Quiz Question of the Week

Visa Quiz Visa Label in Passport when Hiring Staff
How many temporary visa holders were there in Australia as of 31 March 2018?
500,000
1 million
1.5 million
x Over 2 million
As of 31 March 2018, there were approximately 2.3 million temporary visa holders in Australia, most of whom had work rights.
Which of the following are possible work rights entitlements for an international student in Australia on a student visa?
X Full work rights
O No work rights
O 20 hours per week during semester
X 40 hours per fortnight during semester
Generally, students can work for 40 hours per fortnight whilst their course is in session, and full time in semester break.

However, if doing a Masters by Research or PhD, they can work full time.

The previous “20 hours per week” visa condition was replaced by the current “40 hours per fortnight” version in March 2012.

EmpCo hired Pam as a temp. EmpCo found Pam through a Recruiter, RecruitCo. Pam is not a direct employee of EmpCo, but is working through a temp agency TempCo. Pam is on a temporary visa. Who is responsible for checking Pam’s work rights?
O Pam
X EmpCo
X RecruitCo
X TempCo
Businesses can face penalties under the Employer Sanctions legislation if a person is working in breach of visa conditions. This applies even where the person is not a direct employee. Recruiters who refer a person for employment may also face penalties if the person does not have appropriate work rights
It is sufficient to check a staff member’s visa status prior to employment to comply with the Employer Sanctions legislation.
O True
X False
Under the Employer Sanctions legislation, it is an offence to allow a person to continue working if they do not have appropriate work rights in Australia. Whilst it is essential to check work rights and visa status prior to employment, it is also necessary to check visa status during employment. At the very least, employers should keep records of expiry dates and check visa status to ensure that the staff member is still in Australia lawfully.
What is the maximum penalty for corporations who have staff working in breach of visa conditions?
O $20,000
O $100,000
O $200,000
X $300,000
Companies face fines of $18,900 for each staff member found working in breach of visa conditions. This is referred to as an “Infringement Notice” and can be applied without needing to go to court or showing that the employer knew that the staff member was working in breach.

The maximum fine for corporations is actually $315,000 per staff member in breach. This is for aggravated criminal offences and would apply in circumstances where the business intended to hire workers unlawfully, and was involved in egregious conduct such as human trafficking.

Which of the following are sufficient evidence that a person is an Australian permanent resident for the purposes of complying with Employer Sanctions legislation?
O Medicare card + photo ID
O ATO Tax File Number confirmation + photo ID
O Current Drivers Licence
X VEVO check
O Permanent visa Grant Letter
In general, it is necessary to use VEVO to check visa status for permanent residents.

Just because someone has a Medicare card, Tax File Number or Drivers licence does not mean they are an Australian citizen or permanent resident

Visa grant letters are not sufficient evidence of a person’s immigration status or work rights

If a business hires workers unlawfully, company directors and officers may be personally liable:
X True
O False
Company directors and officers can be personally liable if the business employs staff in breach of visa conditions. This would require some element of knowledge or negligence on the part of the company director or officer.

To avoid personal liability, company directors and officers should ensure that appropriate systems and processes are put into place to check work rights and immigration status before and during employment.

Visa grant letters are sufficient evidence of visa status when hiring an employee:
O True
X False
Visa grant letters are not sufficient evidence of visa status for the purposes of avoiding penalties under the Employer Sanctions legislation. In general, it is necessary to do a visa check to establish a statutory defence. This is because:

  • The visa grant letters might have been altered to change the work conditions or expiry date
  • Whilst the visa may have been granted as per the grant letter, it may have been cancelled prior to the staff member being engaged
Sighting a New Zealand passport is sufficient when hiring NZ citizens
X True
O False
Under the Employer Sanctions legislation, sighting a NZ passport is sufficient when hiring New Zealanders. New Zealanders in Australia will generally hold a Special Category Subclass 444 visa which allows them to remain in Australia indefinitely with full work rights.
However, New Zealanders can lose their immigration status in Australia if, for instance, they have a criminal record. There are now more New Zealanders in Immigration Detention than any other nationality.
Which visa type below is held by the most people in Australia?
O Employer Sponsored 457/TSS visa
O Working Holiday Maker (417 or 462)
X Bridging Visa
As of 31 March 2108, there were more bridging visa holders in Australia (194,000) than either working holiday makers (148,000) or 457/TSS holders (151,000).

Bridging visa holders often have work rights, but these may be more restricted than other types of visa. If a decision is made on the underlying visa application, bridging visa holders may be required to depart Australia within 35 days.

