Visa Overview

The main criteria for the grant of a subclass 457 visa is found in the time of decision criteria. This has important practical implications. It makes the review process an important part of the considerations for the positioning and planning for a visa.

The AAT on numerous occasions has determined that a visa applicant taking advantage of every opportunity granted by the law is not evidence of bad character. DP Wright observed in Fox v MIMIA[9] [2004] AATA 195 (27.2.04):

The review applicant freely conceded that to assist the visa applicant to stay with him in Australia he had sought to use all means lawfully available to him. I think therefore that some observations should be made about this. There is I think a distinction to be made between (a) an applicant who seeks to exhaust all avenues lawfully open to him or her with a view to ultimately securing a beneficial decision even if the prospects, objectively assessed, may be poor or even hopeless, and (b) an applicant who has concocted a false case for protection and, having failed at primary level, then seeks to gain more time residing in Australia by implementing further appeals knowing they can only succeed if the false case is accepted. In the former case I think there should be no adverse character implications. In the latter, there are obvious issues suggesting absence of good character.

The key phrase is ‘all means lawfully available’. The Migration Act through the merit review process permits the time of decision criteria to be determined by the Migration Review Tribunal (the MRT) at time of decision by the MRT. This means that an applicant can position him or herself to enhance or even to meet the time of decision criteria as at the date of the MRT hearing. Given that the delays in the MRT can be up to 2 years, an applicant can legitimately do things to enhance his or her regulatory situation by improving skills, gaining extra work experience or improving one’s English.

Furthermore the Migration Act has been specifically enacted only to give the Minister power to intervene after the Tribunal has made an a decision concerning the applicant (usually although not necessarily, as adverse one). There is nothing unethical about a client’s positioning oneself for the purpose of creating the legal threshold to allow the Ministerial discretion to be exercise. Indeed a powerful consideration for the Minister is whether the Tribunal has made a favourable recommendation to the Minister. The writer has taken many cases to the MRT over the years for the sole purpose of seeking the Tribunal recommendation to the minister with the result that the Tribunal’s recommendation was an important factor in the Minister exercising his discretion in favour of the applicant to grant the visa even though at no material time was the applicant eligible for the visa.

Here are a couple of examples. In Kaur 1218648 [2013] MRTA 2807 (29 October 2013), the visa applicant kept doing the test until he got the result. In Youssef 1209534 [2013] MRTA 2853 (29 October 2013) a new nomination was re-lodged before the MRT made its decision.

The case of Somlai 1316383 [2014] MRTA 1067 (2 May 2014) is a demonstration of how one can appeal to the Tribunal and do further English tests until one meets vocational English. Here the person, a graphic designer, applied for the subclass 457 visa on 19 August 2013 but it was refused on 23 October 2013 because she did not have vocational English. She did an English test on 14 December 2013 and obtained vocational English. There is nothing unethical about a person applying for a visa knowing he or she does not meet the criteria at the visa stage but has a viable plan to meet the criteria at merit review stage.

SCHEDULE 1

Internet Application – Item 1223A(1)

457 visa applications must be lodged as an internet application in order to be valid [Item 1223A(1)(b) & (bb)].

However there are provisions for alternative lodgement if it is not possible for a 457 visa application to be lodged as an internet application [Item 1223A(1)(ba) & (bc)].

The legislative instrument IMMI 13/063, F2013L01242 sets out steps for lodgement via email to e457.Manual.Lodgement@immi.gov.au however written authorisation from the Department must be obtained first. There is also a limited time frame to submit the 457 visa application via email, where the instrument requires that email lodgement occur “before midnight (AEST or AEDST when applicable) on the day following the date on which the authorising email was sent by (the authorised officer of) the Department”.

An internet application can be made while one is onshore or offshore.

Location of Visa Applicant – Item 1223A(3)(aa)

The visa applicant can be inside or outside Australia, but not in immigration clearance [Item 1223A(3)(aa].

