Slide 1 - Migration Institute of Australia
Transcript of Slide 1 - Migration Institute of Australia
TEMPORARY BUSINESS SPONSORSHIP
Trend for 457 Visa Applications Granted
0
20 000
40 000
60 000
80 000
100 000
120 000
1996-97 (2) 1997-98 1998-99 1999-00 2000-01 2001-02 2002-03 2003-04 2004-05 2005-06 2006-07 2007-08 2008-09
Num
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f Gra
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Primary Secondary
Temporary Business Sponsorship
Five main components to temporary business sponsorship:
Standard Business Sponsorship including acceptance of the Sponsorship Obligations
Nomination of the position (skill set – duties/remuneration of the position – ASCO)
UC 457 visa application (dependents, Condition 8107)
Sponsorship obligations in effect
Compliance with Business Monitoring
Temporary Business Sponsorship - Reforms
On 1 April 2009 seven reform measures to the 457 visa were announced:
1) Implementation of a market based minimum salary for all new and existing 457 visa holders from mid September 2009
2) The indexation of the minimum salary level (MSL) for all new and existing 457 visa holders by 4.1% on 1 July 2009
3) Increasing the minimum language requirement from 4.5 IELTS to 5 IELTS for 457 visa applicants in trade occupations and chefs
4) Progressively introduce formal skills assessment from 1 July 2009 for 457 visa applicants from high risk source countries in trade occupations and chefs
Temporary Business Sponsorship – Reforms (cont)
5) Introduction of a requirement that employers attest to having a strong record of, or demonstrated commitment to, employing local labour and non-discriminatory employment practices
6) Development training benchmarks to clarify the existing requirement on employers to demonstrate a commitment to training local labour
7) The extension of the labour agreement pathway as the sole pathway, for all ASCO 5 – 7 occupations
Temporary Business Sponsorship – Worker Protection Act
The Worker Protection Act 2008 commenced on 14 September 2009 with
the following changes:
Redefined sponsorship obligations
Expanded powers to monitor and investigate employer non-compliance with similar powers to the Fair Work Act
Framework for punitive penalties
Improved information sharing
Extensive gathering of information powers
No protection against self-incrimination
Temporary Business Sponsorship – Worker Protection Act (cont)
Powers of Inspectors Gives inspectors the power to enter
place of business or other place without force where they have cause to believe there is information, documents or any other thing relevant to the purpose for which the powers are being exercised
Inspect any work, material, machinery, appliance, article or facility
Temporary Business Sponsorship – Worker Protection Act (cont)
Powers of Inspectors (cont) Interview people Require person who has custody of, or
access to, a document or thing, relevant to the inspection, to produce the document to inspector within specified period
Require a person to tell inspector who has custody of document or thing
To provide a document or thing at a specified place within a specified period (not less than 7 days)
Temporary Business Sponsorship – Worker Protection Act (cont)
Self-incrimination An individual must produce a document
or thing even if incriminates the individual
Document of thing must be provided when requested or required to do so even if: Doing so would incriminate them Doing so would expose them to a penalty
Temporary Business Sponsorship – Worker Protection Act (cont)
Self-incrimination (cont) Other individuals (including migration
agents who are not legal practitioners) may be required produce a record or document when requested relation to an application for a civil penalty order for a contravention
Failure to comply and give all reasonable assistance in connection with such an application could result in a maximum fine of $33,000 for failing to give assistance
Temporary Business Sponsorship – Worker Protection Act (cont)
Self-incrimination (cont) Monitoring powers include site visits to
migration agents’/others’ office, home, sponsor’s worksite, accountant’s office, etc
Legal practitioners are exempted from requirement to give information relevant to an application for a civil penalty order and give all reasonable assistance in connection with such an application because of legal professional privilege
Temporary Business Sponsorship – Worker Protection Act (cont)
Framework for punitive penalties Administrative (cancel / bar sponsorship) Infringements (fines) Civil Penalties (court imposed, for example
Federal Court of Australia, Magistrates Court, etc) Enforce a security that has already taken
Temporary Business Sponsorship – Worker Protection Act (cont)
Framework for punitive penalties – civil penalties
Failing to satisfy sponsorship obligations For an individual: 60 penalty units ($6,600) For a Body Corporate: 300 penalty units
($33,000)
Non compliance with an Inspector For an individual: 60 penalty units (currently
