Australian Corporate Immigration Presentation focussing on corporate compliance, predictions for the future and the West Australian market.

1. Australian Corporate Migration July 2010

2. Presented by: Peter Snell Solicitor Registered Migration Agent │MARN 0956898 perth@stirlinghenry.com Tim Denney General Manager Registered Migration Agent │MARN 9683858 visa@stirlinghenry.com

3. Established in 1991 Stirling Henry specialises in corporate migration delivering high level migration services to companies across all sectors of the Australian market Stirling Henry clients include world leaders in IT, Construction, Resources and Manufacturing industries With a presence in Perth, Sydney, Melbourne and Los Angeles, Stirling Henry is able to provide personalised service wherever our clients are located 3 Stirling Henry Global Migration

4. Topics Today: Corporate Immigration Compliance Corporate Immigration: The Future The Western Australian Market Australian Immigration in a Global Market

5. 5 Corporate Immigration Compliance Australian Government is typical of the vast majority of western countries. Immigration is increasingly a political issue and corporate compliance is targeted by Governments as a means to ensure public confidence in the corporate immigration program Australian Government is also typical of the trend of western countries using legislation to force companies to self-comply under the threat of heavy financial penalties together with jail sentences to company directors in the most severe cases of immigration abuses. In the future we anticipate that the Department of Immigration will increase their persecution and/or fining of non-complying companies for both political reasons and also as means of revenue raising

6. 6 Employer Sanctions Act Employer's Sanctions Act commenced on 15 August 2007. The Act introduced severe penalties for anyone who knowingly or recklessly employs or refers illegal workers (defined as workers without visa or in breach of visa conditions) Penalties range from fines of up to A$66,000 per breach for a company recklessly employing an illegal worker and fines for individuals of up A$13,200 per breach and/or two years imprisonment

7. 7 All employers in Australia are now expected to ensure individuals have employment rights as part of the hiring process It is sufficient to sight an Australian passport or Australian birth certificate. If the individual is not an Australian citizen you are then required to review work rights through the Department of Immigration’s Visa Entitlement Verification On-Line (VEVO) - www.immi.gov.au/evo or through the Department’s faxback service (1800 505 550) enquiry centre

8. 8 It is strongly recommended that if your organisation is not already registered to access VEVO you do so as a priority. Stirling Henry is also able to access VEVO on a client’s request to assist in ensuring work rights VEVO is an important tool and often requires on-going review for particular employees e.g. employees holding spouse visas, employees holding spouse temporary resident visas. In such instances you are expected to check visa entitlement every 3 months

9. Sponsorship Regimes & Sponsorship Obligations 9 the current Labor Government introduced a raft of corporate immigration changes in September last year a firm must now be an approved sponsor when accessing any temporary employment visa. A sponsorship and compliance regime are now in place for: Temporary Business Long Stay Visas (commonly the 457 visa) Occupational Trainee Visas Entertainment Visas Exchange Visas

10. 10 Sponsorships are now valid for a period of 3 years for an unlimited number of positions September 14 2009 changes greatly increased obligations of sponsoring firms employing overseas workers under all temporary visa categories whilst at the same time the Department shifted compliance and monitoring obligations onto sponsors through the threat of penalties, including personal liability of officers and directors of the Sponsor company

11. 11 Sponsorship Obligations Sponsor’s obligations may include (exact obligation depends on visa type with the 457 sponsorship having the most rigorous obligations): A requirement to maintain and be capable of producing in a reasonable time records of employment for all workers, including overseas workers including details of salaries, terms and conditions of employment etc. Records must be maintained for at least 5 years and be in an approved format to be immediately available to be provided to DIAC upon request.

12. Obligation to provide information to DIAC when certain events occur: Within 10 working days of any of the following events occurring DIAC must be advised of the event: Cessation of employment of a sponsored visa holder or significant changes in the employment status or terms and conditions of employment of the visa holder. An example could include, transfer to a new location, extended absence, maternity leave etc. Changes to a business structure – including appointment of new directors or if the business ceases to continue to operate Insolvency, bankruptcy etc of the business sponsor 12

13. 13 Payment of travel costs when an individual departs Australia Change in address and contact details If the company is subject to any court action If the company is found in breach of Australian law Pay repatriation costs if requested by the visa holder at the conclusion of the employment engagement or termination of the visa

14. 14 Obligations to ensure requirements for sponsorship approval be maintained for the life of the sponsorship, including but not limited to: 457 sponsor maintain the required expenditure on training Australian staff (457 sponsors are required to spend 1% of total payroll on eligible training of Australian staff) 457 sponsor continues to ensure market rate is satisfied throughout the life of the sponsorship. It is recommend that lowly paid workers on the threshold receive an annual salary increase at least at CPI level All sponsors ensure industrial relations requirements are satisfied

