As a reminder, the current concessions for Working Holiday Makers (WHM) that allow them to work for one employer (with the same end user or Australian Business Number) for more than six months will end on 1 January 2024. See our alert of 14 June 2023.

This means that from that 1 January 2024, WHMs will only be able to work for one employer for up to six months unless they receive written permission from the Department to extend this time. Significantly, this will end the previous flexibility in policy to automatically extend this period where the WHM remains with the same employer but at a different location.  This is a major departure from previous policy that has been in place since September 2016. Businesses need to be vigilant they do not continue the practice of moving locations in order to extend work rights beyond the 6 months.

Examples:

• The WHM started with the employer on 1 March 2023, but has continued to remain with the employer under the COVID concessions.  The employee will need to cease work on 1 January 2024 unless they have received permission in writing to extend the employment with the employer.
• The WHM started with the employer on 1 August 2023. The employee will need to cease work on 1 February 2024 unless they have received permission in writing to extend the employment with the employer.
• The WHM arrived in Australia in June 2023 and started with the employer on 1 July 2023 and is currently awaiting the outcome of a TSS visa. The employee will need to cease work on 1 January 2024 unless they have received permission in writing to extend the employment with the employer.

The changes mean that all employers must review their current WHM population and either seek written extensions before 1 January 2024 or apply for another visa such as a TSS visa (in which case the current WHM visa validity period will determine if a written extension is required).

Under the Department’s current policy, an extension of time may be granted if:

• The employee has made an application for a work visa that will allow them to work for the same employer.
• There are exceptional circumstances such as:
  • the visa holder’s work is critical to a project that takes longer than expected (for example, a lawyer working on an extended trial); or
  • the visa holder is doing disaster recovery work after a major disaster (for example, helping to rebuild after a flood); or
  • the workplace has been affected by a major disaster and the visa holder was physically unable to go to work (for example, returning to a farm to help with the harvest following flooding).

However, the Department has advised us that this policy is being redrafted and may not remain the same. We will therefore need to await the new policy before being able to say with any certainty whether or not a particular application for extension will succeed.

The Department has also advised us that the Government is expected to release its Migration Strategy this year which may include the following reforms to the WHM program:

• restoring cultural exchange as the primary focus;
• not tying access to subsequent visas to the performance of work; and
• limiting the WHM program to a single 12-month visa.

We are not able to say with any certainty what these changes will be, however it does seem that the WHM will become less flexible as a tool for employers to manage temporary, seasonal or transient positions.

As always you should contact your Ajuria team for more information and assistance.

The post Significant Changes for Working Holiday Makers in Australia first appeared on Ajuria Lawyers – Leaders in Immigration.

The subclass 400 visa is for skilled workers (such as professionals, managers, technicians and tradespeople) needing to come to Australia for no more than 6 months to carry highly specialised work of a non-ongoing nature.

This can be a valuable tool for businesses and projects who require skilled workers which cannot readily be found in the Australian labour market. But it is critical that the 400 visa be used only as intended and not as a shortcut to speed up the process (or even avoid it) of sponsoring workers under the TSS visa program as this will bring unnecessary and unwanted attention on the business and may even jeopardise the company’s ability to sponsor the workers it needs.

A bit more about the 400 visa

• 400 visas can be processed in as little as a week but on average take between 2 and 3 weeks to process
• The application for a 400 visa is made by an individual and it does not require the applicant to be sponsored or nominated by a company – although it usually requires some letter of support
• The visa is for a maximum stay of 6 months in a year, however, under policy it is expected the normal period of stay would be 3 months or less. The visa can be granted with either a single entry facility or multiple entry
• The visa applicant must be outside of Australia when applying for the visa and when the visa application is decided. The applicant cannot apply for another 400 visa whilst in Australia
• There must be a demonstrated need for the applicant to be in Australia to participate in the event, or engage in the activity or work
• That work must be highly specialised and not ongoing. It is not appropriate to rotate workers through a position using 400 visas
• The proposed work to be undertaken by the visa applicant must not have adverse consequences for the employment, or training opportunities, of Australian citizens or permanent residents

The numbers we are talking about
This visa class has been hugely popular since it was introduced in March 2013.  Statistics from 2022 indicate that in a period of 8 months the government granted over 21,000 subclass 400 visas with the most popular sector being in engineering and trades for the infrastructure/construction industry. More recently, we have heard of the visa being used to sponsor cooks and chefs, particularly in regional Australia and that some employers see it as a way to quickly bring in skilled workers with the intention to sponsor them under TSS visas and that this is being monitored by the Department of Home Affairs and possibly the Australian Border Force.

