Article:

New Temporary Skills Shortage (Subclass 482) Visa commenced on 18 March 2018 with significant changes to temporary skilled and permanent employer sponsored visa programmes

19 March 2018

Maria Jockel , Legal Principal and National Leader, Migration Services |

On 18 March 2018, the new Temporary Skills Shortage (Subclass 482) visa (TSS) replaced the Subclass 457 visa programme.

Significant changes have been made to the temporary and permanent employer sponsored visa programmes. In particular, the changes tightened eligibility for these visas by reference to criteria dealing with:

  • Age
  • Employment history
  • Salary
  • English language
  • Eligible occupations.

The restrictions aim to protect Australian jobs and to only allow access to overseas skilled workers with critical skills, if skilled Australian workers are not available and to increase the quality and economic contribution of skilled migrants.

Changes to eligibility requirements for the Temporary Residence Transition (TRT) Stream in the Subclass 186/187 visas will not apply to persons who hold or had applied for a subclass 457 visa when the changes were announced by the Government on 18 April 2017 as transitional provisions will apply.

Summary of Subclass 482 TSS visa changes

The changes are extensive and relate to the new TSS which has 3 new streams:

  • A Short-term stream for occupations on the Short-term Skilled Occupation List (STSOL) for a maximum of up to 2 years (or up to 4 years if an international trade obligation applies)
  • Medium-term stream – for occupations on the Medium and Long-term Strategic Skills List (MLTSSL) for up to 4 years
  • Labour Agreement Stream – in accordance with a Labour Agreement, where there is a demonstrated need that cannot be met in the Australian labour market under the TSS.

The Occupation Lists

The occupations are reviewed every 6 months by the Department of Jobs and Small Business (which flags occupations for possible removal in the next review of the lists).

Application Charges

Short-term stream

Base application charge $1,150
Additional applicant charge for an applicant who is at least 18 $1,150
Additional applicant charge for an applicant who is less than 18 $290

 Medium-term stream and Labour Agreement stream

Base application charge $2,400
Additional applicant charge for an applicant who is at least 18 $2,400
Additional applicant charge for an applicant who is less than 18 $600

Standard Business Sponsorship (SBS) Applications changes

  • Does not include Training Benchmark A or B in anticipation of the new Skilling Australia Fund (SAF) training levy being implemented which will be imposed on TSS nominations
  • SBS training obligations on existing SBS sponsors remain in force
  • Recovering costs from applicants for TSS including migration agent costs, is specifically prohibited
  • New term for SBS approvals for existing SBS sponsors starts immediately after the current SBS expires
  • Expanded definition of Adverse Information to include any information relevant to the person’s suitability as a sponsor or nominator including:
    • Power to refuse to approve the nomination and power to refuse to grant visas in cases where documents are bogus or information is false or misleading
    • Where there is a concern with a wide range of associations including family, friends and associates which can be used to continue unacceptable or unlawful business practices.

TSS Nomination Applications

  • If the occupation is on either the Medium-term or Short-term list on the date of lodgement of the nomination application, the occupation requirement will be met even if the occupation is removed for either list post-lodgement
  • All TSS visas must relate to full-time positions
  • Nomination applications for existing 457/TSS holders who apply for a new TSS nomination may be required to evidence that they continue to meet the English language requirement
  • The previous market salary rate provisions have been replaced by the concept of the Annual Market Salary Rate (AMSR) which requires remuneration and employment conditions that are at least equivalent to the conditions that are, or would be, provided to an Australian worker performing the same work at the same location
  • The AMSR excluding any non-monetary benefits must not be less than the Temporary Skilled Migrant Income Threshold (TSMIT) (which is currently $53,900) unless this requirement is waived
  • Annual earnings of the applicant in the nominated position must be at least TSMIT unless this requirement is waived
  • The Department has the right to make its own assessment as to the AMSR unless it is reasonable to disregard the information that it has
  • The English requirement for the Short-term stream continues to be the same as applied to the Subclass 457 visa
  • The Medium-term stream requires an International English Language Testing System score (or equivalent) of level 5 overall, with a minimum of 5 in each component score
  • Location(s) where the occupation is to be carried out must be provided
  • Period of nomination must be provided
  • Unless exempted, the nominator must certify that the employment contract complies with all laws of the Commonwealth, State or Territory related to employment, including National Employment Standards if applicable
  • Terms and conditions are assessed on the basis of 3 separate comparisons:
    • Annual earnings
    • Earnings
    • Employment conditions other than earnings
  • Requirement that applicant “has worked in the nominated occupation” for at least 2 years
  • For Short-term stream – Genuine Temporary Entrant (GTE) requirement includes consideration of intent to stay in Australia temporarily, applicant’s circumstances, immigration history and any other relevant matter
  • Nominated occupations may be subject to matters relating to any of the following as specified:
    • The person who nominated the occupation
    • The nominee
    • The occupation
    • The position in which the nominee is to work
    • The circumstances in which the occupation is undertaken
    • The circumstances in which the nominee is to be employed in the position.
  • Labour Market testing is now required for all applications lodged after 18 March 2018, unless international trade obligations apply.

