Newsletter 177

Health Criteria—Specified Countries – Minor change to country names    

For those without tuberculosis or other illnesses that could endanger public health or significantly burden the Australian population, the Migration Regulations expedite the visa application procedure.

The only significant changes to the current document are to reconcile nation names with those on the Department of Foreign Affairs and Trade website; otherwise, it remain mostly unchanged.

Lodging ENS TRT Subclass 186 applications prior to two years’ work experience completed 

Inquiries regarding whether Subclass 186 visa applications can be filed before the full two years of work experience have been completed have been received by the Professional Support team in large numbers from members who want to avoid filing an interim visa application in order to keep their client’s legal status.

The Department has given the following details (please take note that the new legislation revisions now interpret the reference to three years as two years):

As said, the Subclass 457/TSS visa was in effect for three years during the duration of the rule.

Decision makers may, in consultation with Program Management, take into account applications where the submission took place a few days before the three-year mark in order to avoid inefficiencies arising from the 457/TSS visa ceasing a few days short of a visa holder meeting the three-year requirement and requiring obtaining a further TSS visa to meet this requirement. 

There is no plan to modify this guidance anytime soon. It has remained unchanged.

COVID 408 visa closure 

Migration -COVID-19 Pandemic Event for Temporary Activity (subclass 408 visa) Effective 1st February 2024, COVID 408 visas will no longer be available to new applicants per Repeal Instrument 2024.

State and Territory Update 

New South Wales  

The NSW Government has launched the Regional Subclass 491 programme for Skilled Work. If a candidate has a track record of employment with a regional NSW firm, they can apply directly to Investment NSW under Pathway 1. 

“To support those applicants who are already making a significant contribution to regional NSW and have been working in regional NSW for 12 months,” is the stated goal of this pathway.

Compared to the other pathways, Pathway 1 has extra requirements, such as:

• that the applicant has spent the last 12 months continuously residing and working in a designated regional area of New South Wales
• In the twelve months before to applying, the candidate must have had qualifying skilled employment in the specified (or closely comparable) occupation with a single regional NSW-based employer.
• NSW must determine if the job is skilled.
• The position must be compensated by the qualified company at the minimum TSMIT of $70,000 (prorated if fewer than 38 hours per week).

Further information is available on the Investment NSW website. 

Westpac fined $1.8m for pre-hedging interest rate swap. 

The banking giant faced a maximum penalty of $1.8 million for violating the Corporations Act during a $12 billion interest rate swap transaction in October 2016. This fine is in addition to the $8 million earmarked for covering the Australian Securities and Investments Commission’s (ASIC) fees.

ASIC claimed that prior to the transaction with a consortium including AustralianSuper and IFM entities, Westpac engaged in pre-hedging, a practice involving trading to hedge anticipated risks from a future transaction. As a result, Westpac’s derivatives trading desk garnered a profit of around $20.7 million, with $3.7 million allocated to sales commissions.

According to ASIC deputy chair Sarah Court, inappropriate pre-hedging can be unfair, unconscionable, and lead to adverse client outcomes. The penalty serves to clarify expectations on pre-hedging, especially regarding disclosure and consent when it negatively affects the counterparty.

The Federal Court, in its findings against Westpac, determined that the bank was aware of its client’s concerns before the swap transaction. Nevertheless, Westpac proceeded with an internal plan to pre-hedge up to 50% of the interest rate risk by engaging in significant volumes of interest rate derivatives trading before executing the transaction.

The court also concluded that Westpac lacked adequate arrangements to manage conflicts of interest with the consortium. Furthermore, it failed to ensure the transaction was provided to the consortium efficiently, honestly, and fairly.

Sarah Court emphasized the global significance of appropriate pre-hedging conduct and criticized Westpac’s behavior as unconscionable, exposing its client to substantial risk. She noted that Westpac’s conduct contrasted sharply with the practices of several other banks.