Australian Immigration Daily News

Implementation of Skilling Australians Fund Levy

Department of Home Affairs has finally implemented a long awaited SAF Levy on 12 August 2018. The following visa subclasses are impacted:

• Subclass 482 TSS
• Subclass 186 ENS
• Subclass 187 RSMS

The levy amount is determined by annual turnover generated by the sponsor. For example, a business with an annual turnover of less than $10M can expect to pay a one-off levy amount of $3000 per ENS or RSMS nomination. In the case of subclass 482 nominations, relevant levy amount for a business with the same turnover is $1200 per year.

In all other scenarios, a business is liable to pay $5000 per ENS/RSMS nomination or $1800 per year in the case of subclass 482 nominations.

SAF is payable in full at the time of lodgement.

Migration Amendment (Skilling Australians Fund) Regulations 2018 specifies provisions where a SAF refund is appropriate. Such scenarios include:

• The nomination is approved by mistake
• The nomination is withdrawn
• The nomination is refused
• The visa application is refused under sections 501, 501A or 501B of the Migration Act (Character Grounds)
• The visa application is refused as the applicant failed to satisfy public interest criteria

In circumstances where an employee leaves their sponsor within 12 months of commencing their employment, a written request may be put forward to the Department of Immigration requesting SAF refund. The refund will generally be issued for the remaining unused period. Other applicable cases where a refund may be appropriate include circumstances an individual fails to commence employment with their sponsor.

Applications lodged with the Department of Home Affairs prior to 12 August 2018 are not impacted by SAF.

The sponsors are not able to pass SAF levy to employees.

Updated LMT Requirements

Labour Market Testing currently in place for subclass 482 visas is further tightened and the new requirements is applicable to all subclass 482 nominations lodged on or after 12 August 2018.

Sponsors will be required to demonstrate the following under the new requirements:

• The advertisement must in Australia conducted in English and must include the following details:

1. Job title, description of duties
2. Requisite skills and experience
3. Name of the approved sponsor or a requirement agency
4. the salary for the position (if the intended annual earnings for the nominated position are lower than AUD96,400)

• LMT must be conducted within 4 months or since any redundancies or retrenchments have been made
• Certain advertisement platforms such as LinkedIn professional recruitment platform is an acceptable method of LMT. However, job vacancies restricted to LinkedIn profile members only are NOT acceptable for LMT purposes.
• A general classifieds website or an advertisement solely through a social media notification, such as Twitter or Instagram is not an acceptable method.
• Radio and print media are an acceptable method of advertisement 
• LMT Must be undertaken for a period of at least 28 days. Copies of at least two advertisements should accompany a 482 nomination.

Whilst the Department of Home Affairs exercised leniency in relation to LMT requirement applicable for 482 nominations lodged before 12 August 2018 as per the Skilled Newsletter published in March 2018, the Policy does not appear to provide major LMT concessions for 482 nominations (other than ITO’s) going forward.

International Trade Obligations to apply:

A sponsor may be exempt from LMT if this is inconsistent with Australia’s international trade obligations for the sponsor to be required to satisfy the LMT condition. These obligations fall under two categories – that is, Australia’s commitments under:

• Free Trade Agreements (FTAs) and
• World Trade Organization (WTO) General Agreement on Trade in Services (GATS).

LMT is not a nomination requirement if:

• the nominee is a:

1. citizen/national of China, Japan or Thailand; or
2. citizen/national/permanent resident of Chile, Korea, New Zealand or Singapore. 

• the nominee is a current employee of a company that is;

1. an associated entity of the sponsor; and
2. that associated entity is in Chile, China, Japan, Korea, New Zealand or any ASEAN nation (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam); 

the nominee is:

1. a current employee of an associated entity of the sponsor’s business and that associated entity operates in a WTO member country;
2. nominated as an Executive Manager
3. will be responsible for the entire or a substantial part of the company's operations in Australia.

the nominee:

1. is nominated as an executive manager
2. is nominated by an overseas business sponsor operating in a WTO member country; and
3. will be responsible for the establishment of a new operation of that business in Australia.

• The nominee is a citizen of a WTO member country and is being nominated by an employer for whom the nominee has worked in Australia on a continuous, full-time basis for two years immediately before the nomination is lodged. 

Part Time Work

Part time work may be acceptable in limited circumstances for subclass 482 visas. Under policy, in making this assessment the Department of Home Affairs will consider the following circumstances where part time work is acceptable:

• whether the proposed remuneration will be reasonable for the hours worked; and
• the amount that an Australian citizen or permanent resident would earn for undertaking equivalent work under the same part-time work arrangements and
• whether the person would have adequate means of support (for example, overseas fractional appointments still in receipt of a salary from their home university)