For those whose employer ‘does not operate a business in Australia’ if the applicant is offshore, this means there are no merit review rights. In practice though, very few visa applicants are sponsored in this way as most overseas businesses establish a subsidiary company in Australia and as that company is registered in Australia then such a subsidiary would be an Australian based employer even if it is 100% overseas owned. As discussed in the section on merit review, one would always try to have a subclass 457 visa applicant apply while being present in Australia to create independent merit review rights for the applicant.

Schedule 1 SBS visa applicants – Item 1223A(3)(d)

(d) In the case of an applicant who seeks to satisfy the primary criteria for the grant of a Subclass 457 (Temporary Work (Skilled)) visa on the basis that the applicant meets the requirements of subclause 457.223(4) of Schedule 2:

(i) the application must specify the person who has nominated, or who proposes to nominate, an occupation in relation to the applicant; and

(ii) the application must be accompanied by evidence that the person who has nominated, or proposes to nominate, the occupation is:

(B) a standard business sponsor; or

(C) a person who has applied for approval under regulation 2.61 as a standard business sponsor but whose application has not yet been decided; or

Note: Item 49 of Schedule 1 of the Migration Legislation Amendment (Worker Protection) Act 2008 provides that if:

a person applied for approval as a sponsor under section 140E of the Act as in force immediately prior to 14 September 2009; and
the person’s application is not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958) before 14 September 2009;

the application is treated as if it had been made on 14 September 2009.

[Note that generally in order for 457 visa application to be valid, the employer must have already been approved as a Standard Business Sponsor or applied for SBS approval. However, it is not a requirement that the nomination has been lodged or that the nomination has been approved.]

(D) a person whose approval as a standard business sponsor has ceased to have effect, but whose nomination of an occupation in relation to the applicant:

(I) has been approved under section 140GB of the Act; and

(II) has not ceased to have effect under regulation 2.75; and

[However if the SBS approval has ceased, it is still possible to lodge a valid 457 visa application provided that the nomination has been approved and has not ceased. Be aware that under Reg 2.75, an approved nomination will cease within 3 months after cessation of the SBS approval.]

(iii) the person who has nominated, or proposes to nominate, the occupation is not the subject of a bar under:

(A) section 140L of the Act as in force immediately prior to 14 September 2009; or

(B) section 140M of the Act.

Note that the employer listed as the nominator and sponsor in the visa application need not be the same employer at time of decision (see paragraph 457.223(4)). Often enough the original employer no longer employs the visa applicant either because of a dispute or downturn. This means that a visa applicant in those circumstances can look for another employer.

This has quite important practical implications. It could create the opportunity therefore to allow a visa applicant to change occupation or employer right up until the MRT made a decision, which could be well over 2 years after the visa application was lodged. Merit review is quite complex in the 457 area, particularly if there has been interlocking refusals of the sponsorship and the nomination. It may require 3 separate MRT appeals. However it is possible re-apply for a sponsorship or a nomination as there are no s. 48 of the Migration Act complications from a refusal of sponsorship or nominations. This is all explained in detail in the section on merit review in this paper.

Schedule 1 Labour Agreement visa applicants – Item 1223A(3)(da)

In relation to a labour agreement 457 visa application the Schedule 1 criteria states:

(da) In the case of an applicant who seeks to satisfy the primary criteria for the grant of a Subclass 457 (Temporary Work (Skilled)) visa on the basis that the applicant meets the requirements of subclause 457.223(2) of Schedule 2:

(i) the application must specify the person who has nominated, or proposes to nominate, an occupation in relation to the applicant; and

(ii) either:

(A) if the applicant is outside Australia at the time of making the application—the labour agreement has been approved; or

(B) if the applicant is in Australia at the time of making the application:

(I) the labour agreement has been approved; or

(II) the person who proposes to nominate an occupation in relation to the applicant has made a submission to the Minister to enter into a labour agreement.

SCHEDULE 2 – SBS FRAMEWORK

This paper will focus on the SBS framework and 457 visa applications under Labour Agreements (including on-hire and labour-hire situations) will be covered in their own separate sections.

