Reforms to migration law & the impact of removing dual regulation to immigration lawyers

What?

Last year, the Australian Federal Government introduced the Migration Amendment (Regulation of Migration Agents) Bill 2018 into Parliament. The Bill, which was initially expected to come into effect on 30 June 2019[1] but will now more likely be in 2020, amends existing legislation under the Migration Amendment Act (No. 3) 1992 (Cth) and the Migration Act 1958 (Cth) (‘the Act’), where sections 280 and 281 together create a general prohibition on a person who is not a registered migration agent from providing or charging fees for “immigration assistance”.[2]

The new legislation exempts lawyers from registration with the Office of Migration Agents Registration Authority (OMARA). This means that lawyers currently or looking to practice Australian immigration law will be regulated entirely by their relevant State or Territory legal professional bodies.

Why?

This proposed amendment follows recommendations from the 2014 Independent Review of the OMARA (‘the Kendall Review’),[3] and has long been supported by the Australian government. Senator Concetta Fierravanti-Wells highlights the importance of the Bill in removing unnecessary red tape, and states that the current system of dual regulation ‘poses an unnecessary burden on such lawyer agents, who are already subject to a strict professional regulatory scheme’.[4]

The impact on lawyers wanting to specialise in immigration law

Some concerns have been expressed about the changes – specifically, whether such deregulation could cause an influx of new lawyers entering this practice space,[5] and also whether the new legislation puts clients at risk of receiving incompetent legal advice from practitioners who do not have the knowledge or skills in this complex area of law practice.[6]

However, the legal profession regulatory bodies and schemes – such as the Legal Profession Uniform Law (NSW) and Legal Profession Uniform Law Application Act 2014 for practitioners in NSW – already hold high and strict professional standards for legal practitioners and there are harsh penalties for improper conduct by legal practitioners. Moreover, compensation is available for affected clients.

Migration law is a highly specialised and complex area, so it is unlikely that lawyers will enter this space without first undertaking proper training to develop a strong knowledge base and skillset required for migration law practice.

Once changes are due to come into effect, Integrate Legal will host a full-day workshop for legal practitioners looking to specialise in immigration law. The workshop will deliver the practical knowledge and skills required so that they are ready when the changes come into effect. The workshop, held in the lush surrounds of George Heights in Mosman, and overlooking Sydney’s harbour, will offer insight into this challenging, diverse and rewarding area of law. For those interested in the workshop, please email hello@integratelegal.com to be kept up to date.

[1] Most recent updated explanatory memorandum (with amendments to schedules)

[2] http://proctor.qls.com.au/?iid=161439&utm_source=Proctor+Online&utm_campaign=d9a5bc527b-proctor-online-october-email-27Sep2018&utm_medium=email&utm_term=0_597816ca6a-d9a5bc527b-228390665#folio=14

[3] Lawyers Weekly article, 6 October 2017 https://www.lawyersweekly.com.au/sme-law/22025-migration-agents-air-concerns-over-harsh-bill

[4] Senator Concetta Fioretta-Wells, Second Reading Speech, 8 May 2018: http://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansards/b29b19e4-89dc-4213-a2d2-a6a79205af0e/0130/hansard_frag.pdf;fileType=application%2Fpdf

[5] http://proctor.qls.com.au/?iid=161439&utm_source=Proctor+Online&utm_campaign=d9a5bc527b-proctor-online-october-email-27Sep2018&utm_medium=email&utm_term=0_597816ca6a-d9a5bc527b-228390665#folio=14

[6] Senator Concetta Fioretta-Wells, Second Reading Speech, 8 May 2018: http://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansards/b29b19e4-89dc-4213-a2d2-a6a79205af0e/0130/hansard_frag.pdf;fileType=application%2Fpdf

Our gorgeous new boardroom

Peekaboo! I see a (new) boardroom! We at Integrate Legal are loving the recent fit-out of our boardroom done by the wonderful people at Wool+Hay. The layers and flexibility afforded by glass doors and soft curtains sweep natural light into our functional yet stylish office.

