What are the obligations of the 457 business sponsor and visa applicant after the visa is granted?

It is critical that the 457 visa holder and business sponsor adhere to the obligations and conditions of the 457 visa when it is approved. Failure to meet the conditions will result in visa cancellations and/or removal of sponsorship status for the business.

457 visa holder obligations:

• You are only allowed to work for the business that sponsored you
• Must start work within 90 days or arrival to Australia
• Must not stop working for the employer for more than 90 consecutive days
• Obtain registration or licences if necessary
• Maintain adequate health insurance for you and your family in Australia.

457 business sponsor obligations:

To prevent exploitation of overseas workers and to ensure skill shortages are genuinely met the sponsor will need to do the following:

• Cooperate with the Department for checks on compliance
• Ensure employment conditions are fair
• Keep and maintain records of employment for the 457 visa holder
• Ensure that the sponsored 457 visa worker does not perform duties other than what is required for the nominated occupation
• Do not obtain payment from the sponsored worker for the costs of the 457 visa application
• Continue to meet the 'Training Benchmark' requirements
• Pay the travel costs for the sponsored worker to leave Australia when the visa validity expires.

Please contact Nevett Ford Lawyers Melbourne if you need more information about your obligations or situations such as when employment ceases, or if the business is being monitored by the Department.

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Parent visas - Australia

All Parent visas must have a sponsor and a primary visa applicant.


The sponsor must be an Australian citizen, permanent resident or eligible New Zealand citizen, that is your child or stepchild, or their eligible partner.


The primary visa applicant must be a parent of a child or stepchild who is a settled Australian citizen, permanent resident or eligible New Zealand citizen.


Parent visa categories include the following:


Parent Visa (Non-Contributory)
Contributory Parent Visa
Aged Parent Visa (Non-Contributory)
Contributory Aged Parent Visa

Which Parent Visa is Best?

The range of Parent visa options available and differing requirements can be confusing:

• As a child you want the best for your parents.
• As a parent want to be able to spend time with your family in Australia, and avoid wasting time or money on the visa process.

With the Contributory Parent visa applications, the 2^nd instalment is a very significant amount of money and a large investment for your family.


Nevett Ford Lawyers (Melbourne) can provide you with advice and assistance in relation to the visa process.

Parent Visa (Non-Contributory)

There are a number of requirements that must be met for this type of visa.

Balance of Family (BoF) test for the applicant

This requires that:

• Half of the applicant’s children must be settled Australian citizens or permanent residents or,
• More of the applicant’s children must be settled Australian citizens or permanent residents than being settled in any other single country.

All children of the parent and the parent’s current partner, including adopted and step children must be included in the balance of family test. Step children of a former partner can be counted in limited circumstance.


An assurance of support must be paid for in relation to all applications.

All applicants must meet health and character requirements.


The processing time for this type of visa is estimated to be over 10 years. Parent visas are subject to quotas in relation to the number of visas granted per financial year. The quota allocated in recent years has been small, and this has resulted in very long processing times.


Contributory Parent visas have shorter processing times.

Contributory Parent Visa

There are a number of requirements that must be met for this type of visa.

Balance of Family (BoF) test for the applicant

This requires that:

• Half of the applicant’s children must be settled Australian citizens or permanent residents or,
• More of the applicant’s children must be settled Australian citizens or permanent residents than being settled in any other single country.

All children of the parent and the parent’s current partner, including adopted and step children must be included in the balance of family test. Step children of a former partner can be counted in limited circumstance.


An assurance of support must be paid for in relation to all applications.

 All applicants must meet health and character requirements.


This visa is subject to an additional ‘contribution’ which is a 2^nd instalment paid to the Department prior to the visa grant. The 2^nd instalment is a significant amount of money, which is subject to increases each year.


Processing times for Contributory Parent visas are significantly faster than the Non-Contributory Parent visa applications.

Aged Parent Visa (Non-Contributory)

This requires that the visa applicant be an aged parent. The definition of aged for men is 65 or over. For women the age requirement is between 63.5 and 65, depending the year the woman was born.
Aside from the age requirement, this visa has similar requirements to the Parent visa (non-contributory). 


A benefit of the Aged Parent Visa is that it can be lodged onshore (i.e. whilst the visa application is physically in Australia).


The processing time for this type of visa is estimated to be over 10 years. Aged Parent visas are subject to quotas in relation to the number of visa granted per financial year. The quota allocated in recent years has been small, and this has resulted in very long processing times.


Contributory Aged Parent visas have shorter processing times.

Contributory Aged Parent Visa

This requires that the visa applicant be an aged parent. The definition of aged for men is 65 or over. For women the age requirement is between 63.5 and 65, depending the year the woman was born.
This requires that:

• Half of the applicant’s children must be settled Australian citizens or permanent residents or,
• More of the applicant’s children must be settled Australian citizens or permanent residents than being settled in any other single country.

All children of the parent and the parent’s current partner, including adopted and step children must be included in the balance of family test. Step children of a former partner can be counted in limited circumstance.


An assurance of support must be paid for in relation to all applications.

 All applicants must meet health and character requirements.


This visa is subject to an additional ‘contribution’ which is a 2^nd instalment paid to the Department prior to the visa grant. The 2^nd instalment is a significant amount of money, which is subject to increases each year.


Processing times for Contributory Aged Parent visas are significantly faster than the non-contributory Parent visa applications.


A benefit of the Contributory Aged Parent visa is that it can be lodged onshore.

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What is the Australian Nursing and Midwifery Accreditation Council (ANMAC)? How is it different from the Nursing and Midwifery Board of Australia (NMBA)?

ANMAC is responsible for making an assessment on an applicant’s work experience and qualifications to determine the applicant’s suitability for skilled migration. A health professional would obtain the migration skills assessment from ANMAC before lodging a visa application.

