TSMIT review a call to action for certain business sponsors

Mr John Azarias – Chair of the most recent review into the 457 visa programme – was appointed in December 2015 to undertake an evidence based review of the Temporary Skilled Migration Income Threshold (TSMIT). The TSMIT (the ‘market salary’ benchmark beneath which a subclass 457 nomination will be refused) has been effectively frozen at $53,900 since July 2013.

Stakeholder submissions have now been collected in connection with the review, and the report is due to be tendered to the Minister in April. Whilst specific outcomes are difficult to predict, these may include a tiered TSMIT based on regional areas and/or industry sector. However, it is almost certain that the moratorium on indexing the TSMIT will come to an end, and take effect from as early as July 2016.

An increase to the TSMIT will render some roles ineligible for sponsorship if the market rate for that occupation is below the new TSMIT. Should the TSMIT be increased and pegged to the All Employees Average Weekly Total Earnings, recent ABS data would suggest that the new threshold could be around $59,540.

Nominations for roles in skilled, but traditionally lower paid sectors such as nursing and hospitality would be impacted most by the change, as would roles paying a commissionable component from a low base rate of pay.

Call to action

Under law, the applicable TSMIT governing market rates is the threshold in place at the time the nomination application is approved. This means that depending on timing, an application with a ‘marginal’ annual earnings may be invalidated if the TSMIT increases between lodgement and finalisation. At present, the DIBP’s published service standard for processing such applications is up to 3 months.

Sponsors who are potentially affected by the changes can take steps to insure against an increase by bringing forward lodgement of a genuine nomination application and effectively preserving the lower TSMIT for up to 12 months (the standard validity period of a subclass 457 nomination application). An associated subclass 457 visa application can be subsequently lodged against the approved nomination at any time during its validity period.

Timing, and meticulous preparation are crucial components to this strategy, and should be discussed with us, or your current qualified immigration professional.

FCB Smart Visa will continue to provide updates on new migration legislation as it becomes available. If you have any migration matters that you would like to discuss, please call one of our migration agents on 02 9922 5188.


New Innovation Visa to be Offered

Prime Minister Malcolm Turnbull’s innovation policy has included plans to encourage the best and brightest to choose Australia to start their business. A new innovation visa, which will be introduced in December next year, will be used to actively promote Australia as a destination of choice for many entrepreneurs and business people, and will serve to offer a more direct pathway to permanent residence for those with science, technology, engineering, mathematics and ICT qualifications.

The visa will be open to those with innovative ideas, and the financial backing of a third party. Prime Minister Turnbull has said that the higher-quality and more innovative they are, the more they will drive jobs and meet the demands of Australian businesses.

If the business of those entrepreneurs who have obtained a provisional visa is successful, they would gain more points towards a skilled independent visa, giving them a greater chance to gain permanent residence.

FCB Smart Visa will continue to provide updates on the new innovation policy and visa as information becomes available. If you have any migration matters that you would like to discuss, please call one of our migration agents on 02 9922 5188.

Labour Market Testing and the China Australian Free Trade Agreement (ChAFTA)

It has been determined that the imposition of Labour Market Testing would ultimately be inconsistent with Australia’s international trade obligations arising under the China-Australia Free Trade Agreement (ChAFTA), hence, Labour Market Testing is not required for the following occupations when the ChAFTA comes into force:

  • Executives, senior managers, and managers, as intra-corporate transferees
  • Specialists and intra-corporate transferees
  • Independent executives
  • Contractual service providers

FCB Smart Visa will continue to provide updates on ChAFTA’s effect on Australian visa programmes as information becomes available. If you have any migration matters that you would like to discuss, please call one of our migration agents on 02 9922 5188.

New Legislation Outlaws Payment for Visa Outcomes – Update

Following on from our news item dated 25 September 2015, it has been announced that The Migration Amendment (Charging for a Migration Outcome) Act 2015 received Royal Assent on 30 November 2015.

The legislation brings into effect a new criminal and civil penalty framework for organisations and individuals found to have received, offered or provided payment or other benefits in return for a range of visa sponsorship related events. These offences may now be punishable by a maximum of 2 years imprisonment or a fine equivalent to $64,000 for an individual, or $324,000 for a body corporate. Civil penalties faced by sponsors, visa applicants or third parties who receive or provide or offer a benefit related to a sponsorship related offence, include fines of $43,200 for an individual, or $216,000 for a body corporate.

