The April 2017 Changes
TABLE OF CONTENTS
The April 2017 Changes
Must Review Both Nomination and 457 Visa Refusal
Compliance and Integrity Issues
Other Recent Changes
Some Practice Decisions
Designated Area Migration Agreements
Review of the 457 Visa is now Complete
Not Passing on Migration Agent Costs
Types of Subclass for 457 Visas
The only certainty is that there will be uncertainty
There once was a mantra applying to migration law changes which was that generally they would only apply to visa applications made after the date of the change. In some cases where the change was foreshadowed it lead to an avalanche of visa applications to beat the change.
What the last raft of changes shows is that Immigration has less commitment to protecting visa applicants who applied based on a pre-existing law or regulation. So applicants now need to be told that a visa application does not preserve the law for that applicant and the law can change before decision which could lead to what appeared to be a visa pathway to having that pathway blocked.
Of course anyone looking at pathway planning needs to be nimble in order to change plans if the law suddenly and heavily changes.
One way to insulate any the impact of change is for an applicant to undertake a continual upgrade of skills. Unfortunately many migration advisors over the years never advise applicants to keep upskilling. Those who just scrape through the English language requirements for a temporary visa often don’t try and skill up to improve their English language competence. The writing component of any test is usually the weakest, mainly because applicants practice speaking listening and reading often through their daily lives but few practise writing. So until an applicant achieves a score of 7 in the IELTS in each component the applicant should keep undertaking structured study and being tutored in English (ideally applicants should aim for scores of 8). So some of this will not just involve improving English but improving one’s overall level of education, reflecting the practical truth that higher levels of English proficiency are only achieved by those with higher levels of education. In this context even less formal courses of education are of benefit.
Something similar can be said for upskilling each time an occupation like ‘Customer Service Manager or Program or Project Administrator became flavour of the month among migration advisors, Immigration would respond by raising the bar. For these people upskilling to serious IT jobs would be the pathway.
At least at the moment we will know that until March 2018, there is still a permanent residence pathway for the lower level jobs via the ENS subclass 186 visa. After that date, those lower level jobs will no longer lead to permanent residence except for what will become a pared down list for the RSMS scheme.
In the end in the shifting sands of migration law, the only certainty is uncertainty!
And let's look at one example of the power of politics. Initially when the changes were introduced in April 2017, the occupation of 'horse trainer' was not on the Medium and Long‑term Strategic Skills List (MLTSSL). From 1 July 2017 'horse trainer' returned to the MLTSSL. This occurred as a result of the horse racing industry making direct representations to the government!
Before we move to the subclass 457 visa, it is useful to pointout that apart from a couple of additional notes, Medium and Long Term Strategic Skills List (MLTSSL) is exactly the same as the Skilled Occupations List (SOL).
What has changed is that the Consolidated Sponsored Occupations List (CSOL) has been truncated and even what has remained has become subject to a whole lot of restrictive ‘Notes’ which are misleadingly referred to as ‘caveats’
The 457 changes
The key provision which gives teeth to the changes is as follows :
This is part of the time decision criteria and was introduced some years ago. It means that if an occupation drops off the nominated list or a condition is applied to the occupation additional to what was there at time of application which applicant cannot meet, then the applicant is no longer eligible to be granted the subclass 457 visa!
The restricted occupations list will apply to all subclass 457 visa applications not decided as at 18 April 2017. This includes applications pending in the Administrative Appeals Tribunal.
The way the changes were made is complex (indeed unnecessarily so).
They work like this and one literally has to have the two affected legislative instruments sitting side by side to understand the changes.
The master document is still the legislative instrument Immi 16/059 dated 6 May 2016 which came into effect on 1 July 2016, which set out the then current Skilled Occupations List (SOL) and Consolidated Sponsored Occupations List (CSOL).
One then has to read the new legislative instrument being Immi 17/040 which replaces the SOL & CSOL. Immi 17/040 is dated 18 April 2017 commencing on 19 April 2017.
One then goes through to determine if the client’s position is still good as of 19 April 2017.
Reg 2.72(10)(aa) states :
(10) If the person is a standard business sponsor — the Minister is satisfied that:
(aa) if the nomination is made on or after 1 July 2010 — the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph;
That instrument in writing is now Immi 16/059 dated 6 May 2016 as amended by Immi 17/040 dated 18 April 2017.
The SOL is now the Medium and Long Term Strategic Skills List (MLTSSL) and the CSOL is now the Short-term Skilled Occupation List (STSOL)
Overall 216 occupations have been removed from the list of occupations that previously were part of the subclass 457 visa program. That list is attached.