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Seasonal Worker Program

Background to the program

The Australian Government is focused on developing a strong northern Australian economy, as an area with many resources and access to international markets.[1] A major part of this agenda means attracting Australian businesses and workers to come and work in Northern Australia.

However, the Government’s White Paper on Developing Northern Australia: Our North, Our Future has highlighted the challenges for employers in Northern Australia in attracting workers:

  • Industries in Northern Australia requiring flexible and mobile labour;

  • The significant personal and financial barriers for Australian workers to move to, and within, north Australia;

  • Economic and labour market conditions differing significantly both at regional and sub-regional level.[2]

In response to these challenges, Australia has established a number of labour schemes with the Pacific Islands, one of which is the successful Seasonal Worker Program (SWP).

Overview of the program

SWP began in July 2012 following a successful four-year pilot scheme, with the stated objectives to fill seasonal labour shortages in the Australian agricultural sector, accommodation sector and the tourism sector, as well as to contribute to the economic development of the Pacific Islands and Timor Leste.[3]

Since its introduction, the program has quickly expanded to meet demand, including by expanding the types of sectors eligible to recruit workers, and by removing a cap on the number of workers eligible for the program.[4]

How does it work

Through the SWP, employers who have been approved by the Australian government can recruit low skilled or unskilled seasonal workers from Pacific island countries and Timor-Leste.

Workers can apply for a Temporary Work (International Relations visa (subclass 403) in the Seasonal Worker Program stream.[5] Their visas are valid for the period of the employment contract, which can be granted for up to 3 years, however with the condition that they only stay in Australia for 7 months in a year, or 10 months if they are from Kiribati, Nauru or Tuvalu.[6]

Who has already signed up

Since 2012, more than 25,000 workers from the Pacific and Timor Leste have worked in Australia through the program,[7] with over 6,166 workers arriving in FY 2016-17.[8]

Managing Director of employment agency The Job Shop, Andrew Coldbeck, stated that there has been a big shift in interest towards the Seasonal Worker Program across Northern Australia, as employers seek a more stable workforce, and workers they can rely on to return year-in-year-out.[9]

Who might benefit from it

Hence, the program provides clear benefit to Australian businesses who cannot find Australian labour to meet their seasonal needs. Businesses develop strong relationships with the workers, who they train and can rely on to return next season. They also report increased efficiencies by having access to a productive seasonal workforce with reduced absenteeism and staff turnover.[10]

Media controversy has emerged this year in relation to the SWP, with 14 Pacific Island workers having died working in Australia over the course of the program.[11] These incidents highlight broader issues of exploitation of workers in the horticultural industry in Australia, and provide a crucial reminder to employers that foreign workers must be subject to fair working conditions, just as Australian workers should be.

However, despite these concerns, the SWP has clearly held a positive impact for workers as well. According to the World Bank’s 2017 report, workers are bringing home on average a fourfold increase in income to their families and communities, and reporting extremely high satisfaction with the program.[12]

[1] Department of Industry, Innovation and Science, https://www.industry.gov.au/strategies-for-the-future/northern-australia-agenda

[2] Department of Foreign Affairs and Trade, Design Summary: Pastoral Care Support Services Program: Northern Australia Worker Pilot Program, https://dfat.gov.au/about-us/publications/Documents/pacific-microstates-pastoral-care-support-services-program-design-summary.pdf

[3] Department of Jobs and Small Business, https://www.jobs.gov.au/seasonal-worker-programme; Government Response to the Joint Standing Committee on Migration report, Inquiry into the Seasonal Worker Programme, https://docs.jobs.gov.au/system/files/doc/other/government_response_to_seasonal_change_report_0.pdf

[4] World Bank report, http://documents.worldbank.org/curated/en/572391522153097172/pdf/122270-repl-PUBLIC.pdf.

