Other Recent Changes

APRIL 2016 CHANGES TO 457 VISA

Discriminatory employment practices makes an employer ineligible to be a sponsor

The Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016, F2016L00523 introduced a number of changes to the 457 programme. It is about encouraging employing ‘local labour’. It could mean that an employer employs only people on a subclass 457 visa or student visas will be considered as having a ‘discriminatory recruitment practice’.

What does ‘local labour’ mean? What if an employer engaged only those of Indian origin but all of them were permanent residents – are those people ‘local labour’. The writer’s opinion is the term ‘local labour’ includes all persons who are permanent residents or Australian citizens.

But what of a repeat subclass 457 visa holder? Say an employer engages an existing 457 visa holder, is that local labour or nominating a subclass 457 visa holder for a second subclass 457 visa? It si clearly arguable that both such categories of people are local labour.

Here is what the amendments say :

The term “discriminatory recruitment practice” was added to the Reg 2.57 and is defined as follows:

Reg 2.57

discriminatory recruitment practice means a recruitment practice that directly or indirectly discriminates against a person based on the immigration status or citizenship of the person, other than a practice engaged in to comply with a Commonwealth, State or Territory law.

Amendments were also made to the criteria for approval as a Standard Business Sponsor (‘SBS’) and the criteria for variation of the terms of a SBS approval, requiring SBS applicants to declare that they will not engage in discriminatory recruitment practices:

Reg 2.59

(f) if the applicant is lawfully operating a business in Australia:

(i) the applicant has attested, in writing, that the applicant has a strong record of, or a demonstrated commitment to, employing local labour; and

(ii) the applicant has declared, in writing, that the applicant will not engage in discriminatory recruitment practices; and

Reg 2.68

(g) if the applicant is lawfully operating a business in Australia:

(i) the applicant has attested, in writing, that the applicant has a strong record of, or a demonstrated commitment to, employing local labour; and

(ii) the applicant has declared, in writing, that the applicant will not engage in discriminatory recruitment practices; and

In a circular to the industry on 18 April 2016 in the ‘457 Agent News Mini Edition’ Cathy Milfull, Director

457 and BV ABC Management Section Temporary Visa Programme Branch stated :

“The new obligation seeks to address a community concern that some employers may be relying on the 457 programme to employ foreign workers without having regard to the availability of local labour.”

Sponsors should keep documents on hand that demonstrate how subclass 457 visa holders were recruited and that this process did not discriminate based on citizenship or visa status.

The 457 Agent News also stated :

“The new obligation is not engaged if discrimination in recruitment decisions is evident on other grounds such as sex, gender, race, social group or pregnancy.

These issues are outside the remit of the Department and should be directed to other relevant agencies, such as the Fair Work Ombudsman or the Australian Human Rights Commission.”

One assumes therefore that Immigration is not directly concerned with say an all Indian workforce, but only if the workforce consisted of a disproportionate number of subclass 457 or student visa holders. But if an employer’s records showed that no suitable permanent residents or Australian citizens applied for the position then there would be no ‘discriminatory recruitment practice’. It does raise the issue that it is not the function of Immigration to micro manage an employer’s business. An employer may have a host of legitimate reasons to employ a particular set of subclass 457 visa applicants even if some of those reasons were subjective. As Ms Milfull states employers could counter allegations of discriminatory practice by showing how the subclass 457 visa applicants were selected.

Interestingly if an employer did employ only persons of the one ethnic origin an unsuccessful job applicant could claim race discrimination.

The above amendments apply from 19 April 2016 applying to all future sponsorships applicants and any sponsorship applications not yet decided (similarly any variation for sponsorship).

In addition, a new sponsorship obligation has also been introduced:

2.87C Obligation not to engage in discriminatory recruitment practices

(1) This regulation applies to a person who:

(a) is or was a standard business sponsor; and

(b) is lawfully operating a business in Australia.

(2) The person must not engage in, or have engaged in, discriminatory recruitment practices during the period of the person’s approval as a sponsor.

(3) The obligation referred to in subregulation (2):

(a) starts to apply on the day the person is, or was, approved as a standard business sponsor; and

(b) ends when the person ceases, or ceased, to be a standard business sponsor.

The new sponsorship obligation came into effect on 19 April 2016 and applies in relation to discriminatory recruitment practices engaged in or after 19 April 2016 by a Standard Business Sponsor or a former Standard Business Sponsor.

The effect of Reg 2.87C is that it could form the basis of refusing a nomination in the Employer Nomination Scheme Regime, ie Reg 5.19(3) (g)

either:

(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;

The other effect of Reg 2.87C is that a failure to meet that obligation could trigger a cancelling of a sponsoring or even barring an employer from being a sponsor.

Here is how that part of the regime works :

Reg 2.89 Failure to satisfy sponsorship obligation

(3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:

(a) the past and present conduct of the person in relation to Immigration; and

(b) the number of occasions on which the person has failed to satisfy the sponsorship obligation; and

(c) the nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred; and

(d) the period of time over which the person has been an approved sponsor; and

(e) whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person; and

(f) whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent; and

(g) whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure; and

(h) the steps (if any) the person has taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of Immigration or otherwise; and

(i) the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation; and

(j) the number of other sponsorship obligations that the person has failed to satisfy, and the number of occasions on which the person has failed to satisfy other sponsorship obligations; and

(k) any other relevant factors.

