All you need to know and do when your visa application is refused!

Receiving a refusal notification for your visa application is stressful and places you in a wave of uncertainty. However, quick action is required to resolve your visa status if your visa application was lodged onshore in Australia.

The same can be said if you received a Notice of Intention to Consider Cancellation (NOICC) for your current visa. It is best to quickly address the issues raised in the NOICC, than to challenge the decision to cancel your visa after the decision has been made.

What are the common reasons for a visa application to be refused?

Work Visa Lawyers has been in touch with an employer who is looking for an experienced motor mechanic to join his business. Please find details about the opening below:

• at least 6 years experience required (work references essential)
• Australian qualification Cert III or Cert IV or equivalent
• able to complete a TRA Migration Skills Assessment
• better than functional English ability

The position is located in regional South Australia and the employer is willing to sponsor under a 457 visa arrangement.

If you think that you meet the requirements above please email This email address is being protected from spambots. You need JavaScript enabled to view it. and we will provide you with the employer's contact details. You will then need to contact the employer directly and undergo a standard interview process with the employer.

Work Visa Lawyers does not guarantee an employment or visa outcome with regards to this job opening.

Good luck!

The latest invitation round for the SkillSelect programme was held on 23 November 2016. During the invitation round occupation group 2335 - Industrial, Mechanical and Production Engineers was placed in the group of occupations that are subject to pro rata arrangements due to high levels of demand. Occupations are placed under a pro rata arrangement to ensure availability throughout the course of the migration programme year. The occupation group includes ANZSCO code 233511 Industrial Engineer, ANZSCO code 233512 Mechanical Engineer and ANZSCO code 233513 Production or Plant Engineer.

According to the invitation round results, industrial engineers, mechanical engineers and production or plant engineers will now need to achieve at least 70 points in the SkillSelect points test to receive an Invitation to Apply (ITA).

Latest pro rata arrangements and cut off for points score

The pro rata arrangement for Invitations to Apply under SkillSelect now applies to:

• ANZSCO Group 2211 Accountants
• ANZSCO Group 2212 Auditors, Company Secretaries and Corporate Treasurers
• ANZSCO Group 2334 Electronics Engineers
• ANZSCO Group 2335 Industrial, Mechanical and Production Engineers
• ANZSCO Group 2339 Other Engineering Professionals
• ANZSCO Group 2544 Registered Nurses
• ANZSCO Group 2611 ICT Business and System Analysts
• ANZSCO Group 2613 Software and Applications Programmers
• ANZSCO Group 2631 Computer Network Professionals

The results for the latest invitation rounds are as follows:

Source: Department of Immigration and Border Protection

Contact Work Visa Lawyers if you need further information about the above.

Sources:

http://www.border.gov.au/WorkinginAustralia/Pages/23-november-2016-round-results.aspx

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

The 2016-17 migration programme year is reaching its halfway point as we come to the end of 2016. For the General Skilled Migration programme, this may mean that certain occupations which have received many applications face limitations in receiving Invitations to Apply (ITAs), require higher points to receive ITAs or are unable to obtain state nomination or sponsorship for the year.

It is best to proceed with a visa application as quickly as possible but at the same time you should ensure that all information and documents provided are accurate and relevant to your application. If you need to consider other visa application options please contact Work Visa Lawyers to arrange an appointment to discuss alternatives.

This information is accurate on 8 December 2016

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 the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

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

(08) 8351 9956 or +61 8 8351 9956

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

The state of Victoria has announced a few updates to their state nomination occupation list and business visa nomination requirements. Here is a summary of the updates.

ICT Occupations no longer available for state nomination

The following ICT occupations are no longer accepted for state nomination from Victoria:

• 135112   ICT Project Manager
• 261111   ICT Business Analyst
• 261112   Systems Analyst
• 261311   Analyst Programmer
• 261312   Developer Programmer
• 261313   Software Engineer
• 261314   Software Tester
• 261399   Software and Applications Programmers nec
• 262111   Database Administrator
• 262112   ICT Security Specialist
• 263111   Computer Network and Systems Engineer

The temporary suspension of sponsorship for the ICT occupations above will last until 6 March 2017.