[5] Department of Home Affairs, 403 visa: https://www.homeaffairs.gov.au/trav/visa-1/403-

[6] Department of Home Affairs, 403 visa: https://www.homeaffairs.gov.au/trav/visa-1/403-; PAMS [Sch2Visa403] 4.15.10

[7] DFAT, Pacific Labour Mobility, https://dfat.gov.au/geo/pacific/engagement/pacific-labour-mobility/Pages/default.aspx

[8] World Bank report, http://documents.worldbank.org/curated/en/572391522153097172/pdf/122270-repl-PUBLIC.pdf, x.

[9] ABC news article, ‘Seasonal Workers Program a growing trend for Top End farms, http://www.abc.net.au/news/rural/2017-05-15/seasonal-worker-program-a-growing-trend-for-northern-farms/8511226

[10] ABC, ‘Seasonal Worker Program in Australia gets backing from farmers but with concerns about rogue operators’, http://www.abc.net.au/news/rural/2017-12-21/seasonal-worker-program-supported-by-farmers/9276672

[11] SBS News, ‘Who are Australia’s seasonal workers’ https://www.sbs.com.au/news/who-are-australia-s-seasonal-workers

[12] ABC, Australia’s Seasonal Workers Program a win for Pacific Islanders, too’ http://www.abc.net.au/news/2018-05-30/pacific-islands-australian-seasonal-workers-program-fruitpicking/9807894; World Bank report, http://documents.worldbank.org/curated/en/572391522153097172/pdf/122270-repl-PUBLIC.pdf.

Northern Australia Worker Pilot Program

Background to the program

In 2015, the Australian Government released its first White Paper on Developing Northern Australia, with a plan to promote the development of Northern Australia. One of the major challenges the paper highlighted was access to skilled labour.[1]

Northern Australia faces various challenges in attracting workers, including:

  • Industries in Northern Australia requiring flexible and mobile labour;
  • The significant personal and financial barriers for Australian workers to move to, and within, north Australia;
  • Economic and labour market conditions differing significantly both at regional and sub-regional level.[2]

Overview of the program

These challenges have led to the Australian government introducing a new pilot program called the Northern Australia Worker Pilot Program in 2015 to expand access to overseas workers, in order to address unmet labour demand. [3]

Through the program, employers from certain industries who cannot fill positions from the Australian labour market are able to recruit workers from the small Pacific Island states of Kiribati, Nauru and Tuvalu.[4]

How it works

Up to 250 citizens from Nauru, Tuvalu and Kiribati can obtain a three-year 403 Temporary Work (International Relations) visa to work in Northern Australia.[5]

Who has already signed up

One of the first companies to be part of the pilot program was the owner of the One&Only Hayman Great Barrier Reef resort, Mulpha International Bhd.[6]

Whilst the business performs strongly, Mulpha’s Executive General Manager, Allan Renkema highlighted the difficulty of getting good-quality, long-term staff to work in these remote locations.

The resort usually hires backpackers, hospitality trainees and interns, but these are short term labour solutions.[7] Now, 54 i-Kiribati workers are employed on Hayman and Hamilton Island in hospitality, and the business has called the program a success, reporting a more stable workforce and improved work culture.[8]

Who might benefit from it

Hence, the scheme has shown to be important for Australian businesses such as One&Only, who now have access to a long-term, reliable workforce, despite operating in remote/regional locations of Northern Australia.[9]

The program notably also benefits workers from the Pacific themselves, who have more opportunities to work, earn income for their families in the Pacific, and increase their skills and experience, which is otherwise often not available in their home countries.[10]

[1] Pacific Trade Invest, Bringing iKiribati Workers to Australia https://pacifictradeinvest.com/success-stories/export-success-stories/bringing-ikiribati-workers-to-australia/

[2] Department of Foreign Affairs and Trade, Design Summary: Pastoral Care Support Services Program: Northern Australia Worker Pilot Program, https://dfat.gov.au/about-us/publications/Documents/pacific-microstates-pastoral-care-support-services-program-design-summary.pdf

