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IMPACT – MEDIUM
What is the change? Australia has adopted new regulations to specify which categories of visas and types of sponsors are covered by a new law that criminalises accepting payments for migration outcomes. The regulations also require both sponsors and visa applicants to state whether or not they have engaged in conduct involving ‘payment for visas’ during the nomination and application processes.
What does the change mean? The Charging for a Migration Outcome Act will apply to seven visa categories, including the Subclass 457 visa. The law will apply to eight types of sponsors, including standard business sponsors. Sponsors and applicants alike will be required to certify whether or not they have received, requested or offered payments in exchange for securing a migration outcome.
Background: The Charging for a Migration Outcome Act was passed by the Australian Parliament in November.
The regulations are meant to specify whom the law applies to and, in some instances, clear up confusion. The regulations make clear, for example, that the ban on accepting payment for visa outcomes covers ‘labour contracts’ that are not considered ‘work contracts’. The regulations also require sponsors and applicants to certify that they have not received, requested or offered payments in order to affect a migration outcome. Those who run afoul of the law’s civil penalty provisions will be given the opportunity to pay a fine rather than go through court proceedings. Finally, the regulations specify that the Minister for Immigration and Border Protection should be satisfied before issuing visas that applicants have not engaged in ‘payment for visa’ conduct in the past three years, or that it is reasonable to disregard such conduct.
While the law prohibits accepting or soliciting payments for helping secure a migration outcome, it does allow for ‘payment of a reasonable amount for a professional service’ in the visa process.
BAL Analysis: The move toward adopting a stringent penalty regime for those who either pay or accept payment for migration outcomes began with Australia’s overhaul of its Subclass 457 visa programme, but encompasses several other visa categories, Sponsors and visa applicants covered by the law face enhanced penalties – including imprisonment – for violating the law.
This alert has been provided by BAL Australia. For additional information, please contact australia@bal.com.
MARN: 9683856
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What is the change? Australian Prime Minister Malcolm Turnbull has announced the creation of a new Entrepreneur Visa aimed at attracting foreign innovators to Australia. Turnbull also said the Government would make it easier for post-graduate students in science, technology, engineering and mathematics (STEM) or information and communications technologies (ICT) fields to reside in Australia.
What does the change mean? The changes are part of a broad package of reforms Turnbull announced Monday in his Innovation Statement. The visa will provide a new path for foreign innovators with financial support in Australia, while the efforts to retain STEM and ICT students will provide a fast-tracked pathway to permanent residence.
Background: The changes were announced Monday as part of a programme to invest A$1.1 billion (about US$795 million) over a four-year period in innovation in Australia.
In a statement, Minister for Immigration and Border Protection Peter Dutton’s office said the Entrepreneur Visa will be “available for emerging entrepreneurs with innovative ideas and financial backing to develop their ideas in Australia.” Dutton’s office indicated that the Government will not put a cap on the visas. Australia will undertake the effort to retain foreign nationals in post-graduate STEM and ICT programmes by making changes to “facilitate a pathway to permanent residence” for qualifying students, Dutton said.
The changes announced Monday will not affect Australia’s Subclass 457 skilled visa or other visa programmes.
BAL Analysis: The new visa and renewed focus on STEM and ICT post-graduate students are part of a broader effort to invest in and promote innovation in Australia. The changes will provide new pathways for entrepreneurs and other foreign experts to work and reside in Australia. BAL will follow the rollout of the new programmes and alert clients as additional information becomes available.
What is the change? The Australian Parliament has passed a bill to strip dual citizens of their Australian citizenship if they engage in terrorist activities or other serious crimes.
What does the change mean? The bill aims to address concern with the number of Australians who have travelled overseas to fight alongside terrorist groups, particularly in Syria and Iraq.
Background: Australian officials have been working to craft an Allegiance to Australia bill for months.
Under the final version, which was approved by Parliament on 4 December, Australians who hold dual citizenship would have their Australian citizenship stripped for engaging in terrorist activities, providing or receiving terrorism training, directing or financing activities of terrorist organizations, recruiting on behalf of terrorist organizations or fighting on behalf of a terrorist organization or country at war with Australia. Citizenship could also be stripped by determination of the Minister for Immigration and Border Protection in cases where dual citizens commit serious crimes that result in a prison sentence of at least six years and where the person’s conduct demonstrates “that the person has repudiated their allegiance to Australia.”
The Australian Citizenship Amendment (Allegiance to Australia) Bill applies to dual citizens ages 14 and older. Because it only affects dual citizens, officials are confident the bill will not leave anyone stateless.
BAL Analysis: The bill applies to a relatively narrow group of people, but officials nonetheless say it provides an important tool in Australia’s fight against terrorism. Attorney-General George Brandis said changes in the law “were necessary to reflect the current threat that Australia and the rest of the world faces.”
