from ABIL Global Immigration Update

New visas became available as of November 24, 2012.

The New Visa Subclasses:

Subclass 401 (Temporary Work (Long Stay Activity) Visa) has replaced the Exchange visa (Subclass 411), the Sport visa (Subclass 421), and the Religious Work visa (Subclass 428) with a single Long Stay Activity sponsorship. The previous subclasses became categories under the Long Stay Activity Visa for which an applicant can apply.

Subclass 402 (Training and Research Visa) has replaced the Visiting Academic visa (Subclass 419), the Occupational Trainee visa (Subclass 442), and the Professional Development visa (Subclass 470) with a single Training and Research sponsorship. The previous subclasses became categories under the Training and Research Visa for which an applicant can apply.

Subclass 403 (Temporary Work (International Relations) Visa) has replaced the Government Agreement visa (Subclass 406), the Foreign Government Agency visa (Subclass 415), the Domestic Worker – Diplomatic or Consular visa (Subclass 426), and the Privileges and Immunities provisions previously in the (Subclass 456 and 457) visas with a single subclass to cover applicants undertaking work related to Australia's international relations. The previous subclasses and provisions became categories under the International Relations Visa for which an applicant can apply. No sponsorship is required.

Significant Investor Visa

The Significant Investor Visa is part of the Australian government's business innovation and investment program and is designed to boost the local economy by increasing the collection of funds managed locally and promoting growth in areas such as finance and real estate from foreign investors. This visa initiative, listed under Subclasses 188 and 888, began on November 24, 2012.

To be eligible for this visa, an investor must submit an Expression of Interest in Skill Select, receive a nomination from a state government, and make investments, held either personally or with a partner, of at least $5,000,000 (AUD) in complying investments.

Complying investments include government bonds, Australian Securities and Investment Commission (ASIC)-regulated managed funds with a mandate for investing in Australia, or direct investments in private Australian companies.

from ABIL Global Immigration Update

The Australian government has announced a raft of changes to visa programs effective July 1, 2012. Changes to the employer nominated permanent residence visa program were outlined in the last ABIL Global Immigration Update. Changes to the General Skilled Independent visas and Business Skills visas are outlined below.SkillSelect

As of July 1, 2012, the introduction of SkillSelect represents a significant change in how Australia manages its skilled migration program. According to the Department of Immigration and Citizenship (DIAC), the new model will allow Australia to "select the best and brightest skilled migrants from a pool of prospective migrants registered on the system."

SkillSelect will enable skilled workers and business people to submit an Expression of Interest (EOI) to migrate to Australia by recording their details in an online database. An EOI will serve as a quasi-resume for intending applicants with the information accessible by Australian employers as well as state and territory governments, which may then nominate the individual for employment or for a skilled visa. The Australian government may also invite the person to lodge (file) a Skilled Independent visa application.

The objective of the new program is to ensure that Australia's skilled migration program is based on the country's economic needs. Through SkillSelect, the Australian government will be able to manage who is able to apply for skilled migration, when they can apply, and in what numbers. This is expected to streamline the program and lead to more efficient processing of applications.

It is also designed to help address regional skill shortages by allowing intending migrants to indicate in their EOI that they are willing to live and work in certain regions of Australia.

Expression of Interest

An EOI includes basic personal information, details of the person's nominated occupation and relevant work experience, educational qualifications, level of English language ability, and the outcome of a skills assessment (by a gazetted assessing authority) in the person's nominated occupation. For business skills visa applicants, an EOI requires details of the person's business and/or investment experience.

An EOI will remain in DIAC's database for two years. During that period, it will be accessible by employers looking to fill vacancies, state and territory governments looking to attract skills, and Australian businesses.

Changes to Business Skills Visas

DIAC has also announced changes to Business Skills visas, replacing the former program with a new "Business Innovation and Investment" scheme. The new visa structure is designed to attract significant migrant investment, entrepreneurial talent, and demonstrated innovative business history and skills to the Australian market.

As part of these changes, beginning on July 1, 2012, the current 13 Business Skills visa subclasses are consolidated into the following three:

• Business Talent (permanent) subclass 132
• Business Innovation and Investment (provisional) subclass 188
• Business Innovation and Investment (permanent) subclass 888

The reforms include the following key changes:

• introducing an innovation points test for provisional visa applicants
• integrating the new Business Innovation and Investment visas with the skilled migrant selection model, SkillSelect (discussed above)
• facilitating entry of entrepreneurs that have sourced at least A$1milllion in venture capital funding in Australia from a member of the Australian Venture Capital Association Limited
• increasing asset thresholds to better align with the Australian business community

The suite of business visa reforms are intended to better align Australia's immigration policy with countries such as the United Kingdom, Canada, Singapore, and New Zealand.

from ABIL Global Immigration Update

The Australian government has announced reforms to the permanent entry employer-nominated visa program to be introduced on July 1, 2012.