Viewing a visa label in a passport is sufficient evidence of work rights and visa status when hiring staff:
O True
X False
Visa labels are not sufficient evidence of visa status for the purposes of avoiding penalties under the Employer Sanctions legislation. In general, it is necessary to do a visa check to establish a statutory defence. This is because:

  • Visa labels have no longer been issued since 1 September 2015, so many visa holders will not have a label in their passport
  • Whilst the visa may have been granted as per the visa label, it may have been cancelled or expired prior to the staff member being engaged
Of the following nationalities, which has the most citizens in Immigration Detention:
O Afghanistan
O China
O India
X New Zealand
In FY 2017, more than half of the visa cancellations on character grounds were of New Zealand citizens (664 of the total of 1,284)
Which of the following are possible work rights entitlements for dependent spouses of international students in Australia?
X Full work rights
O No work rights
O 20 hours per week during semester
O 40 hours per fortnight during semester
X 40 hours per fortnight whether during semester or not
Generally, student dependents can work for 40 hours per fortnight, whether the main student’s course is in session or not.

However, if the course being completed is a Masters or PhD, dependents can work full time

When hiring Pam, EmpCo relied on her assurance that she was on a partner visa. It is a term of Pam’s employment contract that she holds a visa with appropriate work rights, and this was brought to Pam’s attention as part of the hiring process. It turns out that Pam does not hold a partner visa – she applied for one last year, but this was refused. Is EmpCo protected from liability based on Pam’s assurances and the term in her employment contract?
O Yes
X No
It is not possible to “contract out” of liability under the Employer Sanctions legislation by including a term in an employment contract. Employers must check visa status both before and during employment. As employees have no incentive to declare issues with their immigration status, employers who rely on assurances about visa status from employees are taking a big risk.
New Zealanders in Australia are considered to be:
X Temporary Residents
O Permanent Residents
O Australian Citizens
New Zealanders in Australia will generally hold a Special Category Subclass 444 visa which allows them to remain in Australia indefinitely with full work rights.

However, New Zealanders can lose their immigration status in Australia if, for instance, they have a criminal record. There are now more New Zealanders in Immigration Detention than any other nationality.

When hiring Pam, EmpCo relied on her assurance that she was on a partner visa. It turns out that Pam does not hold a partner visa – she applied for one last year, but this was refused. Could EmpCo face penalties even if they have no knowledge that Pam does not hold a work visa?
X Yes
O No
Under the Employer Sanctions legislation, penalties can apply even though the business has no knowledge that the person is working in breach of their visa conditions. Penalties apply on a ‘strict liability’ basis – the mere fact that staff are working in breach is sufficient for the employer to face fines.
Do staff on Bridging A visas have work rights?
O Yes – full work rights
O No – they cannot work, and need to apply for work rights
O It depends on what type of visa they held when they applied
O It depends on what visa they have applied for
X It depends on both what visa they have applied for and what type of visa they what visa they held when they applied
Bridging A visas are issued when a person is in Australia on a substantive visa, and makes an onshore application for a new visa.

In general, the Bridging A visa will have the same work rights as the visa held when the visa application was lodged.

However, for certain types of application (eg General Skilled Migration, Permanent Employer Sponsored visas, Partner visas), the bridging A visa will have full work rights.

EmpCo hired Pam as a temp. Pam is not a direct employee of EmpCo, but is working through a temp agency TempCo. As part of their contract of engagement, TempCo warrants that all staff have appropriate visas and work rights. If Pam does not have work rights, does this term protect EmpCo from liability?
X Yes
O no
It is possible for employers to “contract out” liability for checking work rights with third parties who supply workers. The Department of Immigration provides standard wording for terms which can be used in labour supply contracts.
Which of the following are possible work rights entitlements for dependent spouses of 457 or TSS visa holders in Australia?
X Full work rights
O No work rights
O 20 hours per week
O 40 hours per fortnight
Dependents of employers sponsored visa holders (eg 457 or TSS) can work full time in Australia.

However, the dependent visa holder may lose their work rights if the main visa holder loses their job or the spouse relationship breaks down

Which of the following are sufficient evidence that a person is an Australian citizen for the purposes of complying with Employer Sanctions legislation?
X Australian passport
O Medicare card + photo ID
X Australian citizenship certificate + photo ID
O ATO Tax File Number confirmation + photo ID
O Current Drivers Licence
X Australian birth certificate + photo ID
O VEVO check
An Australian passport is considered sufficient evidence of Australian citizenship, as is photo ID plus an Australian birth certificate or citizenship certificate.
Just because someone has a Medicare card, Tax File Number or Drivers licence does not mean they are an Australian citizen or permanent resident
It is not possible to use VEVO to check the immigration status for Australian citizens
A dependent spouse on an employer sponsored 457 or TSS visa can lose their work rights if:
X The main visa holder resigns or loses their job
X The spouse relationship breaks down
X The main visa holder commits a criminal offence
X The spouse commits a criminal offence
X The main visa holder changes position
Employer sponsored visas may be cancelled if the main visa holder loses their job, changes their position or commits a criminal offence. In this case, the visas of any dependent visa holders would also be cancelled.

If the relationship with the main visa holder breaks down, this would also normally lead to visa cancellation.

Unless employers check dependent 457 and TSS visa holders regularly, they will have no indication that the immigration status has changed in the above scenarios