Substantive Visa or Schedule 3 – Time of Application – 457.211

Please note that if the 457 visa applicant (including primary and secondary) is onshore at the time of application then the applicant must hold a substantive visa or satisfy Schedule 3 criteria 3003, 3004 and 3005 pursuant to subclause 457.211.

Subclause 457.211 and the corresponding Schedule 3 criteria are discussed at some length in the earlier section of this paper “The 457 Visa as a Rescue Visa”.

Standard Business Sponsorship Visas – 457.223(4)

The Schedule 2 criteria for the 457 visa applicant sponsored by an Australian based employer are as follows in 457.223(4):

(4) The applicant meets the requirements of this subclause if:

(a) each of the following applies:

(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

(iii) the approval of the nomination has not ceased as provided for in regulation 2.75; and

(aa) the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect; and

(ba) either:

(i) the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

(ii) each of the following applies:

(A) the applicant is employed to work in the nominated occupation;

(B) if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

(C) if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

(d) the Minister is satisfied that:

(i) the applicant’s intention to perform the occupation is genuine; and

(ii) the position associated with the nominated occupation is genuine; and

(da) the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

(e) if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation—the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

(ea) if:

(i) the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and

(ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and

(eb) if:

(i) the applicant is not an exempt applicant; and

(ii) subclause (6) does not apply to the applicant; and

(iii) at least 1 of subparagraphs (ea)(i) and (ii) does not apply;

the applicant:

(iv) has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

(v) achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

(ec) if the Minister requires the applicant to demonstrate his or her English language proficiency—the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

(f) either:

(i) there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

(ii) it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

(6) This subclause applies to an applicant if:

(a) the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

(b) the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

(11) In subclause (4):

exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.

In summary, at time of decision:

The nomination of an occupation must have been made by a Standard Business Sponsor and the nomination must have been approved
The nomination has not ceased

[NB. It is possible for the SBS approval to have ceased but not the nomination.]

The occupation must be on the SOL/CSOL [legislative instrument IMMI 15/092, F2015L01059]
One of the following apply:
The nominated occupation is an exemption occupation [legislative instrument IMMI 13/067, F2013L01244]; or
For an Australian based sponsor, the applicant works in the nominated occupation in the sponsor’s business or in the business of an associated entity of the sponsor; or
For an Overseas based sponsor, the applicant works in the nominated occupation in the sponsor’s business
The applicant genuine intends to perform the position and it is a genuine position
The applicant has the skills, qualifications and employment background to perform the tasks
The applicant provides a skills assessment, if required
The applicant satisfies the English language proficiency requirements or is exempt

The list of occupations is contained in the SOL/CSOL legislative instrument IMMI 15/092, F2015L01059, commencing 1 July 2015.

Another important practice point is not overdo the occupation in relation to the occupation and the position within the firm. Rather than call a person a sales and marketing manager is would be better to fit the person into the position of marketing specialist. The latter will be easier to prove up.

There are some quite low level jobs in the 457 list like ‘Enrolled Nurse’, ‘Driller’ which could provide a useful pathway for permanent residence.

GENUINE INTENTION – 457.223(4)(D)(I)

PAM states:

Requirements

Under 457.223(4)(d) officers must be satisfied that:

the applicant’s intention to perform the occupation is genuine and
the position associated with the nominated occupation is genuine.

In establishing whether this criterion is satisfied, officers may consider whether:

the position has been created to secure the entry or stay of the applicant and
the personal attributes and employment background of the applicant are inconsistent with the nominated occupation
the position is consistent with the nature of the business.

Other factors that may be considered include, but are not limited to:

the applicant’s immigration history (for example, previous travel, compliance with immigration laws of Australia or other countries, previous visa applications/compliance action)
personal circumstances in the applicant’s home country (for example, military service commitments, economic situation, civil disruption) that may encourage them to seek a visa to enter Australia
the credibility of the applicant in terms of character and conduct (for example, false and misleading information provided with the visa application).

For further advice on assessing these general considerations, refer to PAM3: GenGuideH – Visitor visas – Visa application and related procedures – The genuine visitor requirement.