Occupations removed from Victoria state nomination occupation list

The following occupations are no longer eligible for sponsorship from the state of Victoria:

• 234411 Geologist
• 234412 Geophysicist

Updates to the Business Innovation and Investment visas for Victoria

The Victorian Government has announced the following changes to the business innovation and investment visas nominated by the state government of Victoria.

• Approval from Victorian Government no longer required for change in complying investments
• A new application form for the subclass 888 Significant Investor Visa will be available in early 2017
• Significant investor visa holders nominated by Victoria are reminded to notify the state government when they arrive in Victoria
• The application form for the recently launched subclass 188 Entrepreneur Visa is now available on the LiveInVictoria website
• The factsheet about the Entrepreneur Visa for Victoria is available here
• A new application form for the subclass 888 Investor Visa stream will be available in early 2017

Additionally the Victoria Skilled and Business Migration Programme Department will be closed on the following dates:

• Boxing Day public holiday: Monday 26 December 2016
• Christmas Day public holiday: Tuesday 27 December 2016
• New Year’s Day public holiday: Monday 2 January 2017

Sources:

http://www.liveinvictoria.vic.gov.au/about-us/news#.WEX_m_l9670

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

As 2016 comes to a close State and Territory departments may start looking at planning numbers and introduce a temporary suspension of nomination for certain occupations, or announce higher requirements for occupations which have a high number of applications. Visa applicants are advised to obtain state nomination from the relevant State/Territory as soon as possible before changes are introduced.

This information is accurate on 6 December 2016

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 the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

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

(08) 8351 9956 or +61 8 8351 9956

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

In an earlier blog published in June this year, it was mentioned that the Department of Immigration and Border Protection (DIBP) has been getting tougher in relation to the processing of visa applications and monitoring of granted visas. Six months later the trend seems to be continuing where the DIBP is looking to tighten policies surrounding the Australian visa programme.

Changes to the Occupation Lists – Skilled Occupation List (SOL), Consolidated Skilled Occupation List (CSOL), Regional Sponsored Migration Scheme (RSMS) Occupation List, 457 visa occupation list

There has been recent talk about possible changes to the Skilled Occupation List (SOL) with a suggestion that 52 occupations will be removed. The occupations reportedly under scrutiny include:

• Production Manager (Mining)
• Accountant (General)
• Management Accountant
• Taxation Accountant
• Actuary
• Land Economist
• Valuer
• Ship’s Engineer
• Ship’s Master
• Ship’s Officer
• Surveyor
• Cartographer
• Other Spatial Scientist
• Chemical Engineer
• Civil Engineer
• Geotechnical Engineer
• Quantity Surveyor
• Structural Engineer
• Transport Engineer
• Electronics Engineer
• Industrial Engineer
• Mechanical Engineer
• Production or Plant Engineer
• Aeronautical Engineer
• Agricultural Engineer
• Biomedical Engineer
• Engineering Technologist
• Environmental Engineer
• Naval Architect
• Medical Laboratory Scientist
• Veterinarian
• Medical Diagnostic Radiographer
• Medical Radiation Therapist
• Occupational Therapist
• Podiatrist
• Speech Pathologist
• General Practitioner
• Anaesthetist
• Cardiologist
• Endocrinologist
• Gastroenterologist
• Intensive Care Specialist
• Paediatrician
• Obstetrician and Gynaecologist
• Medical Practitioners (nec)
• Barrister
• Solicitor
• Psychotherapist
• Psychologists (nec)
• Chef
• Boat Builder and Repairer
• Shipwright

Source: SBS

While these occupations are flagged for removal there is no certainty that they will be removed. However with the current trend of tightening the door on migration to Australia, prospective visa applicants are urged to submit an application as soon as possible to avoid any negative impact policy changes.

What does it mean if my occupation is removed from the SOL?

When your occupation is removed from the SOL it means that you will be unable to apply under the Skilled Independent subclass 189 visa or the Skilled Regional Sponsored (Relative) subclass 489 pathways. Instead you will need to apply via the Skilled Nominated subclass 190 or the Skilled Regional Sponsored (State/Territory) subclass 489 visa pathways. This is assuming that your occupation is on the CSOL and relevant Australian state/territory occupation lists.