[3] Australian Government: Our North, Our Future: White Paper on Developing Northern Australia, https://www.industry.gov.au/sites/g/files/net3906/f/June%202018/document/pdf/nawp-fullreport.pdf

[4] Minister for Foreign Affairs, Joint Media Release: Labour Mobility and the Northern Australia Worker Pilot Program: https://foreignminister.gov.au/speeches/Pages/2017/jb_sp_171124.aspx

[5] Minister for Foreign Affairs, Joint Media Release: Labour Mobility and the Northern Australia Worker Pilot Program: https://foreignminister.gov.au/speeches/Pages/2017/jb_sp_171124.aspx; Ministry of Employment and Human Resources, Kiribati: http://www.employment.gov.ki/index.php/overseas-employment/nawpp-australia

[6] Ministry of Employment and Human Resource Kiribati, Bringing I-Kiribati workers to Australia: http://www.employment.gov.ki/index.php/overseas-employment/nawpp-australia

[7] Pacific Trade Invest, Bringing iKiribati Workers to Australia https://pacifictradeinvest.com/success-stories/export-success-stories/bringing-ikiribati-workers-to-australia/

[8] Pacific Trade Invest, Bringing iKiribati Workers to Australia https://pacifictradeinvest.com/success-stories/export-success-stories/bringing-ikiribati-workers-to-australia/

[9] Minister for Foreign Affairs, Joint Media Release: Labour Mobility and the Northern Australia Worker Pilot Program: https://foreignminister.gov.au/speeches/Pages/2017/jb_sp_171124.aspx;

[10] Australian Government: Our North, Our Future: White Paper on Developing Northern Australia, https://www.industry.gov.au/sites/g/files/net3906/f/June%202018/document/pdf/nawp-fullreport.pdf; Nick Vol, DFAT Blog: https://blog.dfat.gov.au/2018/01/10/from-paradise-to-paradise-i-kiribati-workers-shine-on-hamilton/

Immigration update

Departmental name change

The Department of Immigration has changed its name and is now called the Department of Home Affairs.

Removal of subclass 457 visa

The subclass 457 visa is no longer available and was replaced on 18 March 2018, with the Temporary Skills Shortage visa, subclass 482.

Key features of the TSS visa

There are 2 visa streams – depending on whether the occupation nominated is on a short-term list or a medium and long-term list.  The key differences in these streams are outlined below:

Short-term Skilled Occupation List (STSOL)

  • No pathway to permanent residence
  • 2 year visa term with only 1 renewal permitted

Medium and Long-term Strategic Skills List (MLTSSL)

  •  Pathway to permanent residence after 3 years
  • 4 year visa term with unlimited renewals permitted

Introduction of new requirements for the TSS visa

  • Labour Market Testing

Sponsor employers must carry out Labour Market Testing prior to lodgement of the TSS nomination application (unless an International Trade Obligation exemption applies).

  • Work experience

Visa applicants must have at least two years’ work experience (undertaken in the last 5 years) in their nominated occupation or a related field.

Skilling Australians Fund training levy (SAF)

The SAF bill was assented to on 8 May 2018, however is yet to come into effect.     Once in effect, sponsor employers will be required to make a financial contribution to a training fund, called the Skilling Australians Fund, each time they nominate an employee for a TSS visa.  That is:

  • $1,200 per year of visa (or part year) for small businesses (those with annual turnover of less than $10 million); OR
  • $1,800 per year of visa (or part year) for other businesses.

For permanent residence applications, there will be a one-off levy of $5,000.

New Global Talent Visa on 1 July 2018

This visa will be introduced on 1 July 2018 and will provide certain concessions in TSS and permanent residence visa criteria for certain applicants.  There will be two application streams:

1.       The Established Business Stream; and

2.       The Start-Up Stream.

Additional details are yet to be released.