15. 15 Penalties for Non-Complying Sponsors If a business sponsor fails to satisfy a sponsorship obligation, the Minister may take one or more of the following actions: 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 cancel one or all of the sponsor’s existing approvals as a sponsor

16. 16 apply to a Court for a civil penalty order of up to $33 000 for a corporation and $6 600 for an individual for each failure issue an infringement notice of up to $6 600 for a body corporate and $1 320 for an individual for each failure require and take a security; or enforce a security already taken

17. 17 The Minister may also bar sponsors and/or cancel sponsorships (but not issue infringement notices or civil penalties) in the following situations: provision of false or misleading information to the Department of Immigration and Citizenship or the Migration Review Tribunal the sponsor no longer satisfies the criteria for approval as a standard business sponsor or for variation of that approval the sponsor has been found by a court or competent authority to have contravened a Commonwealth, State or Territory law a primary sponsored person is found to have contravened a law relating to the licensing, registration or membership required in order to work in the nominated occupation.

18. Avoid Being Fined by Immigration! Sponsors must ensure that their internal systems are accurately maintained so that DIAC can be notified of all relevant events within required time frames. There is no discretion to report outside these timeframes and a simple non‐notification of a reportable obligation will result in a breach notice being issued to the Sponsor Please note that if you have subsidiaries accessing your sponsorship you should play particular note of ensuring a subsidiary also complies with the necessary obligations A company director should be aware of their obligations as a Sponsor and if the company has a compliance division or compliance committee we recommend members being briefed on the pending regulatory changes 18

19. 19 Monitoring of Sponsors Immigration now monitors 100% of sponsors through data sharing between Immigration, ATO, DEEWR, Fair Work and other government authorities DIAC will aggressively audit companies where breaches are identified through internal mechanisms, ‘dob ins’ or repeated late notifications to Monitoring Units We expect Immigration to use monitoring as a potential source of revenue in the future

20. 20 Compliance on Short Stay Business Visas Business ETAs (North America, Japan, Hong Kong, South Korea, Malaysia etc) and eVisitor (generally Western Europe) are a ‘interesting’ visa in a compliance sense! Visas are intended for those travelling to Australia for business meetings, conferences and very limited work of a very urgent nature Granted subject to condition 8112: Condition 8112 states that: 'The holder must not engage in work in Australia that might otherwise be carried out by an Australian citizen or an Australian permanent resident.'

21. 21 Condition 8112 is a nice vague statement open to interpretation! The Department’s Policy Advice Manual (PAM) further outlines what condition 8112 permits. Policy makes it clear what the Government expects: The Government expects that when work is involved individuals apply for the appropriate employment visa (usually 457 visa – hence the 457 visa may be valid from 1 day to 4 years)

22. 22 8112 only permits employment in a skilled role that cannot be filled by Australian for a maximum of 6 weeks Employment would usually be in an emergency situation e.g. natural disaster – fireman or employment disaster e.g. if the BP situation happened in Australia this would be an appropriate time to bring in specialist engineers on a business ETA!

23. On July 1 an interesting statement was published on the Agent’s Gateway “even though ETA and eVisitor eligible clients entering Australia for the purpose as described above will continue to be able to do so in the short term, it is expected that over time, they utilise the 456 visa.” What we can predict from this brief statement is that in the future no work will be permitted on an ETA or eVisitor – this does not come as a surprise and would bring Australia into line with most western countries.

24. Employer Nomination Scheme (Residency) In order to avoid the compliance issues associated with temporary visas some companies are increasing sponsoring individuals for residency under the employer nomination scheme An ENS application has negatives and positives: LAFHA stops on lodgement Medicare permitted on lodgement Not that anybody in the audience would do this but you don’t have the issues associates with market rate salaries on approval! Children eligible for subsidised education on approval

25. Immigration require a letter of intent (not a contract and not enforceable) that the individual will be employed in the position in question with at least the employment terms at time of the application for at least the next 3 years (this can be a positive or negative depending on your point of visa) Sponsorship obligations continue whilst the ENS application is being processed.

26. Corporate Immigration – The Future? Staring into the crystal ball is difficult in the best of times but predicting the future in the middle of a Federal Election makes it just that little bit harder! It is clear both sides of the political divide, despite the rhetoric, are committed to corporate immigration as a necessity to support Australian industry and to ensure long continuing economic growth. It interesting that the National Resources Sector Employment Taskforce has backed the continued use of foreign labour to fill skills shortages that are expected to worsen significantly in the coming years

27. a 5 day deadline for visa processing introduction of an enterprise migration agreement for large projects (streamlined visa processing plus a range of approved occupations, we expect covering skilled and semi-skilled plus may have some scope for an easing of some of the current difficulties associated with trade applicants) commitment to the 457 visa program for the long term commitment to the Employer Nomination Scheme for the long term

28. As mentioned we expect the business ETA and eVisitor visa to eventually have condition 8112 removed. This would bring Australia into line with most overseas countries You may be aware that the commitment to corporate immigration strengthened on July 1 when the Department effectively closed independent migration for many individuals and advised the appropriate course of migration was now through company sponsorship after identifying a company to assist in the process (sometimes easier said than done).