NMBA is the registration body in Australia which manages the registration of nurses and midwives in Australia. It is compulsory for nurses and midwives to be registered in Australia. You cannot work in Australia as a nurse or midwife unless you are registered with NMBA. NMBA also sets policies and standards for the nursing and midwifery profession.

In summary, you will need to:

• apply for the skills assessment with ANMAC to apply for Australian work visas or the General Skilled Migration visas; and
• apply for registration with NMBA to work as a nurse or midwife in Australia.

Nevett Ford Lawyers (Melbourne) can provide advice and assistance.  Please call us today to speak to an experienced team of immigration lawyers and registered migration agents.

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Expert review of the 457 temporary skilled migration income threshold

Mr John Azarias has been appointed to undertake an evidence-based review of the Temporary Skilled Migration Incomes Threshold (TSMIT).

The review was recommended by the Independent Review into Integrity in the Subclass 457 Programme.

The review will consider a range of issues including the factors that should determine the settings, the appropriate base level, and the roles of indexation and regional concessions for the TSMIT.

The TSMIT defines the salary threshold for jobs that can be filled by a 457 visa holder and is designed to protect Australian workers and ensure that visa holders are undertaking skilled employment.

The Government has brought forward the review as part of an agreement with the Opposition to ensure the passage through Parliament of legislation to implement the landmark China-Australia Free Trade Agreement.

Mr Azarias will provide a report to Government at the end of April 2016. As recommended by the 457 Integrity Review, the TSMIT will be retained at $53,900.00 until the findings of the review are considered by Government.

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Lee Case Overturned Clarifying Appeal Rights for 457 Refusals

As a result of the 2014 Lee case (Minister for Immigration and Border Protection v Lee [2014] FCCA 2881), the Administrative Appeals Tribunal (AAT) has had no jurisdiction to review 457 visa refusals unless there was an approved nomination at the date the appeal was lodged.

This was a significant barrier to appealing refused 457s, particularly where the reason for refusal of the 457 was an issue with the nomination.

 

The Lee case has been overturned by the Full Federal court in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182. As a result, it is now possible to lodge an appeal for a 457 refusal where at the date of the appeal:

• There is an approved nomination; or
• A nomination application is still pending; or
• There is a refused nomination, but the nomination has also been appealed to the Administrative Appeals Tribunal (AAT) (formerly the 'Migration Review Tribunal (MRT)'.

However, it appears that it would not be possible to appeal a 457 visa refusal if:

• A nomination has been refused, but not appealed to the MRT; or
• A nomination has previously been approved, but has now expired.

 

 

 

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Self Sponsorship for 457 Visas

Changes have been made to the Australian immigration policy document (known as the Policy Advice Manual (PAM)) for 457 nominations which means that self-sponsorship is now very difficult. The changes are in relation to the "genuine position" requirement for the nomination. As a result, the nomination would be refused on the basis that the position has been created just to facilitate a visa application.

 

Immigration has set out the following "risk factors" which could indicate the position is not genuine

• Visa applicant is a director or owner of the sponsoring business;
• Visa applicant is a relative or personal associate of an officer of the sponsoring business;

Immigration will wish to see an ASIC historical extract with the application - this would give information on the company owners and directors, and so assist in establishing whether the visa applicant is associated with a company officer. Sponsors must also declare who the company officers and shareholders are in the application for sponsorship approval.

The policy document specifically mentions that the application will be scrutinised if an overseas business is being used to "self-sponsor" a business owner to establish a branch in Australia. The stated reason is to prevent the 457 program from being used to 'circumvent' the Business Innovation and Investment (Subclass 188) program.

  

Based on these changes, "self-sponsorship" is not recommended. 

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Offences Introduced for Charging Visa Applicants for Employer Sponsorship

Offences Introduced for Charging Visa Applicants for Employer Sponsorship

The Migration Amendment (Charging for a Migration Outcome) Act 2015 has been passed and came into effect from 14 December 2015.


This legislation makes it illegal for a benefit to be given by a visa applicant to another person in return for a "sponsorship-related event". Effectively, this means that if a visa applicant pays an employer to sponsor them, the following can result:

• Refusal of a visa application - applicants must now declare that they have not paid for sponsorship, and this could result in Public Interest Criteria (PIC) 4020 refusal and a 3 year re-entry ban;
• Cancellation of the visa applicant's visa - even if this did not require employer sponsorship;
• Significant fines to the employer - up to $324,000 for a corporation
• Jail sentence of up to 2 years for the visa applicant, as well as a fine of up to $64,800 for individuals;
• Fines for company officers and directors who allow payment for sponsorship to occur due to recklessness or negligence, or if they know about it.

The above offences apply to 457 visas, but also apply to other visa types, including:

• Employer Nomination Scheme (ENS) Subclass 186;
• Regional Sponsored Migration Scheme (RSMS) Subclass 187;
• Temporary Work (Long Stay Activity) Subclass 401;
• Training and Research Subclass 402 (Research stream);
• Entertainment Subclass 420; and
• Superyacht Crew Subclass 488.

There are both criminal offences (which require proving the person's state of mind) as well as civil offences which do not require proof that the person acted knowingly.
"Benefits" which are prohibited include:

• Payments or valuable consideration
• Deductions - for example from a person's salary
• Real or Personal Property
• An advantage, service or a gift
• Payment of reasonable fees to a migration advisor is exempt from the above provisions

"Sponsorship related events" which are prohibited include:

• Applying for approval as a sponsor, renewing this, or not withdrawing an application
• Applying for nomination
• Employing or engaging a person to work or perform an activity, or not terminating a person

This legislation makes it clear that people paying an employer to sponsor them for a visa are acting contrary to the legislation and the consequences are severe.

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