Australian Immigration Daily News

Earlier today, Home Affairs released their final skilled newsletter for 2018 summarising current and upcoming changes to Australia’s skilled visa programme. Migration Alliance brings you a summary of the main changes to watch in coming months.

1.       Legacy Cases 457 cases and TSS Review Rights

Subclass 457 and TSS visas are reviewable by the Administrative Tribunal.  This is assuming that the visa applicant was onshore at the time of application and the approved nomination has not yet ceased.  Alternatively, there must be a sponsorship or nomination currently being reviewed by the AAT.  The AAT has published a very useful FAQ sheet for applicants who had their nominations refused and this document can be found here:

  http://www.aat.gov.au/AAT/media/AAT/Files/MRD%20documents/Factsheets/FS08-Nomination-Refusals.pdf

(PS the above link is extremely useful therefore I encourage you to have a read)

Applicants should be aware the procedure for off-shore primary TSS/457 visa applications is different.  

Specifically:

A decision to refuse an offshore primary TSS / 457 visa application (i.e. applicant was offshore at the time of application and was seeking to satisfy the primary criteria) is only reviewable if, at the time the decision to refuse to grant the visa is made:

• the person that nominated the visa applicant is an Australian business; and
• the visa applicant is the subject of an approved nomination that has not ceased; or
•  there is an application to review the decision not to approve the sponsor (i.e. the sponsorship application was refused) pending

 2.      Lodging a review with the AAT

An application for review of an onshore application can be made by the applicant. An application for review of an offshore application can only be made by the Australian business who applied to become the sponsor or who nominated the visa applicant. That is, an offshore visa applicant is not eligible to lodge the application for review.

3.      If your nomination is refused

Information that AAT ask to give will depend on individual circumstances and such evidence might include: 

• ASIC business name extract
• ASIC current and historical extract
• Standard Business Sponsor status or evidence that you are party to a work agreement (457/482 only)
• Business tax returns, financial statements that include a detailed profit and loss statement and balance sheet, and business activity statements lodged with the ATO 
• Current organisational structure chart (including current and proposed employees, and their position titles and resident status) 
• Roles and duties of the nominated position or occupation and how they relate to the position description in ANZSCO
• Employment contract or letter of offer that complies with relevant awards for the nominated occupation or position (if any)  

Applicants are always encouraged to seek legal advice as each case will differ.

4.      Further changes on TSS Nomination form

Labour Market Testing remains to be a time of application criteria. Home Affairs advised that where a relevant submission is not attached prior to lodgement the nomination may be refused.

Completing the alternative evidence section will prompt you to attach the required LMT submission at the end of the form. There is a new document type available for this purpose

Home Affairs has also advised that that there has been some inconsistent decision making relating to the LMT requirement, causing confusion amongst agents. The process is currently under review.

5.       Trans Pacific Partnership

The Comprehensive and Progressive Agreement for Trans-Pacific Partnership 11 will enter into force on 30 December 2018.  This means that, from 30 December 2018, Labour Market Testing will not be required where if they are covered by such agreement.  Full details can be found here: https://immi.homeaffairs.gov.au/visas/employing-and-sponsoring-someone/sponsoring-workers/nominating-a-position/labour-market-testing

6.      Labour Agreements are finally online:

Labour Agreements are now online.  Therefore, an individual can use their immi account to lodge an application.   However, there are specific guidelines for GTS and DAMA agreements which can be found on DHA's website.

When applying for a Labour Agreement, a question in particular section of the form change depending on the responses provided and will determine what type of Labour Agreement you are requesting. The first question asks whether the agreement will be associated with an overarching agreement. Examples of overarching agreements are Designated Area Migration Agreements (DAMA) and Project Agreements. As you are requesting a Labour Agreement under a DAMA you should answer ‘Yes’ to this question. You will then be asked to select which type of overarching agreement type your request relates to. Once you have selected DAMA, you will be asked to enter the Agreement name and Agreement number. You should enter the information provided to you by your Designated Area Representative (DAR).

Global Talent Scheme agreements are for accredited employers who are seeking to fill a small number of niche highly-skilled roles, where their needs cannot be met under existing skilled entry programs. Compared to traditional labour agreements, the GTS provides fast processing and flexible concessions for approved participants via an Established business stream and Startup business stream. The type/s of occupations you are requesting under the GTS agreement, the number of positions you need to fill each year and the visa type (temporary or permanent). As the GTS caters for new and emerging STEM positions which may not have ANZSCO codes as yet, the first question on this page asks whether ANZCSO codes exist for all of the occupations you are requesting under this agreement.

If you experience any technical problems when trying to lodge your request, you must complete the technical support form on DHA website. Do not email or call Home Affairs offices as they will not be able to assist you. www.homeaffairs.gov.au/about/corporate/information/forms/online/immiaccount-technical-support-form