Officers may request additional evidence if consideration of the factors above raises doubts as to whether the applicant’s intention to perform the occupation is genuine or whether the position associated with the nominated occupation is genuine, such as where the applicant’s circumstances may suggest the need for greater scrutiny.

Officers may also consider referral to overseas post to verify the claims made by the applicant – refer to Referring cases overseas.

Applicant’s intention not genuine

Most 457 applicants are nominated in occupations consistent with their previous work history and qualifications. To demonstrate their suitability for the nominated occupation, applicants should detail on form 1066 (Internet) their current employment status and/or employer and details of referees from their current and previous employment.

Officers should consider each applicant’s genuineness, including interdependent factors such as the applicant’s age, qualifications and employment history to the applicant’s proposed employment in Australia. This requirement is broader than the requirement that applicants have the skills necessary to perform the nominated activity.

Further consideration should be given to the applicant’s intentions if it appears the applicant’s qualifications/competencies or employment background are significantly inconsistent with the nominated occupation – for example, if an applicant with very little previous work experience is nominated to a specialist management position.

GENUINE POSITION – 457.223(4)(D)(II)

When assessing issues regarding the genuineness of a position, Departmental policy instructs delegates to refer to the section on “Genuine Position” contained in the Nomination instruction, which can be found in the “Genuine Position – Reg 2.72(10)(f)” section of this paper.

SKILL ASSESSMENT – 457.223(4)(E)

By law skill assessments are not mandatory but the following provisions in the subclass 457 regime allow Immigration to require a skill assessment:

eg 2.72(10)(e) (as part of the nomination approval) states:

(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

(A) for the occupation in the ANZSCO; or

(B) if there is no ANZSCO code for the nominated occupation — for the occupation in the instrument in writing made for paragraph (aa);

Paragraph 457.223(4)(e) has always been part of the Schedule 2 criteria. Paragraph 457.223(4)(da) was introduced from 1 July 2013.

Paragraph 457.223(4) as relevant states:

(da) the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

(e) if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister;

TRA 457 Skills Assessments

Here is what the PAM says about skill assessments for trade occupations:

It is departmental policy that, if TRA supports the provision of a 457 skills assessment for the nominated occupation and passport country of the visa applicant, the applicant will be required to demonstrate that they meet 457.223(2)(d) or 457.223(4)(e) by providing a TRA 457 skills assessment.

The TRA assessment is based on the passport of the applicant and the occupation. Some years ago, investigations revealed there were high levels of fraud from some countries (including China) in blue collar trades.

For example a Metal Fabricator [322311] with a PRC (China) passport will be required to have a skill assessment.

Once a passport and occupation fall into the TRA list then migration advisors need to go to the TRA website to study and understand all the requirements.

As a practice point, it is recommended to check the TRA website for current requirements as the occupations and countries are subject to change.

Specialist Managers NEC and Program and Project Administrators

In July 2013, in response to internal concerns of abuse, the Department introduced the policy that all applicants nominated in the occupations of Specialist Manager NEC (ANZSCO 139999) and Program and Project Administrator (ANZSCO 511112) to provide a full skills assessment conducted by VETASSESS.

PAM states:

It is departmental policy that all applicants nominated in the occupations of Program and Project Administrator (ANZSCO 511112) and Specialist Managers nec (ANZSCO 139999) will be required to demonstrate that they meet 457.223(2)(d) or 457.223(4)(e) by providing evidence of having completed a skills assessment for migration purposes conducted by VETASSESS (Skills Recognition – General Occupations). A VETASSESS 485 Skills Assessment is not acceptable for this purpose.

Skills Assessments and MRT Decisions

When an employer wishes to sponsor a close relative of the owner or director of the business, the issue of a skill assessment often arises. In such cases the visa application must drip with authenticity. An example of a successful review to the MRT is Zheng 1001724 [2012] MRTA 1110 (23 April 2012) where the employer sought to employ his sister-in-law as a Restaurant and Catering Manager 3321-11 (ASCO). The MRT did a careful analysis of the references provided and was impressed by the oral evidence given by the visa applicant.

