriate controls for temporary migration that prevent the abuse of programmes designed for other important purposes and meet the labour needs of an economy that the Abbott Government wants to see expand.

Even though there has been a new minister, it is not perceived that the government’s approach has changed.

 

NUMBERS STEADY FOR THE SUBCLASS 457 VISA

 

Here is what Immigration’s Subclass 457 quarterly report for the quarter ending at 31 March 2015 (the latest available) said:

40,870 subclass 457 primary visa applications were lodged in the 2014-15 year to 31 March 2015, 15.3 per cent higher than the same period in the previous programme year.

  • 38,130 subclass 457 primary visas were granted in the 2014-15 programme year to 31 March 2015, 4.1 per cent lower compared with the same period in the previous programme year.
  • The number of primary visa holders in Australia on 31 March 2015 was 106,750, 4.5 per cent lower compared with the same period in the previous programme year.

So it is fair to say the visa is alive and well and here to stay.

Barbara DavidsonIntroduction Preamble