Changes in Australian Skilled Visa as of 17 November 2017

(posted on 18 Nov 2017)

 

This edition provides advice on a number of topics relating to temporary and permanent skilled visa programs – including:

  • Changes to eligible postcodes in Regional Australia
  • Health related matters
  • Character related matters
  • Permanent skilled visas update
  • Labour Market Testing (LMT)
  • December 2017 changes – reminder
  • March 2018 changes – update on transitional arrangements

Changes to regional boundaries for Regional Sponsored Migration Scheme (RSMS)

A new legislative instrument (IMMI 17/059) commenced on 17 November 2017, amending the geographic boundaries for RSMS to exclude Perth and surrounding area and updating the list of Regional Certifying Bodies (RCBs). As a result of these changes, employers will no longer be able to utilise this visa program for positions located in Perth and surrounding area. The following postcodes in Western Australia will remain eligible:

  • 6041 to 6044
  • 6083 to 6084
  • 6121 to 6126
  • 6200 to 6799

Relevant changes have been made to impacted PIs and web content, including the eligible postcodes in Regional Australia web page.

These changes will only impact applications lodged on or after 17 November 2017. Existing applicants should be aware, however, that the WA Department of Training and Workforce Development (the Perth RCB) ceased processing requests for RCB assessment submitted on or after 13 March 2017 for nominated positions located in the Perth Metropolitan Area. The Department is unable to approve nominations for which there is no RCB advice.

Agents are reminded that this change may also affect age exemptions for applicants in the Temporary Residence Transition stream which require certain nominated positions and employment to be located in regional Australia. For further information see: Age skill and English language exemptions – Permanent Employer Sponsored programme.

Caveats on occupations – Subclasses 457 and 186

Agents are also reminded that the definition of regional Australia for RSMS purposes also impacts certain regional caveats that are in place for the subclass 457 and 186 visa programs. Consequently, employers will be unable to utilise any occupations affected by these caveats for positions located in Perth and surrounding area where applications are lodged on or after 17 November 2017. A summary of caveats on occupations is available.

Note: the Department will not be applying this change to subclass 457 visa applications that were lodged before 17 November 2017.

Health related matters

Subclass 457 health insurance requirements

Effective 18 November 2017, subclass 457 visa applicants will no longer be required to provide evidence, or a letter from an insurer, confirming their health insurance coverage as part of the visa application process. Applicants will simply be required to indicate, as part of their online application form, that they have made adequate arrangements for health insurance for their intended period of stay in Australia. The online visa application form has been amended to reflect this requirement.

This applies to:

  • all subclass 457 visa applicants, including family members and subsequent entrants
  • applications which are lodged, or are still pending a decision, on 18 November 2017.

The website information has been updated to reflect this change – see ‘Visa applicants’ tab in Temporary Work (Skilled) visa (subclass 457). Changes will be made to the 457 Visa Application Procedural Instruction (PI) for the next available stack in 2018. There are no changes to the related visa condition 8501 at this point in time.

Introduction of new visa condition 8602

From 18 November 2017, the new visa condition below will be added to Schedule 8 of the Migration Regulations.

8602 – The holder must not have an outstanding public health debt

You must not have an outstanding public health debt while in Australia including the cost of any health related services received in Australia. This does not include health costs otherwise covered, such as by health insurance, Medicare (if eligible), or treatment for certain community health risks such as tuberculosis. If you incur a debt that is left unpaid, your visa eligibility may be affected.

An ‘outstanding public health debt’ means a debt relating to public health or aged care services that has been reported to the Department of Immigration and Border Protection as outstanding by a Commonwealth, State or Territory health authority under an agreement between the authority and the Department.

If a visa holder or an applicant has an outstanding public health debt, they will be requested to contact the relevant health provider to clear the debt. The arrangements to pay the debt can only be resolved between the parties to the debt. Where a person breaches condition 8602, the power for visa cancellation action will be enlivened. As a result, the best outcome is for the debt to be repaid as soon as possible to prevent any visa cancellation options or delays in visa processing.

Condition 8602 will be imposed on visas granted in the subclasses below where the application was lodged on or after 18 November 2017.

