Anne O’Donoghue and Taraneh Arianfar, Immigration Solutions Lawyers
Australia’s immigration law is governed by the Migration Act 1958 (Cth) (the Migration Act) and the Migration Regulations 1994 (Cth) (the Migration Regulations). These governing principles are administered by the Department of Home Affairs (Home Affairs), which includes the entirety of the former Department of Immigration and Border Protection. Home Affairs administers Australian law and policies in relation to immigration, citizenship and border control, with functions including policy review and change, visa processing and decision-making. Australia’s rich migration history has led to the development of a legislative framework that is arguably the most complex in the world, and is subject to frequent amendment and reform in order to respond to contemporary economic, political and cultural influences in Australia.
Australia’s Corporate Migration Programme has recently experienced a substantial shift in direction in the wake of reforms announced by the Liberal government on 18 April 2017, which came into effect throughout 2017 and early 2018. These changes were announced as part of the government’s long-term plan to “strengthen the integrity and quality of Australia’s temporary and permanent sponsored skilled migration programmes”. The changes contain new safeguards that aim to ensure Australian employees are prioritised. The purpose is to bring highly specialised and skilled individuals to Australia to fill roles that cannot be filled by the Australian workforce; and to ensure compliance with anti-modern-slavery legislation in Australia.
On 18 March 2018, the subclass 457 visa was abolished and replaced with the completely new Temporary Skills Shortage (TSS) visa (subclass 482).
The Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms Regulations 2018) came into effect on 18 March 2018. The legislation abolished the 457 visa and introduced the TSS Visa (subclass 482).
Under these reforms, the occupation lists that underpin a range of skilled working visas were dramatically reduced, with some 200 occupations removed. The Consolidated Sponsored Occupation List and the Skilled Occupations List have been updated and renamed the Short-Term Skilled Occupation List (STSOL) and the Medium and Long-Term Strategic Skills List (MLTSSL) respectively. Additionally, caveats are placed on over 100 occupations to restrict their usage under the TSS and subclass 186 visa programmes. There are currently 23 different categories of caveats, which are applied to various occupations. The caveats can impose a minimum base salary; place obligations on the employer; mandate that the position must be in a particular regional location in Australia; and stipulate what sort of tasks are eligible for sponsorship under the occupation. The most recent update to the combined list of eligible skilled occupations occurred on 11 March 2019; a summary can be viewed at at immi.homeaffairs.gov.au/visas/working-in-australia/skill-occupation-list.
A new skilled occupation list with new guidance has been published, which lists:
The skilled occupations included in this guidance are those which were previously available for the subclass 457 visa programme, as well as new skilled occupations from the new ROL list. In total, 508 skilled occupations are now eligible for this visa programme, and 216 skilled occupations are now eligible for the 186 visa through the MLTSSL.
Overseas workers must be nominated in one of these occupations, unless transitional arrangements apply to the worker in relation to a Temporary Residence Transition (TRT) stream nomination.
As review and reform to corporate migration schemes continues, the STSOL will be reviewed and updated every six months based on advice from the Department of Employment. The MLTSSL will be subject to further review based on outcomes from the Department of Education and Training’s review. Constant revision and updates to the occupation lists aim to ensure that skilled working visa requirements are adequately framed to meet Australia’s economic needs and address relevant skills shortages. This will allow greater potential for Australian residents and citizens to receive training and to enter the workforce. The most affected eligibility requirements are the skills assessment and character checks.
From 18 August 2019, TRT applications can be lodged on the last day of validity of grandfathered two-year subclass 457/TSS visas. The procedural instructions have been updated at Regulation 5.19 to address transitional arrangements for these visa holders. The government has provided transitional arrangements for certain cohorts of clients who held, or had applied for, a subclass 457 visa on 18 April 2017 that was subsequently granted.
Where a nomination is lodged on or after 18 March 2018, and at any time until 18 March 2022, in relation to a client in this cohort, standard nomination requirements in place as of 18 March 2018 must be met, with the following exceptions:
COMMITMENT TO TRAINING AND SKILLING AUSTRALIAN WORKERS
On 8 May 2018, the Skilling Australians Fund (SAF) Bill was passed by the Senate. The SAF introduces a levy on businesses who want to sponsor overseas skilled workers, and who commenced management on 1 July 2018. Five Australian states have signed the agreement: Australian Capital Territory, New South Wales, Northern Territory, South Australia and Tasmania.
The SAF will be instrumental in helping promote the domestic growth of jobs and skills. The levy is set to replace current training benchmarks that business employers were required to adhere to for the subclass 457 visa. Revenue generated from this levy will contribute towards the new Commonwealth SAF, which will supersede the National Partnership Agreement of Skills Reform. The scheme will ensure that businesses benefiting from migrant employees support the training of Australians, with an estimated A$1.5 billion of revenue anticipated to be used to help train and up-skill Australians in regional areas and in high-demand occupations over the next four years.
