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Helping my 75 year old father in law with his application and we are confused. How can someone be legally onshore and apply if they only have a visitor visa. <...> If he applies as offshore, and then wants to visit whilst he is waiting, would he be turned down for a 3-6-12 month Visitors visa, because of his application that is pending?

Hi Janet,

Firstly, there is a rule of thumb that if an application for a substantive visa is available to be be made while onshore, then a BVA would automatically be granted as soon as the application was received. Which means you don't have to be concerned about whether a month was enough to get the bridging visa.

However. Some visas, even though you are allowed to be in Australia to make them, will still be considered "offshore" applications which do not come with bridging visas. For that reason, those type of visa applications will need to be made on paper and sent to an offshore processing centre - unless your father-in-law is the holder of pre-requisite visas.

Secondly, having made a parent (or other application) should not, in theory, influence one's ability to get a long stay visitor visa. As long as their visitor application can show their intention to only come for a visit this time. In our experience, it's not difficult to argue that the applicant indeed intends to comply with the visitor visa conditions and leave upon its expiry - otherwise they'd lose all their former investment in the parent visa application. For which to be granted they have to leave the country.

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But there's a lot more to consider and I can only stress how important to explore those intricacies with a registered agent. In my line of work I see a lot of applicants passing on recommendations to one another, but because they're not trained in migration law and because their circumstances often differ in ways they didn't realise - they end up setting each other up to make errors and only come to a registered agent once the poo has hit the fan.

I'm not blowing our own trumpet, I think it's pretty much all the same which agent you see - but please do see one.

If you have been in the Immigration Industry long enough you will see the pattern that the subclass 457 debate always rages around election time. This is because it is a soft target which can be demonized by reporting on the minority who try to exploit the system. It is also very emotive and “facts and statistics” can be easily manipulated (by both sides).

The voice of reason; thank you Raul. Calm, logical and non-inflammatory. :-)

(And though my MARN starts with 14, I've actually been a migration clerk for 5 years before that. Hoping to spend many more decades doing what I do now - helping worthy applicants become grateful Australians, and lending a hand to those sponsoring employers who would otherwise struggle.)

such a delightful work place would surely be appreciated by the local crop of qualified employees rather than 457 intruders that you appear to favour?

A) definitely. As I said just a few comments higher: "we never sponsored a 457 worker, this is just from the position of running small business already sucked dry by Fair Work, and having drafted a myriad of visas and listened to employers as well as 457 applicants".

And B) having acted for a large number of Far North QLD businesses as 457 sponsors I have a different view about the skills shortage. We're all the same - we can't disconnect from our personal experiences on the job. I may be lucky for only having experience with 457 visas where the employer was actually in dire need of a skilled employee, and even if there could have been locals who applied ("I've been driving MC trucks for 20 years but I promise I'm very smart, and no doubt I can meet your expectations from a restaurant manager") they only resorted to sponsoring a foreigner as a last option. Especially that it cost them $2,500 in professional fees and VAC, plus all the risk of monitoring and sanctions, and the odd chance of having to cover deportation fees. 457 in our experience is not a source of "cheap" labour, or maybe I'm just too naive to find shortcuts...

Well there is nothing subjective about Recommendations 7 & 8 & 9 of the Committee findings.

 

Rec 7..... That the replacement of LOCAL WORKERS by 457 visa workers be specifically PROHIBITED.

Rec 8....... Current NON MARKERT TRESTING of labour be Removed...

Rec 9 .......Migration regs be amended to specify that LABOUR TESTING applies to all positions nominated by approved sponsors under labour agreements and Designated Area Migration Agreements.....

 

Rather common sense nothing subjective. Just for starters.

I honestly wasn't looking for a fight but I can't help feeling you might be. I'm not sure you're reading my comments for what they are - instead maybe through some filter of bias? Maybe I angered you with something?

You won't find any mention of me ever saying I disagreed with those recommendations. I welcome those recommendations. Not the whole report in its entirety, especially the phrasing about the TSMIT vs AWOTE which I found confusing and easy to misinterpret, but for example the above 3 recommendations haven't come up in our conversations and I never said I disagreed.

