Minister Coleman has also announced details of the Global Talent Independent Program, which promises to fast-track permanent visas for 5,000 of the world’s best and brightest.

Based on advice from a small panel, the focus will be on a number of industries, including IT, infrastructure, agribusiness, resources, advanced manufacturing, medical technology & pharmaceuticals.

The Department of Home Affairs has embarked on a global roadshow to promote and recruit for the program, and will have permanent representation in six countries.

While the criteria will be broad and flexible, with no salary, labour market testing or occupational classification requirements, the target market is most definitely global talent. Endorsement of the applicant’s talent, for example, by a local employer, industry body or academic institution, will be required.

These permanent applications will be fast-tracked and processed within a month in many cases, and the Minister believes that the program will, over time, have a “transformative impact on the Australian economy”.

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.

Ajuria Lawyers is often asked by clients what other services we provide or can assist with. We thought this might be a helpful table. Please contact your Ajuria Lawyers adviser for more information or to set up a time to discuss.

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.

We can expect to hear a lot more about regional visas.

From 16 November 2019, there will be two new regional visas; 23,000 places in the 2019-20 Skilled Migration Program (over 20% of the total) have been allocated to these new visas. The Government has also allocated over $20 million to promotion, processing and compliance relating to new regional visas.

One of the new visas is based on employer sponsorship, providing a pathway to permanent residence for sponsored employees after 3 years.

While there are still a number of important unknowns, employers should consider the following:

• The new definition of “regional” is likely to only exclude Sydney, Melbourne, Brisbane, the Gold Coast and Perth;
• The list of available occupations is likely to be very extensive, over 670 occupations;
• The position must be located in regional Australia, and 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 (and any family members) are required to live, work and study in regional Australia;
• 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;
• Permanent residence is not based on an offer of permanent and ongoing employment, rather evidence of the applicant’s income, compliance with visa conditions, among other requirements;
• All regional visa applications will be given priority processing.

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

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.

Public Interest Criterion 4020 (‘PIC 4020’) is an important requirement to be aware of and relates to the entire visa program.

PIC 4020 allows the Department of Home Affairs to refuse a visa application if it is determined that:

• Bogus documents have been presented;
• False or misleading information (including concealing information) has been provided; and/or
• The Department is not satisfied of the applicant’s identity.

This may relate to an application that is currently under processing, or a visa held in the 12 months prior to lodging the application. This criterion is intended to increase the level of integrity in visa applications by providing a disincentive to applicants considering holding back information or providing false documents and/or false information.

A common example where PIC 4020 may arise is where an applicant has not disclosed a prior conviction or offence as part of their previous visa application (e.g. an application for a 482 TSS visa or a Working Holiday visa) and then is required to provide police checks for their new temporary visa application or permanent residence application.

If a visa is refused because of PIC 4020, applicants are then unable to apply for another visa for at least 3 years (10 years if the refusal is on the basis of identity). There is the ability to seek a waiver, however, the threshold is high and includes showing compelling and/or compassionate circumstances.

Since the introduction of PIC 4020, we have seen an increase in refusals and many applicants entering into the process unaware of the ramifications of what may be considered a simple non-disclosure or lapse in memory. We remind all applicants to be vigilant when completing application forms.

If you have any question or concern, please contact your Ajuria adviser.

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.

The relocation of a family on a TSS visa can be a stressful and complex process, particularly when children are involved. Parents (and their Australian employers) are often left considering school options at the last minute. While Government schools are free for all Australian citizens and permanent residents, each State and Territory have legislated to allow for the charging of fees to overseas students who wish to attend a Government-run school, and this includes the dependants of TSS visa holders.

The Department of Education of each State or Territory regulates overseas student eligibility for enrolment and all tuition and non-tuition fees.

The table below summarises the main costs for the 2019-2021 school years where these figures have been provided by the relevant State or Territory. This is a dynamic area of state legislation so we anticipate these figures are subject to change with little notice. If you have any questions in relation to dependant school-age children, please contact your Ajuria advisor.

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.

New Zealand has a variety of work visa types, each relating to different work and employer situations.  A quick reference guide is outlined below for the main work visa types.

Essential Skills work visa – this is the most common type of work visa granted for employment in New Zealand.  It can be granted for either 1, 3 or 5 years depending on the  occupation and the hourly remuneration on offer.  This work visa requires the employer to test the local labour market, usually for a two week period.  Where the principal applicant is eligible for a 3 or 5 year work visa, partners (married/de facto/same sex) are eligible to apply for an unrestricted work visa, and dependent children can obtain student visas to permit them to attend school as domestic students.

