Australia: High Court ruling imposes visa requirement for offshore oil and gas workers
Australia’s High Court has ruled against the Australian Government in its attempts to exempt foreign nationals working on vessels in the offshore oil and gas industry from visa requirements.
What does the change mean? Effective immediately, foreign nationals working on vessels must meet the same visa requirements as those working on fixed, offshore installations. Affected workers who do not obtain the appropriate visa will be considered to be working unlawfully in Australia.
- Implementation time frame: Immediate.
- Visa/permits affected: Workers affected by the ruling will need to obtain a Subclass 400 (Temporary Work (Short Stay Activity)) or Subclass 457 (Temporary Work (Skilled)) visa.
- Who is affected: Employers and foreign nationals working on vessels in the offshore oil and gas industry. The ruling does not affect Australian citizens or permanent residents.
- Business impact: Peter Dutton, the minister for immigration and border protection, said the ruling will “add red tape, add costs to industry and reduce the competitiveness of what is one of Australia's biggest export earners.”
Background: The High Court’s ruling Wednesday ends years of maneuvering on whether the country should require visas for foreign nationals working on vessels in the offshore oil and gas industry. The issue dates to the 2013 Offshore Resources Activity Act, which effectively required foreign nationals to hold permanent visas to work in the industry. In March of 2015, a federal court invalidated the Government’s attempts to “except” offshore oil and gas workers from the law, temporarily throwing the industry into flux. The Government subsequently took steps to protect the work rights of affected foreign nationals.
In December, the Minister issued a Determination prescribing Subclass 400 and Subclass 457 visas as the appropriate temporary visas for foreign nationals working in the industry and exempting vessels from legislation designed to bring offshore operations into Australia’s migration zone. The Court said in its ruling Wednesday the December Determination represented the “entire negation” of Parliament’s intentions, concluding that the Determination is invalid. The ruling thus has the effect of pulling offshore oil and gas vessels into Australia’s migration zone and subjecting foreign nationals working on vessels to the same visa requirements as foreign workers on fixed installations. Those who do not obtain the appropriate visa will be considered to be working unlawfully in Australia.
BAL Analysis: The Court’s ruling has the effect of imposing visa requirements on foreign nationals working on offshore vessels in Australia’s oil and gas industry. Affected workers must obtain a Subclass 400 or Subclass 457 visa. Employers in need of assistance securing the appropriate visas for their workers should contact their BAL professional as soon as possible.
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Source: Berry Appleman & Leiden LLP