Visa cancellation may also occur if an individual is found to be engaged in “payment for visa” conduct, or any conduct relating to the aforementioned offences.

FCB Smart Visa will continue to provide updates on new migration legislation as it becomes available. If you have any migration matters that you would like to discuss, please call one of our migration agents on 02 9922 5188.

Migration Regulations Amendment – Required Medical Assessment

On 20 November the Department of Immigration and Border Protection released a number of policy and health systems changes. These will have an impact on all visa applications requiring a medical examination and include the following:

  1. Moving all health functionality from the department visa processing system to the Health Assessment Portal
  2. Changed arrangements for the re-use of health examinations and health clearances for subsequent visa applications

The department has an existing automated re-use functionality for online applicants who have already completed all health examinations and who already have a HAP ID. This will now be extended so clients can re-use individual health examinations. This will be applied to both paper-based and online applications.

  1. Revised health matrix and tuberculosis (TB) screening for children

There will now only be two risk levels. No health examinations will be required for temporary visa applicants unless they are from a country where health examinations are required and their visa will allow a stay period of 6 months or more. Health examinations would also be required if the applicant is likely to:

  • Work in a childcare centre;
  • Work as a doctor, dentist, nurse, or paramedic;
  • Enter a healthcare facility;
  • Pregnant and intending to give birth in Australia; or
  • Aged 75 years and older.

This would have an effect on all 457 visa applicants from higher risk level countries such as China and India as they would now need to complete a full medical examination rather than just chest x-ray.
Children aged between 2 and 10 year will require a TB test if they are:

  • Applying for an offshore humanitarian or onshore protection visa;
  • From a higher risk country; or
  • Applying for a temporary visa and declare close family contact with TB.
  1. An updated “prejudice to access” list

The “prejudice to access” has been amended to no longer include blood/plasma products and radiotherapy. The only services on the list are dialysis and organ transplants

  1. Automated referrals to state and territory clinics for health undertakings

This will serve to streamline the process of health undertakings and allow clinics to automatically update the status of their patients. It will also allow the clinics to view a client’s health records online and record results of the health undertaking.
FCB Smart Visa will continue to provide information relevant to medical assessment requirements when they becomes available. If you would like to discuss how these changes will affect you, or you are interested in further information, please call an FCB Smart Visa migration agent on 02 9922 5188.

Ministerial Working Group Established to Further Protect Vulnerable Foreign Workers

Minister for Employment Michaelia Cash last week established a Ministerial Working Group to examine a range of policy options to protect vulnerable foreign workers in Australia.

The establishment of the Working Group is in line with other actions taken by the Coalition Government to eradicate exploitation, particularly of foreign workers.

“Foreign workers are important contributors to the Australian workforce and we want to ensure they continue to view Australia as a great destination.” Minister Cash said.

Over the past three years, the Fair Work Ombudsman has dealt with over 6,000 requests for assistance and recovered more than $4 million in wages and entitlements owed to foreign workers.

Minister Cash further adds “We know that foreign workers are potentially more vulnerable to workplace exploitation and as such we have a responsibility to investigate additional measures to ensure their protection.”

She also stated that the Working Group will not create red tape and extra costs for businesses, and will ensure that only businesses that are doing the wrong thing will be targeted.

FCB Smart Visa will continue to provide the most up to date information on future changes. To discuss any concerns you may have regarding your sponsorship obligations, please contact an FCB Smart Visa migration agent on (02) 9922 5188.

New Legislation Outlaws Payment for Visas

On Wednesday 16 September, the new Turnbull government introduced legislation to Parliament to make it a criminal offence for a sponsor to be paid by a visa applicant in return for securing a migration outcome.

The changes are in line with the government commissioned Independent Review of the Integrity of the Subclass 457 Programme, in which 22 recommendations were made to effectively strengthen the programme.

“The Migration Amendment (Charging for a Migration Outcome) Bill 2015 implements this recommendation and expands the application beyond the 457 visa programme to other temporary and permanent work visas,” former Assistant Minister Michaelia Cash said.

She went on to say that “unlawful arrangements whereby payment, inducements or other incentives are promised or exchanged to try and achieve a migration outcome will not be tolerated by this Government.”

There will be a framework for criminal, civil and administrative sanctions against sponsors who try to ‘sell’ sponsorships, or seek to obtain some kind of advantage in return for sponsoring a person for a temporary or permanent work visa.

FCB Smart Visa will continue to provide updates on new migration legislation as it becomes available. If you have any migration matters that you would like to discuss, please call one of our migration agents on 02 9922 5188.