What about the CSOL and RSMS occupation lists?

DIBP may also make changes to the CSOL and RSMS occupation list. However it may not come as a surprise if changes are made, especially since the DIBP has been adopting a closing-the-door mentality to the migration programme.

Changes to the 457 visa occupation list

The Minister for Immigration Peter Dutton recently spoke to the media and mentioned that the 457 visa occupation list will be “condensed”, signalling a potential shortening of the list and removal of some occupations. Although the occupations to be removed have not been specified, occupations which have been monitored heavily by the DIBP such as Café and Restaurant Manager, Chef, etc. may be likely to be removed from the 457 occupation list. Read our previous blog on the topic here.

Leaked discussion papers indicate a possibility of universal two-stage visas for migrants to Australia

On 30 November 2016 media reported a leaked Cabinet document which discusses the probability of a universal two-stage visa process for all migrants looking to migrate to Australia. This means that all migrants will have to undergo a provisional visa stage before being granted a permanent visa.

While it is stated that the cause for such a change is to ensure migrants are able to assimilate and adapt to the Australian way of life, the Department of Social Services have indicated a fear of creating social divisions between Australians and migrants.

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

There are currently a large number of visas where applicants obtain permanent residency immediately upon visa grant. These visas include the subclass 189 Skilled Independent visa, the subclass 190 Skilled Nominated Visa, the subclass 187 RSMS visa, the subclass 186 Employer Nomination Scheme (ENS) visa, the subclass 143 Contributory Parent visa, the subclass 858 and subclass 124 Distinguished Talent visa and the subclass 132 Business Talent visa. The proposed changes will enforce a provisional visa stage for the visa applicants above. This means a delay in Medicare eligibility, and possibly the need to pay international student fees for school-age children. Essentially the attractiveness of the visas is reduced.

From a migration perspective this means that migrants may be facing checks at three separate stages. Migrants will be assessed at:

• the initial visa application stage
• the provisional visa to permanent visa application stage
• the permanent visa to citizen stage

During the application stages above it provides the DIBP an opportunity to conduct checks on a migrant and their suitability for further stay in Australia. With the increasing emphasis of s501 – Character and PIC 4020 – Bogus and Misleading Information, migrants will need to be very careful to ensure all documents and information submitted to the DIBP are accurate and genuine.

Section 501 of the Migration Act 1958 – Visa cancellation powers

Section 501 part (3A) of the Migration Act allows the Minister of Immigration to cancel provisional and permanent visas when a visa holder fails the “character test”. This would apply to provisional and permanent visa holders who:

• are charged with a sexual offence involving a child;
• have a substantial criminal record, which includes:
  • receiving a death sentence
  • receiving a sentence of life imprisonment
  • sentenced to a term of imprisonment of 12 months or more (can be cumulative)
  • plead of insanity and detainment in a facility or institution
  • not being fit to plead, but found guilty of an offence and detailed in a facility or institution

The application of such powers was evidently demonstrated when convicted bikies and other charged criminal offenders had their visas cancelled and were forced to leave Australia.

It is expected that the DIBP will continue to utilise this cancellation power to remove visa holders who are of negative influence or character. The DIBP will be checking on visa holders at the visa and citizenship application stages, as mentioned in the earlier paragraph.

Sources:

http://www.sbs.com.au/yourlanguage/punjabi/en/article/2016/11/21/52-jobs-may-get-removed-skilled-occupation-list

http://www.smh.com.au/federal-politics/political-news/leaked-cabinet-papers-warn-secret-visa-overhaul-would-create-twotier-society-increase-violent-extremism-20161129-gt0h7s.html

http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html

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

The trend in policy changes from the DIBP is that the doors are closing. There have been knee-jerk reactions to the 457 visa abuse reported earlier in the year and thus the DIBP is taking a tough stance to all visa applications and compliance with visa and sponsorship obligations. In fact Australia was recently mentioned in a travel article to be one of the toughest customs and immigration authorities in the world.

