Government approved visas against migration laws

The DHA approved work visas illegally for Hong Kong passport holders in August 2020, misleading people into breaching visa conditions, writes Lina Li.

ON 21 AUGUST 2020, then Acting Minister for Immigration Alan Tudge announced new visa arrangements for Hong Kong passport holders. One of the arrangements was to automatically extend their Temporary Skilled Shortage (subclass 482) visa for five years.

The 482 visa is the most common work visa issued in Australia. This visa allows companies to sponsor a suitably skilled worker to fill a position. First, a company has to become a sponsor. They then lodge a nomination to identify a position and a person. Once the nomination is approved, a 482 visa can be approved.

Companies need to propose an employment period in the nomination. Visas are granted for the same period as proposed by companies. In simple words, a company needs to offer a person a job for a certain period first. Then a person can get a 482 visa for the same period.

The Government had no authority to approve a 482 visa without a company offering a job for five years to Hong Kong passport holders. The criteria set out in migration laws clearly require there to be an approved nomination from a company before a visa can be approved. The Government completely disregarded this requirement, approving those visas for five years against migration laws.

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Because the basis for those visas to be approved did not exist, as no companies offered them a job for five years, their visas are liable for cancellation under migration laws.

What’s worse, the Government approved those visas without notifying the Hong Kong passport holders’ employers. The employers were supposed to be the sponsor for those visas. Companies had no idea they were supposed to sponsor their employees for another five years.

Employees had not been informed of their visa extensions or the conditions attached to their new visas. They had no idea they had to ask their employers to lodge a new nomination for a visa they already have. The Government is misleading people into breaching their visa conditions unknowingly.

How can a government give people a work visa when there is no work yet? How can a government give them a work visa that requires sponsorship from a company without even telling the company, much less getting the companies to agree to the sponsorship first?

When companies asked the Government what they should do, they were asked to lodge a nomination and have it approved. How can anyone guarantee the nomination to be approved before lodging it? What if the nomination is refused?

Under migration laws, the 482 visa must be refused or withdrawn if the related nomination is refused. People have no legal basis to withdraw a visa they never lodged. The Government has no legal basis to refuse a visa that has never been lodged. What happens to those five-year visas when the related nominations get refused?

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Usually, when a nomination is refused, people have the choice to withdraw their 482 visa application. But as the Hong Kong passport holders did not lodge a visa, they cannot withdraw it. The visa was given to them automatically without them having to apply for it. As a result, they would be forced to breach their visa conditions.

Their visa conditions say they have to not stop working for over 60 days and they cannot work for their new employer before a new nomination is approved. If the new nomination is refused, they continue working, they breach visa conditions. If they stop working for over 60 days, they breach visa conditions, too. Their visa becomes liable for cancellation when visa conditions are breached.

If their visa is cancelled, they cannot lodge a new application while they are in Australia. When people withdraw their visa application, they can lodge a new one while they are in Australia. When they have a visa cancellation, they have to depart Australia and they may be banned from re-entering Australia for a certain period. Through no fault of their own, they have to deal with the adverse impact of having a visa cancellation. This is all because the Government gave them a visa they were not entitled to in 2020.

The Government basically made a decision to offer a job for five years to Hong Kong passport holders without consent from their employers. Many companies have no plan to renew their employees’ contract for another five years. They are now under a lot of undue pressure, as their employees would have to depart Australia or face visa cancellations if they don’t.

We are told the Department of Home Affairs is administering the migration laws. Is it really, though?

Lina Li works as an immigration consultant in the immigration industry. She has extensive experience in the corporate migration sector and works closely with government agencies in making changes to the current migration program. You can follow Lina on Twitter @Lina52412342.