By policy if a person is granted a subclass 457 based on an occupation on the STSOL the person will only get a 2 year visa.
This is because 457.511 states :
457.5 When visa is in effect
A temporary visa permitting the holder:
Whilst 4 years is the maximum period of the length of the visa, the Minister could grant the visa for a lesser period. Generally this was done if the contract of employment was for less than 4 years. That aspect of the grant period remains but for occupations on the STSOL the grant period will be 2 years.
Regarding the STSOL numerous occupations are subject to a ‘Note’ referred to as a ‘caveat’.
So it is a question of going through each occupation and picking up the notes. For example ‘Grape Grower’ has notes 12 and 26 which read :
Note 12. In relation to specifications of occupations for a Subclass 457 – Temporary Work (Skilled) visa, despite paragraph 2 of this instrument, for the purposes of paragraph 2.72(10)(aa) of the Regulations, the specification excludes positions that predominantly involve low-skilled tasks.
Examples: fruit picking or packing, feeding of livestock or animals
Note 26: (1) These occupations are specified as a skilled occupation only in relation to an application for a visa or an application for approval of a nomination for a visa listed below. These occupations are not specified as a skilled occupation in relation to any other visa subclass, despite paragraphs 3, 4, 5 and 8.
- subclass 457 – Temporary Work (Skilled) visa
- subclass 186 – Employer Nomination Scheme visa
- subclass 489 – Skilled-Regional(Provisional) visa, if the applicant is nominated by a State or Territory government agency.
(2) In relation to specifications of occupations for a Subclass 457 – Temporary Work (Skilled) visa, despite paragraph 2 of this instrument, for the purposes of paragraph 2.72(10)(aa) of the Regulations, the specification only includes positions located in regional Australia.
(Regional Australia is defined in subregulation 5.19(7) of the Migration Regulations 1994.)
Using this as an example, the writer has a case of an employer who has a vineyard on the outskirts of Melbourne but the vineyard is very close to but not in a regional area. A number of options have to be looked at here. One option is to examine if the spouse has an occupation on the list which does not have the regional restriction. Here the wife is a hairdresser an occupation which is subject to note 20 :
Note 20: In relation to specifications of occupations for a Subclass 457 – Temporary Work (Skilled) visa, despite paragraph 2 of this instrument, for the purposes of paragraph 2.72(10)(aa) of the Regulations, the specification excludes positions that do not require a minimum of two years relevant work experience.
The most important task therefore is for the spouse, who currently has unlimited work rights on a BVA, to find a suitable employer for a position which requires at least 2 years experience (which the spouse does have). This matter is before the AAT so there is time to obtain a BVB and go offshore to allow the new subclass 457 visa to be applied for.
The other obvious alternative is for the visa applicant to find an employer in a regional area.
But as far as pathway planning is concerned, neither the grape grower nor the hairdresser will deliver permanent residence via the temporary residence transition regime because as stated below the STSOL occupations will no longer be part of the ENS regime after March 2018. The alternative for both of these persons is getting qualified for direct entry for the ENS. This will involve 2 things, getting a score of 6 in each component for the IELTS and a skill assessment. In both cases the visa applicants will have to get cracking!
As an aside Note 20 on an occupation would stop a student transitioning from successfully completing a course to obtaining a subclass 457 visa as the position requires 2 years experience. Tactically if one were able to stretch the visa application and AAT review to 2 ears then there is a possibility of still being able to go from student visa to 457.
Let’s have a look at 2 other occupational types – pastry cook and baker and separately cook
Pastry Cook & Baker are subject to Note 7 which reads :
Note 7. In relation to specifications of occupations for a Subclass 457 – Temporary Work (Skilled) visa, despite paragraph 2 of this instrument, for the purposes of paragraph 2.72(10)(aa) of the Regulations, the specification excludes positions related to mass or standardised production, including positions based in a franchise or factory, as opposed to specialist production. Positions excluded, but not limited to the following exclusions, are any of the following:
- positions that involve full or partial production of food product for distribution to another location;
- positions that predominantly involve the use of pre-prepared food product from another location.
So it restricts these occupations to what would be artisanal positions but it does create a pathway for students to stay on for a further 2 years visa a subclass 457 visa. Depending on what happens after that one would need to look at a regional area for a permanent residence pathway.
Cooks are subject to Notes 11 & 24 which read :
Note 11. In relation to specifications of occupations for a Subclass 457 – Temporary Work (Skilled) visa, despite paragraph 2 of this instrument, for the purposes of paragraph 2.72(10)(aa) of the Regulations, the specification excludes positions involved in mass production in a factory setting and positions in a limited service restaurant. A limited service restaurant includes, but is not limited to, any of the following:
- fast food or takeaway food services;
- fast casual restaurants;
- drinking establishments that offer only a limited food service;
- limited service cafes including, but not limited to, coffee shops or mall cafes;
- limited service pizza restaurants.