Linking up the nomination in the application process – Employer can change between the date of visa application and time of decision which includes time of decision by the AAT

Re-visiting the nomination & sponsorship process which this amendment raises, it can be important to be aware that one can change employer between the date of visa application and the date of decision.

There has also been a tidying up and/or tightening of legislative requirements for a 457 visa application. These amendments include:

Introducing a Schedule 1 criteria that the 457 nomination has been approved (and not ceased) or that a nomination application had been made and no decision had been made in relation to the nomination application.

Item 1223A(3)

(d) In the case of an applicant who seeks to satisfy the primary criteria for the grant of a Subclass 457 (Temporary Work (Skilled)) visa on the basis that the applicant meets the requirements of subclause 457.223(2) of Schedule 2:

(i) a person must have nominated an occupation in relation to the applicant; and

(ii) either of the following applies:

(A) the nomination has been approved under section 140GB of the Act and the approval of the nomination has not ceased under regulation 2.75;

(B) a decision in respect of the nomination has not been made under section 140GB of the Act.

(da) In the case of an applicant who seeks to satisfy the primary criteria for the grant of a Subclass 457 (Temporary Work (Skilled)) visa on the basis that the applicant meets the requirements of subclause 457.223(4) of Schedule 2:

(i) a person must have nominated an occupation in relation to the applicant; and

(ii) either of the following applies:

(A) the nomination has been approved under section 140GB of the Act and the approval of the nomination has not ceased under regulation 2.75;

(B) a decision in respect of the nomination has not been made under section 140GB of the Act; and

(iii) the person who nominated the occupation is not the subject of a bar under section 140M of the Act.

Prior to the above amendments, it was possible to validly lodge a 457 visa application without ever having lodged the nomination application; only the SBS application had to been lodged or approved.

The amendments apply to 457 visa applications made on or after 19 April 2016.

Worth re-iterating here that the sponsor referred to in the Schedule 1 criteria and indeed the nomination referred to in Schedule 1 criteria need not be the same employer at time of decision. Hence a visa applicant can change employer sponsor in the time between visa application and visa grant.

This can have a number of advantages. Sometimes an employer undergoes a corporate re-structure between the time of visa application and time of decision (or there can be a sale of the business). This can be accommodated in the time of decision criteria for the subclass 457 visa by having a new sponsorship and new nomination in place by time of decision.

Or even more extensively the visa applicant can simply change employer and sponsor between time of application and time of decision. In times of downturn an employer can simply withdraw a job offer between time of visa application and time of decision. Or the employer and employee can have a falling out.

Of course time of decision can be time of decision by the Administrative Appeals Tribunal on review, it being possible therefore to change employers between time of visa refusal and date of hearing before the AAT.

Change of employer necessitates a different nomination. Query whether the occupation can change between time of application and time of decision, particularly at the AAT stage. There would not seem to be a technical reason why this could not occur. This issue is discussed in some detail in both the ENS paper and the skilled visa paper in circumstances where an ‘error’ in the occupation at time of application requires change by time of decision.

Change of employer also requires that the employer be an approved sponsor.

If one has to meet higher English language requirements for occupational licensing, the visa applicant does not have to lodge the English test results with the visa application. Subclause 457.223(4)(ea) has been repealed and the exempt applicant definition is expanded.

Supposedly, some red tape has been cut to create a further ‘exempt’ status for those applicants who had to meet an English language requirement greater than the minimum English threshold for the subclass 457 visa.

This is done in quite a complicated way by amending the previous legislative instrument defining who was an exempt applicant. An ‘exempt applicant’ for English (para 457.223(11)) now includes the following :

(ca) An applicant who:

(i) is nominated in an occupation that requires:

(A) registration, licensing or membership; and

(B) the applicant to demonstrate a level of English language competency for grant of the registration, licence or membership and that level of English language competency is:

(I) equivalent to, or better than, the level of English language proficiency that is required to achieve a score specified in paragraph 3 of this instrument in one of the tests specified in paragraph 2 of this instrument; and

(ii) has been granted the registration, licence or membership specified in paragraph (ca)(i) of this instrument.

[This is done in Legislative Instrument F2016L00537 being IMMI 16/026 with effect from 19 April 2016.]

Of the English ‘Exemption’ will only apply after the visa applicant is actually granted the registration, licence or membership.

LEE IS WRONGLY DECIDED

As the writer predicted, Minister for Immigration v Lee [2014] FCCA 2881, 8 May 2014 was wrongly decided. The Full Federal Court in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 (16 December 2015) has now overturned the decision in Lee.

To provide a background to the case law:

Lee stated that if a subclass 457 visa applicant did not have an approved nomination in place at time of refusal then there are no merit review rights on a subclass 457 visa refusal.

In Kandel v Minister for Immigration [2015] FCCA 2013, 7 August 2015, Judge Street accepted that as long as the applicant was identified in a nomination then the Tribunal would have jurisdiction to hear an application for review of a decision to refuse a subclass 457 visa application. In Kandel’s case, the initial nomination had also been refused however a new nomination had been submitted prior to the applicant applying for merits review. Judge Street accepted that a fresh nomination and sponsor could be lodged after a subclass 457 visa application was lodged.