However, that won't change my general conviction about truth being subjective. That idea is beautifully demonstrated at parliament every day (if truth was a single and universal thing, there could never be two sides arguing for opposite interpretation) plus substantiated by events like the annexation of Iraq et al.

People proclaim all kinds of "truth" then use whatever data to justify it - but that does not make it truth in my view. This all is beside the point though - I don't think this is the appropriate forum to discuss our personal beliefs and world view so I will self-moderate and "Mic Drop".

I think you are being VERY short sighted to both your own business and your industry. Yes, some will leave, but some will stay and the ones that leave can be replaced with people who have been trained by other companies - what goes around comes around. Otherwise, you find yourself in the boat that my industry did in the mid 2000's. Companies hadn't bothered taking anyone as a trainee for a number of years. Then, a combination hit of increase in work and the sudden dawn that 70% of existing staff were within a couple of years of retirement. The result was carnage. I know of large projects that lost 10's of millions simply because they couldn't get the staff (let alone a huge amount of injuries caused by over work / skipping tasks). The only reason they could not get the staff was because as an industry we hadn't trained people for years. The funny part is that after having entire conferences dedicated to making sure it doesn't happen again, they are now doing it again and it will bite even harder next time.

 

Businesses have to be employee sustainable. Both to the society in which they operate and within their own industry. Just thinking we can "borrow a worker" from another country, doesn't cut it. It is like saying well, I need some tea bags, so I will borrow one from the neighbours. Then, continuing to not buy your own and relying on your neighbours to lend you a couple. But, what happens when your neighbours start to do the same thing and stop buying there's in the assumption a neighbour will lend them some. Sooner or later, you will end up in the no tea mess.

You make it sound like we were in disagreement whereas I don't think we are. (I wasn't hoping for a qualifying personal comment.)

I repeat, my firm provides heaps of training to our staff. Most of them reciprocate this by contributing to how great our workplace is, and the odd bad apple will extort you for whatever you can't give them. But I still disagree with training being the employers' duty.

With your example: if I want to make tea I will need a tea bag. Whether I borrow it from a neighbour or buy it in the store: I still need a tea bag that's already made and I can't be expected to give birth to my own tea bag factory.

I take your argument about what could happen to industries when they don't take on trainees. I just don't accept this being the duty of employers, rather see it as a responsibility of government. So for example, prior to 2008 the Australian legal industry was reasonably profitable, as opposed to today when payroll costs are 50-60% of turnover, then the rest is taken by professional subscriptions, indemnity insurance, computers, licences, rent, finance costs etc. Is there a profit left? Firms get to keep anywhere from 5% of their turnover to -5% (making a loss), prompting lots of bankruptcies and mergers.

I can see similar trends everywhere from the local car mechanic to the restaurant. (No, I'm not suggesting they should employ overseas workers for less money - in fact we actively fight against that.) But if the local mechanic is struggling to stay afloat - he will not be a good provider of apprenticeships.

If fostering apprenticeships is the interest of the future - I'd see it much more appropriate if government did something about it. And they actually are the organisation who have the means. And whose duty it is. As soon as my struggling mechanic will not be financially (further) disadvantaged by taking on an apprentice, I'm sure he will.

Do you not consider on-the-job training to be an important component of retaining talent?

 

I certainly don't consider training to be a 'gift'. It is often an important part of keeping ones skills relevant. If that training does not increase the business's knowledge base then the business must do better at knowledge sharing. In fact, you can often substitute formal external training with a good internal program, thereby giving staff the skills they need but not necessarily the bit of paper that means they can move elsewhere.

The power of the mighty internet: we only get a chance to discuss fragments of subjects, which are then easy to pull apart.

I totally agree with you, and I do invest in training my staff. We pay for our solicitors' CPD courses (which is the legal responsibility of the practitioner, not the employer), we pay their professional memberships, every year we take on work experience law students (no, it's not free labour for us, there's a lot more effort going into making them useful, than what you could get out of their labour - not to mention issues with reliability and ownership of ones work, when one knows they won't be staying for long).

