Features of the Subclass 482 visa
This Legislative Instrument repeals the Subclass 457 visa and replaces it with the new Subclass 482 visa. The new visa enables employers to access a skilled overseas worker if an appropriately skilled Australian worker is unavailable. In this program, an overseas worker must be nominated by a sponsoring business and obtain a Subclass 482 visa before they can commence work in Australia. The Subclass 482 visa has three streams:
· Short-term stream – to source skilled overseas workers in occupations on the Short-term Skilled Occupation List (STSOL) for a maximum of two years (or up to four years if the two year limitation would be inconsistent with an international trade obligation);
· Medium-term stream – to source skilled overseas workers for occupations on the Medium and Long-term Strategic Skills List (MLTSSL) for up to 4 years; and
· Labour Agreement stream – to source skilled overseas workers in accordance with a labour agreement with the Commonwealth, where there is a demonstrated need that cannot be met in the Australian labour market and standard visa programs are not available.
There are features of the Subclass 482 visa that are common with the repealed Subclass 457 visa. This Statement of Compatibility with Human Rights focuses on the human rights compatibility of the new features.
The previous market salary rate provisions are reformulated around the concept of annual market salary rate (AMSR), which is defined in regulation 1.03 of the Migration Regulations. The change is in response to stakeholder feedback that previous arrangements were complex and confusing. The intent is that visa holders must be provided with remuneration and employment conditions that are at least equivalent to the conditions that are, or would be, provided to an Australian worker performing the same work at the same location. The AMSR achieves the same outcome as previous arrangements, but simplifies the assessment process to better reflect industry practices and provide greater consistency.
Other new features of the Subclass 482 visa include the following:
· a Short-term stream, with a maximum visa term of up to two years and capacity for onshore renewal only once (unless this would be inconsistent with international trade obligations). Persons who are not eligible to apply for a further Short-term stream visa onshore are expected to depart Australia at the end of their visa, but may reapply from outside Australia. Another criterion requires assessment of whether the applicant genuinely intends to stay in Australia temporarily, having regard to the applicant’s circumstances, immigration history, compliance with visa conditions and other relevant matters. These features of the Short-term stream reflect the purpose of the stream, which is to cater for short-term skill shortages in Australia, as reflected in the occupations on the STSOL;
· a Medium-term stream, with a maximum visa term of up to four years and no restriction on renewals while in Australia. Occupations eligible for this stream, which are occupations on the MLTSSL, are those required to meet medium to longer term skill shortages in Australia;
· a requirement that the primary applicant has at least two years relevant work experience. This measure assists in ensuring that the applicant has the skills to do the job and contribute to Australia’s economy. It also encourages businesses to consider training and developing the skills of Australians before turning to overseas workers to address skill shortages. Relevant work experience will be considered in the context of the nominated occupation, and experience in related roles and flexible working arrangements may be recognised;
· an English language requirement, as specified by the Minister in a legislative instrument. The instrument will specify a level of English for the Medium-term stream that is higher than the Short-term stream. The English requirement for the Short-term stream will be the same as applied to the Subclass 457 visa. The Medium-term stream will require an International English Language Testing System score (or equivalent) of level 5 overall, with a minimum of 5 in each component score. Raising the English language level for the Medium-term stream recognises the importance of English language ability in the workplace and for community participation. It reflects the longer period of stay of Medium-stream visa holders and their potential to progress to permanent residence via the Subclass 186 or Subclass 187 visa;
· a ‘non-discriminatory workforce’ test to allow refusal of nominations by employers who systematically employ overseas workers without appropriate regard to Australian workers;
· an increase in the Visa Application Charge (VAC) as compared to the VAC for the Subclass 457 visa. There is a small increase for the Short-term stream. The increase for the Medium-term stream brings it closer to the VAC for skilled migration visas. This increased VAC reflects the longer stay period available to holders of the Medium-term stream and the option of transitioning to permanent residence;
· all applicants must satisfy public interest criterion (PIC) 4007 relating to health, instead of PIC 4006A which applied to the Subclass 457 visa. This change aligns the Subclass 482 visa program with other temporary and permanent visas. The amendments do not change the nature of the health requirement applicable to temporary skilled migrants. The difference in PICs only affects the ability to waive aspects of the health requirement. PIC 4006A enabled a visa applicant to be considered for a health waiver if the employer provided a written undertaking to meet the costs of the applicant’s condition. These undertakings were difficult to monitor and enforce. In addition, visa applicants whose employer refused to provide an undertaking would be refused a visa, despite having a skill in shortage in Australia or otherwise being able to mitigate health costs. PIC 4007 allows the same aspects of the health requirement to be waived, without an undertaking by the employer, where the grant of the visa would be unlikely to result in undue cost to the Australian community or undue prejudice to access to health services by Australian citizens or permanent residents;
· the primary applicant will need to satisfy condition 8607, instead of condition 8107 which applied to the Subclass 457 visa. These conditions relate to working in the position for which the person was nominated. Condition 8607 includes the same provisions as condition 8107, and adds a provision that requires the visa holder to work only in the occupation in relation to which the Subclass 482 visa was granted. This means that a visa holder must obtain a new nomination and apply for a new visa to change occupation. The purpose is to allow skills and experience to be assessed in relation to the new occupation;
· as under the 457 program, the Department will consider any adverse information known about a business applying to be a sponsor under the Subclass 482 visa program. The meaning of adverse information has been amended to ensure that any adverse information relevant to the suitability of a business to sponsor overseas workers can be taken into consideration; and
· the visa period for dependent children who are members of the family unit has been amended to finish at the end of the day before the holder’s 23rd birthday.