The current DIBP mentality also means that visa applicants and sponsors should not think that they are safe from scrutiny once a visa application is complete. There have been increasing reports of compliance monitoring for sponsored work visas, especially in the hospitality industry. Provisional and permanent visa holders are also subject to monitoring as mentioned in the section 501 write-up above.

These policy discussions and changes indicate a “closing-the-door” trend and are in stark contrast to Canada, a country similar to Australia in terms of geography (large land mass but concentrated population in a few areas) and economy. Just yesterday the Canadian government announced a new Global Skills Strategy programme which will target highly skilled migrants and encourage them to move to Canada. If Australia continues to tighten its migration policies, we will be losing out in terms of attracting skilled and highly qualified professionals from overseas, which will help in boosting the Australian economy, innovation and cushion the effect of our aging population.

This information is accurate on 2 December 2016

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 the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

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

(08) 8351 9956 or +61 8 8351 9956

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

Work Visa Lawyers Principal Migration Lawyer and Registered Migration Agent, Chris Johnston with Senior Registered Migration Agent, Christine Lee

Work Visa Lawyers had the pleasure of attending and exhibiting at the 12th Korean Culture and Food Festival held on the 12th of November 2016.

The turnout and activity level were great for a day which was cloudy with a bit of rain. A big thank you to the organisers, volunteers and the South Australian Korean community for making the event a success!

It was nice to speak with members of the Korean community, local politicians and the general public about Australian Visas. People we spoke to wanted to know about a range of visas including Partner Visas and Skilled visas for health related occupations such as Dentist and Pharmacist.

In addition to the hospitality and warmth of the people in the event, the food and performances were also noteworthy and we look forward to attending the event again next year!

Here are some photos of the day of the festival:

Senior Registered Migration Agent, Christine Lee(2-L) with Hon. Jing Lee MLC(2-R), Eddie Liew(R) and Rachel Sanderson MP(L)

Singing performance

Traditional dance

Lucky draw to end on a high

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

It is always good to be able to connect with the local community and exchange cultural views and knowledge. The organising committee deserves a big applause for once again organising a successful event this year. We look forward to participating in the festival and meeting everyone again next year.

This information is accurate on 2 December 2016

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 the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

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

(08) 8351 9956 or +61 8 8351 9956

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

Update @ 2 December 2016

The Backpacker Tax has been voted in to be set at 15%. Tax on superannuation for backpackers is also set at 65%.

The Australian government is likely to pass legislation to affix the Backpacker Tax at 15%. This is a significant reduction from the 32.5% planned to be implemented on 1 January 2017.

The taxing on superannuation for backpackers will also be set for 65%, rather than the 95% proposed earlier.

This is a huge relief to Working Holiday and Work and Holiday visa holders to Australia. The lower taxes will allow them to save, spend and travel around Australia more.

The breakthrough came about as the Greens supported the coalition government’s 15% tax rate.

The changes are likely and we will update this space once the confirmation is available.

Sources:

http://www.abc.net.au/news/2016-12-01/backpacker-tax-passes-senate/8084334

http://www.abc.net.au/news/2016-12-01/backpacker-tax-set-to-pass/8084334

http://www.theaustralian.com.au/national-affairs/politicsnow-live-from-canberra-senate-house-of-reps/news-story/599b37d0b304e32fb2ba6d243c9564a8#U601304426220ibG

This information is accurate on 1 December 2016

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 the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

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

(08) 8351 9956 or +61 8 8351 9956

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

Apply for a 485 Temporary Graduate Visa if you are eligible

There are two streams to the 485 visa which are:

1. Graduate Work Stream 

2. Post-Study Work Stream

Graduate Work Stream

• For international students who graduated with a qualification related to an occupation on the Skilled Occupation List (SOL)

• Requires a positive skills assessment

•  Valid for 18 months from the date of grant

Post-Study Work Stream

• For International students who graduate with a higher education degree from an Australian education provider, regardless of their field of study.

• This stream is only available to students who applied for, and were granted their first student visa to Australia on or after 5 November 2011.

