Some good news to end the week: the Department of Home Affairs has announced that it will not be implementing a recently announced policy change requiring employment contracts for TSS applicants to have an end date.

The change of approach has come about as a direct result of concerns raised by employers and immigration lawyers about the impact of this requirement on sponsors.

In announcing the change of approach, the Department stated:

Ultimately, the intention (of the policy) was to avoid permanent or ongoing contracts being issued to nominees for what is ostensibly a temporary nominated position in the sponsor’s business. It was also intended to ensure sponsors genuinely test the labour market (where this is a requirement) prior to re-employing existing TSS visa holders who have previously been working in the nominated position.

As a result, sponsors now have the choice of either amending their employment contracts for TSS visa applicants to include an end date, or to leave them as they are.

Visa processing officers have been notified that applications should be assessed without an expectation for contracts to have an end date. However it is important for our clients understand that the Department’s view is very clear that the TSS is a temporary visa and that Labour Market Testing efforts are being carefully scrutinised to ensure that they are genuine and not just undertaken to meet visa requirements.

For further information please contact our office.

DISCLAIMER This information is current as of 25 October 2019 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

A couple of recent policy updates relating to employment contracts require immediate attention of sponsoring employers for TSS visas.

The purpose of providing an employment contract is to confirm that the details of employment align with those provided in the nomination, and to confirm that the employment is in accordance with Australian terms and conditions.

While it is generally only “non-accredited” sponsors that are required to submit employment contracts with their nomination applications, it is assumed that ALL sponsoring employers will comply with new policy requirements, specifically:

1. The employment contract cannot be for longer than the maximum period of stay of the TSS visa, meaning that the contract cannot imply ongoing or permanent employment. On a practical level, since the date of approval of the visa is unknown at the time of application, Ajuria Lawyers suggests that contracts could offer employment for the proposed period of the visa (1, 2, 3 or 4 years, as applicable) from the date of approval of the visa.
2. The employment contract cannot pre-date the completion of the labour market testing. The Department expects that the contract is only finalised once the sponsor has confirmed that a suitable local candidate is not available to fill the position.

Failure to comply may result in the nomination being refused, and / or may also have consequences for the sponsoring employer if the sponsor is the subject of monitoring or an audit.

Ajuria Lawyers recommends that sponsors seek the advice of their employment lawyer and ensure that these changes are incorporated in all new employment contracts. Your adviser will also discuss the impact of these changes on any lodged or pending nominations, to ensure compliance with these recent policy shifts.

DISCLAIMER This information is current as of 16 October 2019 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

In both Australia and New Zealand, the ANZSCO dictionary of occupations is used by immigration authorities as its primary reference for determining the roles that are or are not suitable for immigration purposes.

Clients will be familiar with the need to confirm the suitability of a particular ANZSCO classification for a particular role and often find this challenging because of the lack of relevant classifications.

The current ANZSCO dictionary was last revised in 2013. Many of today’s fastest growing jobs in the Australian economy did not exist in 2013, and as a result, the occupations lists, upon which the visa programs are based, are seriously out of date.

There have been widespread calls for urgent review of ANZSCO, however according to the Australian Bureau of Statistics, this is unlikely to occur until after the 2021 Census.

Until then, advisers on both sides of the Tasman, will be challenged when trying to find appropriate classifications especially for occupations in fast-moving and newly emerging industries.

However there is some encouragement for employers and advisers that Australia’s skilled occupation lists are under review (See separate article), even if ANZSCO is not.

DISCLAIMER This information is current as of 18 September 2019 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

The Government has embarked on a review of the skilled migration occupation lists, and will announce new lists in March 2020.

The Department of Employment, Skills, Small and Family Business is responsible for conducting the review, and to support this, will consult with industry, employers, unions and individuals on the occupations required to meet the labour market needs of the Australian economy. This Department will then provide advice to the Department of Home Affairs and other relevant Government agencies.

Consultations will take place between now and December, when the “Traffic Light Bulletin” will be published; its purpose is to identify which occupations have been flagged for a change in status on one of the lists (transfer between Short Term and Medium to Long Term Occupations Lists, or removal altogether). The online formal submission period will then open in December until February, ahead of announcement of the new lists in March 2020.

Ajuria Lawyers encourages all interested clients who would like to be involved in this review, to contact us. As it is 18 months since the last review, it is a good opportunity to provide input on vexing issues related to the occupations lists, and may prompt the Government to bring forward its overhaul of ANZSCO (see separate article).

DISCLAIMER This information is current as of 18 September 2019 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

It often happens that during the course of a 2 or 4 year TSS visa, the sponsor undergoes a re-structure of some kind, whether as a result of a takeover, merger or acquisition. What action is required, and what impact the re-structure has on sponsored employees, depends on a couple of factors, which can be summarised as follows:

Please contact your Ajuria advisor with any query relating to business re-structures, as every situation needs to be carefully assessed and managed.

