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IMPACT – LOW
What is the change? Australia is offering multiple-entry visas to Chinese business visitors.
What does the change mean? The visas will facilitate business travel and eliminate the need for frequent visitors to apply for visas each time they enter the country.
Background: In a bid to assist the growing numbers of business travellers, Australia will allow Chinese business visitors to apply for a multiple-entry visa, valid for three years.
The new visas will serve the purpose of “increasing the prospect of repeat visits to Australia, which would be warmly welcomed by our tourism sector,” said the Hon. Andrew Robb, Australia’s Minister for Trade and Investment. “These changes will also support the government’s ambitious trade and investment agenda and increase the opportunities to do business with China.”
Chinese investment in Australia has climbed to $23 billion, an eight-fold increase over the past decade, and Chinese business visitors represented 18.5 per cent of business visa applicants in the first quarter of 2013-14, according to the Minister for Immigration and Border Protection, the Hon. Scott Morrison.
BAL Analysis: The change will simplify the process for frequent Chinese business travellers.
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 – High
What is the change?
As outlined in our news alert of 11 November 2013, the Department of Immigration and Border Protection (DIBP) may require labour market testing (LMT) prior to nominating overseas workers for Subclass 457 visas. The new rule becomes effective 23 November 2013. LMT may be required for both standard and accredited sponsors. LMT is not required under a labour agreement.
DIBP has now released a detailed LMT policy. The policy includes exemptions from LMT as they apply under Australia’s international trade obligations, occupations exempt from LMT by way of gazette notice, when LMT is required, what will suffice as an effort in LMT and additional requirements when a business has retrenched workers.
Exemptions Under Australia’s International Trade Obligations
This is particular welcome news for “Executive or Senior Manager” nominated roles, and for individuals who have already resided in Australia on a subclass 457 visa for at least two years, who are being nominated by the original sponsoring entity for a further subclass 457 visa.
What Occupations are Exempt from Labour Market Testing?
All occupations have been exempted by the government from labour market testing apart from the occupations listed here.
It is evident that all professional positions apart from engineers and nurses have been exempted. It is clear that most semi-professional and trade occupations will require LMT.
Labour Market Testing – What Will Suffice?
It is evident that LMT will only be required when a nomination is not exempt under Australia’s international trade obligations or when a position is not exempt under the government’s list of exempt occupations.
When LMT is required, the following steps must be taken:
DIBP encourages the use of the ‘Summary of Domestic Recruitment Efforts’ Form. The form is attached here. The form is a form of self-compliance. If the form is completed in full by the nominator, this should suffice and no further evidence of LMT should be required. It should be noted that penalties will apply if misleading or false information is provided on the form.
Some positives to take out of the actual mechanisms of LMT:
Additional Requirements for a Business With Recent Retrenchments
If an Australian citizen or permanent resident has been retrenched or made redundant in your business, or an associated entity of your business, within the four months prior to lodging the nomination, the business must also provide information about those redundancies or retrenchments.
The business must undertake LMT after those redundancies or retrenchments.
Policy confirms that this requirement only relates to the same or similar occupations to the nominated occupation. For example, if a construction company made a bricklayer redundant prior to nominating a carpenter, this would not be relevant to the nomination. However, if the same company is nominating a bricklayer, LMT must be conducted prior to lodging the nomination and evidence provided with the nomination.
This is a common sense approach to redundancies.
BAL analysis: The current Australian Government inherited LMT from the previous government. The current government did not support the introduction of LMT, but because of legislative complexities, it is currently unable to rescind the LMT legislation.
It appears that the government has attempted to introduce a LMT ‘light touch’ which will largely be in the form of self-compliance when required. The fact that many occupations have been exempted and some individuals will be exempt under Australia’s international trade obligations ensures that LMT is welcome. When LMT is required, we welcome the large number of advertising options available and the flexible nature in the self-assessment approach.
BAL Australia is holding a webinar to further examine the introduction of LMT, on Friday 22 November 2013, 11.30 am Australian Standard Eastern Time.
This alert has been provided by BAL Australia. For additional information, please contact Australia@bal.com.
IMPACT – Low
What is the change? Australia is planning to add 13 countries to its Working Holiday visa program.
Background: Australia is looking to attract young labour from struggling economies by expanding its Working Holiday visa program. The program allows individuals aged 18 to 30 years old to vacation and work in Australia for up to one year (with a six-month limitation on the period of employment per company) and also permits study for four months. Australia plans to add Greece, Spain and Portugal to the program. Other countries negotiating to join the program are the Czech Republic, Hungary, Israel, Latvia, Mexico, Poland, Slovakia, and Vietnam.
With the largest Working Holiday visa program in the world, Australia issued 260,000 visas under the program in 2012 to 2013. In particular, the visa program has benefited the agriculture, mining, construction and tourism sectors. However, the program is controversial in Australia because it sets foreign workers in competition with local unions. While many applicants engage in low-skilled work to supplement their travel, the program can also be used by recent graduates who would like to train and intern – but who might not have the qualifications or experience to qualify for a subclass 400 or 457 work visa.
BAL analysis: For companies with global training programs, the Working Holiday visa program is a good option for enabling young employees to obtain valuable training and internship experience, as well as limited study.
MARN: 0850984
Starting 23 November, the Department for Immigration and Border Protection will require labour market testing prior to nominating overseas workers for Subclass 457 visas. The new requirement comes under amendments to the Migration Act 1958 and Migration Regulations 1994 (by way of the Migration Amendment Act 2013). This change was anticipated in Berry Appleman & Leiden Australia’s periodical newsletter in September 2013.
While the date has been set for implementation, a few key details remain unknown. Specifically, the Minister for Immigration and Border Protection, The Hon. Scott Morrison Member of Parliament, has not yet released a list of occupations that will be exempt from labour market testing. In addition, the Department of Immigration and Border Protection has not yet clarified what will be considered appropriate evidence to prove that labour market testing has been adequately completed.
Once details on both of these aspects of the law are defined, clients will be better able to see the impact of the new labour market testing requirement.
Berry Appleman & Leiden is closely monitoring the upcoming changes to the Subclass 457 visa program, and shall provide further details regarding these changes as further information comes to hand.
As outlined in our previous alerts, the Australian Government introduced significant reforms to the 457 Temporary Work (Skilled) Program, effective 1 July 2013.
One of these reforms related to a change to primary visa applicants who were taken to be exempt from the requirement to complete English language testing. Since these reforms were applied as part of the relevant ‘time of decision’ criteria, persons whose visa application that had been lodged prior to 1 July 2013 and yet to have been decided would also be subject to the new reforms. Primary visa applicants needed to satisfy the new English language requirements if their applications had not been decided by 1 July 2013.
Effective 1 August 2013, a new legislative instrument will commence. It will provide transitional arrangements for primary visa applicants who:
The legislative instrument also includes a provision for primary subclass 457 visa applicants who must complete English language testing. These applicants may now complete an English language test after lodgement of their visa application to evidence their vocational English language ability.
BAL Comment: BAL welcomes these transitional arrangements and the ability for primary subclass 457 visa applicants to complete English language testing after lodgement of their visa application. BAL was vehemently opposed to the retrospective application for many of the reforms introduced on 1 July 2013. We actively voiced clients’ concerns with senior departmental staff members.