• This visa can be granted up to 4 years from the date the visa is granted, depending on the visa applicant's qualification.

Other criteria require for both streams include:

• meet English language requirements. You have achieved an overall score of at least 6 with a minimum a score of 5 in each of the four test components (speaking, reading, listening and writing) in an International English Language Testing System (IELTS) test that has been undertaken in the three years immediately prior to lodging the visa application.

• meet the 2 years full time Australian study requirement

Many graduates choose to apply for the 485 visa to give them more time to achieve the requirements for General Skilled Migration (GSM) or Employer Sponsored visas. While holding the 485 visa, you could:

• obtain a positive skills assessment

• improve English test scores

• find an employer to sponsor you

• gain more work experience (an application for a Temporary Skills Shortage subclass 482 visa requires 2 years of relevant work experience)

The subclass 485 Temporary Graduate Visa is a good option, but it is not available to all students. Many vocational course graduates miss out and may need to consider other options.

If you cannot apply for one of the two Graduate visas, then you mayneed to consider your other options below. If GSM and Employer sponsorship are not suitable, then you may have to apply for further studies visa.

Apply for a Skilled Visa – Subclass 189, 190 or 491

Apply for a 482 Temporary Skills Shortage Visa

You may be eligible to apply for a 482 visa if you have worked the permitted 20 hours per week for 2 years while holding your student visa. You will also need an employer who is willing to sponsor you for a work visa.
This pathway requires a few stages of work as the employer needs to be an approved sponsor first before sponsoring you. Work Visa Lawyers assists in checking the eligibility of the employer to be a sponsor and the sponsorship application process. If you have an employer willing to sponsor you, do contact us immediately as the preparation involved before your visa application can take some time. It is noteworthy that some employers may sponsor you for a permanent visa immediately.

Apply for a Partner Visa

Apply for a Further Studies Visa

• The course you recently completed does not meet the 2-year study requirement, or
• The course you completed has no suitable occupation to be nominated for a visa application

Pathways Taken By Other Graduates

Rosa

Bruno

Sources:

Immigration SA website

Department of Home Affairs website

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-graduate-485

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/skilled-nominated-190

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/skilled-work-regional-provisional-491

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-skill-shortage-482

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/partner-onshore

This information is accurate on 28 February 2020.  Department of Home Affairs will change requirements in an ongoing manner and all current requirements must be established prior to lodging an application.

Do You Need Help?

At Work Visa Lawyers we are experienced in assisting applicants with skilled visa applications such as subclass 189, 190, 489, 485, 457 visas as well as the Regional Sponsored Migration Scheme (RSMS). We also handle family visa applications including Partner, Parent and Child visas.

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

 (08) 8351 9956 or +61 8 8351 9956 

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

457 visa occupation list to be cut – surge in 457 visa applications likely in short term  

The Minister has said the 457 visa occupations list will be ‘condensed’ - which means cut or reduced.

The Minister for Immigration Peter Dutton has been reported to have said on Sunday 20 November when speaking to Sky News:

"We are having a look at it right now and I think it will be condensed," (Herald Sun, 19 November 2016)

In the interview, Minister Dutton  acknowledges that there are shortages in regional areas for occupations which do not have such shortgages in larger cities.  He states:

"So it is a different picture across the country and we need to respond accordingly. That is the nuance that we try and provide for, but I think the list at the moment is expansive and I think we will condense it and that work has already been under way for sometime and we will have a look at that very soon." (Herald Sun, 19 November 2016)

This comment follows on from comments last week which included a press release about the changing of condition 8107 to allow less time for 457 holders who lose their job.  In the press release on the 16 November 2016, Minister Peter Dutton’s office states the following:

“The Subclass 457 programme was not effectively managed by Labor, as with so many other areas of government

“Labor’s mismanagement saw the Subclass 457 program grow from around 68,000 primary visa holders at the end of June 2010 to more than 110,000 when they were removed from office. 

In comparison, under the Coalition the number of 457 visa holders in Australia has fallen by around 13,000, while over the same period almost half a million new jobs have been created for Australian workers”

With the Minister making such strong statements on the 457, you can be confident that change is on the way.

