Migration news

NEW TSS VISA, CHANGES TO ENS AND RSMS

New Subclass 482 TSS Visa to be implemented on 18of March. Changes to ENS and RSMS

As of 18 March the requirement that new SBS sponsorship applicants meet either Training Benchmark A or B is removed. It is not clear when the new Skilling Australia Fund (SAF) training levy will be implemented, however from 18 March until the SAF is implemented it appears that there is no training benchmark evidence required for new SBS applications and TSS nominations. SBS training obligations of existing SBS sponsors remain. The SAF levy is expected to be implemented in coming weeks and will be imposed on TSS nominations. 

The legislation referring to the Minister having regard to the maximum number of persons nominated under an SBS agreement and that number being reasonable is deleted. This was effectively accomplished by policy previously. 

Expansion of Reg 2.60S(2) – recovery of costs from employee applicants for TSS and other non-SBS nominations, including migration agent costs, is now specifically prohibited. 

A new refund provision is added for SBS applications that are made due to DHA department mistake.

Reg 2.63A expanded – New term for SBS approvals for existing SBS sponsors starts immediately after the current SBS expires 

Reg 2.68 removed which had allowed for varying terms of approval for SBS [70]

Various changes in Reg 2.72 re TSS Nominations 

* For 482 Short Term (ST) and Medium-Long Term (MT) streams, occupation is checked against the current occupation list as of the date of lodgement of the nomination and is not checked later. The list in effect at the date of lodgement of the nomination determines what occupations are eligible for TSS nominations.

* TSS visas only available for full time positions

* Language in 2.72(14) appears to allow the Minister to “request” that 457/TSS nomination applications for existing 457/TSS holders who apply for a new TSS nomination provide evidence they continue to meet the English requirement. In most cases the nom and app are lodged together, may not make a material difference.

* Australia Market Salary Rate, a new projected number representing what an Australian is or would be paid for a position, is defined. [1] A specific number for the AMSR will need to be determined for the occupation per the procedure to be outlined in an instrument

* The AMSR excluding any non-monetary benefits must not be less than the TSMIT unless waived

* Annual earnings of the applicant in the nominated position must not be less at least TSMIT unless waived.

* DHA has the right to disagree with the calculation of AMSR if DHA has information that the AMSR calculation is inconsistent with Australian labour market conditions relevant to the occupation, unless it is reasonable to disregard that information.

Various changes in Reg 2.73 re TSS Nomination Procedures 

* TSS Nominations must now provide the location or locations at which the occupation is to be carried out

* Period of nomination must now be provided (had previously been implemented via policy)

* Nomination period for ST path = 1 or 2 years unless International Trade Obligation (ITO) applies, for MT path 1, 2, 3 or 4

* Unless exempted, nominator must certify that the employment contract complies with all laws of the Commonwealth, State or Territory related to employment, including National Employment Standards if applicable. It is expected that TSS sponsors may need to obtain separate legal advice from an employment lawyer in order to be able to confidently certify this.

* 2.73AA – TSS Nomination refund available if due to a mistake by Immigration or labour agreement nomination withdrawn prior to decision. Previous legislation provided for a 457 nomination provided a refund if the tasks and duties of the nominated no longer corresponded to an occupation approved for the 457 program in an instrument (ie, nominated occupation ceased to be on an applicable occupations list)

* Terms and conditions for TSS – Rather than comparing terms and conditions of employment as a whole to terms and conditions of employment of an Australian citizen/PR, separate comparisons are required for annual earnings, earnings, and employment conditions other than earnings. [91]

* Reg 2.84 – Sponsor must notify Immigration if TSS holder fails to commence employment per employment agreement – new reportable event 

* SBS refusals and nominations where the business is not lawfully operating in Australia will not be Part 5 reviewable (AAT) – this formalises previous policy re SBS sponsors residing outside Australia not being able to have SBS sponsorship refusals reviewed at the AAT 

* 482 ST stream limitation on onshore applications – not possible for 482 ST onshore if applicant has held more than 1 482 ST visa and was in Australia when most recent application for 482ST held by applicant was made, and ITO does not apply. 

* Schedule 3 requirements removed, however TSS visa applicants must hold substantive visa or BVA/B/C at TOA if applicant inside Australia at TOA 

* PIC 4007 applies to TSS visa applications, enabling a health waiver to be applied for related to this visa. PIC 4006A previously referenced by subclass 457 visas is deleted. 

* TSS ST and MT streams: Requirement added that applicant “has worked in the nominated occupation” for at least 2 years, but does not reference a level of skill or that the work be post qualification. Likely this will covered in policy. Waiver available of this for Agreement stream 

* TSS ST stream – Genuine Temporary Entrant (GTE) requirement added to include consideration of intent to stay in Australia temporarily, applicant circumstances, immigration history and any other relevant matter can be considered 

* TSS – Member of the Family unit definition now contained in schedule 2 for TSS visa 

* No schedule 3 criteria for TSS Visa

* Condition 8607 required on TSS primary visa holders, roughly analogous to previous 8107 condition 

* Condition 8501 (maintain health insurance requirement) imposed on all TSS holders including all secondary holders 

* Condition 8516 is no longer referenced as an optional condition. This condition had required applicants to continue to satisfy the applicable primary or secondary criteria for the visa. 

