ENS/RSMS TRT stream beneficial policy interpretation confirmed

When the new regulations for nomination applications under the Subclass 186 – Employer Nomination Scheme and Subclass 187 – Regional Sponsored Migration Scheme visas were rolled out on 18 March 2018, a number of registered migration agents were left scratching their heads.

This is because the wording of Regulation 5.19, which is the criteria for nomination applications, left a lot to be desired when it came to the realities of modern employment and the vagaries of the employer sponsored visa framework. This particularly related to the Temporary Residence Transition stream, which was originally designed to be a streamlined transitional pathway for Subclass 457 – Temporary Work (Skilled) visa holders, and now Subclass 482 – Temporary Skill Shortage visa holders. For those not subject to transitional arrangements, this is now only a pathway for anyone whose occupation is listed on either the 186 visa occupation list, or the 187 visa occupation list.

The problem stems from the wording of these regulations. A strict interpretation would require:

• The nominee, that is, the primary 457 visa or 482 visa holder, to be nominated in the same 4-digit occupation code in their most recently approved visa;
• The nominator to have direct control of the nominee; and
• The nominee to have been employed in the position to which the visa was granted.

Of particular concern is the use of the terms italicised above, namely:

• ‘visa’ instead of ‘most recently approved nomination’, as 482 visa holders do not need to apply for a new visa if changing employers and not occupations, and 457 visa holders do not need to apply for a new visa if changing employers or occupations;
• ‘direct control’ when it is lawful to work for an associated entity of the standard business sponsor; and
• ‘position’, which could have consequences when a person is promoted but remains in the same occupation or the position has changed slightly due to a restructure or other event.

Given the penalties (financial and otherwise) of a refused application, many migration agents queried these harsh anomalies with the Department of Home Affairs’ (Home Affairs’) policy section.

Perhaps in a mea culpa, Home Affairs, in their most recent Skilled News Letter have made public what many registered migration agents were previously told: they will interpret problematic wording beneficially.

While their policy on this interpretation has yet to be updated, they state that standard business sponsors can nominate primary 457/482 visa holders despite working for associated entities during the two or three years required. They have also stated that a liberal approach will be taken towards these visa holders when they have been subject to an approved nomination but where the position has changed, including where the title and tasks have changed slightly, or the salary has increased over time. Obviously, it is difficult to assess their interpretation until it is officially reflected in their procedural instructions.

Still, one wonders if a nomination is refused, how the Administrative Appeals Tribunal (AAT) and especially a court would view these regulations should an appealed nomination be before them. It perhaps would be more ‘beneficial’ for Home Affairs to admit a drafting error and its subsequent impracticalities, and have the regulations amended to avoid a glaring disparity between regulations and policy.