Australia
ABIL Lawyers
RELEVANT GOVERNMENT ENTITIES
SOURCES & CONFLICTS OF LAW
VISAS & PERMITS
BUSINESS IMMIGRATION
SPONSORS
COMMON ISSUES OR CONCERNS FOR BUSINESS IMMIGRATION
DEPENDENTS
SETTLEMENT & CITIZENSHIP
PRESENT CLIMATE & FUTURE LEGISLATION
RELEVANT GOVERNMENT ENTITIES
- Department of Home Affairs
- Jobs and Skills Australia
- Australian Embassies and Consulates
- Australian Border Force
- Department of Foreign Affairs and Trade
- Australian Federal Police
- Department of Health
SOURCES & CONFLICTS OF LAW
SOURCES OF LAW
- Migration Act 1958
- Migration Regulations 1994 (as amended)
CONFLICTS OF LAW
The main area of tension in Australia arises between Federal immigration laws and the principle that as a sovereign country, Australia has the right to defend its borders. Australia’s commitment to various international treaties can be a source of conflict with its immigration laws.
VISAS & PERMITS
All foreign nationals coming to Australia, other than New Zealand citizens, require a visa to enter Australia. New Zealand nationals are granted a Special Category 444 visa on arrival in Australia.
Australia does not have a visa permit system.
Different visa conditions attach to different visas and visas are granted based on a limited number of circumstances set by law.
Australian visas are categorized as temporary or permanent depending on the length of stay permitted by the visa.
BUSINESS IMMIGRATION
UNSPONSORED BUSINESS-RELATED IMMIGRATION
Skilled independent
Skilled Independent visas do not require an employer sponsor. These visas are awarded based on points. Points are award based on age, education, work experience, and English language proficiency, amongst other skill-related criteria.
SPONSORED BUSINESS-RELATED IMMIGRATION
Employer-sponsored visas – temporary & permanent
There are temporary and permanent skilled visas, awarded based on education, work experience and English language proficiency in some cases.
TEMPORARY SKILLS SHORTAGE 482 VISA
The most popular is the Temporary Skills Shortage Visa 482.
This is a temporary visa granted between 1 to 4 years with employer sponsorship. Employers are required to demonstrate a genuine skills shortage exists in their business and the skills must align with a list of occupation that are eligible for sponsorship. Not all occupations/jobs can be sponsored.
The visa applicant is required to meet threshold skills criteria, such as holding a bachelor’s degree and two-years work experience. Or 3 to 5 years work experience in lieu of formal qualifications. The work experience and qualifications required for the 482 visa depends on the occupation.
PERMANENT 186 TRANSITIONAL OR DIRECT ENTRY VISA
The employer-sponsored 186 visa has two main streams. The Transitional Stream is for 482 visa holders that have worked for their sponsoring employer for at least two years while holding a 482 visa. Limited exemptions are available. This is a common pathway and available to most 482 visa holders. This is also a good option when a visa holder does not meet the requirements for the Direct Entry Stream.
The Direct Entry Stream requires a skills assessment, competent English test results and at least three years of work experience prior to lodgment. Unlike the 186 Transitional Stream which requires a temporary 482 visa as a condition of permanent residency, the Direct Entry stream grants permanent residency right away.
SPONSORS
REQUIREMENTS FOR SPONSORS
To become a standard business sponsor, the business must be legally established and currently operating either in or outside Australia.
The business must demonstrate its financial capacity to be able to comply with its obligations as a sponsor and it should have a strong record of, or a demonstrated commitment to, employing local labor. A sponsor is required to comply with a number of significant obligations imposed on the company.
The business must declare that it will not engage in discriminatory recruitment practices.
There should not be any adverse information about the business, or anyone associated with the business that affects its suitability as a sponsor. If there is adverse information about the business or someone associated with it, it must be reasonable for the Department of Home Affairs (“Department”) to disregard it.
SANCTIONS, CIVIL & CRIMINAL PENALTIES FOR SPONSORS
If a sponsor does not meet its obligations, the Department could take one or more of the following actions:
Administrative sanctions
The Department might:
- bar the sponsor from sponsoring additional visa holders for a specified time
- ban an employer from sponsoring workers
- not approve an application for sponsorship for a work visa or any other visa
- cancel all of the sponsor’s existing sponsorship approvals
- publish a list of non-compliant employers and/or sponsors on the Department’s website
Enforceable undertaking
The Department might ask the sponsor to enter into an enforceable undertaking. Enforceable undertakings require a sponsor to promise, in writing, to undertake to complete certain actions to show that the failures have been rectified and won’t happen again.
Civil & criminal penalties
Non-compliance exposes sponsors to a civil penalty (a court-imposed fine) of up to $79,200.