Care should be taken to ensure that the title of the position is the same as that contained in the 457 list of occupations. An example of where this caused problems is Sanclaria 1103585 [2012] MRTA 1483 (30 May 2012) where the position was called Childcare Co-ordinator but the relevant 457 list occupation was Child Care Centre Manager (ANZSCO 134111). The MRT accepted that the ANZSCO description for the occupation of Child Care Centre Manager specifies that alternative titles for the occupation are Child Care Centre Director and Child Care Coordinator. The difficulty was that ‘the applicant will not be responsible for the overall management and administration of the services and whilst she will supervise other staff, she will not be responsible for recruitment of staff’. The MRT concluded:

On the information before it, the Tribunal is satisfied that the applicant has the skills necessary to perform the occupation of Childcare Coordinator having regard to her formal qualifications. The applicant has also undertaken work placements at 3 childcare centres during her study in Australia, including with the nominating business, and had previously worked as a nanny which, whilst different to the role of a Childcare Coordinator, is relevant to childcare generally.

The Tribunal thus finds that the applicant has demonstrated that she has the necessary skills to perform the nominated occupation and meets the requirements of cl. 457.223(4)(e ).

The case of Small 1006533 [2012] MRTA 1469 (31 May 2012) is a good example of using the time between visa refusal and MRT hearing to improve one’s skills. Between 15 July 2010 (when the visa application was refused and May 2012 when the matter was determined by the MRT the applicant obtained a Certificate 3 in pipe laying issued by Civiltrain which is the training arm of the Civil Contractors Association (CCF). The CCF currently has Registered Training Organisations in each mainland state. Thus the MRT was able to accept that the visa applicant had the skills.

Dealing with the ANZCO

The writer cites the example of the occupation of wholesaler where the ANZCO definition of ‘Wholesaler’ has this introduction:

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. At least five years of relevant experience may substitute for the formal 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).[Emphasis added]

The PAM has this to say about assessment:

Assessment

ASCO/ANZSCO or the instrument should be referred to as the principal source of information on the normal tasks or duties and skill requirements for occupations in Australia. ASCO/ANZSCO skill level references represent the entry level skills required for a particular occupation. In ANZSCO the skill level is defined at the Unit Group (4 digit level). In some cases, a higher qualification or level of experience will be required to complete the full range of duties competently. When using ANZSCO as a reference, case officers should refer to the indicative skill level specified for the nominated occupation rather than the generic ANZSCO Skill Level.

In some occupations (for teachers, barristers and nurses) formal qualifications are mandatory to undertake the example role and the applicant must provide evidence of holding these qualifications with the application. In other occupations, significant experience in performing the tasks of the nominated occupation at a competent level can be considered as equivalent to formal qualifications.

In all cases, case officers must be satisfied that the applicant has the skills to be able to perform the nominated occupation. ASCO/ANZSCO provides guidance as to the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation. However, when making their assessment case officers should be mindful that the qualifications and experience of the applicant must be relevant to the nominated occupation. For example, ANZSCO suggests that an architect should hold a bachelor degree or higher qualification. If an applicant was nominated as an architect and provided evidence of holding a Bachelor of Law degree, it would be inappropriate to grant the visa as completing a Bachelor of Law degree would not have provided the applicant with the skills required to design a building. On the other hand, ANZSCO suggests that a marketing specialist should also hold a bachelor degree or higher qualification. If an applicant was nominated as a marketing specialist and they held a bachelor degree in business or sales for example, these degrees would be relevant to the occupation of marketing specialist so the delegate could be satisfied that the applicant had the requisite skills.

