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Slide 1 - Migration Institute of Australia

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  • 1. TEMPORARY BUSINESS SPONSORSHIP
  • 2. 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 NumberofGrants Primary Secondary
  • 3. 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
  • 4. 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
  • 5. 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
  • 6. 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
  • 7. 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
  • 8. 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)
  • 9. 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
  • 10. 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
  • 11. 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
  • 12. 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
  • 13. 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
  • 14. 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
  • 15. 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
  • 16. 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
  • 17. 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 –
  • 18. 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
  • 19. 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
  • 20. 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
  • 21. 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)
  • 22. 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)
  • 23. 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)
  • 24. 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
  • 25. 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)
  • 26.  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
  • 27. 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
  • 28. Any questions?

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