457 visa - 1 July 2017 changes

 

Changes impacting the sponsor and nomination

Eligible occupations lists

  • The Immigration Department has revised the eligible occupations list for the subclass 457 visa to expand the Medium and Long-term Strategic Skills List (MLTSSL) providing a four year temporary visa option.  Occupations nominated from this list also have a future pathway to make an application for permanent residence. 
  • Recent inclusions are Chief Executive Office, ICT Security Specialist and Software Programmers.
  •  Some occupations have been restored to the Short Term Skilled Occupations List (STSOL) providing a two year temporary visa option, while others have been permanently removed as eligible to nominate for a subclass 457 visa. 
  • Removed occupations include; Medical Administrator, Shipping Professionals and Psychotherapists.
  •  Current visa holders who have a current subclass 457 visa under one of these occupations can continue to remain and work for the duration of their visa.  Those requiring a future renewal should seek advice as soon as possible to determine options.

Caveats on Occupations

  • Certain occupations on both the MLTSSL and STSOL have additional caveats which must be met in order to nominate this occupation in your business.  
  • Caveats which can apply include, minimum salary levels for the position, restrictions to the size and turnover of the business making the nomination, years of experience of the applicant.

Training obligations

  • The Immigration Department have tightened the evidentiary requirements for training expenditure which will no longer allow the inclusion of induction training, training which is not relevant to the business’ industry, attendance at conferences and membership fees.

Changes impacting the Visa applicant

 English language requirements

  • The English language requirements for the subclass 457 visa is Vocational English.  Exemptions apply for certain passport holders and those who can evidence that they have completed five years full time education in English at secondary or tertiary level. 
  • The high salary exemption (A$96,400) for English has been removed except where the applicant is an intercompany transferee.  

Mandatory Police checks

  • All subclass 457 visa applicants who are aged 16 or older will be required to provide police clearance certificates from any country that they have lived in for 12 months or more in the last 10 years. 
  • This is a mandatory requirement for any 457 visa application lodged on or after 1 July 2017.

Formal Skills Assessments (some occupations)

  • Formal skills assessments for subclass 457 visa are only required for a small number of occupations including Specialist Managers (nec), Project and Program Administrators and some trade occupations.  This was expanded to include passport holders from Bangladesh, Nepal and Pakistan in the occupations of Chef and Cook in July 2017.
  •  These changes have been introduced by the government to strengthen the skilled work migration programs and result in stricter eligibility criteria and more detailed evidentiary requirements. 
  • The above changes will impact the documentation requirements for each application and it is recommended that an individual eligibility assessment is conducted for each new nomination and candidate to ensure compliance with current legislation. 
  • Assessment and preparation times for applications will lengthen with the increased obligations, particularly the need to obtain police clearances. Similarly, immigration department processing times are likely to significantly extend.  This should be communicated to the business and applicants to manage their expectations regarding the timing of the application process.

Future changes

Between now and March 2018 it is expected that the Immigration Department will continue to review the eligible occupations lists for subclass 457 visas.   Applicants will also be required to provide tax file numbers for data matching with other agencies.  Increased sanctions for sponsors who are non compliant may also be introduced.

In March 2018 the subclass 457 visa will be abolished and a new temporary skilled visa will be introduced.  Proposed changes include:

  • Changes to the training obligations requiring sponsors to make a payment to a training fund for each sponsored employee.
  • Two streams – a Short term, two year stream and a Medium Term, four year stream.  Each will have different criteria including a higher English language requirement for the Medium Term stream.
  • Labour Market Testing for all positions unless an international trade obligation applies.
  • Two year post qualification work experience requirement will be mandatory for all nominated applicants.
  • Police Checks will continue to be mandatory

Information from the Immigration Department is regularly updated but cannot be confirmed until specific legislation changes are released. 

As with the recent updates in April and July, changes can also be applied to applications which are lodged and not fully decided on the date, thus having a retrospective effect on lodged applications.  We will keep you updated as further information becomes available. 

For further information please contact the following:

Rita Chowdhury:  rita@integratelegal.com       Nicole Guillaume:  nicole@integratelegal.com

 

Changes to the subclass 400 visa subclass

Changes from 19 November 2016

The Temporary Work (Short Stay) visa, subclass 400 is now called the Temporary Work (Short Stay Specialist) visa, subclass 400.