Businesses with a turnover of less than A$10 million per year are required to pay:
Businesses with a turnover greater than A$10 million can expect to pay:
CHANGES TO THE POINTS TEST FOR THE 189 AND 190 VISAS
The Department recently announced changes to the points test for the 189 and 190 visas. These changes are as follows:
Invitations for the 189 and 190 visas will be ranked in the following order:
These changes will come into effect on 16 November 2019.
THE NEW REGIONAL VISAS
The Skilled Regional (Provisional) subclass 489 visa will close to new applicants from 16 November 2019 and be replaced by the new Skilled Work Regional (Provisional) subclass 491 Visa.
The permanent Regional Sponsored Migration Scheme subclass 187 visa will also close on 16 November 2019, except for people subject to transitional arrangements; it will be replaced by the provisional Skilled Employer Sponsored Regional (Provisional) subclass 494 visa.
There will be a third new visa, the Permanent Residence (Skilled Regional) subclass 191 visa, available from 16 November 2022 for holders of either 491 or 494 visas.
The new subclass 491 visa will be classified as a general skilled migration visa, and will have many of the same features as the current 489 subclass visa. However, differences will include a visa validity period of five years, and the imposition of conditions enforcing the government’s intentions that visa holders live, work and study only in regional areas.
The introduction of the permanent 191 visa is delayed to 16 November 2022 because no applicants will be eligible until at least that date. This new permanent visa will provide further incentives for migrants to bring their skills to regional Australia and grow the Australian economy.
There are greatly reduced visa application charges, and no second visa application charge for applicants aged 18 or over with less than functional English (this already applied to 491 and 494 visa applications). To make a valid application, primary applicants must have held a regional provisional visa (491 or a 494 visa) for at least three years. Any secondary applicants must apply in combination with the primary visa applicant.
If a combined application has been made, only one applicant must satisfy the primary criteria. This means partners of those who original held a primary 491 or 494 visa can step in to meet the primary criteria if needed.
GTES TO CONTINUE
The Global Talent – Employer Sponsored programme (GTES), formerly the Global Talent Scheme, is a niche scheme under the TSS visa programme that launched on 1 July 2018 as a 12-month pilot programme. It was recently announced that the visa programme will continue for 12 months after 1 July 2019. The GTES allows employers to sponsor overseas workers for highly skilled positions that cannot be filled either:
The GTES aims to benefit Australia by attracting specialised individuals, which can create further jobs for local staff. Any position filled through a GTES agreement must provide opportunities for Australians by, for example:
The GTES remains a great option for local businesses to secure global talent.
MINT PROGRAMME 2
Regional Australian areas have created initiatives under the corporate immigration law framework to attract skilled and business-savvy individuals to the region. The Migration Innovation Northern Territory (MINT) programme helps overseas nationals to obtain permanent residency in Australia where they demonstrate a commitment to investing in the Northern Territory’s venture capital fund. It is owned by the Paspalis Group and supported by the Northern Territory government. The MINT programme has announced its commencement for the 2019/2020 financial year.
The Northern Territory government Department of Trade, Business and Innovation is approved by the Australian government to nominate business persons, entrepreneurs and investors for visas in the Business Innovation and Investment programme. There are common criteria that must be met by all applicants, and additional criteria specific to skilled/business migration that must be satisfied.
The advantages of the MINT programme include priority processing; a wide range of occupations on the eligible NT Occupation List; no age requirements; and minimal or no English requirements. In addition, the investment requirements are significantly less burdensome than other Australian states. Applicants are required to engage an approved panel agent for both their Northern Territory and federal applications. These panel agents have been selected according to strict selection standards and have completed specific training for the MINT programme.
The sponsoring companies need to be aware of the risk of modern slavery in their operations and supply chains. It must be known whether the entity falls within the scope of the Modern Slavery Act 2018 (Cth) (Act) and what actions are required to address those risks, especially for the purpose of sponsorship approval. Focused areas for risk compliance would be domestic workers; restaurant and hotel workers; agricultural workers; and fashion production workers.
Which organisations are required to report?
Entities with a revenue of $100 million or more that are required to prepare a Modern Slavery Statement include:
The Department of Home Affairs is taking a strict approach in implementing requirements to respond to the issue of modern slavery and human trafficking.
The Australian corporate immigration law framework has seen substantial reform in recent years. Ultimately, the reforms seek to strengthen the integrity and quality of Australia’s skilled migration programmes while providing anti-discriminatory and anti-modern-slavery safeguards for Australian employees. The abolishment of the subclass 457 visa, and the introduction of the new TSS visa, have and will continue to have a significant impact on current and future skilled migration applications, including through the removal and frequent amendments of the eligible occupation lists; imposition of new caveats on over 100 occupations; and the introduction of the business levy under the Skilled Australia Fund.