29. The West Australian Market The Department of Training and Workforce Development Reports – April 2010 http://www.dtwd.wa.gov.au/dtwd/detcms/navigation/workforce-development-plan/ National Resources Sector Taskforce Report - July 2010 http://www.deewr.gov.au/Skills/Programs/National/nrset/Documents/FinalReport.pdf

30. The West Australian Market Current population of WA is 2.27 million. Current workforce of 1.26 million. Unemployment rate of 4%. 38% of Australian merchandise exports originate in WA. 64% of all mining industry investment in 2009 was in WA.

31. Of 75 advanced resources projects currently underway in Australia, 29 are in WA and represent investment of $86.5 billion from at total national investment of $109.6 billion. Resources sector represents 1.6% of total Australian workforce but 6.4% of the WA workforce. WA mining industry is the 10th largest employer in WA directly employing approximately 57 600 people and many more indirectly. WA mining industry experienced 98% growth in job numbers between 2001/02 and 2008/09.

32. The West Australian Market Gorgon Project is already responsible for 3000 jobs in Australia. The bulk of these jobs are in WA, spread throughout both metropolitan and regional areas. Estimated that the Gorgon Project will provide up to 10 000 direct and indirect employment opportunities at peak construction. It is predicted that over one half of all jobs created in WA in the next 7 years will be in higher skilled categories, including managers, professionals and technicians and trades workers.

33. The West Australian Market WA government expects increasing pressure on the State’s labour market as a direct result of increased investment and resources development in WA. Current national skills shortages have been identified in; civil, electrical, mechanical, mining and petroleum engineers, carpenters, plumbers and automotive trades workers.

34. The West Australian Market Existing WA skills shortages have been indentified as plant operators, motor mechanics, carpenters, concreters. Projected WA skills shortages are anticipated in structural steel and welding trades, fitters, electricians, structural steel concrete workers and crane and hoist operators.

35. The West Australian Market In April 2010 the WA Chamber of Commerce estimated that on current population trends, WA labour force would be 150,000 workers short by 2017 without significantly increased migration into WA. Overseas migration has been the key driver of WA population increase during the last 28 years. Net migration numbers in WA increasing from 18 000 in 1981 to over 43 000 in 2009. Immigration in WA is more heavily skewed towards skilled workers than other states. In 2009 overseas migration represented 66% of WA annual population growth.

36. The West Australian Market National Resources Sector Employment Taskforce concluded that there was no evidence that the 457 program reduces skills development in Australians workers. Taskforce noted that because the 457 program is demand driven, DIAC statistics demonstrate a strong correlation between an increased demand for labour and an increased number of 457 applications. Similarly, when unemployment rates have been high, 457 visa applications have been correspondingly low.

37. The West Australian Market The WA government published a revised State Priority Occupation List in June 2010 identifying occupations in highest demand in WA. When releasing the new list Mr Collier, state minister for Workforce Development observed that “skilled migration is a vital component of meeting the needs of industry …”

38. The West Australian Market Despite this, there were divergent submissions to the Taskforce about the 457 program: Chevron submitted that “the program allowed development of its projects and growth of its business”. The Minerals Council Australia and ors submitted that “skilled migrants, particularly in critical professional roles … maintain the minerals sector’s productivity”. The CFMEU submitted that it does not support the 457 program, other than in exceptional circumstances.

39. The West Australian Market An increased demand for skilled labour in WA is certain. We therefore anticipate an increased demand for skilled overseas workers in WA under the 457 program and to a lesser extent though State or Regional Sponsored Migration programs. New migration initiative may also need to be considered to meet WA’s employment needs such as Enterprise Migration Agreements recommended by the Natural Resources Sector Employment Taskforce.

40. Australian Immigration in a Global Market Anticipated continuing migration at similar or increased levels. Australia has traditionally targeted skilled labour in its migration program. We now compete global with other countries for those skilled workers with countries such as the USA, Canada and the EU. An aging population in Western countries is expected to increased demand for immigration policies directed towards young, skilled workers. Australia, and particularly, Western Australia face challenging times ahead finding a balance between skilled migration and up-skilling of the local workforce. This balance is expected to dictate Australia’s migration policy in the foreseeable future.

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42. Contact Details: Stirling Henry Global Migration Level 4 40 St Georges Terrace Perth WA 6000 perth@stirlinghenry.com p: 08 9225 5110