Not ongoing work
The most critical point to remember is that the 400 visa is meant only for work that is ‘not ongoing’. This is defined in the law as work that is likely to be completed within a continuous period of 6 months or less and where the person:

• has not been given an expectation of staying in Australia, for a purpose relating to the work, after the end of that period; and
• has not made arrangements to stay in Australia, for a purpose relating to the work, after the end of that period.

In other words, the government recognises that the work might end up longer than six months (particularly in a project context) – in fact, there is no prohibition on the company then sponsoring the worker under the TSS program if they need to stay in Australia longer – but there can be no plan with the applicant to do this before the applicant comes to Australia.

Adverse consequences for employment and training opportunities of Australians
There is also a requirement that the applicant must not intend to engage in activities that will have adverse consequences for employment or training opportunities, or conditions of employment, for Australian citizens or Australian permanent residents. The Department can look at the salary to be paid to the person while they are in Australia (although in practice they rarely do so), and may even require evidence of labour market testing in some cases if they have a concern that the 400 is being used as cheap labour in roles that should be able to be filled by Australians.

Applications that are subjected to more scrutiny
The Department’s policy identifies the following circumstances as generally requiring closer scrutiny and investigation:

• where work of more than 3 months is being applied for
• when then overseas employer may be seeking to fulfil multiple separate contracts in Australia
• where there are large group applications for a single project
• when workers are being rotated through a position
• when the decision maker is otherwise concerned that the applicant or applicant’s employer is trying to bypass the Australian labour market and/or scrutiny of the TSS 482 visa programme

400 visa users be warned!
Individuals who are found to be applying for a 400 visa in circumstances other than intended may face investigation and even possible visa refusal or cancellation.

Employers who are found to be using the 400 visa to circumvent the TSS process or to use overseas labour where it harms the Australian labour market, could face refusal or cancellation of their sponsorship status. If individuals or employers are found to have pre-planned for the employee to remain in Australia, this could constitute fraud or misleading information and can result even more serious consequences including criminal investigation.

Please always check with your Ajuria team before supporting or employing a 400 visa applicant/holder and never offer any promises to that person in relation to any work or sponsorship beyond the period applied for in the 400 visa.

As always please contact us if you require more information about the 400 visa or how we can otherwise help you.

The post Australian Temporary Work Visas < 6 months – The use and misuse of the Subclass 400 Visa Program first appeared on Ajuria Lawyers – Leaders in Immigration.

The post Webinar – Immigration, Employment & Workforce Planning for Australian Infrastructure Projects first appeared on Ajuria Lawyers – Leaders in Immigration.

The post Webinar – Changes to Employer Nominated Permanent Residence first appeared on Ajuria Lawyers – Leaders in Immigration.

Ajuria Lawyers Webinar
Australia’s NEW Permanent Residence Pathways
Monday, 6 November 2023
3pm AEDT

REGISTER HERE NOW

The post Webinar – Permanent Residence Changes Update first appeared on Ajuria Lawyers – Leaders in Immigration.

There is a lot of discussion on the greatly anticipated changes to the Australian employer sponsored program coming into effect on Saturday, 25 November 2023.

The Minister for Immigration mentioned the date in a speech, but no formal announcement has been made and no draft legislation/policy has been released. We are expecting all occupations on the 482 list (even those on the Short-Term list) will have a permanent residence pathway after 2 years in Australia on a TSS visa.

In anticipation of the changes coming into effect, Ajuria Lawyers will hold a webinar on 27 November 2023 noting that if details are released earlier the session date will be changed.

The post Update And Webinar Date – Upcoming Changes To Permanent Residence Pathways For TSS Visa Holders first appeared on Ajuria Lawyers – Leaders in Immigration.

In October 2022, the Department of Home Affairs introduced temporary measures aimed at exempting specific temporary visa applicants in Australia from undertaking mandatory health examinations. This initiative, which was rolled out in the aftermath of the COVID-19 pandemic, was implemented to address the backlog of visa applications.

This exemption for health examinations is due to end on 31 October 2023.

For visa applicants submitting their applications on or after 1 November 2023, the requirement for health examinations will depend on various factors, including:

• The visa subclass;
• Indented duration of stay in Australia;
• Planned activities in Australia;
• Applicant’s country of passport and/or previous residences;
• Any significant medical conditions.

Your Ajuria contact will advise applicants directly if their circumstances warrant health examinations.

Applications submitted but not yet decided before 1 November 2023, will continue to be eligible for the health examination exemption (if it aligns with their specific circumstances).