Prior to 19 November 2016, there were 3 application streams depending on whether the purpose of the applicant’s stay.  These were:

1.      specialised work;

2.      invited participant; or

3.      national importance.

The key change to the visa subclass is the removal of the last two of the three streams.

The new subclass 400 visa is now solely for persons who wish to travel to Australia to undertake:

- short-term, highly specialised, non-ongoing work; and/or

- in limited circumstances, participate in an activity or work relating to Australia’s interests.

The criteria for the visa has remained largely the same as it was previously for the specialised work stream.

For more information, do not hesitate to contact us.

Applying for Accredited Sponsorship - 1 July 2016 changes

What the advantages of becoming an Accredited Sponsor?

·        your sponsorship is valid for six years

·        you will receive priority processing of all nomination and visa applications.

How to apply for sponsorship accreditation

Accredited status can be applied for by either submitting a new sponsorship application or applying for a variation of a current sponsorship agreement.

If you do not meet the accredited sponsor requirements you will then be assessed in relation to the requirements for standard business sponsorship.

What are the requirements for accredited status?

You must be:

  • be a government agency, a publicly-listed company, or a private company, with a minimum of AUD 4 million turnover per year for the last three years
  • have been an active subclass 457 visa sponsor for the past three years (with a break of no more than six months, not due to any sanction)
  • have no adverse information known about you based on monitoring by us and the Department of Education, Employment and Workplace Relations
  • have sponsored at least ten primary subclass 457 visa holders granted in the last 24 months
  •  have an excellent record of compliance with immigration and workplace law
  • have lodged a high level of decision-ready applications over the previous two years
  • have a non-approval rate of less than three per cent for the previous three years
  •  have Australian workers comprising at least 75 per cent of your workforce in Australia and a commitment to maintain this level
  • have all 457 holders engaged as employees under a written contract of employment that includes at least the minimum employment entitlements as required under the National Employment Standards (unless their occupation is exempt from this requirement).  A copy of a template contract that you use must be attached to the application
  • have all Australian employees paid in accordance with an Enterprise Agreement or an internal salary table that reflects the current market salary rates for all occupations in your business. 

A copy of the Enterprise Agreement or internal salary table must be attached to the application in addition to evidence and a description of how the business used the evidence to determine that the salary rates contained in the document reflect the current market salary rates for occupations in your business (for example: awards, remuneration surveys, job advertisements, the Australian Government’s Job Outlook).

In addition, you must:

  • have provided details of all business activities undertaken by your business to the department.  Evidence relating to the other business activities must be attached to the application (for example: profit / loss statements, Business Activity Statements, annual reports); and
  • have provided details of all Principals / Directors of your business to the department.  If the business is a company, a current / historical extract from the Australian Securities and Investments Commission (ASIC) must be attached to the application.

What are accredited sponsors under the new program eligible for?

Sponsors approved for accredited status after 1 July 2016 will also be eligible for streamlined processing of nominations where the nominated base salary is equal to or greater than either of the following:

  • the Fair Work High Income Threshold (currently AUD 136,700) and the occupation is classified as skill level 1 or 2 in the ANZSCO;

OR

  • AUD 75,000 and the occupation is classified as skill level 1 or 2 in the ANZSCO with the exception of the following occupations:

o   recruitment consultant

o   sales representative (industrial products)

o   customer service manager

o   corporate general manager

o   procurement manager

o   quality assurance manager

o   sales and marketing manager

o   specialist manager not elsewhere classified

o   hotel/motel manager

o   contract administrator

o   information and organisation professionals not elsewhere classified.

Important issues to note

  •   You must continue to meet the requirements of accredited sponsorship during the approval period otherwise your accredited status will be revoked.
  •   Sponsors with accredited status must still comply with all sponsorship obligations.

Contact us for more information or assistance.