Visa Application

  • All applicants who are in Australia at the time of application must hold a substantive visa or Bridging Visa A, B, or C (as Schedule 3 requirements have been removed)
  • Visa applicants in certain occupations are now required to have commenced or completed a skill assessment in order to make a valid visa application
  • Applicants who do not meet the health criteria may be eligible for a health waiver under Public Interest Criterion 4007
  • All primary visa holders must comply with Condition 8607 (analogous to previous Condition 8107)
  • All primary and secondary visa holders must maintain adequate health insurance in accordance with Condition 8501
  • All visa holders must comply with Condition 8516 which means they must continue to satisfy the applicable primary or secondary criteria for the visa
  • The visa cancellation powers now allow the Minister after the grant of a visa, to cancel visas where:
    • The visa holder no longer has a genuine intention to perform the approved nominated occupation
    • The visa holder has ceased to have a genuine intention to perform that occupation
    • The position associated with that occupation is not considered to be genuine.

Subclass 186 ENS changes

These are extensive and include:

  • 186 TRT: The Minister can require skills assessment for any occupation prior to approving a visa application regardless of whether skills had been previously assessed as part of a previous 457 or TSS applications
  • If the visa applicant is required to hold a licence or registration, requirement that a person holds the licence or registration or is eligible to do so has been added to the nomination
  • 186/187 TRT is only available for holders of 457 visa or Medium-term TSS visa or Bridging Visa based on an application for a 457 or Medium-term TSS unless an exemption applies in accordance with a Legislative Instrument
  • 186/187 TRT nominated occupation must have the same first 4-digits of the ANZSCO code as in the most recent 457/TSS nomination grant
  • 186/187 TRT requires applicants to “genuinely perform” the tasks of the occupation they hold that visa under, which allows consideration of their current work circumstances under 457/TSS visa when evaluating nomination eligibility
  • 186/187 TRT nominations cannot be lodged unless the applicant has held a 457 and/or TSS visa(s) for a total period of 3 years in the 4 years immediately before lodging a nomination application
  • 186/187 nominations cannot be lodged unless the applicant was employed full-time in Australia in the approved 457/TSS nominated position for a total period of 3 years in the 4 years immediately before lodging the nomination application, unless exempted
  • 186 TRT age limit changed – under 50 years at the time of application to under 45 years at the time of application unless transitional provisions apply
  • 186/187 TRT and Direct Entry requires the nominator to have the capacity to employ the applicant for a least 2 years and pay the applicant AMSR for each year
  • AMSR, Annual Earnings and TSMIT apply to 186/187 nominations.

The Department of Home Affairs and Business Risk

The bringing together of Australia’s federal law enforcement, national security, criminal justice and immigration and border-related functions and agencies under the ‘super ministry’ of Home Affairs, is one of the most significant reforms to Australia’s security, law enforcement and immigration arrangements.

This new era of ongoing reforms requires businesses to manage compliance risk in the context of a complex regulatory and increased enforcement regime, while at the same time meeting their skilled workforce needs.

The depth and breadth of the legislative changes which came into effect on 18 March 2018, cannot be underestimated, as coupled with the intelligence arising from data exploitation in the age of automation with electronic records being shared across all government spheres, there is a need for businesses to review their operational planning, including the design and implementation of human resources strategy and frameworks, which align with the immigration regulation.

Critical to this are controls, delegated responsibility, document management systems and processes noting that all information and documents lodged with the Department of Home Affairs may be subject to monitoring, compliance, investigations and enforcements.

BDO Migration Services is able to assist you to meet your skilled workforce needs as part of navigating the stormy waters that follow the creation of the ‘super ministry’, the Department of Home Affairs.

Conclusion

The above summarised changes are part of a broad package of complex and extensive legislative reforms for the employer sponsored temporary and permanent entry skilled visa programmes and bring into effect the announcements made by the Government on 18 April 2017.

These changes aim to continue to allow Australian businesses to access critical skills if skilled Australian workers are not available but always on the basis that Australian jobs must be protected.

The focus is on increasing the quality and economic contribution of skilled migrants and expanding the power and reach of the Department of Home Affairs in deciding whether the relevant criteria has been met while significantly increasing the Visa Application Charges.

Given the complexity and wide reaching nature of the changes, it is recommended that you get expert legal advice on a case-by-case basis.

The above summary should not be treated as immigration assistance, immigration legal assistance or legal advice as it is a mere summary.