Condition 8602 will be mandatory for the following visa subclasses:

  • Subclass 188 (Business Innovation and Investment)
  • Subclass 300 (Prospective Marriage)
  • Subclass 400 (Temporary Work (Short Stay Specialist))
  • Subclass 403 (Temporary Work (International Relations)) (Domestic Worker (Diplomatic or Consular) and Seasonal Worker Program streams only)
  • Subclass 405 (Investor Retirement)
  • Subclass 407 (Training)
  • Subclass 408 (Temporary Activity) other than those granted on the basis of:
    • 408.227(a)(ii)  – Staff exchange  – government agency
    • 408.227(a)(iii) – Staff exchange – foreign government agency
    • 408.229 – Australian Government endorsed event
  • Subclass 410 (Retirement)
  • Subclass 417 (Working Holiday)
  • Subclass 457 (Temporary Work (Skilled))
  • Subclass 461 (New Zealand Citizen Family)
  • Subclass 462 (Work and Holiday)
  • Subclass 476 (Skilled – Recognised Graduate)
  • Subclass 485 (Temporary Graduate)
  • Subclass 489 (Skilled – Regional)
  • Subclass 500 (Student)
  • Subclass 590 (Student Guardian)
  • Subclass 600 (Visitor)
  • Subclass 601 (Electronic Travel Authority)
  • Subclass 602 (Medical Treatment) (with the exception of persons who meet the ‘unfit to depart’ provisions)
  • Subclass 651 (eVisitor)
  • Subclass 676 (Tourist)
  • Subclass 771 (Transit)
  • Subclass 773 (Border)
  • Subclass 988 (Maritime Crew)

Condition will be discretionary for the following subclasses:

  • Subclass 403 (Temporary Work (International Relations)) (Government Agreement, Foreign Government Agency and Privileges and Immunities streams)
  • Subclass 408 (Temporary Activity) where visa granted on the basis of:
    • 408.227(a)(ii)  – Staff exchange  – government agency
    • 408.227(a)(iii) – Staff exchange – foreign government agency
    • 408.229 – Australian Government endorsed event
  • Subclass 602 (Medical Treatment) (persons who meet the ‘unfit to depart’ provisions)

Character related matters

Initiating penal clearances prior to visa application lodgement

Agents are reminded to provide the following details if seeking a letter from the Department to initiate penal clearances from certain countries:

  • a completed form 956
  • passport bio-data pages for all applicants 16 years old and above
  • given names, family names, and dates of birth for all applicants 16 years old and above, including all aliases

Failing to provide all of this information with your request will slow down processing times.

Skilled visa applicants with extensive travel histories in the last 10 years

All subclass 457 visa applications lodged on or after 1 July 2017 are required to provide police certificates for each country in which the applicant/s have lived for a cumulative period of 12 months or more, over the last 10 years, since turning 16 years of age, if their stay in Australia will exceed 12 months. As a result, the online subclass 457 visa application form requires the applicant to provide details of:

  • overseas travel in the last 10 years to any countries outside of their usual country of residence since turning 16 years of age
  • all countries where the applicant(s) has spent a total period of time that adds up to 12 months or more in the past 10 years since turning 16 years of age.

For applicants with extensive travel histories (for example, individuals who have very regular short-term overseas travel for business purposes) completing the travel details table in the online application form can be quite onerous, particularly where they are unlikely to reach the 12 month or more cumulative threshold that would require a penal clearance. As a result, the Department will now only require skilled visa program (including subclass 457) visa applicants to manually enter the details of particular countries in ImmiAccount, where the 12 month or more cumulative threshold is likely to be met.

Where this approach is taken, applicants must, however, still provide a full list of their entire travel history, including dates, to all countries in the last 10 years in a separate document as required and attach it to ImmiAccount. Failing to do so will slow down visa processing times and reflect a failure to declare all relevant information to the Department.

Do not email through any separate documentation to the Department.

Penal clearances and incomplete applications

Some agents have raised concerns that their skilled visa applications will be refused as ‘incomplete’ if a character clearance is not provided upfront at the time of application. Subject to an explanation being provided and, in the subclass 457 visa context, other minimal required documentation being provided, these applications would not, be considered incomplete applications.

The Department will provide further information regarding the penal clearance waiver process in the subclass 457 visa context in a future edition.

Visa integrity

New changes relating to Character integrity will come into effect on 18 November 2017. These changes will enhance visa integrity and clearly communicate what is expected from temporary visa holders while in Australia – including:

  • introducing new regulations requiring temporary visa holders to comply with strengthened visa conditions
  • tightening existing regulations to prevent non-citizens from circumventing cancellation processes and
  • further discouraging bogus documents or misleading information being provided in visa applications.

