Introduction
TABLE OF CONTENTS
No Time of Application/Time of Decision Dichotomy for Nominations
Exemptions for Age and English Recast
Skill Assessment Exemption for ENS Direct Entry
Ministers of Religion no Longer Exempt
Have One's Regulatory House in Order
The Revamp of the ENS Regime Which Came into Force on 1 July 2012
This paper aims to fill the following objectives:
- Important practice points on issues raised in previous seminars;
- Recent developments in terms of amendments to regulations and recent decisions of the tribunals and the courts;
- What I call the ‘text book’ part of the paper, which is a comprehensive covering of the issues in the Employer Nomination Scheme (ENS) regime.
By covering the issue this way it means that experienced migration advisers will get immediate benefit from the paper while migration advisers in their early years of practice will get the benefit of seeing how recent developments mould into the whole ENS scheme. Experienced migration advisers will also benefit from a comprehensive revision of the topic.
Changes from 19 April 2017
From 19 April 2017 occupations available on the ENS list has been truncated
Apart from a couple of additional notes, Medium and Long Term Strategic Skills List (MLTSSL) is exactly the same as the Skilled Occupations List (SOL).
What has changed is that the Consolidated Sponsored Occupations List (CSOL) has been truncated and even what has remained has become subject to a whole lot of restrictive ‘Notes’ which are misleadingly referred to as ‘caveats’. The CSOL becomes the Short-term Skilled Occupation List (STSOL).
For the subclass 186 ENS visa, the MLTSSL & STSOL occupations will apply for all persons where the nomination and the visa application was made after 18 April 2017
The MLTSSL & STSOL occupations will apply for all training visa subclass 407 applications lodged after 18 April 2017.
Changes pending in the future are as follows :
From 1 July 2017, for permanent employer sponsored skilled visa programmes:
– English language requirements: A requirement of an International English Language Testing System (IELTS) (or equivalent test) score of 6 in each component.
Age: A maximum age requirement of 45 at the time of application will apply to Direct Entry stream applicants. A maximum age requirement of 50 at the time of application will continue to apply to Temporary Residence Transition stream applicants.
From March 2018, for ENS and RSMS:
– For the ENS and RSMS visa: The MLTSSL will now apply, with additional occupations available to support regional employers for the RSMS.
– Minimum market salary rate: Employers must pay the Australian market salary rate and meet the Temporary Skilled Migration Income Threshold (currently $53,900).
– Residency: The permanent residence eligibility period will be extended from two to three years.
– Work experience: At least three years’ relevant work experience.
– Age: All applicants must be under the maximum age requirement of 45 at the time of application.
– Training requirement: a strengthened training requirement for employers to contribute towards training Australian workers.
Some unwritten rules
Sometimes unwritten rules exist which although not law will have a big impact on how things are decided. A workforce containing only one nationality will inevitably lead to a decision maker looking for ways to reject a visa application and nomination which would add an extra person of the same nationality to that workplace.
A workplace based exclusively on subclass 457 visa holders or even ENS visa holders will also create a negativity which would see a decision maker try and skew a decision in a way which leads to the application being rejected.
A workplace which has apprentices or trainees, has mixed nationalities and includes either Australian citizens or permanent residents who gained their status away from the employer would help soften the above negative forces.
Startups will be viewed with suspicion. The unwritten rules see an approach where every possible means will be used to refuse nominations in relation to startups without saying that startups are not approved.
Not to be aware of this would be to ignore practical reality.
WA suspends approvals for RSMS
The newly elected Labor government announced in March 2017 : “New applications to certify positions for the Regional Sponsored Migration Scheme are temporarily suspended.”
A similar announcement was made in relation to skilled visa nominations : “The Western Australian skilled migration occupation list (WASMOL) is currently under review. While this review is underway intending migrants will not be invited to apply for Western Australian State nomination.”