If an applicant is unable to demonstrate skills and experience in a range of tasks, officers should consider whether or not the applicant is able to attribute 100% of their skills and experience to one of the sub-set of tasks prescribed. Although it is more favourable from an employer’s perspective, for an applicant to possess a range of skills and experience that covers the breadth of tasks prescribed under the nominated occupation, it should not provide grounds for refusal of the applicant’s application. For example, if an applicant were to nominate an occupation listed under a “not elsewhere classified” heading, it would be unreasonable to consider that the applicant possesses skills and experience in every prescribed task. Officers should also consider that some applicants will be highly skilled yet specialised in a small range of tasks rather than the range of duties. As this program is designed to enable employers to meet skill shortages, this degree of specialisation is acceptable for applicants for the program.

Significantly, the ANZCO definition of ‘Wholesaler’ has this introduction:

Indicative Skill Level:
In Australia and New Zealand:

EXTRACT OF SUBMISSIONS ON THE OCCUPATION OF WHOLESALER

The significant part is the words – ‘Most occupations’. Implicit in the use of the word ‘most’ is that some occupations, will not have the skill set required for ‘most occupations’. The (now approved) nomination specified that the occupation nominated was an entry level position. Given that ANZCO implicitly recognises that some ‘wholesaler[s]’ will not necessarily have 5 years relevant experience, the next step is to look at the skills and experience Mr X has to determine as the PAM suggests above “that the applicant has the skills to be able to perform the nominated occupation.”

The primary submission is that Mr X does meet the requirement of ‘Most occupations in this unit group’ through his having ‘five years of relevant experience’.

However even if he does not quite have 5 years experience as a ‘wholesaler’ directly it is important to recognise that the ANZCO does not require every wholesaler to have that ‘five years of relevant experience’. As stated above implicit in the definition of ‘wholesaler’ is the ANZCO recognises that some occupations of wholesale will not require ‘five years of relevant experience’. Here one takes guidance from the ANZCO itself which states:

UNDERLYING CONCEPTS

The concept of occupation

Skill is defined as the ability to competently perform the tasks associated with an occupation…….

INTERPRETING ANZSCO OCCUPATION DEFINITIONS

The allocation of a particular occupation to a particular skill level should be seen as indicative only and should not be used prescriptively. [Emphasis added]

Hence the word ‘relevant’ should not be used as a straight jacket but as a general indication. This only emphasises that ‘relevant’ has a broad definition, not a narrow one.

The case in question involved a person who had varying experience and DIAC was convinced to grant the visa nevertheless.

Associated Entities

Often enough, employers restructure their businesses with the result that instead of being employed by Company A the employee subclass 457 visa holder becomes employed by Company B, usually with no regard to the consequences which flow from such a change.

The biggest problem is that the new employer (ie Company B), is usually not an approved standard business sponsor for the purpose of allowing the employee to move to the permanent residence Employer Nomination Scheme visa via the subclass 457 visa.

This means the Temporary Residence Transition stream for the subclass 186 Employer Nomination Scheme visa is not available when the exact company which is the subclass 457 sponsor is not the exact same company which is the nominator for the subclass 186 visa.

But nonsensically transferring to an associated entity will not breach the requirements of the subclass 457 visa.

Para 457.223(4)(ba) says:

(ba) either:

(i) …..; or

(ii) each of the following applies:

(A) the applicant is employed to work in the nominated occupation;

(B) if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

Associated entity is defined in the Corporations Act :

Corporations Act

50 Related bodies corporate

Where a body corporate is:

(a) a holding company of another body corporate; or

(b) a subsidiary of another body corporate; or

(c) a subsidiary of a holding company of another body corporate;

the first‑mentioned body and the other body are related to each other.

50AAA Associated entities

(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.

(2) This subsection is satisfied if the associate and the principal are related bodies corporate.

(3) This subsection is satisfied if the principal controls the associate.

(4) This subsection is satisfied if:

(a) the associate controls the principal; and

(b) the operations, resources or affairs of the principal are material to the associate.

(5) This subsection is satisfied if:

(a) the associate has a qualifying investment (see subsection (8)) in the principal; and

(b) the associate has significant influence over the principal; and

(c) the interest is material to the associate.

(6) This subsection is satisfied if:

(a) the principal has a qualifying investment (see subsection (8)) in the associate; and

(b) the principal has significant influence over the associate; and

(c) the interest is material to the principal.

