Presented by: WA State Conference A New Age of Disruption: The 1 July 2017 Legislative Changes Lester Ong Director, Munro Doig Lawyers MARN 0427625 4 August 2017
2 Disclaimer The content of this presentation is for information purposes only. Whilst every effort has been made to ensure the accuracy of the materials contained here and incorporated by reference, this presentation is not intended to constitute legal or immigration advice or assistance. No person should act on the basis of the material contained in this presentation without obtaining advice relevant to their own circumstances and without considering and taking professional advice as may be necessary. No animals were harmed in the production of this presentation.
3 Learning Objectives Understand changes announced to 457 visa program in April 2017 Understand the changes which came into place on 1 July 2017, including to the 457 and 186/187 visa subclasses Understand the nature of changes Occupation Lists, including practical implications Consider potential future changes and impact of existing amendments to 186/187 visa subclasses Consider strategies for advising clients affected by the changes
April 2017 Changes PM Malcolm Turnbull, Press Release on 457 changes (18 April 2017): This will ensure Australian workers are given the absolute first priority for jobs, while businesses will be able to temporarily access the critical skills they need to grow if Australian workers are not available.
April 2017 Changes Productivity Commission Migrant Intake to Australia Report (13 April 2016), page 28 The operation of the 457 visa program has attracted a great deal of criticism and has been the subject of a number of government reviews in the past decade. These criticisms have included the range of skilled occupations covered by the program and the integrity of the process for identifying labour shortages. The CSOL is merely a list of skilled occupations. It is not (nor is it intended to be) a list of occupations in temporary short supply. 5
April 2017 Changes Productivity Commission Migrant Intake to Australia Report (13 April 2016), page 30 The pathway from temporary skill visas to the permanent skill stream is problematic. In essence, this pathway applies criteria to satisfy one objective (meet temporary skill shortages) to by default also satisfy another very different objective (meet longer-term skill needs and deliver successful settlement outcomes). 6
April 2017 Changes Changes announced in April 2017: 457 Visa to be abolished in March 2018 and replaced with Temporary Skills Shortage (TSS) visa CSOL and SOL replaced with Medium and Long-term Strategic Skills List (MLTSSL) and Short Term Skilled Occupation List (STSOL) Two-year 457 visas for STSOL occupations; 4 years for MLTSSL Caveats Permanent skilled visa age limits to be reduced to 45
April 2017 Changes New uncertainties with caveats Reg 2.72(10)(aa) 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 and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation. Cf: Twinn v MIMIA [2005] FCAFC 242 8
The 1 July Changes
Occupation Lists Subclass 457: IMMI 17/060 Subclass 186 Direct Entry: IMMI 17/080 Subclass 187 Direct Entry (and 186/187 exemptions): IMMI 17/058 Subclass 189, 190, 485 and 489: IMMI 17/072
Occupation List: 457 Visa IMMI 17/060 Retrospective effect: section 9 of Instrument PAM: Sch2Visa457, para 4.11.2.2: If the nominated occupation is on the legislative instrument but is not on the Medium and Long term Strategic Skills List (MLTSSL), then the visa can only be granted up to 2 years from the date of visa grant unless international trade obligations require a longer period.
Occupation List: 186 Direct Entry IMMI 17/080 CEO, Managing Director and University Lecturer on MLTSSL Section 5 of Instrument: For the purposes of sub-subparagraph 5.19(4)(h)(i)(A) of the Regulations: (a) an occupation mentioned in the Medium and Long Term Strategic Skills List or the Short Term Skilled Occupation List are specified; and (b) the occupation is applicable to any person, subject to section 8 of this instrument [i.e. the caveats]. Section 10 of the Instrument: not retrospective
Occupation List: 187 Direct Entry IMMI 17/058 Largely the same as before No caveats (yet) Section 13 of the Instrument: retrospective
Occupation List: 189, 190, 485 and 489 IMMI 17/072 Read section 6 (applicability) very carefully Subclass 189: MLTSSL Subclass 485: MLTSSL Relative Sponsored Subclass 489: MLTSSL State-Nominated Subclass 489: MLTSSL (but not Y ) and STSOL State-Nominated Subclass 190: MLTSSL (but not Y ) and STSOL (but not Y ) Not retrospective
Occupation List: 189, 190, 485 and 489 Example on MLTSSL Item Column 1 Occupation Column 2 ANZSCO Code Column 3 Assessing Authority Column 4 Specified for only certain classes 1 Construction project manager 13311 VETASSESS 2 Project builder 133112 VETASSESS Y
Occupation List: 189, 190, 485 and 489 Example on STSOL Item Column 1 Occupation Column 2 ANZSCO Code Column 3 Assessing Authority Column 4 Specified for only certain classes 20 Mixed crop and livestock farmer 121411 VETASSESS Y 21 Sales and marketing manager 131112 AIM
Caveats Migration Amendment (Specification of Occupations) Regulations 2017 (Cth) Reg 2.72(10AAA) The Minister may, in an instrument made for the purposes of paragraph (10)(aa), specify any matters for the purposes of specifying the applicability of occupations to identified persons, including (without limitation) matters relating to any of the following: (a) the person who nominated the occupation; (b) the person identified in the nomination; (c) the occupation; (d) the position in which the identified person is to work; (e) the circumstances in which the occupation is undertaken; (f) the circumstances in which the person is to be employed in the position.
