• With great fanfare, Immigration have announced that they propose amendment to the subclass 457 visa nomination requirements. See SMH Editorial 07.06.13. These changes are to require:

    • The delegate to be satisfied that the tasks of the nominated occupation correspond to the tasks of an eligible occupation, and
    • The delegate to be satisfied that the position associated with nominated occupation is genuine.”

    The problem with this idea is that the regulations already require careful and thorough assessment (i.e. by a “delegate” of the Immigration minister) precisely of this kind. That being so, what exactly is the point of the proposed changes? What is the real reason they are being introduced?

    The 457 visa employer (called a sponsor) already has to fill out a form, entitled “Nominating overseas employees to work temporarily in Australia”. You can read it at http://www.immi.gov.au/allforms/pdf/1196n.pdf . It is also called form 1196N. Unless the employer completes such a form, and makes the representations which it requires, the 457 visa will not be granted.

    And right there at Q61, the form requires that the employer must declare, loud and clear and in writing:

    I certify that:
    the tasks of the position include a significant majority of the tasks of the nominated occupation at Question 13, as listed in the ANZSCO Dictionary or Labour Agreement.

    In so many other words, that “…that the tasks of the nominated occupation correspond to the tasks of an eligible occupation”. By law, the employer has to fill out this form honestly. Otherwise, he or she can be prosecuted. That is already the law.

    The application form also states that other kinds of penalties can apply: Immigration can

    • bar the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing approvals as a sponsor for different kinds of visas;
    • bar the sponsor, for a specified period, from making future applications for approval as a sponsor in relation to one or more classes of sponsor;
    • cancelling one or all of the sponsor’s existing approvals as a sponsor;
    • require and take a security;
    • enforce a security already taken;
    • issue an infringement notice of up to AUD10,200 for a body corporate and AUD2,040 for an individual for each failure; or
    • apply to a Court for a civil penalty order of up to AUD51,000 for a corporation and AUD10,200 for an individual for each failure.

    The form goes on:

    There are a number of other circumstances (besides failure to satisfy a sponsorship obligation) in which the Minister may take the administrative actions described in the first 3 dot points above:

    • provision of false or misleading information to the Department of Immigration and Citizenship … To ensure the integrity of the subclass 457 visa program, the department has a thorough monitoring process to assist in ensuring compliance with all program requirements and all relevant Australian laws.

    Considering all these existing rules, it seems a fair question to ask:  Why are they bringing in heavy handed new rules to achieve exactly the same outcome. Or, is something else at play?

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