We do invest a lot. I just don't believe that to be the "duty" of the employer.

We make this investment to foster a fulfilling workplace and sure, it benefits the firm - unless someone abuses this opportunity which happened in the past as in my example above.

We started that discussion when someone said the 457 sponsoring employers should very well be required to spend at least $4k on training per employee.

I disagree with that notion; I don't think it's the employer's job.

I can't imagine a world where I'd apply to be a bus driver without a driver licence, expecting to be hired, trained and licensed.

Naturally I agree with all sensible parts of everyone's comments: yes when you hire an engineer (Aussie or not) you have to train them about your specific work environment and procedures, yes the training is not a gift and nothing else, yes the employer gets a benefit from training employees.

But no to the formerly raised idea of "457 sponsors should train our local unemployed instead of hiring overseas cooks". That's not a valid alternative. If I run a restaurant, I want a competent cook. If I can't find one, and if the government makes it impossible to hire an overseas one (which is possible in the future) then I still won't open a cookery school - I just won't have a cook and might go bankrupt.

(I have to say though that we never sponsored a 457 worker, this is just from the position of running small business already sucked dry by Fair Work, and having drafted a myriad of visas and listened to employers as well as 457 applicants).

I would put it to you if the work place is as described, few will want to leave with such conditions. Unless of course there are other factors not being brought to light.

We created a private chat room, you and I. :wink:

You're right: only a very few want to leave. I think we lost 3 people in the last 3 years, and not all of them actually wanted to leave.

Our office(s) is actually the nicest place any of us worked at so far. But there can always be other circumstances (think of the lady whose soldier husband got re-stationed) and the biggest being money, of course. Some people will trade a harmonious workplace for more money, or won't even have a choice if you consider being divorced and left with two children to care for alone - a higher salary might not just be a wish but a necessity.

I also see an exodus of legal secretaries from the industry, becoming PAs for high level execs. The job is similar but less stressful at higher wages. Stuff happens. Anyways, all of that is beside the point and I've gotten far off topic, sorry.

I take it your decision to respond on this occasion is due to the fact you consider you are on to something?

No actually; I just found the 10% figure not credible and thought the decimal may be at the wrong spot.

I realise in the internet world it's easy to assume that disagreeing comments might carry an intention to wrestle (and surely, they often do indeed), but I promise I have no such intentions.

Yes 10% of the work force which amounts to 1.8 million temporary visa holder in Australia.

I take any kind of statistic with a large pinch of salt, for knowing how easy it is to skew them and declare whatever result you want to.

Honestly, I can not imagine that 10% of Australia's work force would be on temporary visas. For example:

Out of the total 1.8m quoted, I can see in the original table that 285k are on visitor visas - now we're down to less than 1.6m. Plus I would never include the 444 holders in this: nobody will ever consider reforming the full temp visa framework in a way to exclude Kiwis. Now we're down to 930k. And out of those there would be a fair few mothers outside the work force raising children. Even better: there would be heaps of children themselves! All the Japanese 571 holder kids going to school here in Cairns, and their 580 holder mothers...

Not to mention that the general 570-572-573 student visa holders (over 1/4 million) are hardly taking the jobs of Aussies.

Sure, they can serve food at the café 4 hours a day, but their language skills, work limitations and availability for the long term presents no risk to my job for example.

Anyways, long story short: I didn't write to challenge you or prove you wrong, but I have my own observations about the job market and the risk temporary visa holders present, and I thought you must have meant 1% maybe.

Sometimes we need to dig a little deeper to get the real truth. Any way well over subscribed and action urgently required to uphold Australian jobs from excessive unneeded exploitation.

I don't strictly believe in such a thing as "the truth", rather I believe the truth is most often subjective.

