Summary of 1 July 2017 visa and migration changes

As was expected there were several changes to the Temporary and Permanent visa streams on the 1st July. Whilst many industries had a level of success in having occupations moved or re-instated, unfortunately hospitality was not one of them.

 

I am of the firm belief that our industry organisations have not done enough to make us heard and that we will be in real trouble in the medium-term future with a severe shortfall in suitable applicants for hospitality jobs.

 

If you are eligible for a Permanent visa, it is still our recommendation that you apply as soon as you can do so. It is likely that there may be some transitional arrangements for existing 457 visa holders who become eligible for the 186 under the Temporary Transition Stream after March next year, but these have not been announced.

 

The Department has also introduced a refund policy for 186 and 187 visas that are refused or withdrawn under certain circumstances.  This may indicate they are anticipating a hardening of the interpretation of genuine positions and hence refusals where in the past they have been fairly accommodating.

 

The next big fight will be the Skilling Australia levy. As at the last DIBP roadshow, it was the departments understanding that the Training Levy will be paid at the nomination stage, in full for the length of the visa and will not be subject to refunds. This will not apply to existing visas lodged prior to March 2018 so the moral of the story here is – get in before those changes.

 

We are hoping this will be reviewed as it seems highly unfair to not have a refund structure in place if an employee leaves employment. We urge you to provide us with examples as to how this may affect your business and we will forward it to the Migration Institute of Australia and the Industry Associations.

 

As always, if you have any questions please email them to us and we will answer them as quickly as we can considering the large number of inquiries we are receiving.

 

Detailed summary of July 1 changes

 

1. Subclass 186 (ENS) and Subclass 187 (RSMS)

Skilled Occupation Lists

 

– for Subclass 186 see Subclass 186 (ENS) Occupations
– for Subclass 187 see Subclass 187 (RSMS) Occupations
– see also MIA Notice

 

See also List of Eligible Skilled Occupations on the DIBP website at: https://www.border.gov.au/Trav/Work/Work/Skills-assessment-and-assessing-authorities/skilled-occupations-lists

 

See MIA Notice 46, 30 June 2017 https://www.mia.org.au/communications/id/2535

 

English language requirements

Applications for ENS and RSMS made under the Temporary Residence Transition (TRT) stream lodged on or after 1 July 2017 will require an IELTS (or equivalent) score of 6 in each component (Competent English). For more information see:

 

https://www.border.gov.au/Trav/Visa-1/186-?modal=/visas/supporting/Pages/skilled/english-language-requirements.aspx

 

The English language skills exemption for both ENS and RSMS has been removed for those who have nominated earnings at least equivalent to the current Australian Taxation Office top individual income tax rate (AUD 180,001). This will also apply to all applications including those lodged before 1 July 2017 that have not been finally determined.

 

Skill exemption

The exemption from a skills assessment for applications made under the Direct Entry (DE) stream of both ENS and RSMS has been removed for those who have nominated earnings at least equivalent to the current Australian Taxation Office top individual income tax rate (AUD$180,001). This will also apply to all applications including those lodged before 1 July 2017 that have not been finally determined.

 

Age

From 1 July 2017, applicants for the ENS and RSMS Direct Entry (DE) stream must be younger than 45 years of age. This applies to visa applications lodged on or after 1 July 2017. Current age exemptions will still be available.

 

The age requirement for the Temporary Residence Transition (TRT) stream will remain at less than 50 years of age until 1 March 2018 when the less than 45-year age limit will become effective.

 

Training requirements for Subclass 186 ENS Direct Entry

A new legislative instrument Migration (IMMI 17/045: Specification of Training Benchmarks and Training Requirements) Instrument 2017

 

https://www.legislation.gov.au/Details/F2017L00796 specifies:

 

– for Training Benchmark A the types of training funds which may be used and stipulates that funds that offer commissions or refunds for failed immigration applications do not meet the requirements; and
– for Training Benchmark B that the payments for scholarships for non-employees is not acceptable expenditure; and providing that a trainer’s salary is acceptable expenditure only when the person is engaged solely as a trainer and clarifying what type of on-the-job training is acceptable expenditure.

 

Further details are in Legislative Instrument Migration (IMMI 17/074: Specification of Training Requirements) Instrument 2017 https://www.legislation.gov.au/Details/F2017L00789/Download

 

Genuine need & must work as paid employee under nominator’s direct control.

From 1 July 2017, all ENS and RSMS Temporary Residence Transition (TRT) stream and DE stream nominations must provide evidence of ‘Genuine need’ for the person to work in the nominated position. The nominee is required to work under the direct control of the nominator as a paid employee.