How will the condensing of the list take place?

The current system is that all occupations on the Consolidated Skilled Occupation List ( the CSOL) are available for 457 visa applications.

The CSOL is also the reference point for General Skilled Migration visas including the 190  and 489 visa.

It may be that the Minister will specify a new list under Regulation 2.72(10)(aa), which will be narrower than the current CSOL list.  This could effectively create a list that is narrower than the CSOL and is just for the 457 visa.

Lodging 457 visas before the list is cut may be something to consider for some businesses

When the list is cut, then it will be impossible to lodge visas for occupations that have been removed.  At the moment we do not know what occupation will be removed.   But it may be that businesses choose to lodge their 457 visas soon, to avoid missing out on being able to.  

In situations where there have been similar changes to criteria, such as raising the English standards for the RSMS 187, there was a very large surge in applications.  

457 visas in the news this week includes:

There seems to have been more press about 457 in the last week than there was in the last six months.

Several politicians have made statements about the need to cut 457s:

http://www.minister.border.gov.au/peterdutton/2016/Pages/457-visa-changes.aspx

http://www.heraldsun.com.au/business/work/crackdown-on-457-visas-to-benefit-australian-jobseekers/news-story/271e8f7a7263ee54d966e6bea47f6d49

http://www.abc.net.au/news/2016-11-15/george-christensen-demands-457-visas-rethink-for-his-electorate/8026934

https://www.theguardian.com/australia-news/2016/nov/15/bill-shorten-vows-labor-will-crack-down-on-457-visa-program?CMP=share_btn_tw

Commentary on the 457 visa has included:

http://www.couriermail.com.au/news/opinion/opinion-playing-to-fears-over-457-visas-bad-in-any-language/news-story/17d0258adc3cf1a725737ab891ff170b

http://www.smh.com.au/federal-politics/federal-election-2016-opinion/pressuring-foreign-workers-the-wrong-way-to-reform-457-visas-peter-mares-20161117-gsrpy6.html

Time of Writing:

This information is accurate on the 19 November 2016.

Sources:

457 occupation list to be 'condensed', says Immigration Minister Peter Dutton, Amy Remeikis, 20 November 2016

http://www.smh.com.au/federal-politics/political-news/457-occupation-list-to-be-condensed-says-immigration-minister-peter-dutton-20161120-gst9wg.html

Upcoming change to the subclass 457 visa, Wednesday, 16 November 2016

http://www.minister.border.gov.au/peterdutton/2016/Pages/457-visa-changes.aspx

Fact check: Are there 'over a million 457s' in Australia?http://www.abc.net.au/news/2016-06-02/fact-check-are-there-over-a-million-457s-out-there/7463706

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 the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

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

(08) 8351 9956 or +61 8 8351 9956

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

Changes to Australian 457 Visa condition 8107  – four problems 8107 causes and how a solution could be found

What is the change to condition 8107 applying to 457 visa holders?

The Government has made change to the Migration Regulations by amending condition 8107 to provide that a 457 visa holder can only cease employment with an approved sponsor for 60 days.  The relevant section used to provide that the holder could cease employment for 90 days. The change to condition 8107 applies from 19 November 2016.

The regulation now provides:

“8107 3(b)  if the holder ceases empl​oyment — the period during which the holder ceases employment must not exceed 60 consecutive days”

The effect of this change is that if a 457 visa holder loses their job, they now only have two months to find a new employer and get a nomination approved to work for that employer.

How does the change effect 457 Visa holders?

When a family unit makes the brave decision to move to Australia in pursuit of work opportunities it is often a category 457 visa that is granted to them by the DIBP. For example, a 457 visa may be issued to provide entry for two parents and two school aged children under strict conditions. Typically these families have gone to considerable expense to fulfil the required medicals , move to Australia and begin the resettlement process with new home and schools etc.
The ever-present risk for those who arrive under a 457 visa is that the work that they have come to do may not stay available.  For example the primary visa holder may lose his or her job at short notice. The government will be applying a change to condition 8107 from 19th 2016 by reducing the amount of time that a Visa holder has to secure a business sponsor from 90 days to 60 days.

