Migration Amendment (Expanding Access to Temporary Residence Transition Stream) Regulations 2023

The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.

Subsection 504(1) of the Migration Actprovides that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Migration Act.

In addition, regulations may be made pursuant to the provisions listed in Attachment A.

The Migration Amendment (Expanding Access to Temporary Residence Transition Stream) Regulations 2023 (the Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to expand pathways to permanent residence for temporary skilled workers. The Regulations implement decisions of the Government made in response to the Jobs and Skills Summit held in September 2022. In particular, the Government announced that, by the end of 2023, temporary skilled sponsored workers would have a pathway to permanent residence.  The amendments are a first step to provide more equitable access to permanent residence for temporary skilled workers pending further reforms arising from the review of Australia’s migration program.

The Regulations expand access to the Temporary Residence Transition (TRT) stream in the Subclass 186 (Employer Nomination Scheme) visa (Subclass 186 visa). The changes also apply to the TRT stream of the Subclass 187 (Regional Sponsored Migration Scheme) visa (Subclass 187 visa). The Subclass 186 and Subclass 187 visas allow employers to nominate skilled workers for permanent residence to fill genuine vacancies in their business (noting that applications for the Subclass 187 visa are now closed except for certain transitional cases).

Within those visas, the TRT streams provide access to permanent residence for eligible holders of the Subclass 482 (Temporary Skill Shortage) visa (Subclass 482 visa) and eligible remaining holders of the repealed Subclass 457 (Temporary Work (Skilled)) visa (Subclass 457 visa) where their employer wishes to offer ongoing employment. The Subclass 457 visa was repealed on 18 March 2018 and a small cohort of eligible visa holders have yet to transition to a permanent visa.

To apply under the TRT stream, a Subclass 482 or Subclass 457 visa holder’s most recent sponsoring employer must first lodge a nomination, identifying a position within their Australian business. A nomination application in the TRT stream must meet a range of requirements, including that the visa holder has been employed for the specified period and did so as the holder of a Subclass 457 or 482 visa. The employer must also demonstrate a commitment to continue employing the person in the relevant position, on a full-time basis, for at least two years. If the employer’s nomination is approved, the Subclass 186 or Subclass 187 visa can be granted, provided that the visa applicant satisfies the applicable criteria for the grant of the relevant visa.

The Subclass 482 visa enables employers to source skilled overseas workers to address labour shortages where an appropriately skilled Australian worker is unavailable. Overseas workers must be nominated by a sponsoring employer and obtain a Subclass 482 visa before they can commence work in Australia.

Regulation 5.19 of the Migration Regulations prescribes the criteria for approval of a nomination application for the purpose of the Subclass 186 and Subclass 187 visas.

The key changes made by the Regulations are set out below.

·         The Regulations expand access to the TRT streams of the Subclass 186 or 187 visas to cover all holders of Subclass 482 and Subclass 457 visas, regardless of the stream in which their visa is held. When the Subclass 482 visa was created on 18 March 2018, only holders of a Subclass 482 visa in the Medium-term stream would have access to the Temporary Residence Transition stream. From 1 July 2022 in response to strong labour demand and the declining number of temporary visa holders in 2021 due to the COVID-19 pandemic, a limited pathway was created for Short-term stream Subclass 482 visa holders who were in Australia for at least 12 months during the pandemic between 1 February 2020 and 14 December 2021. However those who have arrived in Australia since borders reopened to temporary skilled migration from December 2021 are unable to access this pathway.

·         The Regulations reduce the length of the eligibility period that is required for approval of a nomination in the TRT stream (the TRT eligibility period). This reduction reflects the desirability of retaining skilled workers in Australia by providing earlier access to permanent residence and increases Australia’s attractiveness as a destination for potential migrants. The amended provisions require that the identified person, while holding a Subclass 482 visa, a Subclass 457 visa, or a bridging visa associated with an application for a Subclass 482, 457, 186 or 187 visa, worked in the position, in relation to which the Subclass 482 or Subclass 457 visa was granted, for two out of the three years immediately before the nomination application is made. Previously the requirement was three years out of four.

·         The Regulations remove the requirement for the occupation identified in the nomination to be specified in a legislative instrument. This means it is no longer a requirement for the TRT stream for the occupation to be listed on the Medium and Long-term Strategic Skills List or the Regional Occupation List. This change is consistent with the new availability of a pathway to permanent residence for all temporary skilled workers, determined by the employer’s capacity and need to sponsor the worker rather than considerations of broader labour market demand for a particular occupation. In light of this change it is no longer necessary or appropriate to use occupations lists as an additional filter for Subclass 482 and Subclass 457 holders with a qualifying employment history in Australia.  This change enables employers to sponsor workers in a wider range of occupations on a permanent basis, helping to retain staff and alleviate skills shortages. It also creates greater certainty for employers and Subclass 482 visa holders by ensuring that applicants for a Subclass 186 or 187 visa will not be disadvantaged if their occupation is removed from the relevant occupation list, which would otherwise mean that their pathway to permanent residency is lost.

·         The Regulations make consequential changes to allow all employers with the most recently approved nomination of a holder of a Subclass 482 or Subclass 457 visa to make a nomination under the TRT streams. This change involves extending permission beyond ‘standard business sponsors’ to also include parties to a work agreement who sponsored the worker pursuant to a labour agreement.

·         The Regulations make consequential changes to the provisions that provide for discretionary refund of the first instalment of the visa application charge if the TRT stream Subclass 186 or Subclass 187 visa application is withdrawn. A refund may be available if the nomination application is made prior to the visa holder meeting the TRT eligibility period as specified in the criteria for the approval of the nomination. The provisions have been simplified, to refer directly to the relevant clauses in which the relevant timeframes are specified, to avoid confusion in relation to what qualifying time period an applicant is required to meet.

·         The Regulations remove the limit on the number of Subclass 482 visa applications in the Short‑term stream that can be made in Australia. When the Subclass 482 visa was created on 18 March 2018, the Migration Regulations provided that an applicant may be in Australia or outside Australia when applying for the Subclass 482 visa, except for an applicant for the Short-term stream who must be outside Australia if more than one Short-stream visa has been held and the most recently held Short-term stream visa was applied for in Australia. It was intended to deter visa holders from remaining in Australia for long periods without a permanent residence pathway. The rule was subsequently temporarily relaxed due to the impact of the COVID-19 pandemic to facilitate access to the TRT streams of the Subclass 186 or Subclass 187 visas for certain Short-term stream Subclass 482 visa holders. The requirement that an applicant must be offshore for their third or subsequent 482 visa has now been repealed to reflect the decision that all streams of the Subclass 482 visa will have a pathway to permanent residence. In light of that change there is no longer any reason for preventing the making of multiple applications for the Subclass 482 visa in the Short-term stream in Australia.

Written by Ross Ahmadzai

27 Nov, 2023

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