Right here, before my eyes, the greatest risk I can see for Australian jobs is that a lot of kids finish school without ever having heard criticism; no matter how bad you do nowadays, the current trend in education is encouragement. Then they come out of school thinking the world should be grateful if they're willing to sacrifice a portion of their precious time and attention to your business. No young person strives to be a good/hard worker, we don't raise enthusiastic trades workers, instead they expect to be millionaires straight out of school with the minimum effort possible. And as long as that's the case, there will always be a diligent Korean wall and floor tiler who isn't turned off by hard work and appreciates the level of Australian wages...<rant off>

That's my subjective truth.

Actually, that is exactly what I do expect. I expect them to be taking people from scratch and training them. That is the sensible method of growing a business.

I passionately disagree. If I have to train someone, that's not an investment into the knowledge base of my business - that's an investment into that individual's future.

We employ 12-15 staff across two offices and just from the experience of running this particular business (I don't want to drag other past experiences here) I can recite a dozen cases such as:

- One employee we loved and nurtured very much, had a bright future ahead in-house, but chose to leave because of a personal conflict with someone

- One whose husband got re-stationed in another town and the whole family moved away

- One who finished an Advanced Diploma, the next day extorted us for a higher salary (successfully) yet left a few months later and used the degree and the higher pay slip as bargaining chips at the new place

The list goes on; I could give you heaps of examples. As a business manager I consider every person should invest into their own future and get themselves trained in the field of their choice. At their own cost.

That's not to say we're not offering all kinds of retention programs and staff benefits. There's a wonderful crew here, we are quite relaxed not clocking arrival and departure times, we go out for drinks together, we all get bonuses and not just the solicitors - so what you wrote about your brother-in-law's restaurants is quite applicable to our law firm as well.

At the same time, just because we're a good gang I still wouldn't be able to justify hiring an untrained person, and having to spend our money on training him/her. That's not our function and the legal industry in Australia is barely scraping by since 2008 anyways. And such "gift" could be abused (the extortion for higher wages) or discarded ungratefully (leaving us voluntarily or by circumstance).

If the person already has the skills we require, we will pay the person to perform those tasks

But we're not a charity and not a government, we can't train our staff for the sake of society becoming better trained. There has to be a direct financial return to justify any expenditure - for example if a mechanic workshop employs an apprentice and provides the training instead of wages. What I spend on training has to be saved in wages or somewhere else...

The issue around temporary workers, now making up 10% of Australia's working population, requires serious attention.

Ten?

From http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1314/QG/Subclass457Visa :

[h=3]How many actually use the program?[/h]The number of subclass 457 visa holders in Australia on 30 September 2013 totalled 196,450. Of these, primary subclass 457 visa holders totalled 110,280. Primary 457 visa holders equate to almost one per cent of the total Australian labour force.

The issue you have in Cairns is that to do the Cert III in Commercial Cookery at TAFE you need an apprenticeship. None of the restaurants want to know, why should they when they can get someone in already qualified. My middle son wants to be a chef, he can't get an apprenticeship. [...] So as you can see there are many locals in FNQ who want to become a chef but can't because of how the course is run.

That surprised me. We go through a fair number of applications (not just 457) where the foreign student undertakes a c3 then a c4 in commercial cookery (total of 2 semesters), then a diploma of hospitality management. Each of those courses have a work experience component but that's just a few weeks and not a year or two apprenticeship. And from what I hear from the sponsoring employers, they don't seem to pick on qualifications at all.

Is it possible that maybe just the TAFE pathway is structured inconveniently? Because I can imagine (and to some extent, understand) employers not wanting to take on "apprentices" but wouldn't they employ your son just as a regular cook in their kitchen already? Which could either lead to internal promotion fairly soon and thus becoming a chef without the DipHM, or he may choose the DipHM instead of the apprenticeship based pathway like all those student visa holders studying at Holmes and elsewhere... I don't know; I'm not an expert on the hospitality industry it just doesn't match my day-to-day experience at work.

