Subclass 457 amendments and other visa and citizenship changes

Yesterday two different regulations were passed tweaking some visa subclasses and clarifying 457 visa requirements. The latter legislation also amended a very important condition attached to all primary 457 visas holders: condition 8107.

The first instrument affects a number of visas and applications for Australian citizenship. The major changes are:

• Prevent applications for Tourist (subclass 600) visas to be granted if it would mean the applicant’s stay in Australia would exceed 12 consecutive months as the holder of one or more Tourist, Working Holiday (subclass 417), or Work and Holiday (subclass 462) visas unless exceptional circumstances exist. The idea here is to close a loophole where an applicant who held a bridging visa while awaiting a visa decision would not need to make a case for exceptional circumstances.
• Require regional work for a second Working Holiday (subclass 417) visa application be remunerated according to minimum Australian employment standards and awards. This has been a long time coming and will commence on 1 December 2015 for all applications made on or after this date.
• Extend the Public Interest Criterion 4020 (The Integrity Criterion) to Retirement (subclass 410) visas, Investor Retirement (subclass 405) visas, Maritime Crew (subclass 988) visas, Transit (subclass 771) visas and Distinguished talent (subclass 124 and 858) visas. This will commence on 21 November 2015.
• Amend the prices of all Australian citizenship applications to recover 100% of all costs for these applications. In some cases, these fees have more than doubled, however, no application is more than $285, which will be the cost for an application for citizenship by referral. These costs will begin on 1 January 2016.

The much used Temporary Work (Skilled) (subclass 457) visa and related applications received its own amending legislation. The highlights are:

• Ensure that any work agreement negotiated requires recent and genuine labour market testing with the notable exception of Ministers of Religion and Religious Assistants. Simply put, aside from the exception, this enshrines common practice that labour market testing is a mandatory requirement for any work agreement.
• Require that the terms and conditions of employment for a nominee is equal to or exceed any enterprise agreement should it apply. This means that an employer, if they have negotiated an enterprise agreement cannot have a sponsored worker paid less than the agreement for that position even if all other requirements for a nomination can be met.
• Have the Minister publish policy guidelines for work agreement applications. This should improve transparency. Although, in theory, work agreements are separate negotiations between the Department of Immigration and Border Protection (DIBP) and the business or organisation applying, in reality there are certain expectations and rules to be adhered to in order for any application to be approved.
• Require any primary 457 visa holder to commence work with their sponsor within 90 days of arriving to Australia or within 90 days of their visa being granted if they are in Australia.
• For any occupations that require a mandatory licence, that any primary subclass 457 visa holder obtain that licence within 90 days of either entering Australia or within 90 days from the grant of their visa if they are in Australia. Additionally they must comply with any conditions of that licence, not engage in any work inconsistent with that licence, and notify the DIBP in writing should their licence application be refused or subsequently cancelled.

Most of the above are relatively minor effects on the 457 program, however, for the first time in memory the DIBP now requires the 457 visa holder to notify them should they not be able to maintain or be approved for any relevant mandatory licence. This is because the legislation amends condition 8107, a condition affecting the visa holder and not the sponsor. It would be well worth any employer to keep an eye out for such a situation that may affect any of their sponsored workers. This is because it would be expected that the DIBP would cancel their employee’s 457 visa for being in breach of condition 8107, thereby adversely affecting their business interests in the process.