Hospitality – Immigration Update

In this special hospitality update we are bringing you the latest news and insights. We expect that things will continue to change and we will update you as they do. We know that pressure is mounting on our hospitality clients because of delays in processing and a lack of clarity from government about what to expect and what they intend for migration for the industry. If you would like to arrange a time to catch up and speak about any of these issues and how we can help, please just reach out.

Occupation lists
No changes were announced in the budget to the occupation lists. A review of the lists usually occurs in March and so no changes are anticipated before then.

Visa processing
On 1 September 2020, a new direction was issued which introduced the Priority Migration Skilled Occupation List (PMSOL). Occupations on this list will be processed first as will regional visas/positions, investment visas and partners. Accredited sponsors will still be given second priority for occupations which are not on this list. All other sponsors and occupations will then be processed last.  As there are no hospitality occupations on the PMSOL, we can continue to expect very slow processing for any hospitality client.

The Department continues to process applications lodged overseas, however they are prioritising applications for immediate family members of Australian Citizens and permanent residents with an urgent need to travel, as well as applicants providing critical or specialist skills in support of the Government’s response to COVID-19 and economic recovery. While this includes employees in ‘food production’ this does not include restaurants, cafes, bars or clubs and such applicants must otherwise demonstrate how they are in critical roles or fall into one of the other exemption categories. This is difficult to demonstrate.

Nomination transfers
Employers seeking to hire and transfer the sponsorship of an existing TSS visa holder should be aware that the visa holder will not be able to commence work until AFTER the nomination has been approved. As this could take months to process, caution should be exercised in offering roles that depend on such a transfer. Employing a TSS visa holder prior to approval of the nomination is an offence under the Act and could lead to serious sanctions.

Overseas visa holders
Australia continues to have strict border measures in place. Added to this, there are very limited flights are currently available to and from Australia. All travellers arriving in Australia, including Australian citizens, are subject to mandatory quarantine for 14 days at a designated facility, such as a hotel, in their first port of arrival.​ Quarantine exemptions are extremely difficult and rare – even if the person has previously had COVID.

Overseas visa holders must still seek a travel exemption before being able to travel to Australia. Those visa holders on the PMSOL are deemed to be critical and are generally given exemptions to travel however will still need to submit a request and be assessed on a case by case basis.

Employees in occupations outside of the PMSOL and their family must demonstrate a very strong business case that they have skills critical to Australia’s pandemic response or economic recovery or a highly compelling and compassionate case for personal reasons.

The Government announced in the budget that TSS visa holders who had to return home and who are unable or unwilling to return will be able to seek have Government fees waived for a second TSS visa application (not the training levy) but no details of when, how much or the process have yet been released.

Working holiday makers may be able to get a refund on the fees they are already paid if they left due to the pandemic or were unable to make their first entry.

New labour market testing requirements for temporary visas
New labour market testing (LMT) requirements came into place for TSS applications (Subclass 482) and Employer Sponsored Regional (Subclass 494)  applications lodged after 1 October 2020.

Unless one of the exemptions/alternative evidence categories applies, businesses are required to advertise their vacancies on Jobactive, in addition to at least two other national reaching advertisements. For accredited sponsors, one of these can be on the sponsor’s website.

Apart from the added Jobactive requirement, we are also expecting more scrutiny with sponsor’s LMT efforts. The Government is gathering data through Jobactive and sponsors will be expected to provide detailed reasoning that the role could not be filled locally. Clients can expect to be put to proof as to why no Australians were found to be suitable for the role. This will include situations where there is an incumbent foreign worker already in the role.

Labour market testing for permanent visas
In September 2020, the Government flagged a new requirement for LMT for 186 PR  applications, even if the employee had already been in the role for the required 2 or 3 years. These changes did not come through on 1 October and whilst clarity has been sought from the Department, this has not yet been implemented.

Whilst it appears (to be confirmed) there won’t be a strict LMT requirement for PR applications, we are already seeing the Department apply a stricter Genuine Position assessment to applications and labour market testing efforts can assist in addressing this requirement.

Genuine Position Requirements
The legislation has always had a requirement that the decision must be satisfied that the position associated with the nominated occupation is a genuine position. This is for both temporary and permanent sponsorships.

Policy requires that case officers consider whether the position is genuine in the sense that it has not been created in order to sponsor an overseas worker.  When considering whether the position is genuine, case officers will give particular attention to:

• retrenchments by the employer in the previous 12 months;
• a reduction of hours worked by Australian workers during the previous 12 months;
• a reduction in pay and conditions of Australian workers within the previous 12 months;
• employment of one or more temporary visa holder(s) on conditions less favourable than Australian workers; and
• recruitment of one or more temporary visa holders beyond the ordinary scope of the business.

Where any of these factors apply, additional supporting material and a strong business case will be needed to satisfy the case officer that the position is genuine.

Visitor and temporary visa residents on Australia
Temporary visa holders who are unable to leave Australia before their current visa expires must apply for a new visa. Visas cannot and will not be automatically extended and there is an expectation that visa holders will take action to apply for new visas or depart. To be eligible for the grant of a visitor visa or a COVID visa in Australia, applicants must meet all criteria that includes having access to adequate means of support and be assessed as intending to comply with visa conditions.

If the grant of a Visitor visa would result in the applicant being authorised to stay in Australia for more than 12 consecutive months as the holder of one or more Visitor, Working Holiday, Work and Holiday or Bridging visas, exceptional circumstances must exist. This requirement is likely to be met for applicants assessed as being unable to depart. If anyone has become unlawful, they can apply for a Bridging Visa E.

Updated information for visa holders and applicants on staying in Australia can be found on the Department of Home Affairs’ website.

DISCLAIMER This information is current as of 29 October 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.