PM mulls migration policy to address skills shortage
January 22, 2008

Prime Minister Kevin Rudd says he will consider making changes to Australia’s migration policy as a way of addressing the skills shortage affecting the economy.

Earlier today Woodside officials in Karratha told Mr Rudd the company will need foreign workers as part of a major expansion of its North West gas processing plant.

Yesterday Mr Rudd promised an infrastructure task force as part of his plan to combat inflation.

Mr Rudd says he will look at changes to visas for foreign workers to meet the shortfall of skilled workers.

The Prime Minister promised greater investment in skills and training and calibrating the migration program to the needs of this economy.
–ABC News

Thousands take citizenship pledge
January 26, 2008

The main focus of this morning’s celebrations was in Canberra, where Prime Minister Kevin Rudd delivered a speech at a citizenship ceremony for around 115 new Australians.

The ceremony on the shores of Lake Burley Griffin is just one of more than 300 across Australia today, including a ceremony in the flood-stricken town of Emerald in central Queensland.

Mr Rudd welcomed the new citizens and asked that each of them use their talents and enthusiasm to serve the country.

He also acknowledged the contribution of farmers, business and community leaders, the armed forces, and Indigenous Australians, in shaping the country.He said Australians were intensely proud of the country’s Aboriginal heritage and told the gathering that Indigenous Australian heritage was very important.

‘We stand in awe of the fact that among us is the world’s oldest continuing culture,’ he said.

‘We stand in awe as we hear the songs and the sounds and the stories and the music which have come down to us from antiquity.’

Mr Rudd urged Australians to come together to celebrate the nation’s achievements and told those gathered that the nation had much to celebrate.

‘For this day, Australia Day, it is about celebrating our heritage, it’s about pausing for a moment to reflect on how we best chart our future.’

In Victoria, 3,000 people from about 50 different nations gained their citizenship.

The ceremonies are part of a day of celebrations that include the Australia Day People’s March in Swanston Street and fireworks along the Yarra River tonight.

Yun Yi Liang took her citizenship pledge at the Melbourne Town Hall and says she is proud to be Australian.

‘It’s pretty emotional, especially when I hear Waltzing Matilda and the national anthem. Being Australian is a proud thing, isn’t it? Aussie Aussie Aussie,’ she said.

Canberrans were treated to an F/A-18 flyover and a spectacular display by Red Berets parachutists who parachuted into the lake before the ceremony started.
–ABC News

Business warns Labor on union visa demands
The Australian, January 28, 2008

Business has warned the Rudd Government that the temporary skilled migration program will be jeopardised if Labor agrees to union demands to impose new requirements on foreign workers entering Australia.

Immigration Minister Chris Evans is preparing changes to the temporary skilled migration program aimed at addressing concerns about the lack of transparency over the awarding of the 457 visas.

Union leaders in the manufacturing and construction industry sectors yesterday called on the Government to ensure employer attempts to bring in foreign workers were subject to public scrutiny before the applications were approved.

Unions want to inspect individual applications before they are approved, and have urged the Labor Government to establish a public register of companies sponsoring skilled migrants.Employers warned yesterday that companies seeking to bring in skilled labour were already bound by tough conditions.

Australian Chamber of Commerce and Industry acting chief executive Peter Anderson said companies in some instances were facing delays of six months in having applications approved.“Industry is prepared to discuss the scheme with the Government but there should be no artificial constraints put in place to stop industry being able to use the 457 visa scheme,'’ Mr Anderson said.

“Something which would require the stakeholders to debate each particular decision by the Immigration Department would just bring the scheme to a halt.'’

The stoush came as Kevin Rudd ruled out using Pacific Islanders as guest workers to help ease labour shortages, rejecting a direct plea from Solomon Islands Prime Minister Derek Sikua.

Government sources have suggested the federal Government could consider a New Zealand-style guest worker scheme in the future, but only after it rewrites the industrial relations laws to guarantee it could not undermine local jobs.