Talent (Accredited Employer) work visa – this work visa is for employers that hold current Employer Accreditation with Immigration New Zealand.  This allows overseas employees who hold either a permanent or fixed term contract for at least 24 months to be granted a “work to residence” work visa.  This visa type is granted for 30 months, and after working for 24 months (usually for the same employer), the employee will be eligible to apply for residence status through a streamlined process.  There are maximum age (55 years) and minimum base income (currently NZ$55,000) thresholds to be met along with the requirement that the employer’s accreditation status remains valid throughout the work visa validity.

Specific Purpose or Event work visa – this is the ideal work visa where a business is seconding or transferring a worker temporarily to New Zealand.  Typically, workers on these visas are payrolled offshore (although this is not a requirement) and they have a specific reason, for a set time frame, to be in New Zealand.  There is no need for labour market testing.  Some examples of situations where this visa is appropriate could be where an overseas worker:

• is undertaking work activities in New Zealand for the employer’s business, or at a client site, for a specified length of time (could be a few weeks, or up to 3 years);
• has responsibility for Australia and New Zealand, and needs to travel frequently to New Zealand as part of their role (could be for a few days, weeks or months at a time);
• is upskilling New Zealand employees on a product or company processes or assisting with a client project.

 

There are other, less common types of work visas but the above three visas cover most situations.

If you have a work visa question for New Zealand, please contact our office and we will be pleased to introduce you to Karen Justice in our New Zealand office.

 

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.

On 8 August 2019, the Hon David Coleman MP, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, announced the continuation of the pilot Global Talent Scheme.

Re-named the Global Talent Employer Sponsored (GTES) program, the pilot program ran for 12 months to 1 July 2019; the decision to continue followed a review.

The Minister announced that the program had received strong support from industry, and had been successful in attracting the best and the brightest to fill roles in the new economy.

This is despite only 23 businesses having signed five year agreements with the Government, and up to 30 visas having been approved during the pilot program.

In its reporting, the Australian Financial Review noted that there had been some criticism of the requirement to contribute to the Skilling Australians Fund, however the Government has confirmed that there is no intention to relax requirements.

For clients, the GTES remains another option to secure global talent, where business requirements are not adequately met under standard TSS and Employer Nomination (permanent) visa programs.

DISCLAIMER This information is current as of 27 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.

There has been an important change to the policy guidelines relating to 400 visas applied for under the Highly Specialised Work stream (the most commonly used stream for a 400 visa).

This stream is designed to facilitate the entry of overseas workers to undertake work that is highly specialised and non-ongoing – likely to be completed within 3 months or less although in some cases up to 6 months can be obtained. This covers workers with highly specialised skills, knowledge or experience that can assist Australian businesses and cannot reasonably be found in the Australian labour market.

The new recently released policy clarifies work that is considered to satisfy the requirement for a 400 visa and the type of evidence that may be required to prove that the skills cannot be found in the Australian labour market.

1. Highly specialised skills relating to overseas technology

Where the applicant is employed by, or has been trained in relation to goods or services developed by, an overseas company that are being introduced to (or are already in use in) Australia the delegate should be satisfied that this specific (proprietary) knowledge is not available in the Australian workforce, or is of limited availability.

Some examples of these cases include:

• an installer or maintainer of recently imported equipment, which requires specific knowledge to install or maintain;
• a skilled mining engineer advising on a particular procedure or product which is not in use in Australia;
• a training professional seeking to enter Australia to support the introduction of new products (for example, newly developed software), concepts or methods (for example, innovative business management techniques) to the Australian workplace or the opening of an international business in Australia; and
• an internal auditor of an international company who may be required to audit an Australian subsidiary against company-specific control standards.

2. Highly specialised and not reasonably available in Australia

The applicant has highly specialised skills that can be found in Australia, but the skill set in the Australian community is extremely limited so as not to be practicably available to the Australian employer.

This generally means that Australian workers with the applicable skill set are already in employment and are not available. The overseas contractor /Australian business will need to satisfy the delegate that efforts have been made to contract available workers in Australia.