If you have any specific questions about your case, please contact your Ajuria advisor.

The post Australian Immigration Health Requirements Update first appeared on Ajuria Lawyers – Leaders in Immigration.

Yesterday, the Australian government announced its response to the Rapid Review into the Exploitation of Australia’s Visa System undertaken by Christine Nixon, AO, APM earlier this year. That review identified significant gaps and weaknesses in Australia’s visa system and made 34 recommendations.

A large number of the recommendations of the Review related to the strengthening the regulation of migration agents to stop unscrupulous conduct. In Australia, migration agents who are not lawyers can be registered to provide immigration advice and visa services, and the government accepted many of the recommendations to increase regulation of this industry. Lawyers, like those employed by Ajuria Lawyers, are separately regulated by the various legal practitioner boards of each State or Territory and were not the subject of the Review or any of these recommendations.

Other recommendations that have been accepted by the government include: increasing data matching between government agencies including the ATO, increased use of biometrics as a means of identification of visa applicants, reviewing work rights and visas of those in Australia to study or train and barring employers from hiring visa holders where they have been found to have been breaching immigration laws or exploiting overseas workers.

As a law firm, Ajuria Lawyers welcomes any change that creates or increases confidence in our legal system and supports the vast majority of employers and individuals that do the right thing.  We do not have all of the information available to government or the author of the Review, but we have no doubt that the system has been rorted and abused by some. We have turned away clients, companies and individuals that wanted to do that very thing. That needs to be cleaned up and stopped.  However, the vast majority of companies and individuals want to do the right thing and they need meaningful changes to the visa system that will support their business needs.  Hopefully, those announcements are imminent. “Crackdowns” need to  take into account those who are compliant with the law, not increase the complications in the system for them.
So, what should employers do about all this?

Use a trusted professional legal adviser
Australia’s immigration rules are some of the most complex and litigated areas of law.

Founded in the Constitution, and overseen by the Federal and High Courts of Australia, the Migration Act and Regulations and the thousands of pages of policy that support it, attempt to codify some of the most difficult problems of our society: who comes and who does not, population control, economic growth and the need for infrastructure, populating regional Australia and movement of migrants between and amongst the States and Territories.

The preparation and lodgement of a visa application is not an administrative task but a legal one. It involves: ethical decisions requiring a deep understanding of the importance of the rule of law, the duty to act in the best interest of the client while not breaching the law, analysis of the Act, Regulations and policy, the ability to frame legal arguments and ensuring complete compliance with all regulatory requirements.

Those skills are the bread and butter of the lawyers trained as legal professionals. Using a lawyer for your immigration matters will ensure that your interests and reputation remain protected.

Accept legal advice even when it does not meet the business requirements
Saying no is our hardest job. When we assess whether a person is eligible for a visa, or whether a company should act in a particular way, we apply all of our legal training and look out to protect the best interests of the company and its officers to ensure that all applications and actions fully comply with the law. Getting that wrong is a very serious thing, and can result in potentially damaging outcomes – sponsorship bars, visa cancellation, fines and, in the worst cases, even imprisonment. If we say no to a client we are not doing so for our interest, but theirs. If we say no to you, this is to ensure that you do not become one of the companies or individuals now being investigated.

Develop and implement strong compliant policies within the business
Whether it is training to remind your managers about the importance of immigration compliance, ensuring proper work rights checking processes, or just saying no to an employee who wants a reference that is not completely truthful or is misleading – having strong sponsorship policies in the business to avoid immigration breaches is critical to maintaining your company’s standing with the Department.  It will ensure bad practices do not end up as negligent or criminal conduct.

Ajuria Lawyers will keep a close eye on the outcomes of the Review and will advise our clients of anything that might impact you. Until then do not hesitate to reach out to any of our lawyers if you have questions or concerns or would like to review any of your company’s practices or policies.

Disclaimer: This information is current as of 5 October 2023 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information.

The post Impact of Rapid Review into the Exploitation of Australia’s Visa System first appeared on Ajuria Lawyers – Leaders in Immigration.

The Importance of Work Rights Checks & Potential Criminal Liability

More than ever businesses need to ensure they are immigration compliant and not facilitating wrongdoing when it comes to the employment of foreign workers.

The government recently introduced proposed legislation with the the Migration Amendment (Strengthening Employer Compliance) Bill 2023 (the Bill)  which creates additional offences to cover conduct by a person who knowingly unduly influences, pressures or coerces a temporary migrant worker to breach a condition of their visa. It will also exclude employers from employing temporary visa holders if the employer has been found to have previously underpaid visa holders. The Bill will also make it easier for visa holders to report instances of worker related exploitation.