The Construction Forestry Mining and Energy Union has called on the Government to open up the visa approval process to allow unions and employers to scrutinise applications to sponsor foreign workers.

John Sutton, the national secretary of the union’s construction division, denied unions were seeking a right to veto sponsorship applications, but said there was an urgent need for improved transparency.

He said that employers wanting to have a sponsorship approved, on making their request, would have to provide “knowledge of that request to the stakeholder in that particular industry'’.

“There should be a period of time for stakeholders to make submissions as to whether they have any views about the request, and their views should be regarded by the Government,'’ Mr Sutton said.

He said Labor should also set up a public register of approved applicants to allow scrutiny of employers granted sponsorships.

Figures obtained by The Australian show the number of 457 visas jumped by 80 per cent over two years, rising from 48,590 in July 2005 to 87,310 in July last year. In the six months to the end of last December, the number of 457 visas rose again, with 49,700 approved. The number of 457 visa holders currently working in Australia stands at 121,030.

Mr Sutton, who wants the Government to hold a judicial inquiry into the operation of the visa scheme, said Labor should introduce legislation imposing increased penalties on employers found to be abusing foreign workers, and oblige companies to provide visa holders with compulsory medical insurance.

Dave Oliver, national secretary of the Australian Manufacturing Workers Union, backed the “comprehensive screening'’ of employers seeking to use the 457 visas.

“We need a system in place that can ensure that the applications are genuine, that employers have made certain attempts to try and source labour domestically,'’ Mr Oliver said.

“What we have found over the years is that it’s just been a rubber-stamp process. Employers need to demonstrate there are real shortages.'’

A spokesman for Senator Evans said the Government was consulting employers, unions and other stakeholders before introducing changes.

“The minister is interested in any measures that will improve the transparency and accountability of the temporary skilled migration program and restore integrity and public confidence in the scheme,'’ he said.

Kiwis lagging in citizenship test
New Zealand Herald, January 30, 2008

New Zealand migrants have received a ‘must do better’ report card after it was revealed they lagged behind Britain, South Africa, the Philippines and India in Australia’s new citizenship test.

Just eight of the 290 New Zealanders who sat the test between October and December failed, or 2.8 per cent, but it wasn’t enough to put them among the leading performers, according to Government statistics published yesterday.

Of the top 10 nationalities to sit the test, which requires applicants to answer correctly 12 out of 20 multiple choice questions on a computer, South Africa was the winner with just 0.9 per cent of its 341 applicants failing. India wasn’t far behind, with a failure rate of 1 per cent of its 641 applicants, followed by the Philippines (1.9 per cent of 259) and Britain (2.2 per cent of 1128).

The worst performers were Sudan (29.6 per cent of 236) and Afghanistan (24.9 per cent of 262).

In all, 638 of the 9043 people tested failed on their first attempts, a rate of 18 per cent. They can sit the test as many times as they like until they pass.

This moved new Australian Immigration Minister Chris Evans to announce a review of the test.

Migration a Lottery For Many
Sydney Morning Herald, 21 December, 2007

Tim Byrnes and his Russian fiancee Alexandra Popko first saw the advertising flyer for Polina Domburga’s migration agency in the Russian consulate when they were on holiday in Sydney.

On SBS, after the Russian news, they saw advertisements for the Migration Agents Registration Authority (Mara). The commercial stated in Russian, “you have protection with Mara”, and urged clients to check their agent was registered with the authority. Domburga was registered, so Byrnes thought they had protection.

“We had declared our relationship,” says Byrnes, 32, who met his partner while working as an English language teacher in Russia. “Once we got into Australia, we were going to apply for residency, so I thought we’d better get ourselves a lawyer.”Domburga says she studied commerce-law at the University of NSW; Byrnes says she told him, “I am a lawyer.” Her flyers used the term “immigration solicitors”, and when he checked, the firm’s name was listed with the NSW Law Society.For $10,000, Domburga said she would oversee the application for Popko’s visa from start to finish, according to Byrnes. They paid $5000 upfront and returned to Russia to wait. In Australia, nothing seemed to be happening.