In Ahmad, a unanimous decision by the Full Federal Court, the Full Court closely examined the history of the merits review provisions and 457 provisions:

33 The Explanatory Memorandum for the Bill that became the 2003 Amendment Act identified the purpose underlying s 338(2)(d) as being to “prevent abuse of the merits review process by certain temporary visa applicants who failed to meet the sponsorship requirements of their visa”. It was stated that the new s 338(2)(d) was intended to:

… ensure that only those visa applicants who have an approved sponsor, or are seeking review of a decision to refuse to approve sponsorship, may apply to the MRT for review of a decision to refuse to grant a prescribed visa. This is to prevent abuse of the merits review process by refused visa applicants, who have no sponsor, and therefore no ability to meet the criteria for the grant of the visa, seeking to extend their stay in Australia by lodging a review application.

34 By s 337, the interpretation section for the purposes of Pt 5, the terms “nominated” and “sponsored” were, and are, both defined as having the same meaning as in the Migration Regulations.

…

44 The 2008 Amendment Act repealed ss 140B to 140D and inserted a new heading to Subdiv B of Div 3A of Pt 2, namely “Subdivision B – Approving sponsors and nominations”.

45 Significantly, the 2008 Amendment Act also introduced s 140GB so as to confer upon the Minister an express power to prescribe regulations in relation to the nomination process. Section 140GB provided:

140GB Minister to approve nominations

(1) An approved sponsor may nominate:

(a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:

(i) the applicant or proposed applicant’s proposed occupation; or

(ii) the program to be undertaken by the applicant or proposed applicant; or

(iii) the activity to be carried out by the applicant or proposed applicant; or

(b) a proposed occupation, program or activity.

(2) The Minister must approve an approved sponsor’s nomination if prescribed criteria are satisfied.

(3) The regulations may establish a process for the Minister to approve an approved sponsor’s nomination.

(4) Different criteria and different processes may be prescribed for:

(a) different kinds of visa (however described); and

(b) different classes in relation to which a person may be approved as a sponsor.

46 The Explanatory Memorandum explained this amendment at [78]-[80]:

… Currently, regulations dealing with the nomination process are prescribed under existing sections 140E and 140F because nomination is part of the process of becoming an “approved sponsor”.
An express power to prescribe a process and criteria in relation to nomination is required because nomination will no longer be part of the process of becoming an “approved sponsor”, rather a nomination will be made by a person who is already an “approved sponsor”…
The kinds of criteria for approval of a nomination may include criteria which ensure that a non-citizen’s skills are appropriate for their proposed occupation, program or activity that they will undertake in Australia; or an occupation is specified in an instrument in writing setting out occupations for which there is a skills shortage.

47 This explanation in the Explanatory Memorandum illuminates another relevant aspect of s 140GB regarding an approved sponsor’s entitlement to make a nomination. Unlike the previous position, where the approved sponsor could only nominate a person for a visa of a prescribed kind, s 140GB provided that an approved sponsor could nominate, in relation to a visa of a prescribed kind, either:

(a) a person who was a visa applicant or proposed visa applicant, in relation to a proposed occupation, program or activity to be undertaken by that person; or

(b) a proposed occupation, program or activity (i.e. without reference to any particular person).

48 The reasons for this dichotomy were explained in [83]-[85] of the Explanatory Memorandum:

The nomination may be of a visa applicant, or a proposed visa applicant, because the person who is being nominated may not have made a visa application at the time of nomination. Where the nomination is of a proposed occupation, program or activity, the particular non-citizen who will undertake the proposed occupation, program or activity does not necessarily need to be identified or known at the time of nomination.
An approved nomination may be required to make a valid visa application, or may be required at time (sic) of decision of the visa application. This new provision provides the flexibility to provide for either in the regulations.

85 A nomination stage may not be required in relation to all kinds of visa for which sponsorship is a criterion for grant, or a criterion to make a valid application. An approved sponsor will only be required to seek an approved nomination from the Minister if an approved nomination is required to make a valid visa application, or is a criterion for grant of a visa.

…

51 Regulation 4.02(1AA) was inserted by the latter of those amending regulations. It replaced reg 4.02(1A) with the following:

(1AA) For section 337 of the Act, sponsored includes being identified in a nomination under section 140GB of the Act.

52 As s 337 is a definition section for Pt 5 as a whole, the effect of reg 4.02(1AA) was to define “sponsored” wherever it appeared in that Part (including s 338) in this way.

53 It may be inferred that reg 4.02(1AA) was made in order to put beyond doubt that, for the purposes of s 337 of the Migration Act (and the review provisions generally under Pt 5), “sponsored” included being nominated under s 140GB in either of the two ways specified in that provision. These two ways involved an approved sponsor nominating either:

(a) a person who is a visa applicant or proposed visa applicant in relation to a proposed occupation, program or activity to be undertaken by the person; or

(b) a proposed occupation, program or activity (and without necessarily nominating any particular person who would undertake the proposed occupation, program or activity).

54 The Explanatory Statement which accompanied the second of those amending regulations which were made in 2009 stated the following in respect of reg 4.02(1AA) (at page 80):

This amendment ensures that the term “sponsored” is defined to include being identified in a nomination under section 140GB of the Act so that paragraph 338(2)(d) of the Act applies to visas within the enforceable sponsorship framework in Division 3A of Part 2 of the Act.

55 This statement further assists in identifying the purpose of that particular amendment, which was plainly intended to have a broad operation in the sense that it was intended to apply to visas (without limitation) within the enforceable sponsorship framework created by Div 3A.