This Bill along with recent announcements by the Australian Border Force, that it will increasing its activities and site visits, make it very important that clients review their immigration compliance readiness.

Checking Work Rights of Employees
Employers need to ensure that they are taking reasonable steps at reasonable times to verify the work rights of all employees. This includes verifying that all employees have permission to work and, if they are a visa holder, are only working within any work conditions/limitations imposed on that visa.

Reasonable steps at reasonable times include:

1. Sighting an Australian passport of any new hire and noting that this has been done. There is no requirement to keep a copy of the passport.
2. Conducting a VEVO check of any new hire who does not have an Australian passport and, if the person is on a temporary visa, conducting further VEVO checks at regular intervals during the person’s employment. The Department of Home Affairs recommends that this be done every three months, but this will depend on the visa that the person holds. For example, a student visa will require a check every three months as this visa could be cancelled without the employer knowing, but a TSS will not as the employer will be aware of the work rights of the employee.
3. Having a contract with a third party to conduct these checks.

Failure to conduct these checks could result in an employee working without work permission or in breach of their visa. These are criminal offences and can result in serious consequences including:

1. Fines of up to $93,900 per offence against the company ($469,500 if the employee has been exploited)
2. Imprisonment of up to 2 years per offence against any office holder of the company or other individual knowingly or recklessly involved in allowing the employee to work (up to 5 years if the worker has been exploited).
3. Cancellation of the company’s ability to sponsor workers and publishing in public database (Home Affairs) of sanctioned employers.
4. Cancellation of the employee’s visa.

Work Rights of other people
Companies and individuals also need to be aware of risks of penalties arising from other arrangements that may result in allowing a person to work without a visa or in breach of a visa condition. Failure to check work rights in these circumstances may result in the company, its office holders and any employees involved being liable for criminal prosecution. Such arrangements could include:

Contractors
Companies should also undertake the above work rights checks in relation to contractors who are engaged directly to provide services other than through an employment contract.

Workers supplied under labour-hire arrangements
Companies using workers supplied under a labour-hire arrangement should, at a minimum, seek assurances in the contract for labour that the supplier of the labour has ensured and warrants that each worker has the appropriate permission to work and that the work rights of any visa holder is being regularly checked. If any workers supplied hold TSS visas then the supplier should be asked to provide evidence of an approved Labour Agreement with the Department of Home Affairs allowing those workers to be ‘on-hired’.

Employees of other service providers
There is no requirement to check the work rights of employees of third-party suppliers. However, if the company becomes aware that the employees of the supplier are working without or in breach of their visas or do not have visas, then the company receiving the service could be found to be involved in an arrangement to allow that to occur, unless steps are taken to ensure that such breaches are not occurring.

The seriousness of any offence would be exacerbated if it was found that the workers are being exploited, for example through debt bondage by creating liabilities for having been sponsored.  In such cases, much higher penalties apply. The risk of this is increased when dealing with unknown labour suppliers or contractors and so companies should be additionally vigilant with this.

Extended liability of executive officers and employees
Executive officers (Directors, CEOs, CFOs, etc.) of companies can be found personally guilty of these offences if the company is found to have allowed a person to work without a visa or in contravention of a visa condition and:

the officer knew that, or was reckless or negligent as to whether, the work-related contravention would occur;

the officer was in a position to influence the conduct of the body in relation to the work-related contravention; and

the officer failed to take all reasonable steps to prevent the work-related contravention.

It is therefore critical that company officers be involved in the planning and decision making around the processes and steps that a company will take in relation to work rights checks.

In certain circumstances other individuals such as managers or mobility professionals could also be guilty of offence if they were knowingly involved in them.

Next steps
All companies should check their work rights verification processes to ensure that they comply with all requirements and would provide defences against any allegation of wrongdoing.

Should you need assistance in reviewing what your company is currently doing in relation to work rights verification, you should contact your Ajuria account manager or usual contact.

Further compliance updates will follow.

DISCLAIMER This information is current as of 5 September 2023 and is subject to change with little notice. This publication is of a general nature only and should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

The post Australian Immigration Compliance Update first appeared on Ajuria Lawyers – Leaders in Immigration.

DISCLAIMER This information is current as of 31 August 2023 and is subject to change with little notice. This publication is of a general nature only and should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

The post The End Is Coming For The 408 Pandemic Visa first appeared on Ajuria Lawyers – Leaders in Immigration.