$6,600) For a Body Corporate: 300 penalty units
(currently $33,000) Above penalty is for each failure
Temporary Business Sponsorship – Worker Protection Act (cont)
Criminal Sanctions DIAC are able to prosecute any person who has aided or
abetted (including themselves) of entering into Australia or with an application for a visa or a further visa, which would permit the person (including themselves) to remain in Australia. This includes: Presenting or causing to be presented to DIAC a
document which is forged or false. Making, or causing to be made to DIAC, a statement
that, to the person’s knowledge, is false or misleading in a material particular
Delivering, or causing to be delivered to DIAC, or for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading
Temporary Business Sponsorship - New Business Sponsor Obligations (Cont)
To cooperate with inspectors To ensure equivalent terms and conditions of employment for the
primary visa holder To pay return travel costs, when requested in writing by the primary
sponsored person and/or secondary sponsored person To pay the Commonwealth for locating and removing visa holders
who have overstayed their visa To keep certain records in relation to the person’s approval as a
sponsor and the visa holders they sponsor To provide certain information and records to DIAC Provide information to DIAC when certain events occur Ensure the sponsored person works in the approved occupation The sponsor must not seek to recover certain costs
Temporary Business Sponsorship - New Business Sponsor Obligations (Cont)
Provide equivalent terms and conditions of employment Must provide terms and conditions of employment no less favourable
than those applying to an Australian employee High income ceiling where market rates does not apply -
$180,000 Temporary Skilled Migration Income Threshold (TSMIT) Transitional arrangement for existing workers until 31 December
Obligation commences on: Approval of nomination if existing 457 visa holder; or On grant of visa if not existing 457 visa holder
Obligation ends when the individual ceases employment
Temporary Business Sponsorship - New Business Sponsor Obligations (Cont)
Introduction of ‘Market Rates’ Onus on employer to provide appropriate evidence to DIAC that terms and
conditions of employment (including the nominated salary):– are no less favourable than those that are provided to their equivalent
Australian workers – where there are no equivalent Australian workers, the terms and
conditions are no less favourable than those that would be provided to an equivalent Australian worker at that worksite
Introduction of Temporary Skilled Migration Income Threshold (TSMIT)– Commencing TSMIT is $45,220, will be indexed annually– If Market Rate in workplace is lower, nomination will be refused– Agreed Non-Monetary Benefits can be allowable, as long as they
are also available to Australian workers
Temporary Business Sponsorship - New Business Sponsor Obligations (Cont)
Pay travel costs from Australia Must pay the travel costs of the sponsored persons, including
internal travel Costs are for economy class airfares or equivalent Costs are to be paid within 30 days of receiving request by either
visa holder of DIAC
Obligation commences when nomination approved Obligation ends:
When sponsored person granted another visa Nomination is approved for sponsored person to another sponsor Sponsored person leaves Australia and visa ceased
Temporary Business Sponsorship - New Business Sponsor Obligations (Cont)
Pay costs incurred by Commonwealth The standard business sponsor must pay costs incurred by the
Commonwealth in locating and/or removing the sponsored persons from Australia: If the Minister has requested the payment by written notice These costs will be capped at $10,000 (less any amount paid under travel
costs obligation) This obligation starts to apply on the day on which the sponsored person
becomes an unlawful non-citizen This obligation ends 5 years after the sponsored person leaves Australia The sponsor is only liable for costs up to the point the sponsored person
leaves Australia
Temporary Business Sponsorship - New Business Sponsor Obligations (Cont)
Keep Records
The standard business sponsor must keep records of its compliance with the other obligations All of the records must be reproducible and some must be capable of verification
by an independent person
This obligation starts to apply on the day the person is approved
This obligation ends two years after: The person ceases to be a standard business sponsor; and There is no primary or secondary sponsored persons in relation to the sponsor
Provide Records and Information
The standard business sponsor must provide records or information that goes to determining whether: A sponsorship obligation is being, or has been, complied with; and Other circumstances, in which the Minister may take administrative action, exist or
have existed On request and in the manner and timeframe requested by the Minister.