The Full Federal Court held:

97 The next question is the meaning of the words “sponsored by an approved sponsor” in s 338(2)(d)(i).

98 The definition of the word “sponsored” in s 337, which applies to s 338 (see [34] above), picks up the meaning of the word “sponsored” in the regulations. Regulation 4.02(1AA) states that for s 337, sponsored includes being identified in a nomination under s 140GB. It follows that “sponsored by an approved sponsor” in s 338(2)(d)(i) includes not only “approved sponsor” as defined in s 5(1) of the Migration Act (relevantly, a person who has been approved by the Minister under s 140E) but also includes, by virtue of reg 4.02(1AA), being identified in a nomination under s 140GB.

99 Turning to s 338(2)(d)(ii), the expression “decision not to approve the sponsor” includes both the approval of the sponsor under s 140E and the approval of the nomination under s 140GB.

100 On the facts of the present case, an application for review of the decision not to approve the sponsor had been made and was pending at the time the application to review the decision to refuse to grant the visa to Mr Ahmad was made.

101 It follows that the Tribunal had jurisdiction.

102 In our opinion, this construction maintains the symmetry of s 338(2)(d), and is consistent with its purpose, as set out at [33] above. It avoids construing s 338(2)(d)(i) as if it contained unexpressed words dealing with review of a decision and permits s 338(2)(d)(ii) to do the work intended for it, that is, to give the Tribunal jurisdiction to review the refusal to grant a non-citizen a visa where there has been an adverse decision in relation to the approval of the sponsor, including the nomination under s 140GB, but a review is pending.

103 Section 338(9) is important in this respect. Amongst the decisions prescribed by reg 4.02(4) as Part 5-reviewable decisions are decisions under s 140E(1) to refuse a person’s application for approval as a sponsor in relation to one or more classes of sponsor and a decision under s 140GB(2) to refuse to approve a nomination.

104 This construction does not accept the bifurcation of the concept of “sponsored by an approved sponsor” where neither in concept nor by resort to legislative history is that bifurcation established. Put differently, the amendments to which we have referred involve including s 140GB in the meaning of sponsored as required by reg 4.02 (1AA).

105 Thus we accept Mr Ahmad’s submission that it is sufficient that at the time of the making of the application for review of the visa decision there is pending an application for review in respect of an adverse nomination decision.

…

111 In relation to the decision of the Federal Circuit Court in Lee, it seems clear that it was correctly decided on its facts as the relevant nomination had ceased before the application to the Tribunal for review. We are also of the opinion, however, that the reasoning in [44]-[45] of Lee is incorrect insofar as it was held that there must be an “approved” nomination of an occupation to satisfy s 338(2)(d)(i) as this does not give effect to the terms of reg 4.02(1AA) that for s 337, and thus for s 338, “sponsored” includes being identified in a nomination under s 140GB. [emphasis added]

It is also worth noting the following obiter by the Full Court:

113 Although it is unnecessary to decide, we indicate that we would not be disposed to accept the broader submission put by Mr Jones that s 338(2)(d)(i) is satisfied where, at the time of the application for review of the visa decision, the visa applicant had previously been identified in a nomination, even if the nomination decision were adverse (and an application for review of that decision had not been made) or the nomination had by then lapsed.

PRACTICAL EFFECT OF AHMAD

After the decision of Lee, the Department of Immigration began issuing 457 visa refusal notifications advising applicants that they had no right to merits review if the 457 nomination has also been refused.

S 66 of the Migration Act 1958 outlines the following requirements for a valid refusal notice:

66 (2) Notification of a decision to refuse an application for a visa must:

if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
- that the decision can be reviewed; and
- the time in which the application for review may be made; and
- who can apply for the review; and
- where the application for review can be made; and

In Zhan v MIMIA [2003] FCA 327 (11 April 2003), Allsop J (now Chief Justice of the Federal Court) ruled:

62 It was not disputed that if there was a failure to comply with s 66 there had been no initiating of time running against the applicant.

63 In these circumstances, this deficiency in the decision record and notification means that the Tribunal was obliged to accept the applicant’s application for review and that the applicant is entitled, in substance, to the relief she seeks.

The practical effect of Ahmad is that any 457 visa applicant who received a 457 visa refusal where the refusal notice indicated that they did not have merits review rights or were simply silent to merits review has not been properly notified by the Department.

In order words, if the Department has not properly notified 457 visa applicants then legally no notification of the 457 visa refusal has occurred. This may mean that onshore clients still legally hold bridging visas associated with the 457 visa application that the Department purportedly refused.

Similarly any decision by the then then Migration Review Tribunal that there is no jurisdiction is again similarly null and void and the AAT will now have to go through all of the decisions in that regard go on to hear all visa applications refused on the basis of a nomination refusal. Yet to be fully explored is where the employer did not go on to also seek review of the nomination decision. It may be prudent to apply for a new nomination in all cases where a nomination was refused.

Migration agents are advised to review their caseload to determine if they have any affected clients.

Generally speaking in the situation of a sponsorship refusal, nomination refusal and visa refusal, separate applications should be made to the AAT seeking a review of each of the three separate decisions.

BUYING A JOB

Allegations have been consistently made over the years that some employers were taking on the role of sponsorship in return for a hefty payment, in some cases even for the amount of wages the visa applicant would be paid. In others, the visa applicant/holder would be paid the market rate of pay but the visa holder was in effect refunding that pay or a big part of that pay to the employer.