“I was not happy from the start,” says Popko, 23. “For a Russian, $5000 is a lot of money, but Tim was sure, so sure of the [Australian] government system, that you could trust it. I was the first one to start ringing a bell.”

She was right to be concerned. The University of NSW does not have any record that a Polina Domburga studied commerce-law there, the NSW Law Society does not have any record of a person of that name as a member or associate member, nor was she issued with a NSW practising certificate. Her firm could be listed with the society because of a separate solicitor-director.

Byrnes and Popko’s complaint was one of eight about Domburga sent to the registration authority. Its investigation found she was “not a fit and proper person to give immigration advice” and that her use of the title “immigration solicitors” could “mislead or deceive clients or potential clients into believing that Ardem International is a firm of solicitors and that the agents possess legal qualifications”.

Her registration was cancelled, but by then, the company was in liquidation, Domburga had left Australia, and Byrnes and Popko, like many others clients, had lost their money.

“There is no protection for the people most vulnerable, people who don’t know their rights in immigration matters,” Byrnes says. “We always thought we had this protection of the NSW Law Society and Mara. You felt you had security.”

The Migration Regulations are amended removing the requirement an assurance of support (AOS) be provided for Subclasses 116 and 836 visas (carer) applicants.Affected migration legislation:

Schedule 2 migration regulations removed are

• clause 116.225, clause 116.325, clause 836.222,clause 836.323
• removal of the AOS requirement from Subclasses 116 and 836 visas was a direct recommendation from the 2006 of the Assurance of Support Scheme

For people who applied before this change and where their visa application has not yet been finally decided.

Applies before 1 January 2008, and to new applications made on or after 1 January 2008.

The effect of this being applications lodged before 1 January 2008 (when the AOS requirement was current) but not decided by 1 January 2008 won’t be subject to the AOS requirement.

These Migration Regulations

• Division 1.4A sponsorship regulation 1.20C(1)
• Division 1.4A nomination regulations 1.20G(1)(c) and 1.20GA(2) and
• Schedule 2 visa provisions 457.223(4)(ba) and 457.223(5)(ca)

have been amended to exclude businesses from the standard business sponsorship stream of the 457 TBE program, in circumstances where:

• the 457 visa holder would be on-hired to an unrelated business and
• the relevant nomination is lodged on or after 1 October 2007

(These amendments now do not apply if:

• the Subclass 457 visa holder would be working in the business’s own operations or those of a related business or
• the relevant nomination was lodged before 1 October 2007.)

Using nomination regulation 1.20G(1) as an example (see also below), a standard business sponsor cannot nominate if regulation 1.20G(3A) applies - that is

• their business activities include activities relating to:

* the recruitment of labour for supply to other unrelated businesses or
* the hiring of labour to other unrelated businesses and
* the proposed nominated activity is an activity in relation to which the sponsor proposes supplying the services of a sponsored visa holder to another unrelated business.

ASSESSING CASES

As a sponsor who falls within regulation 1.20G(3A)(b) will also fall within 1.20G(3A)(a) (as the sponsor’s business activities involve the recruitment or hiring of labour for supply to unrelated businesses), immigration case officers should first assess cases against regulation 1.20G(3A)(b).

The two key concepts in regulation 1.20G(3A)(b), namely:

• unrelated business and
• the services of a sponsored visa holder

should be interpreted in practice by a immigration case officer as follows.

UNRELATED BUSINESS

In assessing whether two businesses are related or not, if both businesses are incorporated, a Division 1.4A case officer delegate should apply the same test that is applied for regulation 1.20D(2)(b)(iv) and related Division 1.4A direction.

If the on-hire firm is not a corporation but the other entity is a corporation, a case delegate can apply the same test as if the on-hire firm were a corporation. If neither business is incorporated, they should be considered to be unrelated businesses for the purposes of the TBE “on-hire” provisions.

