In our October 2019 newsletter, Ajuria Lawyers reminded business sponsors of the importance of ensuring compliance with sponsorship obligations.

The Sponsorship Monitoring Unit of the Australian Border Force (ABF) appears to be very active. During the month of October, 111 sponsors were monitored. Outcomes of these audits included significant penalties, cancellation of approval as a sponsor, being barred from sponsoring other workers for a period and being issued with infringement notices.

The ABF also maintains a public register of sanctioned sponsors; it states that public disclosure aims to deter other sponsors from breaching their obligations and protects foreign workers from exploitation by enabling them to inform themselves about working for a potential sponsor.

The ABF’s current focus appears to be on industry sectors covered by Awards or other industrial agreements; these sectors include hospitality and construction.

The Award system is a complex one. While employment law is outside of our scope as immigration lawyers, we have observed the following:

• Many employers choose to “annualise” wages as this makes it easier to manage payroll. Some Awards or industrial agreements have specific “annualisation” clauses; under one hospitality Award, for example, annualisation requires the salary to be at least 25% more than the base rates of pay, as per the Award. This can result in sponsored employees being paid a salary that may match the salary on their visa approval, that nonetheless does not meet the minimum required under the Award. This constitutes a breach of sponsorship obligations.
• The Australian Border Force also seems to be reviewing whether or not it is appropriate to annualise salaries in the first place.
• In another recent and high profile case, the Fair Work Commission has questioned the appropriateness of claiming an exemption from the Award or industrial agreement, based on the occupational classification (for example, being a manager).
• Some employers have classified sponsored employees differently under the Award and for visa purposes. For example, classified as a Cook for payroll, but as a Chef de Partie for the visa. Such inconsistency is an issue if the employer is monitored. It is important that sponsored employees are employed in their approved occupations, and to be aware that any change in roles after a visa is granted may require the approval of the Department of Home Affairs.

Ajuria Lawyers expects that compliance activities will be a feature of the 2020 immigration landscape, and will continue to work closely with business sponsors to ensure compliance.

DISCLAIMER This information is current as of 16 January 2020 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.

“Accredited” status has delivered many positive benefits for Business Sponsors. As a result of the broadening of the applicability criteria, and the flexible approach adopted by the Department of Home Affairs, many more clients are enjoying the benefits of streamlined documentation requirements and priority processing. The benefits have extended from temporary to permanent visa applications, with permanent residence applications lodged under the Employer Nomination Scheme being processed noticeably faster, if the employer has “accredited” status.

The Department has recently advised that there are approximately 47,000 Standard Business Sponsors, and approximately 2,600 Accredited Sponsors.

Ajuria Lawyers continues to encourage all businesses that are eligible to attain this “Gold Star” status with the Department.

DISCLAIMER This information is current as of 16 January 2020 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’s new Regional Visa program commenced on 16 November 2019. With an allocation of 25,000 places in the 2019-20 Migration Program, the Government sees migrants as part of the solution to populate regional Australia and reduce congestion in the major cities of Sydney, Melbourne and Brisbane.

For employers wishing to sponsor an overseas worker for the new Subclass 494 Skilled Sponsored Regional Provisional Visa, there are almost 650 occupations to choose from.

Occupations on the Medium to Long Term Strategic Skills List (MLTSSL) offer a pathway to permanent residence under the standard Employer Nomination Scheme; any occupation on this list of 216 occupations is an eligible occupation for the Subclass 494 visa.

In addition, there is a dedicated Regional Occupation List (ROL), with 434 occupations, including many that would not be suitable for temporary sponsorship, let alone provide a pathway to permanent residence, under standard programs.

Despite the flexibility around occupations, the Subclass 494 visa requires a number of additional steps, including the requirement for the visa applicant to obtain a positive skills assessment for their nominated occupation. An employer nominating an overseas worker for a Subclass 494 visa must obtain certification from a Regional Certifying Body in relation to Annual Market Salary Rates (AMSR) for the nominated occupation.

Please contact your adviser to discuss regional visa options in more detail.

DISCLAIMER This information is current as of 16 January 2020 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 annual review of occupations lists is underway, with new lists scheduled to be published in March 2020.

The Department of Employment, Skills, Small and Family Business (headed by Senator the Hon Michaelia Cash) is the relevant Department that undertakes the review, and provides its recommendations to the Department of Home Affairs.

In December 2019, the Department of Employment released its “Traffic Light Bulletin” that flags the proposed changes.

Some of the proposed changes – for example, the transfer of ICT Project Manager, Sales & Marketing Manager, Information & Organisation Professionals (each with caveats) from the Short Term to Medium to Long Term Strategic Skills List (MLTSSL) – were enthusiastically welcomed by our clients.

However, it is important to note that the proposed changes are just that – proposed and not guaranteed.

We encourage interested stakeholders to participate in the review process, and consider making an online submission before 12 February, ahead of the finalisation of the lists in March.

For further information about other proposed changes, or how to make a submission, please contact your Ajuria Lawyers’ advisor.

DISCLAIMER This information is current as of 16 January 2020 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 Administrative Appeals Tribunal (AAT) has recently published its annual report, confirming the trend that lodgements of review applications in the Migration & Refugee Division continue to grow at a record rate. During 2018-19, over 36,000 applications were lodged, more than double the number lodged 3 years ago, and there are approximately 60,000 applications awaiting processing.

Unfortunately, based on current resources at the AAT, this means that waiting times are only likely to increase. The average time to finalise a review application is now 68 weeks.

It is also interesting to note the outcome of AAT decisions. During 2018-19, only 30% of decisions were overturned by the AAT and remitted to the Department of Home Affairs for further processing. The balance were affirmed (35%) by the AAT, withdrawn (22%) or otherwise did not proceed.