Civil penalties are subject to a strict liability approach which means that employers can be penalized even if they did not intend to break the law or were unaware of the circumstances behind the violation.
A conviction for coercing or pressuring migrant workers carries a penalty of up to 2 years imprisonment and/or a fine of up to $118,000.
An aggravated offence involving worker exploitation carries a penalty of up to 5 years imprisonment and/or a fine of up to $297,000.
To establish criminal liability, the employer’s mindset (such as knowledge or recklessness) must be proven.
Other circumstances in which administrative action might be taken against a sponsor would be in circumstances where:
- a sponsor provides false or misleading information to the Department or the Administrative Appeals Tribunal
- a sponsor no longer satisfies the criteria for approval as a sponsor or for variation of a term of that approval
- a sponsor has been found by a court or competent authority to have contravened a Commonwealth, state or territory law
- the worker that a sponsor has sponsored breaks a law relating to the licensing, registration or membership needed to work in the nominated position
The types of actions that could be taken depend on whether the Department’s original approval of the sponsorship is for a standard business sponsor or for a work agreement.
If a sponsor has sponsored a worker under a work agreement, the Department could suspend or terminate the agreement in accordance with the clauses of the particular work agreement.
Migrant workers are encouraged to report exploitation as their liability for visa breaches has been removed.
COMMON ISSUES OR CONCERNS FOR BUSINESS IMMIGRATION
The most common issues or concerns that arise are:
- Sponsors underpaying or otherwise exploiting a sponsored worker.
- Sponsors failing to file a timely notification with the Department, for example, when a sponsored worker’s employment ends or there is a change of business address or when a new director/s is appointed.
- Sponsors allowing a sponsored worker to perform the duties of a position that are not the usual duties of the position that the sponsor nominated for approval by the Department.
DEPENDENTS
Family members who are usually treated as dependents for visa purposes are legally married spouses as well as de facto partners as well as children of the relationship up to the age of 23 years.
For visa purposes, same sex couples are recognized in Australia for the purposes of qualifying as dependents or under the Spouse/Partner visa program.
Additionally, children over the age of 23 with mental or physical disabilities that rely entirely on their parents for care, can be included as dependents.
SETTLEMENT & CITIZENSHIP
The general timeframe for achieving permanent residence status is published by the Department on its website at visa processing times.
Generally, a person must have been lawfully present in Australia for at least 4 years prior to filing an Australian citizenship application with the most recent 12 months being spent in Australia as the holder of a permanent residence visa.
Accordingly, if Australian citizenship is the objective, then it is critical where possible, to select a visa program that has a pathway to permanent residence.
There is no set time on how long it may take a person to achieve permanent residency and/or citizenship.
PRESENT CLIMATE & FUTURE LEGISLATION
PRESENT CLIMATE & TRENDS
Immigration features heavily in Australia’s domestic political and social landscape, just like it does in other first-world nations. An election-year usually focuses the spotlight on what’s happening in immigration policies that may affect domestic policies related to jobs, housing, welfare services and social cohesion issues.
Prior to the Covid-19 pandemic there was clear tendency by the Australian Government to decrease the total program numbers of places available for business-related migrants to take up permanent residence in an atmosphere of populist and nationalistic protectionism.
Government policies that have negatively impacted employers on their ability to sponsor foreign workers include:
- mandatory local labor market testing,
- a substantial reduction of the number of occupations approved for permanent residence,
- strict adherence to the application of market salary rates of pay, and
- substantial increases to the fees charged by the Government for sponsoring foreign workers.
However, the inevitable consequence of the Covid-19 pandemic was an even greater decrease in the number of applicants in all visa programs but particularly in business-related visa programs. Unemployment rates suddenly became alarmingly high but there was nevertheless an acute shortage of highly skilled labor. This prompted the Australian Government to renew its efforts to ramping up its marketing for its Global Talent visa program which is meant to attract the world’s best and brightest to Australia. In other visa programs, pro-active measures were also taken to provide continuity of visa status for stranded workers, particularly for those employed in so-called “critical industries” such as healthcare, aged-care, food production, agriculture, infrastructure and construction, medical research and technology and information and communication technology.
The Government’s massive spending measures have had a positive effect and combined with a consistent national message to heed the medical advice of health professionals, it appears that the risk of social and economic upheaval has been avoided.
It is still too early to forecast what the Government’s immigration agenda will be but the pathway back towards economic prosperity will of necessity involve continuing to compete globally for the best and the brightest migrants.
FUTURE LEGISLATION
The Australian government made significant changes to reduce the number of international students allowed to study and stay further in Australia. Currently the Australian government is working on a new employer-sponsored visa regime to potentially replace the current pathways. This is part of a broader Migration Strategy for Australia.