 

2. Subclass 457 (Temporary Work)

Skilled Occupation Lists

 

– see Subclass 457 Occupations
– see also List of Eligible Skilled Occupations on the DIBP website at https://www.border.gov.au/Trav/Work/Work/Skills-assessment-and-assessing-authorities/skilled-occupations-lists

 

English language requirements
The English Language Salary Exemption Threshold (ELSET) which exempted applicants whose salary was over AUD$96,400 from the English language requirement has been removed for applications lodged on or after 1 July 2017.

 

English language test results must be provided for applications lodged on or after 1 July 2017 unless:

 

– the person is an employee of an overseas business who is coming to Australia to work for that company or their associated entity and they have a nominated base rate of pay of at least AUD$96,400; or
– any of the other current English language exemptions apply (for example, certain passport country holders who do not require English language testing)

 

For further information about the English language requirements and exemptions see https://www.legislation.gov.au/Details/F2017L00835 and https://www.border.gov.au/Trav/Visa-1/457-/Subclass-457-visa-legislative-instruments

 

Training Benchmarks

Migration (IMMI 17/045: Specification of Training Benchmarks and Training Requirements) Instrument 2017 https://www.legislation.gov.au/Details/F2017L00796 specifies:

 

– for Training Benchmark A the types of training funds which may be used and stipulates that funds that offer commissions or refunds for failed immigration applications do not meet the requirements; and
– for Training Benchmark B that the payments for scholarships for non-employees is not acceptable expenditure; and providing that a trainer’s salary is acceptable expenditure only when the person is engaged solely as a trainer and clarifying what type of on-the-job training is acceptable expenditure.
See MIA Notice 45, 29 June 2017 https://www.mia.org.au/communications/id/2530

 

Character: police checks

The provision of penal clearance certificates will become mandatory for all visa applications lodged on or after 1 July 2017. This reform will bring the subclass 457 visa program in line with most other visa programs, which are not exempted from providing penal clearance certificates see https://www.border.gov.au/Trav/Visa/Char

 

Mandatory skills assessments

The Department of Education and Training’s Trades Recognition Australia (TRA) 457 skills assessment program will be expanded to include some additional nationalities for a small number of existing occupations. From 1 July 2017, passport holders from Bangladesh, Nepal and Pakistan applying for a subclass 457 visa or permanent skilled migration in the occupations of Chef and Cook must have their skills assessed through the Trades Recognition Australia (TRA) 457 Skills Assessment Program or Offshore Skills Assessment Program (OSAP). For further information see:

 

http://www.tradesrecognitionaustralia.gov.au/News/Pages/Changes-to-the-457-Program-and-OSAP.aspx

http://www.tradesrecognitionaustralia.gov.au/News/Pages/Changes-to-the-457-Program-and-OSAP.aspx

http://www.tradesrecognitionaustralia.gov.au/News/Pages/Changes-to-the-457-Program-and-OSAP.aspx

 

New sponsorship accreditation arrangements

 

The characteristics for sponsorship accreditation approval will be expanded to accommodate certain low risk sponsors who only use the subclass 457 program occasionally. This will ensure that gaining access to regular priority processing will no longer only favour large volume users of the program. For further information on Sponsorship Accreditation see https://www.border.gov.au/Trav/Visa-1/457-#tab-content-3

 

3. Subclass 407 Training visa

The occupation lists for the Subclass 407 training visas the MLTSSL and STSOL https://www.legislation.gov.au/Details/F2017L00834/Download

 

4. Subclasses 489 and 190: age limit

The MIA has confirmed with the Department of Immigration and Border Protection that the age limit for Subclasses 190 and 489 will be lowered to 45 years of age on 1 July 2017.

The relevant legislative instrument is yet to be released.

 

5. New Zealand pathway to permanent residence

An additional pathway to permanent residence for New Zealand Special Category visa holders has been introduced. This is for New Zealand Special Category (subclass 444) visa (SCV) holders who were usually resident in Australia on or before 19 February 2016 and who, at the time of lodging an application, have resided in Australia for at least five years. The criteria include :

 

– contributing to Australia, demonstrated through income tax returns which show taxable income at least equivalent to the Temporary Skilled Migration Income Threshold (TSMIT) for the qualifying period; and meeting mandatory health, character and security checks.

New Zealand citizens who are granted this visa will be eligible to apply for Australian citizenship after a period of 12 months (in addition to the five years as an eligible New Zealand SCV holder).

This pathway is a new stream in the Skilled Independent (Subclass 189) visa.

 

For more information see https://www.border.gov.au/Visasupport/Pages/an-additional-pathway.aspx and Specification of Income Threshold and Exemptions for Subclass 189 Skilled-Independent Visa (New Zealand Stream) IMMI 17/035 https://www.legislation.gov.au/Details/F2017L00723

 

6. Changes to the Eligible New Zealand Citizen definition

 

The definition of Eligible New Zealand Citizen has been amended to align with Australian social security law. Consequential changes have also been made to the New Zealand Family Relationship (Subclass 461) visa.