On 18 March 2015, Senator Michaelia Cash, the then Assistant Minister for Immigration and Border Protection announced:

“The Government will introduce a new penalty making it unlawful for sponsors to receive payment in return for sponsoring a worker for a 457 visa,” Minister Cash said.

Payment from the visa applicant to the sponsor may sap the genuineness out of the employer employee relationship necessary to found the both the nomination and visa process.

On 16 September 2015, the Government introduced the Migration Amendment (Charging for a Migration Outcome) Bill 2015 in response to recommendations made by the Independent Review into Integrity in the Subclass 457 Programme.

The Bill passed both Houses of Parliament and has received Royal Assent. The amendments came into effect on 14th December 2015 pursuant to the Migration Amendment (Charging for a Migration Outcome) Commencement Proclamation 2015.

The Migration Amendment (Charging for a Migration Outcome) Act 2015 introduces a criminal and civil penalty regime that makes it “unlawful for a person to ask for, receive, offer or provide payment or other benefits in return for a range of sponsorship-related events” as outlined below:

245AR Prohibition on asking for or receiving a benefit in return for the occurrence of a sponsorship‑related event

(1) A person (the first person) contravenes this subsection if:

(a) the first person asks for, or receives, a benefit from another person; and

(b) the first person asks for, or receives, the benefit in return for the occurrence of a sponsorship‑related event.

(2) To avoid doubt, the first person contravenes subsection (1) even if the sponsorship‑related event does not occur.

(3) Subsection (1) does not apply if the benefit is a payment of a reasonable amount for a professional service that has been provided, or is to be provided, by the first person or a third person.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

Offence

(4) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.

Penalty: Imprisonment for 2 years or 360 penalty units, or both.

Civil penalty provision

(5) A person is liable to a civil penalty if a person contravenes subsection (1).

Civil penalty: 240 penalty units.

(6) A person who wishes to rely on subsection (3) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.

Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).

245AS Prohibition on offering to provide or providing a benefit in return for the occurrence of a sponsorship‑related event

(1) A person (the first person) contravenes this subsection if:

(a) the first person offers to provide, or provides, a benefit to another person (the second person); and

(b) the first person offers to provide, or provides, the benefit in return for the occurrence of a sponsorship‑related event.

Civil penalty: 240 penalty units.

(2) To avoid doubt, the first person contravenes subsection (1) even if the sponsorship‑related event does not occur.

(3) Subsection (1) does not apply if the benefit is a payment of a reasonable amount for a professional service that has been provided, or is to be provided, by the second person or a third person.

(4) A person who wishes to rely on subsection (3) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.

Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).

CRIMINAL PENALTY REGIME

OffencePenalties

Offence for a sponsor or other third party to ask for or receive a benefit in relation to a sponsorship-related eventMaximum of 2 years imprisonmentMaximum fine of $64,800 for individual persons

Maximum fine of $324,000 for a body corporate

CIVIL PENALTY REGIME

OffencePenalties

Offence for a sponsor, visa applicant or any other third party to ask for or receive or provide or offer a benefit in relation to a sponsorship-related eventMaximum fine of $43,200 for an individual personMaximum fine of $216,000 for a body corporate

The amendments define “benefit” as follows:

benefit includes:

(a) a payment or other valuable consideration; and

(b) a deduction of an amount; and

(c) any kind of real or personal property; and

(d) an advantage; and

(e) a service; and

(f) a gift.

Departmental policy states in relation to the definition of “benefit”:

The term is intentionally broad in s245AQ and can encompass a range of things that could potentially be used in a payment for visas arrangement.

The term ‘benefit’ could include, but is not limited to:

a one off lump sum payment
ongoing regular payments
underpayment of a visa holder’s wages or salary (including secondary visa holders also working for the sponsor)
repayment of a visa holder’s wage or salary
unpaid work
hours of work paid below the visa holders hourly wage or enterprise agreement arrangements
payment for goods or services above market value.

The amendments define “sponsorship-related event” as follows:

sponsorship‑related event means any of the following events:

(a) a person applying for approval as a sponsor under section 140E in relation to a sponsor class;

(b) a person applying for a variation of a term of an approval as a sponsor under section 140E in relation to a sponsor class;

(c) a person becoming, or not ceasing to be, a party to a work agreement;

(d) a person agreeing to be, or not withdrawing his or her agreement to be, an approved sponsor in relation to an applicant or proposed applicant for a sponsored visa;

(e) a person making a nomination under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination;

(f) a person not withdrawing a nomination made under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa;

(g) a person applying under the regulations for approval of the nomination of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination;

(h) a person not withdrawing the nomination under the regulations of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa;

(i) a person employing or engaging, or not terminating the employment or engagement of, a person to work in an occupation or position in relation to which a sponsored visa has been granted, has been applied for or is to be applied for;

(j) a person engaging, or not terminating the engagement of, a person to undertake a program, or carry out an activity, in relation to which a sponsored visa has been granted, has been applied for or is to be applied for;

(k) the grant of a sponsored visa;

(l) a prescribed event.