Key reforms include:

• removing the existing distinction between applications with respect to whether they are made by applicants who are in or out of Australia
• replacing the current requirement of paying nominated permanent resident applicants at least the Minimum Salary Level (MSL) of $67,556 for IT-related occupations and $49,330 for other occupations with the need to pay the market salary
• raising the upper age limit to less than 50 years; exceptions will apply for certain occupations and persons working in Australia for more than four years who were paid more than A$118,100 as of July 1, 2012
• increasing the English-language IELTS test result to 6 for all applicants except those already in Australia and working for their nominating employer for the last two years; exceptions will apply for certain occupations, and nationals of five English-speaking countries (United Kingdom, United States, Canada, Ireland, and New Zealand)
• introducing a single consolidated nominated occupation list (NOL) to replace the current sponsored employee 457 occupation list, the Employer Nomination Skilled Occupation List, and the State and Territory Sponsored Occupation List
• integrating the permanent employer nominated visas with the skilled independent migrant selection model SkillSelect to be launched on July 1, 2012. Intending migrants who complete an Expression of Interest in migrating to Australia in SkillSelect can also indicate whether they are prepared to be sponsored for temporary residence or nominated for permanent residence by an employer.
  

from ABIL Global Immigration Update

Currently, employees living away from home to perform their employment duties in Australia may be eligible for tax-free benefits for reasonable housing and food costs under the Living Away From Home Allowance (LAFHA) rules. Changes have been proposed to start on July 1, 2012, to address the perceived abuse of these LAFHA tax concessions.

As a result of the proposed changes, employers of foreign workers in Australia will need to consider their recruitment and retention strategies, current contracts of employment, and whether to facilitate transition of current sponsored temporary residence employees to permanent residence.

Essentially, employers have three key options to consider:

• increasing the foreign worker's remuneration so that his or her take-home pay is not affected;
• continuing to pay the LAFHA, which means the foreign worker will pay tax under the income tax regime; or
• renegotiating contracts of employment so that the foreign worker is reimbursed for reasonable accommodation and food expenses. In this case, the employer incurs a fringe benefit tax liability.
  

from ABIL Global Immigration Update

Sponsors should be cautious when considering dismissal of 457 visa holders. As with their Australian counterparts, 457 visa holders have access to employment remedies under the Fair Work Act. Even where a sponsored employee's employment is terminated under an employment agreement, the dismissal may still be held to be harsh, unjust, or unreasonable. Under Australian immigration law, when a sponsored employee's employment is terminated, he or she has just 28 days to regularize visa status or leave Australia.

If sponsors fail to comply with relevant workplace law, Fair Work Australia may order one of two sanctions: compensation or reinstatement. This could also affect the sponsor's continued ability to sponsor expatriates.

When determining whether a dismissal is harsh, unjust, or unreasonable, Fair Work Australia takes into account, among other factors, whether:

• there was a valid reason for the dismissal;
• the person was notified of the reason;
• the person was given an opportunity to respond to any reason related to his or her capacity or conduct; and
• the person received a warning about unsatisfactory performance before the dismissal.

In Webster v Mercury Colleges Pty. Ltd.,Fair Work Australia held that termination of a sponsored teacher was unfair because of the serious financial consequences to the teacher and the social dislocation that was inevitable as a result of his summary dismissal.

In Richard Patemella v Electroboard Solutions Pty. Ltd., the tribunal held that the dismissal was harsh because the employee was not given any warning that his employment was at risk, limiting his opportunity to mitigate his job loss and, as a result, his ability to remain in Australia.

The Fair Work Act requires employees in Australia, including sponsored visa holders, to lodge an unfair dismissal claim with Fair Work Australia within 14 days of their dismissal unless the tribunal is satisfied that there are exceptional circumstances for the delay. The recent decision in Usman Ali v Industries Services Training Pty. Ltd. held that the potentially severe impact on a 457 visa holder of losing his job constituted exceptional circumstances justifying a one-day delay in lodging an unfair dismissal claim.