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IMPACT – HIGH
What is the change? Australia’s Department of Immigration and Border Protection has proposed a new visa category that would allow high-skilled foreign nationals to work in Australia for up to one year. Berry Appleman & Leiden has been advocating for an appropriate short-term work visa for some time, and the proposal is a welcome development.
What does the change mean? Qualifying applicants would be able to apply for the new one-year visas, rather than go through the costly and time-consuming process of applying for Subclass 457 visas.
Background: A new visa would be welcome news to Australian employers, many of whom have complained about the difficulty of the 457 visa application process. The proposal has come under fire from labour unions, which say a one-year visa for foreign nationals would damage Australia’s domestic labour market. Proponents say that’s not the case and that the visa will help make Australia competitive in the global economy.
Douglas Allison, BAL Sydney’s Client Manager and Solicitor, was quoted on 8 January in the Australian Financial Review saying the proposed visa would be welcomed by businesses, which wanted to be able to make intra-company transfers and short-term appointments quickly and simply. In the article, Allison also advocated BAL’s preferred position to remove the current age threshold of 50 for skilled permanent residence. He commented that “to suggest that skilled persons over the age of 50, if they were to permanently migrate to Australia, are not able to provide a sufficient contribution to society and create a benefit to members of the Australian community, is misconstrued and borders on the adoption of discriminatory practices.”
BAL Analysis: A one-year short-term mobility visa would be a significant benefit to Australian employers looking to stay competitive in the global economy. BAL Australia’s Managing Director, Tim Denney, stated that in “today’s modern economy it is imperative that businesses operating in Australia and across the globe have the flexibility to move highly skilled employees quickly and efficiently across borders for short-term assignments. A visa such as the proposed short-term mobility visa would assist the Australian economy to remain completive and assist to create economic growth.” BAL Australia will continue to monitor the process and will keep clients updated on key developments.
This alert has been provided by BAL Australia. For additional information, please contact australia@bal.com.
MARN: 9683856
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
IMPACT – MEDIUM
What is the change? The Australian Government will sharply raise application fees for Partner and Prospective Marriage visas in the new year.
What does the change mean? Applicants can avoid the increased government application fees if they lodge their applications before 1 January.
Background: On 15 December, the Government announced 50 per cent higher application fees on most visas for foreign spouses and partners, and justified the increases as a means to fund “whole-of-government policy priorities.”
The Partner visa allows a foreign national in Australia to apply based on marriage or a de facto relationship with an Australian citizen, Australian permanent resident or a New Zealand citizen. Partner (Provisional and Migrant) visas have similar eligibility criteria, but are for those applying outside Australia to travel and live in Australia. Prospective Marriage visas are for foreign nationals intending to marry an Australian citizen or permanent resident or a New Zealand citizen.
The exact schedule of new fees has not been released, and will depend on individual factors, but the Government said applicants will soon be able to calculate their new fees on the visa-pricing estimator.
The Department of Immigration and Border Protection reminded applicants that it neither offers financial assistance nor waives or reduces fees for those who cannot afford the application fees and that all fees must be paid in full before a visa application will be considered.
BAL Analysis: Foreign employees and eligible Australian and New Zealand applicants planning to bring a foreign spouse or partner to Australia will have to budget for the higher fees or consider other visa options.
What is the change? The Korea-Australia Free Trade Agreement took effect 12 December.
What does the change mean? Business visitors, intra-company transferees, contractual service suppliers and executives who are nationals of Australia or South Korea will have greater access to each other’s countries. KAFTA will also end labour market testing in Australia for South Korean nationals, permanent residents and employees transferring to an Australian branch of a South Korean company that is nominated under the 457 programme.
Background: Australian and South Korean government officials signed KAFTA in April in Seoul. The agreement includes specific commitments for both Australia and South Korea on the movement of natural persons.
Australia’s commitments include providing 90-day stays for South Korean business visitors and six-month stays for service sellers; four-year stays for South Korean intra-company transferees; up to two-year stays for South Korean executives who are establishing a branch or subsidiary of a South Korean enterprise in Australia; one-year stays for South Korean contractual service providers; and the right of entry, stay, and work for spouses and dependants of South Korean business people or workers for a period of time equal to that of the business person or worker.
South Korea’s specific commitments include providing 90-day stays to Australian business visitors without the need for employment authorisation; three-year stays to Australian intra-company transferees, with possibility of extension; up to two-year stays for Australian traders and investors; one-year stays (or shorter depending on the duration of the contract) for Australian contractual service providers; and the right of stay for spouses and dependants of Australian business people or workers for a period of time equal to that of the business person or worker. Work permits for spouses or dependants may be granted in accordance with South Korea’s domestic laws.
KAFTA also ends labour market testing for South Korean nationals, permanent residents, and employees transferring to an Australian branch of a South Korean company that is nominated under Australia’s 457 programme.
BAL Analysis: KAFTA represents an easing of barriers to entry across almost all categories of business visitors, workers and investors. The end of labour market testing in the 457 programme will make it easier for Australian employers to hire skilled workers from South Korea.
What is the change? Australia has expanded the list of foreign nationals eligible to submit online applications for Temporary Work visas to nearly 200 countries.
What does the change mean? Online visa applications are significantly faster and easier than paper applications.