Problems caused by Condition 8107 for 457 visa holders

When a job has been lost, there are four main problems with condition 8107 in terms on how it impacts on the 457 holders. 

The first problem is that condition 8107 does not allow the primary visa holder to work for anyone other than the company that made him or her redundant. Therefore, even if the visa holder is fortunate enough to find another employer willing to be a sponsor, they cannot start working for this new sponsor until DIBP has processed the application which can take several months. This places great financial pressures on 457 Visa holders and increases the risk of holders taking up unlawful employment to make ends meet.

DIBP currently takes several months to process any stage of the 457 process.  It is commonly taking more than 90 days to get a decision from the time of lodgement, compounding the financial implications for the Visa holder. The DIBP is taking 40 working days, which is 54 calendar days, just to allocate a case officer.  The primary 457 holder cannot start employment for the new employer until the sponsorship application is approved.  This application process is likely to go a long way beyond the 60 days, and even if DIBP does not cancel their visas for ceasing to work beyond 60 days, they face an extended period without income.

Thirdly, a 90 day window to find a new employer (offering an identical position) and lodge requisite paperwork was already a difficult challenge. The 457 visa holders are often professionals with specialised skills.  For example, for a Biochemist 457 holder, finding another Biochemist role in 60 days is a difficult task. A 60 day window is unreasonable for both prospective employer and visa holder.

The fourth problem with reducing the time to cease work from 90 to 60 days, relates to exposing visa holders to exploitation by employers.  This current initiative will actually increase the power of employers and make 457 visa holders more vulnerable to threats.  457 holders will know that the possibility of finding a new sponsor in 60 days and getting then nomination approved is low. So 457 holders may be forced to stay with the current employer even if they are not being paid correctly or are subject to other forms of exploitation.

An alternative approach to condition 8107 – let them work if they lose their job until the visa cancellation

A more compassionate approach from the Department of immigration would have been to give 457 Visa holders who have lost their jobs, the right to work for other employees during that period so that they can financially support themselves. This would also enable them to do work trials and find another employer more effectively.

An exception could be inserted into condition 8107, lets call it 8107 part (5), which currently does not exist.  The exception could allow for the circumstances where employment is terminated, to give them the ability to work and support their families and also to facilitate finding a new sponsor.  The new exception to 8107, which we could call it 8107 part (5) could provide along the following lines:

“If employment is terminated by the employer in relation to which the visa was granted, then the work restrictions of condition 8107 no longer apply.  The employee can work in any position without restrictions.  If an application is lodged for another sponsor, and processing extends beyond 60 days, the ability to work will continue up until such time that a decision is made regarding the new business sponsor. The work restrictions of 8107 will no longer apply, up until the time that the visa is cancelled.”

This is not such a radical suggestion. There are approximately two hundred thousand of working holiday makers visas granted each year, who can do any type of work.  The number of 417 visas granted in the year 2014 to 2015, was 214,830. There are also students visa holders that can do any type of work, capped at 40 hours per fortnight.  The number of 457 holders including family member in the quarter ending March 2016 was 177,390. The number of 457 visa holders, that had lost their job would be very small, probably less than 5,000 at any time.

The current changes to condition 8107 could be described as kicking people when they are down.  Rather than supporting vulnerable workers and their families, the changes deny them any income and then force them to leave ASAP.  Whilst there appears to be empathy for student visa holders when exploited by employers there is little empathy or compassion for 457 skilled workers and their families when they lose their jobs.

If the 457 holder cannot find another employer then they will ultimately have to leave Australia when their visa is cancelled. The process, as proposed by this change, does not have to be so mean and humiliating.

Time of Writing:

This information is accurate on the 19 November 2016.

Sources:

Working Holiday Makers in Australia: a quick guide 22 June 2016 http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1516/Quick_Guides/WorkingHoliday

Fact check: Are there 'over a million 457s' in Australia?http://www.abc.net.au/news/2016-06-02/fact-check-are-there-over-a-million-457s-out-there/7463706

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