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The Global Immigration Blog

Global Mobility Book: AUSTRALIA by Maria Jockel

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[This is an Excerpt from the Global Mobility Book. You can find more about the book and purchase it here.]

SUMMARY
As a nation of some 22 million people, Australia's Migration Program is part of "nation building". Only Australian citizens have the right to enter Australia at any time without restriction. All non- citizens must have a temporary or permanent visa to enter and remain in Australia. Permanent visa holders, if they are overseas, must have a visa to re-enter Australia.

LEGAL SYSTEM
Australia's immigration law, legislative and regulatory framework
Australia's immigration laws are highly codified, complex and subject to frequent and ongoing change. The Migration Act 1958 (Commonwealth) contains the structure for controlling the entry, stay and departure of non- citizens. The Migration Regulations 1994 (Commonwealth) are subordinate legislation that set out the requirements for entry to Australia and related matters and the requirements of entry through the operation of a visa system that acts as a screening process to manage the movement of non-citizens across Australia's borders.
The legislative framework consists of over 3,000 pages. It is underpinned by layers of regulation and sub-delegated legislation (Ministerial Directions, Legislative Instruments and such like). There are 140 visa categories and nine bridging visa categories.
The Australian Department of Immigration and Citizenship is the authority given the statutory discretion and decision-making powers under the regulatory scheme. It is entitled to adopt policy guidelines governing the exercise of that discretion.
The Department's policy documents contain detailed and extensive guidelines for its officers on all aspects of the legislative and regulatory scheme. These guidelines are over 16,000 pages and are subject to ongoing change.
The Department receives over 13,000 applications each day worldwide. In the financial year
2011-2012, it raised revenue from visa fees of about $1.17 billion.
Immigration law is a specialization of Australia?s administrative law. Yet, most Registered Migration Agents (RMA?s) are not lawyers. Nonetheless, they are able to provide advice and assistance in respect of a legislative scheme, which is second only to the complexity of the Australian Taxation Act legislative scheme.

The Role of the Department
The Department has responsibility for the administration of the legislation scheme and the Government's policy under the direction of the Minister of Immigration and Citizenship. It manages, administers and provides advice on migration and humanitarian policy, border control and security, Australian citizenship, multicultural affairs and settlement services. In addition to issuing visas to those entitled to lawfully enter Australia, it has a significant budget to prevent and deter non-compliance with immigration law. The Department has over 7,000 staff working at about 14 locations in Australia. It has offices in some
60 countries, which are usually attached to an Australian Embassy, Consulate or
High Commission.
Australia's Migration Program
The Australian Government determines the size and composition of Australia's Migration Program. The Migration Program focuses on Skilled, Business, Family and Humanitarian outcomes. For the year 2012-13, the Migration Program will provide for 190,000 places with a particular focus on the Permanent Skilled Migration Program. The Migration Program increasingly aims to meet Australia's population and skilled labour force needs, given the ageing of the Australian population, zero population growth and declining workforce participation.

VISAS
The Migration Regulations 1994 lists the visa subclasses which are divided into Permanent, Temporary, Bridging, Protection, Refugee and Humanitarian classes. The classes consist of a number of visa subclasses.
Schedule 1 of the Migration Regulations 1994 sets out how a non-citizen must apply for a visa of a particular class. This includes the fees, the forms and the documentary evidence to support the visa application.

Temporary Visa
There are a number of temporary entry visas for skilled persons who will benefit Australia by contributing to the economic development of the Australian community.
On 24 November 2012, the Subclass 457 Business (Long Stay) Temporary Visa Program became known as the Subclass 457 (Temporary Work (Skilled)) Visa. It enables Australian and overseas businesses to sponsor skilled overseas workers to work in Australia for that business on a temporary basis for up to four years. The principles governing the entry of temporary residents are based on the premises that the employment of Australian residents is a first priority; temporary residents should not result in a financial cost to the Australian community and the temporary residents should eventually be replaced by people recruited and trained locally and that the terms and conditions of employment provided to the temporary residents must be no less favorable than those provided to an Australian citizen or Australian permanent resident to perform work in an equivalent position in that business's workplace.
The subclass 457 visa is demand-driven. It may either continue to increase in response to industry demands; may stabilize or reduce in number.

Subclass 457 Standard Business Sponsorship Requirements
There are three main steps in the approval process for an overseas skilled worker as set out below.

Sponsorship Application
The employer must lodge a sponsorship application and demonstrate that it is of good standing, it has a strong record of, or commitment, to, employing local labour and non-discriminatory employment practices; and it meets the training benchmark as part of its commitment to the ongoing training of their Australian citizen and permanent resident staff.

Nomination Application
The employer must lodge a nomination application which meets the following requirements:
The nominated position the company is seeking to fill must be on the
Consolidated
Skilled Occupation List (CSOL);
The base salary must meet or exceed the Temporary Skilled Migration Income
Threshold
(TSMIT) which is currently $51,400 gross per annum in addition to superannuation for a
38 hour week;
The Market Salary Rate must be met for that position, namely the terms and conditions of employment of the subclass 457 applicant cannot be less favorable than those provided to Australian staff for the same position at the same
workplace;


The position must meet the minimum skills threshold for that occupation. Details of the person nominated to fill the position must be provided.

Visa Application
The person nominated to fill the position must lodge a visa application and demonstrate that they have the skills relevant to the nominated position; establish that he or she is offered employment at the relevant Market Salary Rate (which cannot be below the current TSMIT of $51,400 per annum). If necessary, the foreign national must provide evidence that he or she has vocational English and provide skills assessment, if required.

Sponsorship Obligations of Approved Sponsors
Once a sponsorship is approved, as the approved standard business sponsor, the employer must meet its sponsorship obligations relating to sponsored workers who hold subclass 457 visas....

[This is an Excerpt from the Global Mobility Book. You can find more about the book and purchase it here.]

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Updated 12-11-2013 at 03:17 PM by Tglobal

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