DISCLAIMER This information is current as of 16 January 2020 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.

Anyone who has applied to sponsor one or both parents to Australia knows that it is a long, uncertain and expensive process.

The demand for Parent visa places within the 2019-20 Migration Program has just become even greater, with the Government announcing the following:

Contributory Parent: 6,096 visas (reduced from 7,175)
Parent: 1,275 visas (reduced from 1,500)

The reduction in places will only add to the already protracted processing times; for Contributory Parent visas, applications lodged in November 2015 are currently being processed, while the wait for standard Parent visas may be decades.

The Government responded with the recent introduction of the new Temporary Parent visa, and has advised that to date, 500 visas have been granted. Its intention is not to allow a backlog to develop and the program has been capped at 15,000 places. This new visa allows parents to stay for 3 years or 5 years, and does not have a pathway to permanent residence, however it does, for example, allow parents to be with their families temporarily in Australia, while their permanent application is under processing.

The Parent visa program is undergoing change in New Zealand too, as set out in the article from our NZ office.

DISCLAIMER This information is current as of 16 January 2020 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 NZ Government has announced that the long-anticipated re-opening of the Parent category will occur in February 2020. This category has been closed since 2016.

The requirements, however, have changed dramatically and have firmly placed the onus for financial stability onto the adult child (and their partner) based in New Zealand. All asset and income testing has been removed from the requirements for the parents, and instead only those adult children who have been earning a significant income for two of the last three years will be able to support their parents through this process.

Further details have yet to be announced but an indicative example is that if an adult child and their partner wish to sponsor two parents (ie Mother and Father), then their combined income level must have been NZ$212,160 for two of the last three years, compared to the previous NZ$90,000.

We are happy to refer further queries to Karen Justice in our Ajuria NZ office.

DISCLAIMER This information is current as of 16 January 2020 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.

Text Goes Here

Text Goes Here

DISCLAIMER This information is current as of 16 January 2020 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 Department of Employment has released their  ‘Traffic Light Bulletin’ which proposes further changes to the occupation lists for the purposes of sponsorship. Stakeholders have been invited to provide written feedback and Ajuria Lawyers is participating in this process. Some of the key proposals are:

• ROL (Regional Occupation List) – not sponsorable in major metropolitan areas, Sydney, Melbourne and Brisbane
• STSOL (Short Term Skills Occupation List) – generally 2 year visa, has no pathway to permanent residency under the standard TSS program
• MLTSSL (Medium to Long Term Occupation List) – generally 4 year visa, has pathway to permanent residency under the standard TSS program

We will continue to provide regular updates on the occupation lists as they occur.

DISCLAIMER This information is current as of 13 December 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 foreshadowed for some months, the Government’s new Regional Visa Program commenced on 16 November 2019.

There are two new regional visas: one based on employer sponsorship, and one for individuals based on a points test.

The new Subclass 494 Skilled Sponsored Regional (Provisional) Visa requires sponsored employees (and any family members) to live, work and study in regional Australia – everywhere in Australia except Sydney, Melbourne and Brisbane.

The visa provides a pathway to permanent residence after three years. In contrast to the standard Employer Nomination program, permanent residence is not based on an offer of permanent and ongoing employment, rather evidence of the applicant’s income and compliance with visa conditions, among other requirements.

Some important points to consider are:

• The training levy is payable once at the provisional visa stage ($3,000 if business turnover is less than $10 million, otherwise $5,000), and is not payable at the time of the permanent residence application;
• The Regional Occupations List has 434 occupations (twice as many as on the Medium and Long Term Strategic Skills List, which offers permanent residence under the standard Employer Nomination program);
• The position must be located in regional Australia, be full time, genuine, and likely to exist for 5 years;
• Labour market testing is required to evidence that the position cannot be filled locally;
• Sponsored employees require a positive skills assessment for their occupation, and must demonstrate Competent English.

The Government has already increased the number of places available for regional visas from  23,000 to 25,000 places in the 2019-20 Skilled Migration Program (over 20% of the total), and is giving priority to promotion, processing and compliance relating to new regional visas.

Should you have an interest in finding out more, please contact your adviser at Ajuria Lawyers.

DISCLAIMER This information is current as of 19 November 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 “trade-off” for faster processing time, as currently offered to Accredited Sponsors in particular, is that businesses can expect to be monitored by the Sponsor Monitoring Unit of the Australian Border Force, or in some cases, Fair Work Australia.

As our clients are aware, it is a legislative requirement that business sponsors maintain accurate records from the date of approval of the sponsorship, ending two years after the first day on which the following events occur concurrently: the business ceases to be an approved sponsor, and there is no sponsored person in relation to the business sponsorship.

The type of information that can be requested can be very extensive, including:

• Details of visa holder employees;
• Copies of signed employment contracts;
• Records of salaries, working hours and leave;
• Current evidence of market salary rates;
• Evidence of tasks being performed by sponsored employees (eg samples of written work, performance reviews).

A monitoring request usually confirms that a response is required within 14 days, and reminds the sponsor of the consequences of non-compliance, including:

• Cancelling the sponsor’s approval as a Business Sponsor;
• Barring the sponsor from accessing certain visa programs;
• Applying for a civil penalty order (up to $12,600 for an individual and up to $63,000 for a body corporate);
• Issuing an infringement notice to the sponsor as an alternative to civil penalty proceedings.

Concerns about non-compliance in certain industries can lead to those industries – currently hospitality and construction – being targeted for monitoring. Please discuss any concern with your Ajuria Lawyers adviser.

DISCLAIMER This information is current as of 29 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.