Legacy 457 visa holders will get access to the PR ENS visa for all occupations
Legacy 457 visa holders will get access to the PR ENS visa for all occupations, eventually from 1 July 2022, to many 482 visa holders in the short-term stream will get some access to the PR ENS visa also
Like almost everything in migration law, its complicated.
Below is the new scenario for the Temporary Residence Transition Stream for the Employer Nomination Stream.
But the first step is that, immediately, those subclass 457 visa holders who held a 457 visa on 18 April 2017 or by that day had applied for a 457 visa that was granted, are exempt from having to be in an occupation on the medium to long term skilled list specified for the subclass 186 ENS visa. Some of these people will now hold 482 visas in the Short-term stream. They can now be nominated under Reg 5.19 for an ENS visa (subclass 186).
From 1 July 2022, any 482 visa holder in the Short-term stream can be nominated under Reg 5.19 provided that the nominated person:
(a) has been in Australia for at least 12 months between 1 February 2020 and 14 December 2021; and
(b) at the time of application, is employed by a person actively and lawfully operating a business in Australia.
From 1 July 2022 the following will also be exempt from the medium to long term occupations list:
“A person who, after 18 April 2017:
(a) applied for a subclass 457 visa that was subsequently granted;
(b) has been in Australia for a period of at least 12 months between 1 February 2020 and 14 December 2021; and
(c) at the time of application, is employed by a person who is actively and lawfully operating a business in Australia.”
All of the above is set out in Legislative Instrument LIN 22/038 made on 17 March 2022.
That Instrument also eases some of the length of times by one year, where ever 3 years is specified it becomes 2 years and wherever 4 years is specified it become 3 years. This si done via Reg 5.19(6).
The instrument also has concessions for those who had their work time reduced because of COVID-19 and but for the pandemic would have been working full time. The COVID-19 ‘concession period’ starts on 1 February 2020 and will end on a date yet to be specified by the Minister (see Reg 1.15N).
It is worth reading LIN 22/038 in full.
Here is a link to the Legislative Instruments and other material https://www.dropbox.com/sh/3wuzrp2bxtgacnj/AACW0r4cdp94CfK_i4EfDga1a?dl=0
It is worth noting that the relevant legislative instruments fit together like a difficult jig saw puzzle. Here is what the Explanatory Statement to the LIN said:
“The cohort captured here are those subclass 457 visa holders that were not able to access transitional arrangements (as opposed to specified 457 visa holders), who hold an occupation other than that on the MLTSSL. Exempting this cohort from the operation of paragraph 5.19(5)(c) of the Regulations is complementary to the 1 July 2022 implementation of the measure on improving access to permanent residence for skilled visa holders. Because of this exemption, this cohort does not need to apply for a subclass 482 visa in the short-term stream to be eligible for a nomination application.”
The instrument, the LIN 19/049 still applies to the medium to long term occupations. This LIN has a whole list of restrictions like salary minimums, business turnover and restrictions on the type of position or business. At this stage at least, none of those restrictions, will apply to occupations on the short term list!!
All of the above demonstrates that the migration regulations are a complex patchwork quilt containing many policy contradictions.
In that context it is useful to recall what Kerr J said in Minister for Immigration and Border Protection v ARJ17 [2017] FCAFC 125, are apposite:
177.In consequence a number of the key provisions of the Migration Act have become impenetrably dense. Definitions have been built on definitions. Core concepts such as what is meant by a purported privative clause decision defy the understanding of any ordinary reader. I respectfully endorse Flick J’s concerns regarding the problems that that must present for unrepresented litigants.
In passing I mention that I collect whatever reported decision made at the AAT level, in the blog link I also attach the latest batch of those cases, which are unrelated to the subject of this blog. These case demonstrate useful practice points. If you’re interested to see how a directions hearing works in the High Court, I attach the transcript of a recent hearing where we are challenging a subclass 132 business visa refusal by way of judicial review. Happy reading!