Note 24: In relation to specifications of occupations for Subclass 186 – Employer Nomination Scheme visa, for the purposes of sub-subparagraph 5.19(4)(h)(i)(A) of the Regulations, indicates that, despite paragraph 6, for an application for approval of a nomination for a Subclass 186 visa, the occupation excludes positions in Fast Food or Takeaway Food Service.
So again, the positions are limited to genuine cook positions in genuine restaurants. It may be possible to convert an establishment into a restaurant from a café or casual restaurant but this will require the very active commitment of the employer. However cook positions are available as transitions for students who have completed the appropriate qualifications. The pathway to permanent residence is to skill up to be a chef, however there is a limit to the number of chefs in a restaurant.
Another example is of an ‘insurance loss adjustor’ an occupation on the STSOL. This will not create a pathway to permanent residence. As when the current visa expires the applicant could apply for the 2 year 457 visa. The applicant would need to upskill to solicitor (an occupation on the MLTSSL) by doing further education part-time plus perhaps doing a stint on a student visa studying full time, a long haul but one which achieves permanent residence via the skilled visa regime or ENS.
Regional areas are now very attractive especially in the medium term, noting that regional Australia includes all of SA, NT, WA, the ACT and Tasmania (ie including, Adelaide, Perth, Canberra, Darwin and Hobart).
For others applicants would need to find an occupation to skill up to in the MLTSSL. For example Records Manager to Solicitor or Accountant but this would inevitably involve a stint on a student visa (there is a caveat attached to Accountant).
Land economist, Valuer, Landscape Architect, Other Spatial Scientist, agricultural consultant, agricultural scientist have potential as pathways as are various teaching occupations. There are lower level medical occupations like podiatrist and of course nursing occupations are there. There are various IT occupations although they are at a higher level. Then of course there are selected trades which has pathway for students to go from either 485, to 457 to skilled.
Let’s look at what the ANZSCO says about these agricultural professions :
UNIT GROUP 2341 AGRICULTURAL AND FORESTRY SCIENTISTS
AGRICULTURAL AND FORESTRY SCIENTISTS advise farmers, rural industries and government on aspects of farming, develop techniques for increasing productivity, and study and develop plans and policies for the management of forest areas.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
- collecting and analysing data and samples of produce, feed, soil and other factors affecting production
- advising Farmers and Farm Managers on techniques for improving the production of crops and livestock, and alternative agricultural options
- advising farmers on issues such as livestock and crop disease, control of pests and weeds, soil improvement, animal husbandry and feeding programs
- studying the environmental factors affecting commercial crop production, pasture growth, animal breeding, and the growth and health of forest trees
- studying the effects of cultivation techniques, soils, insects and plant diseases on animal, crop and forest production
- developing procedures and techniques for solving agricultural problems and improving the efficiency of production
- managing forest resources to maximise their long-term commercial, recreational and environmental benefits for the community
- studying the propagation and culture of forest trees, methods for improving the growth of stock, and the effects of thinning on forest yields
- preparing plans for reafforestation and devising efficient harvesting systems
- investigating, planning and implementing management procedures to cope with the effects of fires, floods, droughts, soil erosion, insect pests and diseases
234111 Agricultural Consultant
234112 Agricultural Scientist
234113 Forester (Aus) / Forest Scientist (NZ)
234111 AGRICULTURAL CONSULTANT
Advises farmers, agricultural businesses, rural industries and government on the production, processing and distribution of farm products.
Skill Level: 1
Agricultural Extension Officer
234112 AGRICULTURAL SCIENTIST
Studies commercial plants, animals and cultivation techniques to enhance the productivity of farms and agricultural industries.
Skill Level: 1
As can be seen a degree is required but there is a pathway from agricultural worker to such an occupation visa study part-time or full time.
From 1 July 2017, further changes are pending in relation to the subclass 457 visa:
- possible further adjustments to eligible occupation lists;
- an expansion of client cohorts for whom mandatory skills assessments are required;
- minor changes to the training benchmarks for subclass 457 sponsors; and
- subclass 457 programme no longer excluded from standard policy around penal checks – with police certificates required to be provided from countries a visa applicant has lived in as per current policy for other visa subclasses.
From March 2018, the subclass 457 visa will be abolished to be replaced by a Temporary Skill Shortage (TSS) visa.