FCB Smart Visa Strengthens Practice with New Hire

FCB Smart Visa is pleased to announce the appointment of Alexander Kaufman who has joined the Firm as Migration Manager & Solicitor of the Migration practice in Sydney.

Alex is a legal professional and Registered Migration Agent (MARN 0601370) with over a decade of experience in business and employment related migration, and the provision of associated legal services. Alex is also the current Secretary of the NSW Branch of the Migration Institute of Australia.

Alex’s migration experience includes:

  • advising and acting for public sector, corporate and individual clients to achieve the best employment related outcomes through the 457 visa program
  • assisting fund managers and entrepreneurs to facilitate trade and investment activity through Australia’s ‘Business Skills’ visa program
  • advising and acting for individuals in obtaining Australian Permanent Residence and Citizenship
  • representing clients before Tribunals in visa decision review proceedings
  • advising and acting for employers in relation to Departmental monitoring and auditing processes
  • assisting clients with ancillary and post settlement legal services including Customs / Australian Quarantine Inspection Service requirements, Foreign Investment Review Board applications, purchase of business / real property, leasing of commercial premises and referrals to tax and accounting services

Campbell Fisher, Managing Partner and Chairman of FCB Smart Visa, said:

“We are excited to have Alex on board to work alongside Jacob Wyllie and our growing migration practice. His expertise adds to a dedicated team of professionals, and should be a drawcard for any business seeking qualified, timely and highly personalised immigration advice at a high-level”

Visit the FCB Smart Visa Our People page to read Alex’s biography.

Further Measures to Protect Temporary Work Visa Holders Announced

Earlier this week the Australian government announced further measures to protect temporary work visa holders, by providing additional resources to help them understand their rights as workers, and ensure they have access to information about their workplace rights.

Following various incidents of exploitation of temporary workers, the government has been rolling out several improvements to their systems and processes. One that has already been implemented is the improvement of visa grant notices issued to the visa holder when they are granted their visa. The aim of this is to ensure workers understand their rights when it comes to wages, discrimination, bullying, and harassment.

The government has also recently launched a Pay and Conditions Tool (PACT), available on mobile devices; calculate.fairwork.gov.au, that will allow workers to check their pay rates and enable them to easily identify any issues.

Assistant Minister for Immigration and Border Protection, Senator Michaelia Cash said that for temporary visa holders the best defence against being underpaid or treated unfairly in the workplace is to know their rights.

“All workers are entitled to the same pay, conditions and protections under Australian law, regardless of whether they are a temporary visa holder, a permanent visa holder or an Australian citizen,” Minister Cash said.

FCB Smart Visa will continue to provide information relevant to the temporary skilled migration programme when it becomes available. If you would like to discuss how these changes will affect you or your business, or you are interested in further information, please call an FCB Smart Visa migration agent on 02 9922 5188.

Australian Taxation Office Data Matching for Department of Immigration and Border Protection

An initiative which allows for more efficient collaboration between the Department of Immigration and Border Protection (DIBP) and the Australian Taxation Office (ATO), has seen the Commissioner for Taxation issue a Notice of a Data Matching Program for visa holders. This will allow the ATO to acquire from the DIBP, personal and other details of Australian visa holders, their sponsors, and their migration agents for the 2013-14, 2014-15, 2015-16 and 2016-17 financial years. Information will be collected from approximately 1 million visa holders, and will include:

  • Address and contact history for visa holders and their sponsors
  • Visa grant details and status
  • Address and contact history for migration agents
  • All international travel undertaken by visa holders
  • Sponsor details
  • Education provider details and information

The ATO has outlined its objectives for the initiative, and they include the following:

  • Assist in developing and implementing administrative strategies to improve voluntary compliance by visa holders, sponsors and migration agents
  • Improve knowledge of the overall level of compliance with taxation obligations by visa holders, sponsors and migration agents
  • Test the veracity and strengths of existing risk detection models and treatment systems and identify areas for improvement in the ATO’s suite of compliance models and treatment systems and practices
  • Improve the integrity of the Tax and Superannuation system by cancelling ineligible ABN registrants
  • Identify potentially new or widespread fraud methodologies and those entities controlling or exploiting those methodologies
  • Ensure compliance with registration, lodgement, correct reporting and payment of taxation and superannuation obligations

This initiative is in line with the changes made to the 457 programme, and is designed to improve the integrity of the visa programme and compliance.