DISCLAIMER This information is current as of 18 September 2019 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Recent changes to the passenger system at Australian airports have resulted in dual nationality visa holders experiencing issues when seeking to switch between passports to travel in and out of Australia.

The Department of Home Affairs has confirmed that the passenger system can only link a permanent or temporary visa to the first nationality that is entered into their system (ie the passport that is entered as the primary passport for travel at the time of applying for the visa).

While the Department itself can record a secondary passport for visa holders (and it is mandatory to update the Department once a new citizenship or passport has been acquired), the passenger system at the airport cannot do the same.

On a practical level, this means that if a TSS visa holder whose visa is linked to a passport of one country, subsequently acquires another citizenship and wishes to travel on a passport issued by this second country, then the visa holder is likely to encounter delay on entry to Australia. This situation typically arises when the second passport is a more “desirable” one for travel.

Currently, the only way to ensure smooth travel at the airport is to apply for a new visa linking it to the passport of choice for travel.  This is obviously a very time-consuming and expensive exercise, with a second set of Government and legal fees required to enter a different nationality and new passport details.

Given the increasing eligibility of many citizens for a second or more citizenships, and given the natural preference of visa holders to travel on the passport that will afford the most streamlined and stress-free entry at airports, this is becoming an issue.

Ajuria Lawyers understands that the Department is looking into how the passenger system can be rectified, and we will keep you informed.

DISCLAIMER This information is current as of 18 September 2019 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Our readers know that we keep a close eye on progress with processing applications for Australian Citizenship.

This month, Parliament was informed that:

• As of end of July 2019, there were 198,477 applications for citizenship by conferral in the pipeline;
• 145,000 applications were approved in 2017-18, up from 81,000 in 2017-18;
• There was also a 53% increase in refusal of applications in 2018-19;
• The time frame for finalisation of 90% of applications is within 24 months;
• The demand for Australian citizenship has increased 177% in 8 years from 2010.

As previously advised, the Government has invested $9 million in systems and staff, including setting up a task force to focus on complex cases and clear the backlog while maintaining the integrity of the processing system.

Ajuria Lawyers will continue to monitor and provide updates as new information becomes available.

DISCLAIMER This information is current as of 18 September 2019 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Mobile access technology company Kisi has published results of its research on cities around the world promoting the most holistic work-life balance.

Cities were selected based on the availability of reliable data and their desirability for professionals and their families to relocate for work and lifestyle opportunities. A total of 40 cities were selected, and ranked based on a series of factors related to the amount of time a person dedicates to their job:  total working hours, commuting time, holiday leave taken, access to paid parental leave, access to state-funded health and welfare programs, as well as institutional support for gender and LGBT equality, and overall happiness, safety and access to wellness and leisure venues outside of working hours.

The top 15 cities listed were Helsinki, Munich, Oslo, Hamburg, Stockholm, Berlin, Zurich, Barcelona, Paris, Vancouver, Ottawa, London, Toronto, Budapest and Sydney.

Further details of the 2019 research, which is likely to be continued and expanded in the future, may be found here.

DISCLAIMER This information is current as of 18 September 2019 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

As many of our readers may be aware, school children around Australia, and indeed around the world, are planning a second ‘School Strike 4 Climate’ on 20 September 2019.

This time adults are encouraged to join the strike. To facilitate this, a ‘Not Business as Usual’ website has been set up to encourage employers to provide leave to those employees who wish to participate.

Ajuria Lawyers is proud to be one of the hundreds of employers around Australia who will participate on 20 September.

DISCLAIMER This information is current as of 18 September 2019 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Whether based on a visa applicant’s health declaration or formal health check results, an assessment of health is an important part of the visa application process.

Where standard health requirements are not met, and a waiver provision exists, the Medical Officer of the Commonwealth (‘MOC’) assesses the cost to the Australian community for the provision of health care or community services. If deemed to be a “significant cost”, the health requirement is considered not met, resulting in a visa being refused to an applicant, and in some cases, all applicants included in the same application.

There has recently been a change in the policy threshold for “significant cost”, from $40,000 to $49,000, with the time period over which these significant costs are calculated now up to 10 years, or proposed period of stay.

Applicants for permanent residence with ongoing health conditions are likely to receive most benefit from these changes, with the MOC now assessing the costs of services to these applicants over 10 years, rather than for life expectancy.

There appears to be strong public support for such changes, given the number of recent cases where communities have become involved in advocating for the Immigration Minister to intervene to enable a family to remain in their community, where one family member has been unable to meet the health requirement due to the significant cost calculation.

DISCLAIMER This information is current as of 28 August 2019 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.