Visa subclasses affected

Temporary sponsored work visas

Temporary Work (Long Stay Activity) (subclass 401) (Exchange stream)*
Temporary Work (Long Stay Activity) (subclass 401) (Sport stream)*
Temporary Work (Long Stay Activity) (subclass 401) (Religious Worker stream)*
Temporary Work (Long Stay Activity) (subclass 401) (Domestic Worker – Executive stream)
Training and Research (subclass 402) (Research stream)
Temporary Work (Entertainment) (subclass 420)
Temporary Work (Skilled) (subclass 457)
Superyacht Crew (subclass 488)

* While the exchange, religious worker and sport stream of the 401 visa subclass have been discontinued, persons engaging in payment for visas activity in relation to these visas are still liable if the activity occurs on or after the 14 December 2015, regardless of when the sponsorship-related event occurred.

Skilled permanent employer-sponsored visa

Employer Nomination Scheme (subclass 186) (Direct Entry stream)
Employer Nomination Scheme (subclass 186) (Temporary Residence Transition stream)
Employer Nomination Scheme (subclass 186) (Agreement stream)
Regional Sponsored Migration Scheme (subclass 187) (Direct Entry stream)
Regional Sponsored Migration Scheme (subclass 187) (Temporary Residence Transition stream)
Regional Sponsored Migration Scheme (subclass 187) (Agreement stream)

PAM also states:

The criminal offence, civil penalty and the visa cancellation provisions apply to sponsors, visa holders and third parties who engage in payment for visas activity if the activity occurs on or after 14 December 2015:

regardless of when or whether a visa was granted
regardless of whether the payment for visas arrangement was entered into before this date
regardless of whether the sponsorship event occurred or not.

New application nomination and visa criteria came into force on 14 December 2015. These criteria require the Minister to be satisfied that the applicant (either the nominator or visa applicant) has not engaged in payment for visas activity in the previous three years.

Under the 457 visa program, the amendments to the Act interacts with the existing sponsorship obligation set out in Reg 2.87 not to recover costs, including migration agent costs, in relation to:

becoming or being an approved sponsor under the SBS or Labour Agreement framework; and
costs related to the nomination.

The amendments also cover changes to s 116 of the Act, introducing provisions for cancellation of visas where:

a benefit was asked for or received by, or on behalf of, the visa holder; or
a benefit was offered or provided by, or on behalf of, the visa holder.

CERTIFICATION REGARDING S 245AR(1)

The Migration Amendment (Charging for a Migration Outcome and Other Measures) Regulation 2015 F2015L01961, Select Legislative Instrument No, 242, 2015 came into effect on 14 December 2015. The provisions support the amendments made in the Migration Amendment (Charging for a Migration Outcome) Act 2015 and includes the following amending to Reg 2.72:

Reg 2.72

(8B) The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.

A copy of the certification declaration can be found on the Department’s website: https://www.border.gov.au/WorkinginAustralia/Documents/declaration-form-visa-applicant.pdf

Practitioners need to ensure that the written certification is provided (ideally at time of application) otherwise the nomination may be refused.

TERMS AND CONDITIONS OF EMPLOYMENT

Reg 2.72(10)

(c) the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and

Reg 2.72(10)(c) is amended to clarify that the terms and conditions of employment include terms and conditions in an applicable enterprise agreement. The reason for this amendment is that the industrial award system is generally not what people are paid under in Australia. Generally enterprise agreements reflect what people are genuinely paid. Hence a nomination must show that a wage is at least at the level of an enterprise agreement if such an agreement applies at that work place. There are, of course many workplaces in Australia where there are no enterprise agreements in force in which case an industrial award or what other people are being paid for the same work in the same location is the test.

LABOUR MARKET TESTING AND WORK AGREEMENTS

The new Reg 2.76A strengthens labour market testing for work agreements. Here’s what it says :

2.76A Labour market testing and other work agreement requirements

The Commonwealth must not enter into a work agreement in relation to the recruitment, employment or engagement of persons in occupations and locations required by the other party to the agreement unless the Minister is satisfied that the other party has made recent and genuine efforts to recruit, employ or engage Australian citizens or Australian permanent residents to meet those requirements.
Subregulation (1) does not apply in relation to the recruitment, employment or engagement of a person in the following occupations:
- Minister of Religion;
- Religious Assistant.
The Minister must publish, on the Department’s website, policy guidelines to be considered by the Commonwealth in relation to the Commonwealth’s negotiation of the following agreements:
work agreements;
agreements, known as Project Agreements, that relate to work agreements.
Without limiting subregulation (3), the policy guidelines must include guidelines relating to the following:
objectives and principles relating to the negotiation of the agreements mentioned in that subregulation;
eligibility requirements to be considered for such agreements;
obligations to be required of parties entering into such agreements.

As part of the negotiating process for a work agreement, potential sponsors need to demonstrate the domestic recruitment efforts. However the introduction of Reg 2.76A now makes it a legislative requirement that the Minister is satisfied that recent and genuine efforts to recruit, employ or engage Australian citizens or Australian permanent residents have been made. (Note, Reg 2.76A will not apply to work agreements for Ministers of Religion and Religious Assistants.)

Reg 2.76A can be considered as supplementing s140GBA given that the labour market testing provisions do not apply to employers who are approved sponsors on the basis of being a party to a work agreement. (Reg 2.72AA only specifies Standard Business Sponsors as the prescribed class of sponsors to whom s 140GBA(1)(a) applies.)

Reg 2.76A will apply to all work agreements entered into on or after 1 December 2015.