THE SERVICES OF A SPONSORED VISA HOLDER

Relevant considerations:

To assess this factor, immigration case officer delegates should consider whether the proposed arrangement would involve the supply of “business services” to an unrelated business as opposed to supplying ‘the services of the sponsored visa holder’ by the sponsor/sponsor applicant to an unrelated business.

Business services:

For the work activities of a visa holder to be considered part of a business service of the sponsor/sponsor applicant, all elements described in direction Identifying the direct employer would need to be directly controlled by that business.

The only possible exception to this are in regards to:

• “provision of place of work” and
• “tools, material and equipment for work”

as these elements may be provided by other businesses from time to time where the nature of the activity is such that the person would be required by the sponsor/sponsor applicant to work in the premises or use the tools of other businesses in order to complete the activity. Physically working at the premises at an unrelated business is not by itself is not necessarily indicative of on-hire.

Example:

An accounting client firm (the sponsor applicant) has been contracted to perform an external audit of another unrelated company’s accounts. As part of this service a Subclass 457 visa holder and possibly other employees of the accounting firm would be required to work on-site with the unrelated company for a short period. The accounting firm retains control over all of the staff member’s actions and work tasks and could recall the staff member to continue their work in the accounting firm’s own premises at any time. The accounting firm renders an invoice on the unrelated company for its auditing services. In this example, the work of the Subclass 457 visa holder would be considered part of a ‘business service’ of the sponsor applicant. It would not be considered ‘the supply of the services of a sponsored visa holder’ and therefore would remain within the scope of standard business sponsorship arrangements.

Services of a sponsored visa holder:

Where the sponsor/sponsor applicant shares, with another business, control of some or all of the aspects of a direct employer-employee relationship described in PAM3: Div1.4A - Identifying the direct employer, they would not be considered to be providing a “business service”. They would be considered to be supplying ‘the services of a sponsored visa holder’.

Example:

A client company has a short-term vacancy in its IT department and contacts an unrelated on-hire business (the sponsor) specialising in IT. The on-hire business places a subclass 457 visa holder in the other company’s business to fill their vacancy. Although the visa holder is an employee of the on-hire company and paid by them, the visa holder would work to the standard set out by the receiving company on duties assigned by that company. The on-hire firm renders an invoice on the unrelated company for the hours worked by the Subclass 457 visa holder in the company’s business. In this example, the work of the Subclass 457 visa holder would not be considered a business service. It would be considered ‘the supply of the services of a sponsored visa holder’ and on this basis the on-hire company, would not be eligible to apply to become a standard business sponsor and could not nominate under standard business sponsorship provisions.

Mixed business:

Some businesses may provide ‘business services’ using some of their employees and also supply ‘the services of other employees’ (that is, they may fall into both categories in relation to different personnel they seek to sponsor). Where this is the case, such businesses should be advised that it is open to them to request access to a labour agreement in respect of the provision of services of a sponsored visa holder. The business may continue to use standard business sponsorship arrangements in those cases where they are supplying a “business service” as distinguished above.

Example:

A large multinational ICT client company engages in a diverse range of ICT-related business in Australia.The business ranges from the provision of ICT services to other large companies by a large number of staff (including Subclass 457 visa holders) to the provision of individuals (also including Subclass 457 visa holders) with specialist skills as requested to work in client companies. At the former end of the scale the business is clearly providing a “business service” rather than the ‘services of Subclass 457 visa holders’ while at the latter end of the scale the business is clearly providing the ‘services of Subclass 457 visa holders’. The company can use the SBS program in relation to the Subclass 457 visa holders involved in the provision of “business services” but must enter into a labour agreement in relation to Subclass 457 visa holders who are being on-hired (companies who wish to utilise the labour agreement to bring out both sets of overseas workers should contact Labour Agreement Section to discuss). And there will of course be other situations along this scale, however, the advice on drawing the distinction between on-hire and other activities above will assist in determining the appropriate course in those instances.