I have often shook my head in disbelief at some of the occupations that are sponsored. As for the $4k for training per sponsor, it should have a zero on the end. The only reason business loves migration is because in the last 25 years, business has developed a mind set of not wanting to train people and instead wants them ready trained. That is bad for the economy, bad for people and ultimately bad for business. Do we "really need" to bring in cooks from other parts of the world!

When a 457 visa is used as a cheaper alternative to employing an equivalent Australian - I agree. That's not what the program is for; that is sort of an abuse of the system.

On the other hand, our experience in the far north is quite different. We see restaurants turning to the 457 option when they can't find anyone locally.

It's not like there are hundreds of qualified local cooks looking for work, but the businesses just choose to dismiss them. Instead, you'd see a "positions available" sign posted on most restaurant windows around here, and so once a foreigner on a student visa applied for the job and was found suitable - the restaurant naturally wants to hang on to them. No, they don't recruit directly from overseas, and they're not choosing foreigners over locals - at least based on our admittedly limited personal experience. Having to pay for the sponsorship and nomination costs, plus all the administration coming with the visa is a big enough deterrent already. I acknowledge though, that this may not apply to all industries or all of Australia.

Your other point regarding training: I'm not a fan of the idea that training is an employer responsibility. Sure, if we make restaurants pay for keeping their staff's RSA and first aid certificates current - that's reasonable. But regardless of immigration, not many businesses would be prepared to spend $4k per person on training and why should they. If you run a mechanic workshop you wouldn't hire an untrained person for a mechanic, to later train them up at your own expense. Of course you expect to employ people who are suitable and qualified for the tasks you give them...

You have miss read the report as it does not recommend increasing TSMIT to $78,000.

 

The report recommends that TSMIT be indexed in line with the average full time weekly ordinary time earnings (AWOTE) yearly increase, which for last year increased by 1.6 %.

 

As such if the recommendations were adopted (which there is nothing to say that they will be) TSMIT could increase by the same percentage as the (AWOTE), thus a 1.6% increase.

I sure hope so; it would make better sense. To be honest, the current TSMIT is already a factor eliminating most potential 457 applications here in far north Queensland. The average salaries in Cairns (as well as property rental expenses) are much lower than, say, in Sydney. Graduate lawyer $45k, office manager $40-45k, reception $35-40k - it's impossible to produce "labour market testing" showing that cooks usually earn above $54k. Thus a lot of occupations otherwise available on the CSOL are ineligible for a 457 nomination in places like Cairns.

A parliamentary committee report was released on 17 March 2016 analysing, and making suggestions to improve, the 457 visa program.

Under the title “National Disgrace: The Exploitation of Temporary Work Visa Holders” the committee made several recommendations which, if made it into legislation, may effectively kill the whole program.

(link to the report)

Some of the report's recommendations are welcome, however there are two key points most 457 sponsors will not be able to justify:

• Current training benchmarks to be replaced with a training levy of up to $4k payable per 457 visa holder in the business.
  
• Temporary Skilled Migration Income Threshold (TSMIT) indexed to average full time weekly ordinary time earnings (AWOTE) as at 1 July 2015 and that indexation occur each financial year.
  

This latter (recommendation 5 in the report) is of particular concern because of the confusing nature of the AWOTE.

According to the ABS, the national average salary for full-time employees (the AWOTE) is around $78k currently (link). However, this figure is skewed by the inclusion of all high-income (>$200k) professionals, such as equity partners in national law firms, various senior engineers, investment bankers, you name it.

The AWOTE may be average of what all full time employees earn, but you can't take it for an expected salary for the average person.

The CSOL list shows the occupations eligible for 457, including positions like hairdresser or cook.

But how would future 457 sponsors be able to justify a $78k salary paid to a hairdresser?

Even if they were willing to pay such an inflated wage, how could they produce any market data that supported this being a reasonable salary in that industry?

While some of the report's recommendations would serve to reduce potential exploitation of 457 visa holders, I sincerely hope that not all suggestions will make it into legislation.

Daniel Chang | Principal solicitor / MARN 1463945

BELAW (Bottoms English Lawyers)