3. Other highly specialised skills

The 400 visa is not intended for workers seeking to perform a role that is generic to their profession. Examples of the sort of circumstances that should prompt further enquiry by a delegate are:

• a team of tradespersons being brought to Australia to perform annual shutdown maintenance in an Australian factory;
• a computer programmer being brought to Australia to assist a company to manage tight deadlines or peak workloads; or
• an electrician being brought to Australia to install electrical wiring in a new housing development.

In these cases the level of evidence required to support the application will vary, depending on the proposed work and the risk profile of the applicant.

A statement by the prospective employer may be adequate evidence, but it is very likely that additional evidence may be required to demonstrate that the skills are not available. This could include evidence of labour market testing or statement from a large reputable employment agency, or assessment by a relevant peak industry body or comment from a relevant union – that the employment skills cannot be found within Australia.

Ajuria Lawyers will advise you of what may be needed for any given application.

DISCLAIMER This information is current as of 31 July 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.

Businesses found to employ workers illegally can face:

• Infringement notices of up to $18,900 per offence;
• Penalties of up to $94,500 per offence if the Department decides to undertake civil penalty proceedings in a court; and/or
• Suspension or cancellation of sponsorship rights.

In the worst cases, individuals and companies can even face criminal prosecution with maximum penalties of imprisonment and fines of up to $126,000 per offence.

“Illegal workers” include:

• Workers without a visa;
• Workers that have a visa but do not have the relevant permission to work in Australia (for example, TSS visa holder working for new employer while still sponsored by their previous employer); or
• Workers that have a visa that allows employment but it is limited (for example, students working beyond their permitted hours).

Even if civil or criminal sanctions are not pursued, employing an illegal worker can affect the ability of a company to sponsor workers. Something as simple as an ‘Illegal Worker Warning Notice’ may later be considered adverse information and can lead to rejection of future sponsorship applications.

It is important to know that the Department can monitor a business at any time. This may be formal monitoring request or an unannounced visit.

Employers must therefore be vigilant in checking work rights of all employees. Some of the steps employers can take include:

• Requesting all new hires to provide evidence of their Australian citizenship/permanent residence/visa status;
• Using the Department’s Visa Entitlement Verification Online (VEVO) checks. VEVO allows an employer to check if a foreign worker has a visa with the relevant permission to work;
• Ensuring compliance with sponsorship obligations at all times in relation to sponsored workers;
• Ensuring care is taken if hiring workers through on-hire arrangements. Do not assume the labour hire company has taken steps to ensure the worker has the relevant permission to work. Best practice is to also request evidence of their visa status and associated visa conditions;
• Maintaining a record of the checks made. This will be helpful in the event of any future audit or monitoring.

Please contact your advisor if your organisation requires assistance with registering for VEVO checks, or if you have any query.

DISCLAIMER This information is current as of 31 July 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.

Employers frequently ask us to confirm the circumstances in which holders of Working Holiday visas may work beyond 6 months, as per their visa conditions.

If the employer has more than one location of work and offers employment in a different location, this will enable the employer to employ the Working Holiday maker for an additional six months at the new location. It is also possible to move the employee between different arms of the business if the employee will work for a different branch or franchise.

Otherwise, depending on the occupation and the skills of the Working Holiday maker, the employer may be able to sponsor the employee for a TSS visa for 2 or 4 years. If the employer would like to retain the Working Holiday maker on an ongoing basis, the best time to initiate the TSS process is three months into the work assignment (to allow enough time to prepare for the TSS visa and minimise any gaps in employment).

If the Working Holiday visa expires while the TSS application is being processed, the employee may work for the employer for an additional (new) six month period once their bridging visa comes into effect. The employee may work for another six months each time a new bridging visa is granted.

Unless a new visa application has been lodged, the circumstances of being able to work beyond 6 months are very limited, including:

• The new employment will be in a specified regional area (defined by post code but excluding all of Sydney) and the new employment relates to specified occupations in specified industries e.g. aged care, tourism and hospitality, agriculture, fishing, forestry;
• The person is critical to the completion of a specialised project that has unexpectedly gone over time. The threshold for this is extremely high and detailed evidence would need to be shown that no one else can do this job. In any case, in this situation, the extension of work rights will only be approved for days or weeks;
• If the person is getting workers compensation payments as a result of a workplace injury;
• The person needs to work in disaster recovery work following a declared major disaster; or
• The workplace has been affected by a major disaster and the person was unable to physically go to work.

You are welcome to discuss specific situations with your Ajuria Lawyers advisor.

DISCLAIMER This information is current as of 31 July 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.