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From the Independent Review of the integrity of the subclass 457 visa programme completed in March this year, it has been discovered that there are employees and employers who are engaged in a “Payment for Visas” arrangement. Typically what happens is that employers are offered a payment in return for agreeing to sponsor an overseas worker to obtain a 457 work visa to enter Australia.

The Migration Amendment (Charging for a Migration Outcome) Bill 2015 will introduce fines or imprisonment for such offenders. It will become a criminal offence for a sponsor or a third party to ask for or receive a benefit from a visa sponsorship. The punishment is set to be a maximum of 2 years imprisonment or a fine equivalent to $64,000 for an individual or $324,000 for a corporate body.

In addition to criminal charges, civil penalties will also be applicable to the sponsor, visa applicant or any third party who received or provided payments or benefits in relation to a sponsorship for a 457 visa. Fines are set at $43,200 for individuals and $216,000 for corporate bodies.

The negative consequence for the visa applicant is that their 457 visas can be cancelled based on discretionary powers introduced by the amendment to consider cancellation of visas. Therefore as long as you are involved in a “Payment for Visas” scheme your visa may be cancelled and you will be asked to leave Australia.

On a separate note the government has introduced more measures to educate temporary visa workers about fair working conditions and protection from abuse in Australia. Assistant Minister for Immigration and Protection, Senator the Hon Michaelia Cash issued a statement announcing the measures and also the need for overseas temporary workers to identify unfair employment conditions such as low wages, discrimination, bullying and harassment.

The Pay and Conditions Tool (PACT) is available at calculate.fairwork.gov.au and all workers can check their pay using the tool.

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

The 457 and other work visa programmes such as the Regional Sponsored Migration Scheme (RSMS) subclass 187 visa and the Employer Nomination Scheme (ENS) subclass 186 visa have had problems such as:

• sponsorship by the employers were not genuine
• employers and/or employees did not fulfil the obligations as stipulated in the sponsorship

Such cases used to have the Department of Immigration and Border Protection monitor and sanction the sponsoring business if they are found guilty of not fulfilling the sponsorship obligations, including offences such as deducting pay from employees for the sponsorship. With the new and tougher punishments, employers will now need to ensure that they are not abusing the system to make unlawful gains for sponsoring an overseas worker to come to Australia.

Sponsored employees should also not partake in such “Payment for Visas” arrangement as they can now be fined and have their visas cancelled by the Department. If you are caught in such a situation you need to check with a Registered Migration agent about the visa conditions and obligations you need to fulfil.

This information is accurate on 18 September 2015

Sources:

1. http://www.minister.border.gov.au/michaeliacash/2015/Pages/legislation-outlaws-payment.aspx
2. http://www.minister.border.gov.au/michaeliacash/2015/Pages/know-your-work-rights.aspx
3. http://www.mia.org.au/documents/item/750
4. https://calculate.fairwork.gov.au/

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as Migration Review Tribunal, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 7225 5091 or +61 8 7225 5091

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The Department of Immigration and Border Protection (DIBP) has released a response to the 457 Visa Programme integrity review report today. The majority of the changes announced are expected to be implemented over the next 6 months.

Here is a snapshot of the changes announced:

• English requirements for the 457 visa applicant will be changed to overall 5.0 for the IELTS exam, with no components scoring lesser than 4.5.
• Other English exams to be accepted for the visa application will be announced next month.
• Visa charges are being reviewed and are likely to change.
• Training Benchmarks will be replaced by annual training fund contributions to the Department of Industry (possible implementation in 2016)
• Severe penalties for Business Sponsors who receive payment from visa applicants/holders in return for sponsorship and nomination.
• Validity of Standard Business Sponsorships (SBS) to be lengthened from 3 to 5 years for existing businesses; from 12 to 18 months for new businesses.

More information will be available as the DIBP gets closer to implementing the planned changes.

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

The 457 visa programme has undergone many changes as the Department tries to strike a balance between helping Australian businesses meet short-term labour needs and protecting Australian workers and their jobs. It is important for both the Business Sponsor and Visa Applicant/Holder to take note of current developments to the 457 programme to ensure sponsorship and visa obligations are complied with to avoid violation and possible sanctions or penalties.

It is noted that the changes are being implemented in the near future and the date of effect for the changes will be crucial in relation to new sponsors, nominees (position) and visa applicants.

 UPDATE

There has been plenty of responses from various parties since the annoucement was made. Here are a few of them:

"Ensuring that visa holders and sponsors are meeting their obligations will boost business and community confidence in the 457 programme."- Kate Carnell, Head of Australian Chamber of Commerce and Industry, on the announced changes

"The labour market testing regime was always flawed and we urge the government to accept the review's recommendation that it be scrapped. The testing amounts to ineffective, time-consuming red tape. Using the scheme is costly for employers and the vast majority don't recruit 457 workers unless they absolutely have to."- Innes Willox, Head of Australian Industry Group, on the Government's decision to keep the labour market testing component

"The government's proposed changes to the 457 visa scheme will improve its operation and reduce business costs, but it has missed the opportunity to do away with redundant regulation."

"It is disappointing that on Repeal Day the government has declined to support the independent review's recommendation to abolish labour market testing. This is a classic case of a regulation that adds to business costs, without improving the integrity of the scheme."- Jennifer Westacott, Chief Executive of Business Council of Australia (BCA)

Scott Barklamb, Executive Director of policy and public affairs for Australian Mines and Metals Association (AMMA) says that foreign workers played a small, but critical, specialist role in the mining industry. He too was disappointed that labour market testing was not abolished.

National Farmers Federation (NFF) president Brett Finlay welcomed the changes and mentioned that while Australian workers were the backbone of the country's agricultural sector, some farm businesses in regional and remote areas struggled to find workers with relevant skills and relied on overseas workers to fill essential roles.

Part of the announcement also mentions the re-establishment of the Ministerial Advisory Council on Skilled Migration (MACSM), which will aid to provide labour market analysis and advice on the composition of the Consolidated Sponsored Occupation List (CSOL).

It appears that many stakeholders welcomed the changes but were concerned about the continuation of labour market testing and the proposed training fund that will replace current Training Benchmarks.

 Source:

1. http://www.immi.gov.au/pub-res/Pages/reviews-and-inquiries/government-response.aspx
2. http://www.sbs.com.au/news/article/2015/03/18/457-visa-changes-announced
3. http://www.theaustralian.com.au/national-affairs/immigration/liberals-tighten-checks-on-457-visas/story-fn9hm1gu-1227267088406
4. http://www.bca.com.au/newsroom/statement-on-the-governments-response-to-457-visa-review

This information is accurate on the 22 March 2015

Do you need help with a 457 business sponsorship or visa application?

At Work Visa Lawyers we are experienced in assisting businesses and individuals in the 457 visa application process. The process is complex with many stages of work involved and we aim to simplify the application process for you and make sure the various criteria for sponsorship and visa are met.

If you require further information regarding your Australia visa options you can contact us through:

(08) 7225 5091 or +61 8 7225 5091

or   This email address is being protected from spambots. You need JavaScript enabled to view it.