Features of the Subclass 186 visa and Subclass 187 visa
The Subclass 186 visa and Subclass 187 visa are demand-driven programs which allow employers to nominate skilled workers for permanent residence to fill genuine vacancies in their business. The Subclass 186 visa is available nationally, while the Subclass 187 is for skilled workers who want to work in regional Australia. Both programs comprise three streams:
· the Temporary Residence Transition (TRT) stream is for Subclass 457 visa holders, or Subclass 482 visa holders, who have worked in Australia for a specified period with a nominating employer who wishes to offer them a permanent position;
· the Direct Entry (DE) stream is for people nominated by an employer for permanent residence; and
· the Agreement stream is for people sponsored by an employer through a labour agreement negotiated between an employer and the Minister.
Eligibility for the DE stream is limited to applicants who are nominated in relation to an occupation specified in the relevant legislative instrument.
The measures implemented by this amendment for the Subclass 186 visa and the Subclass 187 visa include:
· creating a labour agreement stream in the nomination criteria in regulation 5.19. This will align the process for labour agreement nominations with the process for Direct Entry (DE) and Temporary Residence Transition (TRT) nominations;
· a requirement for the nominating employer to select the appropriate stream. The Department will only assess the selected stream. This will improve efficiency in nomination processing;
· a requirement that the primary applicant is 45 years of age or under (reduced from 50) at time of visa application for the TRT and Labour Agreement streams. This aligns with a change to the DE stream made in July 2017. Transitional arrangements will apply to applicants who held, or had applied for, a Subclass 457 visa on 18 April 2017, which was when the Government announced the changes, to ensure they are not disadvantaged;
· a requirement that the primary applicant has at least three years relevant work experience, as compared to the two year work experience requirement in the Subclass 482 visa. This measure assists in ensuring that the applicant has the skills to do the job and contribute to Australia’s economy. It also encourages businesses to consider training and developing the skills of Australians before turning to overseas workers to address skill shortages;
· a requirement that an applicant nominated in the TRT stream has worked, at the time of nomination, for three years out of the previous four years in the position in relation to which the Subclass 457 visa or Subclass 482 visa was held. This compares to the previous requirement to have worked for two years out of three. Transitional arrangements will apply to applicants for the TRT stream who held, or had applied for, a Subclass 457 visa on 18 April 2017 to ensure they are not disadvantaged;
· aligning the TRT with the DE stream by requiring an applicant’s nominated occupation to be on the MLTSSL at the time of nomination. If the position is in a regional area, additional occupations will be available for selection. The MLTSSL contains occupations that have been assessed as being of high value to the Australian economy and aligned to the Government’s longer-term training and workforce strategies. The list is reviewed regularly by the Department of Jobs and Small Business, based on labour market analysis and stakeholder consultation. Requiring an applicant’s nominated occupation to be on the MLTSSL, or the associated list of regional occupations, will ensure that permanent migrants are filling a current skill need in the labour market, maximising their contribution to Australia’s overall economic prosperity. Transitional arrangements will apply to applicants who held, or had applied for, a Subclass 457 visa on 18 April 2017 to ensure they are not disadvantaged by this new requirement;
· applying the AMSR framework, including the associated Temporary Skilled Migration Income Threshold (TSMIT) to the TRT and DE streams of the Subclass 186 and Subclass 187. As per the recommendation of the May 2016 TSMIT review, this will address the discrepancy that exists between the temporary employer sponsored program and the Subclass 186 and 187 programs, and will ensure that permanent visa applicants must be provided with remuneration and employment conditions that are at least equivalent to what is, or would be, provided to an Australian worker performing the same work;
· as with the Subclass 482 visa, applying the expanded definition of adverse information to the Subclass 186 and Subclass 187 programs;
· a requirement that visa applicants hold, or are eligible to hold, any mandatory licensing or registration required for their specified occupation at the time their employer lodges a nomination application for that person;
· a requirement that employers nominating a skilled worker through the DE stream of the Subclass 187 demonstrate that the position cannot be filled by an Australian citizen or Australian permanent resident who is either living in the same local area or willing to move to that local area;
· a requirement that employers nominating a skilled worker through the DE stream of the Subclass 187 are endorsed by a Regional Certifying Body (RCB) which is located in the same State or Territory and is responsible for the local area where the position is located. The intention of this amendment is to prevent local employers from advertising a position in a limited local regional area without considering obtaining employees from larger cities, and to prevent people “forum shopping” across RCBs where a non-local RCB is less likely to have specific knowledge of local businesses and labour market. The previous regulations enabled any RCB in a State or Territory to assess an application regardless of where the position is located;
· provision to refuse a nomination if a decision maker has information that a person nominated in the TRT stream has been performing a different occupation to their nominated occupation, or at a lower skill level;
· provision to refuse a nomination if the decision maker is not satisfied that the business has the capacity to lawfully and actively operate for at least two years and employ the nominee for that period at no less than the AMSR;
· repeal of the Agreement stream of the Subclass 187 visa. The Subclass 187 Agreement stream was not used and new labour agreements will be implemented through the Subclass 186 program, which is current practice; and
· the addition of new VAC refund provisions for the Subclass 186 and Subclass 187 visas.