What is the change? Australia has prescribed the Subclass 400 and Subclass 457 visas as the appropriate temporary visas for foreign nationals working in Australia’s offshore oil and gas industry.
What does the change mean? Foreign nationals working in the offshore oil and gas industry must have either a Subclass 400, Subclass 457 or permanent Australian visa. A regulation stipulating that these are the appropriate visas for such workers aims to bring certainty to the industry following a court ruling in March that threatened to throw the industry into flux.
Background: Australia’s oil and gas industry has faced questions concerning what types of visas foreign nationals should have for some time. The confusion dates to the 2013 Offshore Resources Activity Act, which effectively required foreign nationals to hold permanent visas to work in the industry. In March, a federal court invalidated the Government’s attempts to “except” offshore oil and gas workers from the law, temporarily throwing the industry into flux. Michaelia Cash, then the Assistant Minister for Immigration and Border Protection, subsequently issued a determination to protect the work rights of affected foreign nationals. The recent regulation aims to add additional certainty.
BAL Analysis: The regulation allows foreign nationals to work offshore provided they have either a Subclass 400 or Subclass 457 visa. Offshore oil and gas companies with foreign national employees who do not hold a Subclass 400, Subclass 457 or permanent visa should contact their BAL professional as soon as possible to ensure their workers have the appropriate visas.
What is the change? Australia has made it a criminal offence for visa sponsors to request or accept payments for the purpose of securing a migration outcome.
What does the change mean? Sponsors or third parties who request or accept such payments face the possibility of both criminal and civil penalties, including up to two years in jail and fines as high as A$64,800 per person.
Background: In March, the Australian Government announced its support for a host of reforms to the 457 programme, including a proposal to establish “robust” penalties for sponsors who accept payments to help secure migration outcomes. The Government introduced a bill in September that covered not just Subclass 457 visas, but all temporary and permanent work visas. Officials said the bill was designed to cut down on the exploitation of foreign workers and help ensure that the Australian labour market is not undercut by low wages.
The bill was approved by the Federal Parliament, and it received Royal Assent and took effect Monday.
While the law does not permit accepting or soliciting payments for helping secure a migration outcome, it does allow for “payment of a reasonable amount for a professional service” in the visa process. An official memorandum on the law states that a payment should be “considered reasonable if it is commensurate with market rates.”
BAL Analysis: While the law allows for reasonable payment for professional services, it introduces enhanced penalties – including jail time – and provides a deterrent to those who might solicit or accept illegal payments to sway an immigration outcome.
What is the change? The Australian Government has issued a regulation stating that under the China-Australia Free Trade Agreement, or ChAFTA, labour market testing will be waived for certain executives, specialists and service suppliers coming to Australia from China.
What does the change mean? Labour market testing will be waived for: executives, senior managers and managers coming to Australia as inter-corporate transferees; specialists coming to Australia as intra-corporate transferees; independent executives; and contractual service suppliers.
Background: Australian and Chinese officials signed the landmark trade agreement in June. The deal was subject to subsequent discussion about whether additional labour market testing protections were needed for Australian workers, either in ChAFTA or Australian law. Earlier this month, officials made a number of legislative amendments to clarify and reinforce visa requirements, including new labour market testing guarantees in the Subclass 457 visa programme.
In a 23 November regulation, however, the Australian Government made it clear that it was required to honour ChAFTA’s obligations on labour market testing. Peter Dutton, the Minister for Immigration and Border Protection, said that for the categories of people covered, “the imposition of labour market testing would be inconsistent with international trade obligations of Australia arising under the China-Australia Free Trade Agreement.”
BAL Analysis: The regulation is welcome news for Australian employers and Chinese executives, specialists and service suppliers covered by ChAFTA. It also advances the trade agreement’s broader goal of lifting barriers to trade and entry between Australia and China.
What is the change? Australia has announced that it will provide Indonesian nationals travelling for tourism or short-term business with three-year, multiple-entry visas. Australia also plans to expand online visa lodgement to all Indonesians beginning 1 January 2017.
What does the change mean? The current visa validity period for Indonesians travelling to Australia is one year. Once the change goes into effect, Indonesians travelling to Australia for tourism or on short-term business trips will not have to renew their visas as often. The switch to online visa lodgement is also expected to improve the visa-application process.
Background: Australian officials framed the new visa arrangement as part of a broader effort to work closely with Indonesia to boost business and investment between the two countries. The new visas will be valid for three years for stays of up to three months per visit. The move to online visa lodgement follows a handful of pilot projects on electronic visa lodgement and should make the visa-application process easier.
BAL Analysis: Australian officials are hopeful that the visa changes will boost tourism, business and investment by Indonesians in Australia. The changes may also help set the stage for a renewed emphasis on developing stronger business and ties between the two countries.