Visa subclasses lodged on or after 18 November 2017 will be impacted by these changes.

The subclass 457 Visa Application PI and subclass 457 (‘visa holders’ tab) web content have been updated to reflect these changes. Changes to any other impacted skilled visa PIs and webpages will be updated at the next available opportunity.

Permanent skilled visas update

RSMS and ENS processing

RSMS and ENS processing times are currently being affected by a number of factors – including:

  • the high on-hand RSMS/ENS caseload, which is further exacerbated by a particularly high number of lodgements in recent months (note: more than 16,000 applications were lodged in June 2017 alone, which is equivalent to approximately four months of average application lodgements)
  • there are increased levels of non-genuine applications or applications with integrity concerns which require a higher level of scrutiny and
  • incomplete visa application lodgements.

At no point in time has processing stopped on these cases and the Department is continuing to work through the on-hand caseload as fast as possible.

Note: Applications lodged more recently may be allocated for assessment ahead of older applications to facilitate more efficient processing of the pipeline and reduce processing times.

Labour Market Testing (LMT)

LMT for non-migration purposes

Aside from the immigration visa application context, other Australian laws may impose labour market testing requirements for particular industries to ensure that Australian workers are given priority. For more information – see recently updated web page: Subclass 457 – Labour Market Testing requirement.

Singapore-Australia Free Trade Agreement (SAFTA)

In October 2016, the governments of Singapore and Australia agreed to amend the SAFTA. When the amended SAFTA comes into force (expected to be 1 December 2017), Singaporeans will be exempted from labour market testing under the subclass 457 visa program. The commencement date of the amended SAFTA will be available on the website of the Department of Foreign Affairs and Trade in due course.

The 457 Nominations PI will be updated in 2018 to reflect these changes. Agents are however advised to check any changes to the impacted instrument at Subclass 457 Visa Legislative Instruments.

December 2017 changes – reminder

Agents are reminded that subject to legislation passing, additional changes to the subclass 457 visa program are planned for implementation before 31 December 2017, including:

  • the collection of Tax File Numbers (TFN) for subclass 457 visa holders (and other employer sponsored migrants) to facilitate data matching with the Australian Tax Office (ATO)’s records and ensure that visa holders are not paid less than their nominated salary
  • the publication of details relating to sponsors sanctioned for failing to meet their obligations under the Migration Regulation 1994 and related legislation
  • the clarification of review rights for subclass 457 visa applicants.

The Migration and Other Legislation Amendment (Enhanced Integrity) Bill 2017, which includes the above reforms, was introduced into parliament on 16 August 2017.

March 2018 changes – update on transitional arrangements

Subclass 457 visa holders applying for permanent residence after March 2018

Agents have raised a number of questions about the impact of recent reforms on subclass 457 visa holders applying for permanent residence after March 2018. New questions and answers regarding these transitional arrangements have been added at: Impacts for existing 457 visa holders wishing to apply for permanent residence (250KB PDF).

Note: This includes advice about transitional Temporary Residence Transition (TRT) stream arrangements in place for individuals who held, or had applied for a subclass 457 visa, on 18 April 2017. The new advice includes information in relation to age requirements and the length of time required on a subclass 457 visa before transitioning to permanent residence.

Further changes have also been made to the related web pages at:

Skilling Australians Fund (SAF) – transitional arrangements

As previously announced by the Government, subject to the passage of legislation, existing ‘training benchmark’ requirements will cease in March 2018 – with a contribution to the SAF required to be paid instead at the time of lodging a nomination application for the new Temporary Skill Shortage (TSS) visa, as well as the subclass 186 and 187 visas.

A number of agents have enquired about transitional arrangements in relation to the introduction of the SAF payment, particularly about how sponsorship applications lodged prior to March 2018 will be assessed.

While arrangements are yet to be finalised and subject to agreement by Government, as a general principle, transitional arrangements are expected to provide that sponsors are not required to meet the training benchmarks for any period where charging of the SAF has commenced.

Training compliance requirements for earlier periods for which the training benchmarks were in place will still need to be met, noting the Department’s advice in the September skilled visa E-news regarding a flexible approach that will be taken to assessing such compliance during the period between July 2017 and March 2018.

https://www.border.gov.au/…/skilled-visa-enews-nov-2017.aspx

Leave a Reply

Your email address will not be published. Required fields are marked *

Post comment