CONDITION 8107 – LICENCE, REGISTRATION OR MEMBERSHIP

8107(3)

(c) if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder:

(i) must hold the licence, registration or membership while the holder is performing the occupation; and

(ii) if the holder was outside Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s arrival in Australia; and

(iii) if the holder was in Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s visa was granted; and

(iv) must notify the Department, in writing as soon as practicable if an application for the licence, registration or membership is refused; and

(v) must comply with each condition or requirement to which the licence, registration or membership is subject; and

(vi) must not engage in work that is inconsistent with the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject; and

(vii) must notify the Department, in writing as soon as practicable if the licence, registration or membership ceases to be in force or is revoked or cancelled.

Condition 8107 was amended to clarify that a person must hold the requisite licence, registration or membership while performing the occupation. In addition, condition 8107 was amended to specify that person has 90 days to obtain the requisite licence, registration or membership and imposes the requirement for the 457 visa holder to notify the Department if the licence, registration or membership is refused, revoked, cancelled or ceases to be in force.

This amendment would be useful to people like electricians who would not be able to get a licence while offshore and need time to meet local requirements. The same might apply to professions like law and teaching. The amended condition 8107 will apply to 457 visas granted on or after 1 December 2015.

CHINA-AUSTRALIA FREE TRADE AGREEMENT (CHAFTA)

The Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015 is a result of negotiations between the Government and the Opposition to ensure the passage through the Parliament of the China-Australia Free Trade Agreement. In a joint media release on 21st October 2015 with the Minister for Trade and Investment, Peter Dutton, the Minister for Immigration and Border Protection signalled amendments to the 457 programme together with an earlier review of TSMIT:

Work agreements

It is the firm view of the Government that Australians should always have priority in the labour market, and that overseas workers should only be recruited in circumstances that suitably qualified local workers are not available. To provide Labor with greater assurance of the Government’s commitment to this principle, the Government has agreed to amend an existing regulation. The amendment will simply prescribe the existing requirement under policy that employers seeking to sponsor skilled workers on 457 visas under work agreements will have to demonstrate that they have made recent and genuine efforts to recruit local Australian workers first.

This provision will apply to all work agreements, including those under the Investment Facilitation Arrangement (IFA), linked to ChAFTA. It is important to note that labour market testing is indeed already a mandatory requirement under current Government policy which is detailed in existing DIBP guidelines.

The Government has also agreed to make minor amendments to guidelines for companies seeking a work agreement. The amendments will incorporate additional criteria for the Minister to consider in approving work agreements. To ensure observance of the guidelines they will also be referenced in a new regulation.

The Department of Immigration and Border Protection (DIBP) will include in its annual report details about the number of work agreements signed, including the number of 457 visa holders engaged under the agreements, together with occupations and industries in which they are engaged. This will ensure programme transparency.

In regard to subclass 457 visas for overseas tradespersons, the Government will amend a visa condition to make it clear that visa holders must also obtain any licenses, registrations or memberships required under commonwealth or state or territory law. The visa holder will be required to notify the Immigration Department if their licence or registration is refused, revoked, ceased or cancelled.

We have also reaffirmed that DIBP will continue to investigate evidence-based allegations of non-compliance with visa conditions, including those concerning licensing and registration. The Department will also report annually on visa compliance monitoring.

TSMIT review

As recommended by the recent Independent Review of the Integrity of the Subclass 457 Programme, the Government will undertake an evidence-based review of the TSMIT (Temporary Skilled Migration Income Threshold). This review was scheduled to commence by the end of 2015, but has been brought forward as part of the agreement with Labor.

The TSMIT is the entry level point into the 457 programme, and positions with a market salary below the TSMIT are not eligible to be sponsored under the Subclass 457 programme

The forthcoming review of the TSMIT will consider its current level (currently $53,900), whether it should be indexed and if so advise on an appropriate methodology.

The base rate will not be increased prior to this review which will commence before the end of this year. All relevant stakeholders will be consulted including peak business groups and the ACTU.

The agreement reached with the Opposition represents both a sensible outcome, which does not increase the current costs to business associated with 457 visa holders and major progress in terms of doing all we can to get this agreement into force as soon as possible so that the substantial benefits can begin to flow.

LABOUR MARKET TESTING POLICY CHANGE – SOME URGENCY IN NOTING THIS

Immigration has upped the compliance with labour market testing. Furthermore the political heat created by the China-Australia Free Trade Agreement (ChAFTA) has forced the government into assuring the Australian populace that labour market testing will be enforced with vigour. Prior to ChAFTA the writer detected the current government was soft on labour market testing. Whether it is co-incidental or not, Immigration is now enforcing the labour market testing requirement with some vigour. The new Prime Minister Malcolm Turnbull is likely to adopt a more conciliatory approach with Labour as far as labour market testing is concerned such that negotiations over this issue is expected. The obvious point where negotiations can take place is in reducing the exemptions to labour market testing. So if one is considering applying for a subclass 457 visa relying on the current exemptions, the writer’s advice is to apply quickly before any changes to the exemptions become law. The exemption issue is discussed in full below. In any event, all nominations where labour market testing is required must comply with s 140GBA which reads in part :

[140GBA] (3) The labour market testing condition is satisfied if:

(a) the Minister is satisfied that the approved sponsor has undertaken labour market testing in relation to the nominated position within a period determined under subsection (4) in relation to the nominated occupation; and

(b) the nomination is accompanied by:

(i) evidence in relation to that labour market testing (see subsections (5) and (6)); and

(ii) if one or more Australian citizens or Australian permanent residents were, in the previous 4 months, made redundant or retrenched from positions in the nominated occupation in a business, or an associated entity, of the approved sponsor — information about those redundancies or retrenchments; and

(d) having regard to that evidence, and information (if any), the Minister is satisfied that:

(i) a suitably qualified and experienced Australian citizen or Australian permanent resident is not readily available to fill the nominated position; and

(ii) a suitably qualified and experienced eligible temporary visa holder is not readily available to fill the nominated position.

