The Federal Court has declared that certain offshore construction work is not being performed in Australia's migration zone and, as such, non-citizens working in those areas are not obliged to obtain working visas.

The Federal Court declaration of what constitutes the migration zone in respect of offshore resource construction projects follows an exhaustive process between AMMA, representing its member Allseas Construction Contractors S.A., and the Department of Immigration and Citizenship (DIAC).

Over a number of years, AMMA attempted to obtain some certainty as to what DIAC viewed as the proper interpretation of the migration zone in respect of employees engaged on offshore construction vessels. The responses DIAC provided were often contradictory, vague and, in AMMA's view, lacking in a rigorous examination of the relevant provisions of the Migration Act 1958.

Allseas had put forward a position it believed was consistent with the plain words of the Migration Act and which reflected the intent of the Act. DIAC's position was contray to the Allseas view, with DIAC claiming that construction vessels laying pipe would at all times be in Australia's migration zone thus requiring any non-citizens on board to possess working visas such as 457 visas.

Allseas sought to have its migration obligations clarified once and for all by the Federal Court. During hearings in the case, Senior Counsel for the Minister for Immigration and Citizenship argued that the Allseas application should not proceed, arguing the court lacked jurisdiction and the matter was hypothetical or seeking an advisory opinion.

Justice McKerracher on May 22 rejected outright all the technical arguments the Minister raised in relation to the jurisdictional issue, stating:

The totality of these circumstances means that the issue under consideration is well removed from the hypothetical or abstract. Allseas has endeavoured to pursue in good faith and openly, firstly, the correct interpretation of the Act from the Minister and, secondly, the obtaining of relief of a declaratory nature to clarify its obligations in those serious and imminent circumstances

Justice McKerracher's decision supported in whole the merit arguments put by Allseas in declaring that foreign workers on two pipe-construction vessels being used to build the Gorgon/Jansz-LNG gas project off Western Australia were working outside Australia's migration zone and therefore would not need to apply for Australian work visas.

Justice McKerracher said the vessels building the pipeline did not fit the definition of either "fixed structures" or "mobile units" under the Migration Act, although the pipeline they were building did fit the definition of a "resources installation". However, due to the exemption in s.5(13) of the Migration Act, the vessels were found to not be in the migration zone.

While the decision establishes how offshore pipelay vessels are to be viewed in relation to the migration zone, each case must be considered on its own circumstances.

The Minister has 21 days from the date of the decision (May 22) in which to lodge an appeal, should he decide to do so.

Click here for the Federal Court decision.

AMMA members requiring further advice on the migration zone in regard to offshore construction should contact AMMA's Migration Services on (02) 9211 3566 or email AMMA's Migration Services Manager at [email protected]