In late 2015, the Department of Immigration and Border Protection (DIBP) made changes to its policy regarding Australian businesses sponsoring family on a Subclass 457 visa as well as the self-sponsorship approach used by temporary visa holders already in the country. Below we breakdown the current status of the law and Government policy.
Self Sponsorship
Prior to these changes, it was common for overseas based skilled workers to enter Australia on a temporary visa (generally a Working Holiday or Student Visa), establish a company, begin trading and eventually employ and sponsor themselves for a Subclass 457 visa. At the time, the Governments position was that as a company is a separate legal entity to its director, that it could lawfully employ and sponsor the director as an employee of the company.
However, it seems that the DIBP eventually caught wind of this 'loophole' and decided to insert the following into their policy when assessing the genuine need of a position being nominated for a Subclass 457 visa:
The intent of the 457 program is to enable Australian businesses to temporarily fill short term skill shortages with overseas workers when they cannot find a suitably qualified or experienced Australian citizen or permanent resident to fill the position. The program is not intended to be used for non-citizens to establish a business in Australia and self-sponsor themselves; there are other visa pathways available for such purposes.
Seems pretty cut and dry doesn't it? Read on...
Sponsoring Family
In addition to the DIBP looking to stamp our self-sponsorship style applications, there was additional policy included which also attempts to make it more difficult for Australian businesses to employ and sponsor family members of directors and officers. This is because in the eyes of the DIBP, sponsoring family is a possible indication that the position was created purely to secure a migration outcome. Accordingly, businesses looking to sponsor family members will also face an uphill battle in showing that the position either already existed (and has recently become vacant), or that the business has diversified/increased which has resulted in a new position being created.
Analysis
As is explained above, the current Government position on self and family sponsorship's seems clear and readers should be aware that any application to the DIBP attempting either of these approaches is likely to be highly scrutinized However, it is our position that the current DIBP policy is incorrect and an over interpretation of the Migration Regulations.
Firstly, only specific occupations are subject to the requirement that they demonstrate they have not been able to find a suitably qualified or experienced Australian citizen or permanent resident to fill the position. For a large number of occupations on the Consolidated Sponsored Occupation List, Australian employers do not need to advertise (known as Labour Market Testing) for the position before submitting their nomination, so the claim that all Subclass 457 visas are exclusively for Australian employers that could not find suitably qualified Australians if factually incorrect.
Secondly, to suggest that a family owned and operated business does not have a genuine need for a relative to work in that business is staggering. There are thousands of Australian family operated businesses that genuinely and effectively employ relatives into key positions as a means of ensuring that the business is run and managed by a known and trusted individual.
Similarly, a self-employed tradesman (as an example) that can demonstrate their company has been contracted to provide substantial work for the foreseeable future and who have employed other tradesmen to perform the work would logically have a genuine need for his/her position in their business especially considering there is no requirement in law that the position be needed for any specific period of time following the grant of the 457 visa, only that at the time of decision there is a need for the position.
Conclusion
Now, its important that we understand the legal framework in which Migration Law operates. To clarify, the DIBP are not empowered to create laws. That responsibility and authority lies with the Australian Executive (Parliament). Accordingly, DIBP policy is not necessarily legally binding, however, the practical reality is that the policy will guide DIBP case officers when making their decisions. So visa applicants need to expect a high level of scrutiny at the DIBP if applying for a 457 visa under self or family sponsorship and prepare for the very likely need to have to appeal to the tribunal, which we believe may have strong grounds to win...depending on your lawyer!
If you have recently had a Subclass 457 visa refused due to family or self-sponsorship criteria and require the help of a Migration Agent in Brisbane City today, then get in contact on 1300 MIGR8TE (644 788) or email your enquiry to enquiry@salvomigration.com.au and we hope you learnt something valuable by visiting Salvo Migration.
Also, click here for more useful blogs by our Migration Lawyers.
Otherwise you can contact us at the following address:
Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma
Self Sponsorship
Prior to these changes, it was common for overseas based skilled workers to enter Australia on a temporary visa (generally a Working Holiday or Student Visa), establish a company, begin trading and eventually employ and sponsor themselves for a Subclass 457 visa. At the time, the Governments position was that as a company is a separate legal entity to its director, that it could lawfully employ and sponsor the director as an employee of the company.
However, it seems that the DIBP eventually caught wind of this 'loophole' and decided to insert the following into their policy when assessing the genuine need of a position being nominated for a Subclass 457 visa:
The intent of the 457 program is to enable Australian businesses to temporarily fill short term skill shortages with overseas workers when they cannot find a suitably qualified or experienced Australian citizen or permanent resident to fill the position. The program is not intended to be used for non-citizens to establish a business in Australia and self-sponsor themselves; there are other visa pathways available for such purposes.
Seems pretty cut and dry doesn't it? Read on...
Sponsoring Family
In addition to the DIBP looking to stamp our self-sponsorship style applications, there was additional policy included which also attempts to make it more difficult for Australian businesses to employ and sponsor family members of directors and officers. This is because in the eyes of the DIBP, sponsoring family is a possible indication that the position was created purely to secure a migration outcome. Accordingly, businesses looking to sponsor family members will also face an uphill battle in showing that the position either already existed (and has recently become vacant), or that the business has diversified/increased which has resulted in a new position being created.
Analysis
As is explained above, the current Government position on self and family sponsorship's seems clear and readers should be aware that any application to the DIBP attempting either of these approaches is likely to be highly scrutinized However, it is our position that the current DIBP policy is incorrect and an over interpretation of the Migration Regulations.
Firstly, only specific occupations are subject to the requirement that they demonstrate they have not been able to find a suitably qualified or experienced Australian citizen or permanent resident to fill the position. For a large number of occupations on the Consolidated Sponsored Occupation List, Australian employers do not need to advertise (known as Labour Market Testing) for the position before submitting their nomination, so the claim that all Subclass 457 visas are exclusively for Australian employers that could not find suitably qualified Australians if factually incorrect.
Secondly, to suggest that a family owned and operated business does not have a genuine need for a relative to work in that business is staggering. There are thousands of Australian family operated businesses that genuinely and effectively employ relatives into key positions as a means of ensuring that the business is run and managed by a known and trusted individual.
Similarly, a self-employed tradesman (as an example) that can demonstrate their company has been contracted to provide substantial work for the foreseeable future and who have employed other tradesmen to perform the work would logically have a genuine need for his/her position in their business especially considering there is no requirement in law that the position be needed for any specific period of time following the grant of the 457 visa, only that at the time of decision there is a need for the position.
Conclusion
Now, its important that we understand the legal framework in which Migration Law operates. To clarify, the DIBP are not empowered to create laws. That responsibility and authority lies with the Australian Executive (Parliament). Accordingly, DIBP policy is not necessarily legally binding, however, the practical reality is that the policy will guide DIBP case officers when making their decisions. So visa applicants need to expect a high level of scrutiny at the DIBP if applying for a 457 visa under self or family sponsorship and prepare for the very likely need to have to appeal to the tribunal, which we believe may have strong grounds to win...depending on your lawyer!
If you have recently had a Subclass 457 visa refused due to family or self-sponsorship criteria and require the help of a Migration Agent in Brisbane City today, then get in contact on 1300 MIGR8TE (644 788) or email your enquiry to enquiry@salvomigration.com.au and we hope you learnt something valuable by visiting Salvo Migration.
Also, click here for more useful blogs by our Migration Lawyers.
Otherwise you can contact us at the following address:
Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma
Originally Published here: Is 457 Family or Self-Sponsorship Dead? A Detailed Review!
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