IMPACT – LOW
What is the change? Australia has moved to require foreign nationals to provide evidence of exceptional circumstances when seeking to extend their period of stay on a visitor visa beyond a period of 12 consecutive months.
What does the change mean? Unless they can demonstrate exceptional circumstances, foreign nationals holding a visitor visa, working holiday visa (subclass 417), work and holiday visa (subclass 462) and/or bridging visa will be refused a visitor visa if it would result in authorisation to stay in Australia for more than 12 consecutive months.
Background: Visitor visas are valid for three, six or 12 months.
The new regulation was adopted after the Migration Review Tribunal (now called the Migration and Refugee Division of the Administrative Appeals Tribunal) ruled that applicants holding a bridging visa – a type of visa that is issued to a foreign national while his or her application for a substantive visa is pending – were eligible for visitor visas even if they had been in Australia for more than 12 consecutive months. The new regulation closes this loophole, and foreign nationals affected by the new rule will only be eligible for visitor visas if they can demonstrate exceptional circumstances.
Those circumstances may include death or serious illness of a close family member in Australia or situations where an applicant is dealing with changed circumstances that could not have been anticipated, are beyond his or her control and where failing to grant the visa would cause significant hardship to an Australian citizen or resident.
BAL Analysis: The changes will affect a small number of visa applicants in their ability to remain in Australia on visitor visas beyond the 12-month period that is typically allowed. Officials said the change was necessary to “maintain both the intent and integrity” of the visitor visa programme, which is designed to allow temporary, short-term visits to Australia.
What is the change? Several legislative amendments that clarify and reinforce current policies under Subclass 457 regulations will take effect 1 December.
What does the change mean? The amendments affect Subclass 457 visa holders and standard business sponsors (in particular those employers who are seeking to negotiate a work agreement with the Minister of Immigration and Border Protection for concessions to sponsor workers under the Subclass 457 visa programme). The existing policy that business sponsors perform labour market testing when seeking to sponsor foreign nationals under the terms of a work agreement will be codified in regulations and subject to further policy guidelines. Licensing obligations of 457 visa holders have been expanded, and the 90-day work commencement rule for 457 visa holders has been refined.
Amendments:
The amendments are contained in the Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015, dated 12 November.
The key provisions and effective dates are as follows:
BAL Analysis: The amendments refine and clarify some important criteria for subclass 457 sponsors and visa holders, and indicate that the Government is seeking to reinforce policies to ensure that the use of the Subclass 457 visa programme to sponsor overseas workers under work agreements is limited to those circumstances where suitability qualified local Australian workers are not available.
What is the change? Australia’s Department of Immigration and Border Protection has announced a number of changes to its immigration health requirements.
What does the change mean? Australia will begin using a new health matrix that divides countries into two groups: those that generally do not require immigration health examinations and those that do. Applicants from countries that generally require health examinations will have to undergo a medical examination and chest x-ray for stays in Australia of six months or longer. Subclass 457 visa applicants will be treated the same as other temporary visa applicants, and will no longer be eligible for eased health processing.
Background: The new rules will replace Australia’s current programme of classifying countries as low, medium, or high risk.
Instead, nationals of more than 100 countries will generally not be required to undergo health examinations except when applying for permanent stay or when a special circumstance applies. All other nationals will be required to undergo a medical examination and chest x-ray for stays of six months or more, whether or not a special circumstance applies. Canada, Germany, Ireland, the United Kingdom and the United States are among those on the list of “safe” countries. Brazil, China, India, Indonesia, Singapore and South Africa are among those not on the list.
Foreign nationals exposed to certain situations will be required to undergo specified medical screening or tests regardless of nationality. Such situations include those where the foreign national is likely to work at a childcare centre; intends to work as, or be trained to be, a doctor, dentist, nurse or paramedic; is likely to enter a heath care facility from a higher risk country; is pregnant and intends to give birth in Australia; or is 75 or older (only applicable to Subclass 600 and 676 visa applicants).
Under the new rules, Subclass 457 applicants will be treated the same as other visa applicants. Currently, Subclass 457 visa applicants from high-risk countries are not necessarily required to undergo a medical examination in addition to a chest x-ray examination (depending on individual circumstances). Beginning 20 November, both a medical examination and chest x-ray will be required from nationals who are not on the list of countries deemed safe for health purposes.
A full report on the changes to immigration health requirements is available here.
BAL Analysis: Employers and foreign nationals applying for Australian visas should familiarise themselves with the new rules. The changes affect not only those who lodge applications after 20 November, but also those who lodged applications prior to 20 November but who have not yet undergone medical exams. The changes may inconvenience some applicants, as more thorough examinations will be required from applicants from certain countries.