This obligation starts to apply on the day the person is approved as a sponsor
This obligation ends two years after: the person ceases to be a standard business sponsor; and there is no primary or secondary sponsored persons in relation to the sponsor.
Temporary Business Sponsorship - New Business Sponsor Obligations (Cont)
Notify DIAC
The standard business sponsor must provide certain information to DIAC when certain events occur: This information must be provided by post or electronic mail, to a specified address
and within certain timeframes of the event occurring A list of the information, events and time periods will be made available on the
department’s website at www.immi.gov.au/skilled as soon as possible after the regulations are made
This obligation starts to apply on the day the person is approved as a sponsor
This obligation ends on the concurrence of the following two events: the person ceases to be a standard business sponsor; and there are no primary or secondary sponsored persons in relation to the sponsor
Temporary Business Sponsorship - New Business Sponsor Obligations (Cont)
Not employ in an occupation other than an approved occupation
The sponsor must ensure that the primary sponsored person does not work in an occupation other than the occupation most recently approved New nomination required in respect of new occupation
No independent contractors, unless exempt occupation This obligation starts to apply on:
The day the primary sponsored person is granted a Subclass 457 visa, or If the primary sponsored person already holds a Subclass 457 visa, the day the
sponsor’s nomination for the primary sponsored person is approved This obligation ends on the day:
on which the Minister approves a nomination by another sponsor in relation to the primary sponsored person
on which the person is granted a further substantive visa the person has left Australia and no longer holds a visa
Temporary Business Sponsorship - New Business Sponsor Obligations (Cont)
Temporary Business Sponsorship - New Business Sponsor Obligations (Cont)
• 2311-11 General Medical Practitioner
• 2311-81 Medical Practitioner in Training
• 2312-11 Anaesthetist
• 2312-13 Dermatologist
• 2312-15 Emergency Medicine Specialist
• 2312-17 Obstetrician and Gynaecologist
• 2312-19 Ophthalmologist
• 2312-21 Paediatrician
• 2312-23 Pathologist
• 2312-25 Specialist Physician
• 2312-27 Psychiatrist
• 2312-29 Radiologist
• 2312-31 Surgeon
• 2312-79 Specialist Medical Practitioners nec
• 1112-11 General Manager
Exempt Occupations – Medical Practitioners
No need for the sponsor to be the direct employer As sponsored person can work in the business of the sponsor, and
associated entities of the sponsor and work for others either simultaneously or consecutively eg as locums at various hospital clinics, and between employers throughout the visa validity
Not to recover certain costs
The standard business sponsor must not recover, or seek to recover, all or part of the costs (including migration agent costs) That relate specifically to the recruitment of the primary sponsored person Associated with becoming or being a sponsor or former approved sponsor
This obligation starts to apply on the day: The primary sponsored person is granted a Subclass 457 visa, If he or she already holds a Subclass 457 visa, the day the Minister approves the
sponsor’s nomination for the person This obligation ends on the day:
On which the Minister approves a nomination by another sponsor in relation to the primary sponsored person;
On which the person is granted a further substantive visa The person has left Australia and no longer holds a visa
Temporary Business Sponsorship - New Business Sponsor Obligations (Cont)
Responsibility shifts to visa holder (condition 8501) to maintain adequate arrangements for health insurance for new applicants
Requirement to have and maintain cover for life of visa Will be checked, including for new nominations and new visa
applications Some have access to reciprocal health cover, but this is not
automatic and must be applied for once they are in Australia
Transitional arrangements for existing visa holders Temporary obligation continues for life of current visa
Temporary Business Sponsorship – Visa Holders
Temporary Business Sponsorship – Monitoring
Powers of monitoring under 14 September changes: Range of options include warnings, infringements
(fines), barring and cancellation and civil offences Increased role of enforcement with particular focus on
white collar positions / professional businesses Targeted monitoring and compliance operations Focus on change in nominated occupation for 457 visa
holders Third party involvement –aiding and abetting
Any questions?