Background: Under amendments to Australia’s Migration Regulations 1994, nationals of 197 countries and territories will be eligible to apply online for Temporary Work (Short Stay Activity) subclass 400 visas. The complete list can be viewed here.
BAL Analysis: The expansion of online application procedures is a welcome development. The ability to apply online significantly streamlines processing. Notably, China and India have not been included in the list of nationals eligible to apply online for Temporary Work visas.
What is the change? The regulations concerning acceptable tests for the evidencing of English language ability have been amended for some visa subclasses.
What does the change mean? Applicants who are required to demonstrate English-language ability and do not qualify for a relevant exception will be allowed to undertake any of the following tests: IELTS, OET, TOEFL iBT and Pearson (PTE Academic).
Background: Previously, IELTS was the only acceptable English-language testing provider. As the test dates are quite limited, applicants experienced lengthy delays in obtaining test results and, as a consequence, delays in the visa application process.
The new regulation sets out the test providers and minimum test scores required for each skill level of English:
Reading 4
Writing 14
Listening 4
Reading 13
Writing 21
Listening 12
Reading 24
Writing 27
Listening 24
Reading 29
Writing 30
Listening 28
BAL Analysis: The recognition of other English testing providers is beneficial news for clients as they will have access to a greater number of providers, which should in turn decrease the waiting times to sit for the relevant tests.
What is the change? Australia and China have agreed to a Work and Holiday visa arrangement.
What does the change mean? Australia will grant up to 5000 Work and Holiday visas to Chinese nationals annually.
Background: Australia’s Work and Holiday program allows young adults aged 18 to 30 to take holiday in Australia while working on a short-term basis, usually for up to one year.
BAL Analysis: The Australian Government has said the addition of China to the Work and Holiday program will attract Chinese visitors to Australia’s fast-growing tourism sector and lead to job growth, particularly in rural areas.
What is the change? Australia has expanded the list of foreign nationals eligible to submit online applications for Temporary Work visas.
Background: Under amendments to Australia’s Migration Regulations 1994, the following nationals will be eligible to apply online for Temporary Work (Short Stay Activity) subclass 400 visas.
IMPACT – LOW
What is the change? Australia and China have completed negotiations for a China-Australia Free Trade Agreement.
What does the change mean? Although the “CHAFTA” will take some time to undergo domestic debate and legal approval, the trade agreement will provide greater access for nationals of each country for intracompany transfers, providers of contractual services, business visitors, and visas for investment projects.
Background: On 17 November, the two countries signed a declaration of intent at Parliament House in Canberra, Australia, concluding negotiations and formalising their objectives to move forward to implement the agreement.
The agreement, nicknamed CHAFTA, will generally reduce barriers to workers moving between the two countries, increase investment and trade and facilitate temporary entry procedures. According to a fact sheet provided by the Australian Government, each side has made the following provisions.
China will provide guaranteed access to Australian citizens and permanent residents in the following categories:
Australia will provide guaranteed access to Chinese citizens for the following categories:
The agreement also calls for expedited processing and transparency of the visa application requirements and procedures, and streamline licensing and skills recognition of workers.
A memorandum of understanding on Investment Facilitation Agreements will allow Chinese-owned companies to negotiate more flexible labour requirements for overseas workers for infrastructure projects of more than A$150 million. They will be negotiated on a case-by-case basis consistent with Australia’s 457 visa system.
BAL Analysis: The agreement will not take effect for some time, as each country must introduce legislation to implement it. In its current form, it represents liberalization of barriers across many categories of workers, business visitors and investors.
What is the change? A new regulation will lengthen the maximum period of stay for foreign workers on Temporary Work (Short Stay) visas to six months (from the current duration of three months).
What does the change mean? This change will give employers greater flexibility in employing temporary foreign workers for up to six months at a time.
Background: In addition to lengthening the duration of subclass 400 visas, the legislation also increases the period of time that the visa is valid before entry, i.e. a subclass 400 visa holder may enter Australia six months from the date the visa is granted, as opposed to three months under current rules.
BAL Analysis: This is a welcome change for employers bringing foreign workers to Australia for temporary work and provides more flexibility for longer stays. Note that the Government has not yet released its policy on how it will adjudicate six-month visa requests. For example, currently, while three months is the maximum duration for subclass 400 visas, the Department of Immigration and Border Protection typically grants six-week visas and only grants three-month visas in exceptional circumstances. Also note that these are consular-issued visas and may be assessed differently based on location.
What is the change? Australia has halted all immigration and visa procedures for nationals of three West African countries.
What does the change mean? Citizens of Guinea, Liberia and Sierra Leone will not be able to apply for visas or humanitarian entry, and even those who already hold temporary visas who have not yet entered Australia will have their visas cancelled.
Background: Immigration Minister Scott Morrison announced the visa ban in Parliament today, placing Australia among a very small minority of countries that have gone so far as suspending all visas. The move coincides with the suspected Ebola case of an 18-year old girl from Guinea in Queensland that turned out to be a false alarm when she tested negative for the virus. Nineteen people from West Africa have been put under home quarantine by the Government.
The Government will cancel previously issued nonpermanent or temporary visas to nationals of the three countries who have not yet travelled to Australia. Those who hold permanent visas will be required to submit to a 21-day quarantine period before departure to Australia.
BAL Analysis: Among the varied responses to the Ebola outbreak globally, Australia’s visa ban represents the policies of a very small but perhaps growing minority of countries.