Australia’s Immigration Department Ready to Take Action in 2017

In Australia, 2016 was a year largely punctuated by minor legislative changes with respect to business focused visa programs.  It was also a year where the further simplification of the immigration program was extended to other sponsored visas through the introduction in late 2016 of a new “Temporary Activities Sponsor” class to replace six existing classes, including Training and Research and Entertainment classes. (See 2016 – Australian Immigration Highlights and Crackdowns by my partner Sasko Markovski).

In many respects, the Department of Immigration was focused on re-calibrating the balance between their own leaner resources and efficiencies and the desire for stronger decision-making within the work (subclass 457) visa and related visa programs.  

Fragomen were pleased to welcome our clients in a client-focused event held in Sydney on 1 March. Attendees were fortunate to hear directly from the Department of Immigration about its current priorities for 2017 and changes expected over the course of the year. The Department, amongst other things, confirmed their genuine willingness to continue to engage and consult with business and their counsel. Their comments were very well received by all attendees.

So What Should You expect in 2017?

With the resumption of Parliament and a Government resettling after its federal election win in July 2016, we expect that the Department will further focus their energies towards more deliberate assessment of applications before it and in the enforcement of sponsorship obligations with employers.

As it relates to the 457 visa program, this includes more attention applied by the Department of Immigration’s policy and processing officials to relatively new rules introduced in 2016 regarding non-discriminatory recruitment of foreign workers.

We also expect a more targeted approach to the genuineness of position rules, and the salary and salary package offered being at true local market rate.

The Department of Immigration continues to work closely with other government departments to identify anomalies in certain sectors and occupations where there is particularly higher than expected usage of the 457 visa program.  We understand for instance that findings and recommendations are shortly due to the Minister of Immigration regarding the current Consolidated Skills Occupation List (CSOL). This list details the occupations that are potentially sponsorable under the 457 visa program. We expect decisions to be made soon regarding a number of occupations that will likely be removed from the current list. This will have a significant and immediate impact on some sponsors.

With there being no sense of a softening in approach given the broader context of the current economic climate, the Department has restated their position that it and its officers are ultimately guided by the principle that the program should only be utilized where Australian nationals and permanent residents cannot legitimately fill those roles.

At the same time, the Accredited Sponsorship program introduced on 1 July that offers certain sponsors more streamlined processing, has not been taken up as fully as the Department had expected. As a result, we expect some further adjustments to that program to enable more compliant and low risk sponsors to utilize the program.

Lastly, Labour Agreements, which afford concessions to potential sponsors or industry sectors from the standard requirements, will sit more directly under the purview of the Department of Immigration’s 457 visa program management area. This should enable a better alignment with the standard 457 visa program. Fragomen has a dedicated Labour Agreement practice that assists clients who seek concessions.

What About Immigration Compliance and Enforcement?

We expect an even greater targeted and risk based approach to the monitoring of sponsors and their compliance with the sponsorship program and more generally to the employment of foreign workers.

With the continued cooperation between government bodies, including data matching initiatives and intelligence sharing with the *FWO, ATO and ASIC, our Advisory and Compliance practice at Fragomen has already seen greater targeting and identification of industries and sponsors as part of the support and assistance they offer to clients. This resulted in some 1200 sponsors being monitored in 2016, more than 40% being determined to be non-compliant, and a significant percentage then being sanctioned.

The Monitoring section at the Department of Immigration is also conducting site visits for the purposes of integrity checking in respect of employer sponsored permanent residence applications. This reflects the greater scrutiny similarly being applied by the Department’s permanent residence division in its processing of permanent residence applications.

The Balancing Act for 2017

So for businesses who access the 457 work visa program, related programs and the employer nominated permanent residence program, we expect further and more targeted policy and processing changes, including in the identification of sponsors who will be monitored. At the same time, the Department recognizes the need to fill skills gaps in order to meet what are ever increasing pressures on business and are looking at ways to improve processing and processing times for compliant sponsoring employers. This is an ongoing and difficult balancing act.

* FWO (Fair Work Ombudsman), ATO (Australian Taxation Office), ASIC (Australian Securities and Investments Commission)