2014 in Review - Australian Skilled Immigration Highlights

It is now close to 18 months since a new Australian Government was sworn in under the leadership of Prime Minister Tony Abbott. With the new regime came promises to get tough on border security and cut red tape for employers using the 457 visa program. First order of business in September 2013 was a name change for the Department of Immigration and Citizenship. Now known as the Department of Immigration and Border Protection (DIBP), the change reflects the Australian Government’s increasingly tough stance on unlawful maritime arrivals.

 

Changes to the 457 visa program

Since taking office, Minister for Immigration and Citizenship, Scott Morrison, has sought to scale back a number of measures introduced by the previous Labor Government in an effort to bolster the 457 visa program. 

Whilst November 2013 saw the commencement of the labor market testing (LMT) provisions which require employers to provide evidence of their attempts to recruit Australian workers, the provisions are more lenient than those originally proposed when Labor was in power. There are a number of exemptions from LMT, including particular occupations where requirements would be inconsistent with Australia’s international trade obligations or for visa applicants assisting with relief and recovery efforts after a major disaster. The Government has attempted to repeal the LMT provisions through Parliament for much of 2014 and this is likely to be a continued focus in the coming year. 

February 2014 saw the welcome removal of sponsorship caps, which had previously limited the number of 457 visa holders a business could sponsor. The Minister for Immigration also announced an independent review of the program, with Fragomen appearing before its independent panel, having prepared a comprehensive submission based on a wide-reaching client survey. The panel’s findings were released in September 2014 in the report Robust New Foundations. Key recommendations for the 457 visa program included:

 

• The introduction of a tiered sponsorship approval system which would provide a more streamlined approach for sponsors with a history of sound use of the program;

• Extending the period within which reportable events (such as cessation of employment) need to be notified to DIBP from 10 to 28 days;

• Adjusting training benchmarks to allow businesses to contribute to a training fund directed at training programs for Australians, including groups such as youth, the unemployed and indigenous communities;

• Expanding exemptions to English language requirements;

• The abolition of labor market testing; and

• The inclusion of occupations outside the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary where current demand so warrants.

 

In October 2014 and in response to the report, the Government released its ‘Industry Innovation and Competitiveness Agenda’ outlining proposed changes to the 457 visa program over the next 12 months. These include measures to:

 

• Streamline sponsorship, nomination and visa applications by rewarding low-risk applicants and refocusing compliance and monitoring activities on high-risk applicants;

• Ease sponsorship requirements to reduce the time and cost to businesses; and

• Relax English language proficiency and occupational skills evidentiary requirements.

 

The Government also indicated proposals to increase the sponsorship approval period for start-up businesses from 12 to 18 months and to retain the Temporary Skilled Migration Income Threshold at the current level of AU53,900, pending a review within the next two years.

 

Offshore resource worker debate

On 30 June 2014, the Offshore Resources Activity regulations came into effect to support the Migration Amendment (Offshore Resources Activity) Act 2013 as passed by the previous Government. These regulations required foreign workers to hold prescribed visas where participating or supporting ‘offshore resources activity’. This included those working on or supporting vessels involved in exploration or exploitation of mineral and petroleum resources within Australia’s Exclusive Economic Zone and the waters above the Continental Shelf. 

Less than a month later, on 17 July 2014, a new legislative instrument came into effect. This essentially invalidated the previous legislative changes and restored the position that foreign workers do not require a work visa to engage in other offshore resource activities in such areas. This is on the proviso that the worker is not engaged in activities involving an Australian resources installation fixed to the Australian sea bed, such as a traditional oil rig. In these cases, the foreign worker would be required to hold an appropriate work visa, such as a subclass 457 visa. 

 

More reviews

Reflecting its broader deregulation strategy, in September of this year the Government released a discussion paper requesting input from key stakeholders to simplify and deregulate the current operational structure of the skilled migration and temporary visa programs. The paper suggests reorganization of these visas into three categories: 

 

• Short Term Migration, allowing temporary entry for work, specific short-term activities or international relations purposes; 

• Business and Investment Migration, providing a permanent entry pathway for investors, entrepreneurs and outstanding business people; and 

• Skilled Work Visas, including the types of entry currently covered by the 457 visa program, permanent employer sponsored and general skilled migration programs. 

 

Whilst the review is still ongoing, if the suggestions are implemented the current operation of visa programs commonly used by employers could alter significantly. Changes would include the criteria for visa approval, current sponsorship regimes, and application submission and decision making procedures.

 

Expansion of stay period for Temporary Work (Short Stay Activity) subclass 400 visas

New regulations came into effect on 23 November 2014 to extend the initial entry and maximum stay period on a Temporary Work (Short Stay Activity) subclass 400 visa from three to six months. This change provides employers with greater flexibility within the subclass 400 visa program where they are able to demonstrate a genuine need for an overseas worker beyond the three month period and that the proposed work or activities will not adversely impact Australian workers.

 

Measures to improve international trade and investment

2014 has also seen a number of new measures introduced to broaden Australia’s international trade and investment. These included the finalisation of Free Trade negotiations with the Peoples Republic of China (PRC) on 17 November, with a number of proposed initiatives supporting business and skilled workers aimed at reducing barriers to labor mobility. 

Alongside the Free Trade negotiations, Australia and the PRC have completed negotiations for a Work and Holiday Agreement for up to 5,000 skilled PRC nationals each year. Similar agreements have also been negotiated this year with Poland, Greece, Portugal, Spain and Israel. 

Finally, the Government also announced in October plans to expand and streamline the Significant Investor Visa program (SIV), which is targeted at high net worth individuals willing to invest at least AU5 million in ‘complying investments’ in Australia. To date, the SIV program has raised AUD 2.450 billion in this manner. 

The proposed changes seek to bolster those investments by introducing a ‘Premium Investor Visa’. This visa requires AU15 million in investment for at least 12 months, after which time the investor becomes eligible to apply for permanent residence in Australia without the need to physically reside in the country during that time.