Amanda Tinner is an experienced migation expert and owner of Visa Executive, an organisation specialising in immigration law, and providing international visa solutions to corporate clients and their relocating employees.  Here she discusses the recent controversy around 457 visas and gives us her expert opinion on the matter.

What an interesting time those of us who practice in the area of immigration law are experiencing.  Australia’s immigration law is the most comprehensive, detailed and most amended legislation that we have.  In volume, it is bigger than that governing our criminal legislation.

Emotional, divisive and misunderstood, the Regulations and policy that govern our 457 criteria is the front page news and at the top of the nightly news programs.  On Tuesday 19 March 2013, I read in The Australian, that the ALP National Vice-President has accused some employers of 457 workers as engaging in “human trafficking” and a ‘’form of slavery”.

There have been a lot of terms used in recent weeks, and misnomers and untruths abound.  I write this blog without prejudice and from a platform of working in the Australian immigration arena for just on 23 years.

The first point that I need to clarify is that yes, it is correct that the 457 regime was introduced by the Howard Government BUT before the 457 visa was introduced, we had the 414 and 414 (Senior Executive) visas.  These two visa classes were used by companies to sponsor foreign workers to Australia.  So it is a moot-point politicising the 457 introduction as there was a previous temporary residence visa – different number but a lot of the same criteria.

Second point that I would like to clarify is that, in my personal experience, I am yet to work with or speak to a company that believes that bringing an overseas worker to Australia is a form of cheap labour. Under the current regime, market rate equivalent must be shown to the Immigration Officer.  On top of this, the sponsor must pay the return airfare of the employer and accompanying family (if applicable).  Sponsors were also responsible for the cost of health insurance but this changed on 14 September 2009 and now it is the visa holder’s responsibility.

In my experience, a 457 visa is the last option for a company to consider.  Why? Well, besides the above, there is also a possibility of the 457 visa holder not fitting in with the cultural work environment.  To potentially bring a family into Australia who may have not been here before can be a cultural challenge for the sponsor to manage.  You have a partner, maybe some children and all of their accompanying baggage.  If one cog in the wheel of the family unit is not happy or is having difficulty in settling in, then it is a costly failure to the sponsoring company and the family returns to their home country, with airfares paid by the sponsor.

A lot of argument being played out in the media seems to be pointed to the lack of skills and demand for foreign workers in WA.  This point is made and agreed but it is not only the west coast of Australia that we have and need more 457 visa holders, the east coast needs them too.  We have chronic shortages of Nurses, Doctors and agricultural workers in regional areas all around Australia.  This is
acknowledged by Immigration and some visa classes have special provisions in order to attract foreign workers to regional areas but, in my opinion, it does not go far enough and we have many Australian companies crying out for foreign workers who would be only too willing to sponsor on a 457 if it was possible.

So, do we have a problem with the 457 and if so, how do we solve it?  We have a problem with some Australian companies sponsoring 457 workers and providing documentation to Immigration that is not true and correct.  We will always have this and we need to acknowledge this, much the same as the ATO would acknowledge that there are some people who do not provide all of the correct information on their annual tax returns.  We have to allow for a small percentage of fraud.  What can the Government can do to minimise the fraud? In my opinion, it is two-fold.  First of all, they need to train Immigration Officers better in the practices of businesses.  In my experience, very few Immigration Officers and certainly next to no Senior Canberra Officers have spent a significant term of their careers in business.  Most of them are career public servants – never holding a senior role in the business world – let’s train them, get them out into the business world, show them how companies operate, send them to business training sessions,  get them actively going to Chamber Seminars listening to business leaders.  They need training and experience in business.

Secondly, I believe that the Compliance Officers should get out into the streets more.  If a DIAC Processing Officer has any suspicious queries about a potential sponsor – send compliance or monitoring officer to the business BEFORE a 457 is granted.  Get them to
check out the company, have a look at the place of work, ask them for their payroll and superannuation log – Compliance Officers have the same powers as the Australian Federal Police and can enter a building if they suspect immigration fraud.  Below are some very interesting and telling statistics provided by DIAC (Department of Immigration & Citizenship) which show the number of approved companies – 22,450 eligible to bring 457 visa applicants to Australia.  Monitoring occurred to 1754 companies in 2011-2012 and visits were paid to 856 companies.

21:
Subclass 457 monitoring performance

The Immigration Department Officers do a great job in a very tough, working environment – they deal with emotional, desperate people every day for very little gratitude.  They are always at the end of the politicians stick during every election campaign and have been so for at least the last 15 years.  If the Government believes that there is a problem with the 457 visa regime, then fix it and fix it quickly – don’t use the 457 program as the whipping boy.