Caveats See also regulation 5.19(4A) See Item 6601 of amending regulations: retrospective for 457 but not for 186. Query whether new regulations still beyond power?
Caveats Caveat 1 The position does not require a minimum of 2 years relevant work experience Caveat 5 The position has a nominated base salary of less than AUD180,001. Caveat 8 The position is in a limited service restaurant Caveat 21 The position is in a business that has fewer than 5 employees See Interim Guidelines on Occupational Caveats
457 Changes Removal of English exemption for salary above $96,400 for applications after 1 July (see IMMI 17/057) New English exemption for salary above $96,400 if nominated by an associated entity of established overseas business (IMMI 17/057, section 11(e)) Mandatory police clearances (clause 457.224 and PIC4001) Mandatory skills assessments (chefs/cooks from Bangladesh, Nepal and Pakistan) No change to TSMIT
457 Changes Training Benchmark IMMI 17/045 What is payroll? (a) (b) any wages, remuneration, salary etc defined as wages in payroll tax legislation for the relevant State/Territory and payments made to contractors or subcontractors if work provided by the contractor is related to the service/product provided by the applicant regardless of whether such payments are included for payroll tax purposes or not.
ENS Changes Age limit: 45. See clause 186.231 and 187.231 At the time of application, the applicant had not turned 45. Removal of high income threshold for English and skills assessment (IMMI 17/058). Section 18 This instrument applies to applications for Subclass 186 and Subclass 187 visas made on or after 1 July 2017, and also to applications for Subclass 186 and Subclass 187 visas made before 1 July 2017 and not finally determined by that date. But see: 186.232(a) and 186.234
ENS Changes Clause 186.232(a) At the time of applicant, the applicant: (a) had competent English; or (b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.
ENS Changes DIBP Press Release (17 July 2017) The business community should be assured that changes to the exemption to English language and skills assessment requirement for employer sponsored permanent visas will not be applied to applications lodged before the changes came into effect on 1 July 2017. Applications lodged before 1 July will continue to be assessed on merit, and anyone suspected of inflating their incomes will be subject to further scrutiny in the application process.
ENS Changes Competent English for TRT stream (e.g. 186.222) Genuine need and direct control for TRT stream. Reg 5.19(3)(a)(iv) identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator's direct control
Skilled Visa Changes Age limit reduced to 45 New occupation lists
New Zealanders Subclass 189 Skilled Independent New Zealand Stream Visa Usually resident in Australia for a continuous period of 5 years, and continuous period started on or before 19 February 2016 (189.231) Provide copies of Notices of Income Tax Assessments for 4 most recently completed income years (189.232) Meet TSMIT for each of the 4 completed income years (189.233)
New Zealanders Subclass 189 Skilled Independent New Zealand Stream Visa See IMMI 17/035 Completed Income Year Minimum Amount of Income 2011-2012 $49 330 2012-2013 $51 400 2013-2014 $53 900 2014-2015 $53 900 2015-2016 $53 900 2016-2017 $53 900
New Zealanders Subclass 461 Visa Clause 461.212(2)(a) An applicant meets the requirements of this subclause if the applicant is a member of the family unit of: (a) a person, other than an eligible New Zealand citizen, who is in Australia as the holder of a Subclass 444 (Special Category) visa.
Medical Treatment Visa Subclass 461 Visa Sch 1, Item 1214A(3)(e) An application made in Australia by a person who is not the holder of a substantive visa must be accompanied by the documentation (if any) specified under subitem (3A) IMMI 17/030: Use Form 1507
Working Holiday Visa Age limit ostensibly increased to 35 Clause 417.211(2) But see IMMI 17/050: maximum age still specified as 30
Protection and Humanitarian Visas Online lodgment of protection visas Global humanitarian visa with Approved Proposing Organisation.
Future Changes December 2017 TFN collection Name and shame regime
Future Changes March 2018 457 TSS replaces 457 Minimum 2 years work experience LMT for most applicants Strengthened training requirement ENS/RSMS Limited to MLTSSL TSMIT 3 years work experience 3 years transition
CONCLUSION