* Under Section 116(1)(g)/Reg 2.43, additional prescribed grounds for cancellation were added for the subclass 482. This allows the Minister, after the visa is granted, to revisit the following questions:
– whether the visa holder had a genuine intention at the time of grant to perform the occupation he was nominated for;
– whether the visa holder has ceased to have a genuine intention to perform that occupation, or
– whether the position associated with that occupation is genuine.

If the Minister is satisfied that any of the above factors no longer exists the 482 visa is subject to cancellation. This could impair the ability of a worker to make a complaint about working conditions to their employer, Fair Work Australia or others. 

Subclass 186/187 ENS/RSMS Changes

Various changes to Reg 5.19 (186/187 Nominations) 

* 186 TRT: Minister can require skills assessment for any occupation prior to approving visa application regardless of whether skills had been previously assessed as part of a previous 457 or TSS application

* If visa applicant is required to hold a license or registration, requirement that the person holds the license or registration or is eligible to do so has been added to the nomination. May not be significant if the nomination and visa are decided in the same timeframe.

* 186/187 TRT only available for holders of 457 visa or Medium Term TSS visa or bridging visa holders based on an application for a 457 or MT TSS. However an exception clause exists for TSS short term Visa Holders (or bridging visas from a TSS ST application) to apply for 186/187 TRT if they are listed in an instrument.

* 186/187 TRT: First 4-digits of ANZSCO code for occupation in most recent 457/TSS must match first 4 digits of occupation nominating for 186/187 under.

* 186/187 TRT – requires that no information be known to Immigration to indicate that the visa applicant is not currently “genuinely performing” the tasks of the occupation they hold that visa under – allows Immigration to consider an applicant’s current work circumstances under TSS or 457 visa when evaluating 186/187 TRT nomination eligibility.

* During the 4 years immediately before a 186/187 TRT nomination is lodged, applicant must have held 457 and/or TSS visa(s) for total period of 3 years – an instrument reference exists for this to be changed for specified persons

* During the 4 years immediately before a 186/187 nomination lodged, applicant must have been employed in the position their 457/TSS visas were granted in for a total period of 3 years, full time in Australia. an instrument reference exists for this to be changed for specified persons

* 186 TRT limit changed – under 50 at TOA to under 45 at TOA – transitional arrangements apply

  • For 186/187 TRT and Direct Entry, requirement that nominator has capacity to employ the applicant for at least 2 years and pay the applicant AMSR for each year which previously existed as policy now formalised as a regulation

* AMSR, Annual Earnings, and TSMIT references added to TSS also included in 186/187 nominations

* There must be no information that non-earnings employment conditions are no less favourable than those that apply or would apply to an Australian citizen or permanent resident

Subclass 187 Direct Entry

* Criteria for Direct Entry nomination regarding available local workers expanded to specify that position cannot be filled by local regional workers OR anyone else who “would move” to the regional area where the position is located. Previously was limited only to people who already lived in the regional area.

* New language in Reg 5.19(12) may allow RCB to express an opinion as to whether the AMSR as calculated by the applicant is appropriate for the regional area. RCB also required to express opinion as to whether people who “would move to” the regional area could fill the nominated position.

* Caveats via instrument can now be imposed on 187 DE nominations

* Occupations and classes of persons requiring a skills assessment for 186/187 will be listed in an instrument. For those occupations/classes, requirement that a skills assessment be completed or applied for listed in Schedule 1.

* 187 TRT Age limit reduced to under 45 at time of application (see transitional info)

* 187 TRT – Minister can require skills assessment for any occupation prior to approving visa application regardless of whether skills had been previously assessed as part of a previous 457 or TSS application

* 187 DE adds 3 year full-time work experience requirement for all occupations unless in a class of persons exempted in an instrument.

Definition and Other Changes

* New term Annual market salary rate defined as what an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace and the same location as the applicant. 

* Current grandfathering clauses for adult dependents on 457 visa extended so current 457 holders and TSS holders who age-out of dependent child status can requalify for certain visas 

* Reg 1.13A – new definition of Adverse Information significantly broadened to remove the maker of a nomination for a Labour Agreement, changes “has been found guilty” to “has contravened a law”, Competent Authority redefined as a Department or regulatory authority that administers or enforces the law, adds new definitions which are very familiar to PIC 4020 re bogus documents and/or false or misleading information 

* Reg 1.13B – new definition of “associated with” is not exhaustive and between two persons has been significantly expanded to include current or former partners, current or former family members, persons who have or had “family -like relationships”, former or current common friends or acquaintances, etc whether or not the other person is still alive. This definition affects a wide range of visas that refer to it including subclass 186, 187, 457, 407, 408, 403 and other visas. [15 – Reg 1.13B]

* Reg 2.05A expanded to include an 8503 waiver “further circumstances” to include a genuine intention to apply for a TSS visa. While 457s were not previously included, the list previously included 186, 187 and other visas. #27 – limits validity to the visa intended to apply for if waived under this provision. 

* Removed waiver of 8534 (student visas) special provisions for registered nurses 

* Refunds will be possible for withdrawn 186/187 nominations if the wrong stream was chosen on the application. 

* The term “base rate of pay” is no longer defined or used. 


Note: The above analysis is based on an initial review of new legislation very recently released, and should not be treated as immigration assistance, immigration legal assistance nor legal advice. We disclaim liability in tort, equity or otherwise for any action (or lack of) taken based on the above content

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