(7) This subsection is satisfied if:

(a) an entity (the third entity) controls both the principal and the associate; and

(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.

(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:

(a) has an asset that is an investment in the second entity; or

(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.

An ASIC search may be necessary to determine exactly if two companies are ‘associated’

So the 457 criteria envisages working in an associated entity.

And 8107 (3) states:

(3) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

(a) the holder:

(i) must work only in the occupation listed in the most recently approved nomination for the holder; and

(ii) unless the circumstances in subclause (3A) apply:

(A) …

(B) if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor—must work only in a position in the business of the sponsor or an associated entity of the sponsor; or

So 8107(3) envisages that an employee can work for the associated entity.

The problem will be on moving to ENS, the writer’s advice would be to make Company B a sponsor, re-nominate the position and the applicant with B. The employee remains on the same 457 (because of 8107(3)) but then B is an appropriate employer to be the ENS nominating employer.

Foreign companies as the employer

This can be a complex area legally so for the purposes of this paper this extract from the ASIC website is re-produced:

A foreign company wishing to carry on business in Australia must be registered under Part 5B.2 of the Corporations Act 2001 (the Corporations Act).

A foreign company is an incorporated or an unincorporated body that is formed in an external territory of Australia or outside Australia. It may sue and be sued or may hold property in the name of its secretary or other officer. Corporations sole, exempt public authorities, and unincorporated bodies that have their head office or principal place of business in Australia are excluded from the definition of foreign company.

Whether a body is ‘carrying on business’ in Australia will depend on certain legal principles and on the circumstances of the case. Where a body is in any doubt as to whether it may be ‘carrying on business’ in Australia it should seek its own legal advice.

Once registered in Australia, foreign companies are required to lodge copies of financial statements with us and notify us when some company details change.

If a foreign company has an economic presence in Australia, it is obliged to participate in the taxation regime which would include GST, PAYG and income tax. It would need to be compliant in that regard to be lawfully operating in Australia.

It may be possible to still payroll from overseas but this would require carefully setting up the structure.

Immigration however does not see working for a foreign company as meeting the prerequisites for the transition to ENS. The PAM says this:

11.5 The nominator is actively and lawfully operating in Australia

Regulation 5.19(3)(b)(ii) requires the nominator to be actively and lawfully operating a business in Australia. An overseas business may be approved as a standard business sponsor for the purposes of sponsoring an overseas worker to fulfil a contractual obligation in Australia or to establish a business operation in Australia with overseas connections. Although such businesses may have a UC–457 visa holder working for them who would otherwise qualify for the Temporary Residence Transition stream, the nomination cannot be approved because the nominator does not operate a business in Australia. If an overseas business sponsor establishes a business operation in Australia and wants the UC–457 visa holder to remain in Australia, the Australian business should apply to be a standard business sponsor and have a nomination approved to transfer the UC–457 visa holder to their business. The Australian business can then nominate the UC–457 visa holder under the Temporary Residence Transition stream. See section 6 Nominator’s business is actively and lawfully operating in Australia for related policy.

Regulation 5.19(3)(b)(iii) requires the nominator, in their approval as a standard business sponsor, not to have met regulation 2.59(h), regulation 2.68(i) or regulation 1.20DA in their most recent approval as a standard business sponsor. A nominator who met these specific provisions in their approval for standard business sponsorship is considered to be a business that is lawfully operating outside Australia, but not lawfully operating in Australia.

But, in the writer’s opinion this is legally incorrect, a foreign company may be lawfully operating a business in Australia in the manner described above. The test is operating ‘a business’ and there would be no obstacle to foreign company operating part of its business overseas and part of it in Australia. It would be lawfully operating a business in Australia.

However the writer’s opinion is that the preferable structure for a foreign company sponsoring employees in Australia is setting up an Australian company subsidiary. The writer can provide professional services in that regard.

Health Insurance

Note this requirement:

457.223B

For an applicant other than an applicant who has met the requirements of subclause 457.223(8) or subclause 457.223(9) — the Minister is satisfied that the applicant has adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.