[14GBA] (4) For the purposes of paragraph (3)(a), the Minister may, by legislative instrument, determine a period within which labour market testingis required in relation to a nominated occupation.

[140GBA] (4A) Despite paragraph (3)(a) and subsection (4), if there have been redundancies or retrenchments as mentioned in subparagraph (3)(b)(ii), the labour market testing must be undertaken after those redundancies and retrenchments.

Evidence of labour market testing

(5) For the purposes of subparagraph (3)(b)(i), the evidence in relation to the labour market testing:

(a) must include information about the approved sponsor’s attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position and any other similar positions (see also subsection (6)); and

(b) may also include other evidence, such as:

(i) copies of, or references to, any research released in the previous 4 months relating to labour market trends generally and in relation to the nominated occupation; or

(ii) expressions of support from Commonwealth, State and Territory government authorities with responsibility for employment matters; or

(iii) any other type of evidence determined by the Minister, by legislative instrument, for this subparagraph.

(6) For the purposes of paragraph (5)(a), the information mentioned:

(a) must include details of:

(i) any advertising (paid or unpaid) of the position, and any similar positions, commissioned or authorised by the approved sponsor; and

(ii) fees and other expenses paid (or payable) for that advertising; and

(b) may also include other information, such as:

(i) information about the approved sponsor’s participation in relevant job and career expositions; or

(ii) details of any other fees and expenses paid (or payable) for any recruitment attempts mentioned in paragraph (5)(a) (including any participation mentioned in subparagraph (i) of this paragraph); or

(iii) details of the results of such recruitment attempts, including details of any positions filled as a result.

So the nominator has to supply details of the advertising and what was paid IN THE NOMINATION APPLICATION ITSELF. It is not necessary that the advertisements actually have to be provided and it is not necessary that receipts accompany the nomination application. Details would be the dates of the advertisements and the total paid or if it was listed on a website, the dates the advertisement was on-line for and if it was a free service (like Gumtree) then one should specify that it was free. Those things can be supplied later but the details have to be supplied. It probably makes the Domestic Recruitment Summary Template now an essential document to include with the nomination.

In Pradabsuk v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 66 (17 May 2006), an unfortunate skilled visa applicant submitted a WA Police clearance rather than the Australian Federal Police (AFP) one as required by Schedule 1 of the Regulations. Immigration regarded the application as invalid and Full Federal Court agreed:

47… In our view, it is an essential element of the making of a valid visa application that the visa application be accompanied by satisfactory evidence of the prescribed event. As already discussed, there is an inherent flexibility in the requirement to provide ‘satisfactory evidence’, but the clause does not admit of ‘substantial compliance’ in relation to the event that must be evidenced, namely, that the AFP has completed a check of criminal records in relation to the visa applicant.

So does this mean that a nomination application which is not accompanied by evidence of labour market testing will just not be a valid application?

In contrast in Anand v Minister for Immigration & Citizenship [2013] FCA 1050, Katzmann J said this about the word ‘accompanied’:

27 It seems to me that the intention of the regulations is to ensure that the application is not processed unless it meets certain criteria. That is why the relevant evidence is to accompany the application. Consistent with that purpose the evidence should be submitted with or at the same time as the application. Certainly that appears to be the object of the provision. Yet, it is not necessarily inconsistent with that purpose that the evidence is submitted after the visa application is lodged, although how long after is another question. There is force in Mr Karp’s submission that there is some flexibility or elasticity in the phrase “accompanied by” (see, for example, Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 at 103, Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 96). It would seem that the delegate had the same view. Why else send the letter of 10 June 2009 requesting the evidence? In this respect I think that both the tribunal and the federal magistrate construed the words of cl 487.216 too narrowly.

28 For the above reasons I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged. Still, there must be some temporal connection with the application. Evidence supplied around the time of the application may be sufficient. I doubt, for example, if the accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application. It might even extend beyond that. Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within the week and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged and two days after the decision was made. Language cannot be stretched so far that it snaps (cf. Wielgus v Removal Review Authority [1993] 1 NZLR 73 at 79). In contrast to the position in Berenguel the construction for which Mr Anand contended would compromise the purpose of the regulations.

Of course in Pradabsuk, a proper AFP certificate was never supplied as the applicant tried to rely on the WA Police certificate as being sufficient. In Anand the correct document was supplied 5 months after the application was lodged and the Court held that was far too late.

If Anand had some logical force then it may be possible to argue a short delay in supplying the labour market testing evidence may not be fatal.

The writer would be prepared to take on such a case on a partial ‘no-win – no-fee’ basis, if the delay was minimal in supplying the evidence of labour market testing.

Barbara DavidsonNovember 17, 2017Other Recent Changes