The writer thanks the Department for its monthly newsletters. They are a valuable source of information and also timely reminders of important and complex issues that practitioners should be aware of. The September 2018 edition is very helpful and what follows is a reflection upon some of its topics.
TSS visa update
“Order of processing of TSS applications”
This section of the newsletter shows the order of priority processing for TSS visa and nomination applications according to Ministerial Direction No. 77 through numbers 1 to 4, 1 being the highest priority. However, priority “c” under item 8 of the Direction (equivalent to number 3 in the newsletter) for Labour Agreements seems to be about nominations only, not about visa applications as described by the newsletter. On the other hand, it could be argued that it also applies to nominations, given that item 8 reads ‘nomination and visa applications’.
Secondly, the title of the Direction on the newsletter is Direction No. 77 – Order for processing applications lodged under the Temporary Skill Shortage (TSS) visa (subclass 482), when the actual title is Direction No. 77 – Order for processing applications lodged under the Temporary Skill Shortage (TSS) visa (subclass 482) and Temporary Work (Skilled) visa (subclass 457) programs, which might be cited as Direction No. 77 (underlining added by editor). Although this section of the newsletter refers only to the TSS (subclass 482 visa) and nomination applications, item 8 of Direction No. 77 also applies to other subclasses, but only for accredited sponsors and for positions located in regional Australia.
Labour Market Testing FAQs
“Do I always need to provide supporting documentation?”
The answer given is: “Yes, unless LMT is not required due to international trade obligation”. Perhaps a more elaborate answer would be “Yes, unless LMT is not required due to international trade obligation or unless ss 140GBB or 140GBC of the Migration Act 1958 (Cth) apply”.
Skilling Australians Fund levy FAQs
“Can ENS/RSMS nominators pass SAF levy onto their applicants?”
This passage states that employers must not pass SAF levy onto visa applicants. Practitioners should ask themselves whether the passing of the SAF levy onto visa applicants is a breach of any of the provisions within Subdivision D, Division 12, Part 2 of the Migration Act (‘offences and civil penalties in relation to sponsored visas’, ss 245AQ to 245AY). In other words, could the payment by a visa applicant of the SAF levy be considered a “benefit” as defined under s 245AQ and lead to imprisonment or the payment of penalty units under s 245AR? See also Reg 2.87 of the Migration Regulations 1994 (Cth).
Permanent skilled visa update
“Transitional arrangements for TRT stream – two year and employment requirement”
The newsletter states that the ‘transitional arrangements in place only provide for 3 ‘exceptions’ listed in bullet points:
* the skilled occupation list requirements do not apply
* the applicant has held a TSS or subclass 457 visa for a total period of at least two years immediately before the TRT nomination application is made
* the applicant has been employed in their nominated position as the holder of a TSS or subclass 457 visa for at least two years immediately before the TRT nomination application is made
However, as per Part 6705(1) of Schedule 13 of the Regulations, Reg 5.19, as in force immediately before 18 March 2018 ‘continues to apply in relation to [all applications] for approval of the nomination of a position made before [18 March 2018]’. It would be one thing to state that the 3 exceptions apply in cases where the transitional provisions are operative. It is another thing to state that the transitional arrangements only provide for those 3 exceptions. For instance, the current requirement under Reg 5.19(4)(c) that the visa applicant hold a licence, registration or membership of a particular kind did not exist before the above date. As a consequence, such a requirement is also an ‘exception’ that the transitional arrangements for the TRT stream ‘provide for’.
Further, practitioners are reminded under the third bullet point that transitional arrangements are in place for applicants who have ‘been employed in their nominated position as the holder of a TSS or subclass 457 visa for at least two years immediately before the TRT nomination application is made‘. However, Reg 5.19(3)(c)(i)(A)(II) as applicable immediately before the 18 March 2018 amendments actually read: ‘in the period of 3 years immediately before the nominator made the application, the holder of the
Subclass 457… visa… has been employed in the position in respect of which the person holds the Subclass 457… visa for a total period of at least 2 years‘ (underlining added by the editor on both passages). In other words, in cases where the transitional arrangements apply, the legislative requirement is to look for 2 years of relevant employment within the last 3, not to look for 2 years within the last 2.
To better illustrate the point, let us imagine the following scenario: a nominator to whom the transitional arrangement applies intends to apply for a nomination in the TRT stream in September 2018; the visa applicant has been employed between September 2015 and September 2017 in the same position in respect of which he/she holds the subclass 457 visa; that visa applicant worked in another position between September 2017 and September 2018. Under the provisional arrangements, the old Reg 5.19(3)(c)(i)(A)(II) would be satisfied (2 years within the last 3). However, under the e-News’ third bullet point, the nominator would not be eligible for the TRT stream, because the visa applicant would not have been ’employed in their nominated position… for at least two years immediately before the TRT nomination application is made’, that is between September 2016 and September 2018.
To avoid doubt, the above is not meant as criticism at all. On the contrary, the writer thanks the Department for another excellent newsletter and for prompting a discussion on really important matters. If it were not for the Department’s proactivity and kindness in releasing those publications, we would not have been informed in a timely fashion of many topics of extreme importance, and our work as practitioners would be much more challenging.
Disclaimer: the above is a mere tentative analysis of the Department’s newsletter and might not reflect how the Department, the AAT or the courts interpret the topics discussed in the article. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.