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Australian Immigration Update

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457 Business Sponsors – New Disclosure Requirements:
On 20 November 2015 several changes were made to the requirements for subclass 457 sponsorship, nomination and visa online applications. The changes relating to the sponsorship application in particular should be noted as they are likely to have an impact on sponsors.

Changes:
The online 457 sponsorship application now requires sponsors to provide the names of all owners, directors and major shareholders as part of the application process. This disclosure has implications on sponsors for several reasons:

1. Approved subclass 457 sponsors are subject to a number of sponsor obligations. One of these obligations relates to the requirement to advise the Department of Immigration and Border Protection (DIBP) of any change in Directors and Shareholders. Non-compliance can result in sponsorship bans and affect the company’s ability to sponsor in future.
2. It is a requirement when applying for subclass 457 sponsorship that there be no ‘adverse information’ known about the sponsor applicant or people associated with the sponsor applicant (or it is reasonable to disregard that information). Having the directors, partners and major shareholders named provides additional information to DIBP to assess this criterion.
3. In some cases the directors may be related to a visa applicant. This was previously not visible to DIBP. Having the directors named allows DIBP to identify these connections, potentially resulting in visa applications being scrutinised for genuineness.

Recommendations:
As approved subclass 457 sponsors it is important to ensure ongoing compliance with sponsorship obligations to safeguard your ability to hire non-Australian workers. Coupled with recent changes which provide DIBP additional capability to cross check information with other government agencies (such as the Australian Taxation Office) it is clear that compliance is becoming a major focus for DIBP.
Santa Fe Immigration Services offers services to assist sponsors in ensuring that they remain compliant with their sponsorship obligations. Please contact Santa Fe Immigration Services for any assistance or information in relation to this matter.

Labour Market Testing and the China-Australia Free Trade Agreement
The Australian Minister for Immigration and Border Protection has recently determined that the imposition of labour market testing would be inconsistent with Australia’s International trade obligations arising under the China-Australia Free Trade Agreement for the following categories of natural persons:

• Executives, Senior Managers and Managers, as inter-corporate transferees
• Specialists as intra-corporate transferees
• Independent Executives; and
• Contractual Service Suppliers

By way of clarification, labour market testing is the process whereby employers seeking to access the 457 visa programme test the local Australian labour market to confirm that there is no suitably qualified Australian Citizen or Permanent Resident or eligible temporary visa holder readily available to fill the position.

Charging for a Migration Outcome Act Approved
This legislation introduces a new criminal and civil penalty regime that will make it unlawful for a person to ask for, receive, offer or provide payment or other benefits in return for a range of sponsorship-related events.
Sponsorship-related events include sponsorship under the 457 visa program, business nomination application, application for transfer of a 457 visa to another sponsor or the reporting of a notifiable event in relation to a Sponsorship to the Department of Immigration and Border Protection.
The Bill also allows visa cancellation to be considered where the visa holder has engaged ‘Payment for Visas’ conduct.
It will be a criminal offence for a sponsor or other third party to ask for or receive a benefit from a sponsorship related event and will be punishable by a maximum of 2 years imprisonment or a fine equivalent to $64,000 for an individual person or $324,000 for a body corporate.
Civil penalties applicable to the sponsor, visa applicant or other third party who received or provides or offers a benefit related to a sponsorship related offence will equate to $43,200 for an individual person or $216.000 for a body corporate.
A discretionary power to consider cancellation of visas where any person who engages in this conduct is also included in the Legislation.

Relaxation of Work Rights for Working Holiday Makers in Northern Australia
Generally working holiday makers in Australia may undertake any kind of work during the validity of a working holiday visa in Australia provided they do not work for one employer for more than 6 months. There are certain circumstances in which permission may be granted to work beyond 6 months with one employer.
With effect from 21 November 2015, a working holiday maker may apply for an extension to work beyond 6 months for one employer if they work in the following industries located in Northern Australia:

• Aged and Disability Care
• Agriculture but specifically
− Plant and Animal Cultivation
− Fishing and Pearling
− Tree Farming and Felling
• Construction
• Mining
• Tourism and Hospitality

Northern Australia is defined by postcodes and includes all of the Northern Territory (main city being Darwin) and those areas of Western Australia and Queensland North of the Tropic of Capricorn.

Season’s Greetings
At this time of the year we take the opportunity to thank our clients and colleagues for their support throughout the year and wish you all a happy, healthy festive season with your families and a prosperous 2016.