This means that employers no longer are liable for any health costs of a sponsored employee.

Medical Practitioners

There is no longer a medical practitioner visa but doctor’s qualifications have to be recognised:

457.223C

If the nominated occupation is a medical practitioner, the applicant’s qualifications are recognised by the relevant authority in Australia for the registration of medical practitioners as entitling the applicant to practise as a medical practitioner.

While clause 45.7223C requires “the applicant’s qualifications to be recognised by the relevant authority in Australia for registration of medical practitioners as entitling the applicant to practise as a medical practitioner”, there is no specific requirement for the applicant to hold Australian registration as a medical practitioner at the time the 457 visa is decided.

This is consistent with condition 8107(3)(c)(ii) and (iii) that requires a 457 visa to obtain the necessary registration within 90 days of arrival in Australia or 90 days after the 457 visa was granted.

SECONDARY VISA APPLICANTS

Take care with the definition of ‘Member of the family unit’ found in Reg 1.12(10) as applying to the subclass 457 visa as a time of decision criteria :

(10) In addition to subregulation (1), a person is a member of the family unit of the holder of a Subclass 457 (Temporary Work (Skilled)) visa (the first visa) if:

(a) the first visa was granted on the basis that the holder satisfied the primary criteria for the grant of that visa; and

(b) the person holds a Subclass 457 visa, or the last substantive visa held by the person was a Subclass 457 visa, granted on the basis that he or she satisfied the requirements of paragraph (1)(b), (c) or (e); and

(c) if the person holds a Subclass 457 visa, or the last substantive visa held by the person was a Subclass 457 visa, granted on the basis that he or she was:

(i) a dependent child of the spouse or de facto partner of the holder of the first visa; or

(ii) a dependent child of a dependent child of the spouse or de facto partner of the holder of the first visa; or

(iii) a relative of the spouse or de facto partner of the holder of the first visa;

the holder of the first visa is still the spouse or de facto partner of the person who was the spouse or de facto partner; and

(d) the person:

(i) has made a valid application for a Temporary Business Entry (Class UC) visa that is current; and

(ii) has not made a valid application for any other class of visa, other than an application that:

(A) has been finally determined (within the meaning of subsection 5(9) of the Act); or

(B) has been withdrawn; and

(e) the person is under the age of 21; and

(f) the person is not the spouse or de facto partner of another person.

Reg 1.12(10) operates to allows adult children (aged 18-20) to be granted a subsequent 457 visa as a secondary applicant without needing to demonstrate dependency if the child’s currently holds a 457 visa, or the last substantive visa held was a 457 visa, which was granted on the basis that he/she was a dependent child.

Once an adult child is 21 years of age or older then he/she will need to demonstrate that they are still dependent on the primary applicant in order for a 457 visa to be granted.

Thus planning is required for an adult offspring approaching the age of 21 to ensure that the person has a proper basis for remaining in Australia. The apt choice of visa is for the entire family to transition to permanent residency under the ENS, subclass 186 or RSMS, subclass s187 visa pathway. (Reg 1.12(11) and (12) allows for adult children to be included in the 186 or 187 visa application on the basis that they were secondary applicants on the 457 visa, without needing to demonstrate dependency.)

This raises the important point that pathway planning is just as important for offspring approaching 21 years of age as it is for an applicant. Ideally one would hope that a young person approaching 21 years of age towards the end of the term of a subclass 457 visa would have done an appropriate course leading either to a subclass 485 visa.

It is pointed out that for Reg 1.12(10) to apply, the person needs to be under 21 at time of decision. Note however that it is a time of decision criterion so that some care needs to be taken if the offspring is approaching 21 at time of application. Ample leeway must be given for the visa processing time. As long as the visa is granted before the person turns 21 then the visa is in place for 4 years irrespective of the continuing age of the secondary visa holder

Barbara DavidsonNovember 17, 2017Visa Overview

Visa Overview

TABLE OF CONTENTS

SCHEDULE 1

SCHEDULE 2 – SBS FRAMEWORK