There are several important factors employers need to consider when sponsoring an employee for a permanent residency visa or when appealing a decision.
The Employer Nominated Scheme (ENS) subclass 186 visa and the Regional Sponsored Migration Scheme (RSMS) subclass 187 visa have two main streams:
- Direct Entry stream
- Temporary Residence Transition stream
The ENS 186 visa also has a third, less commonly used stream, the labour agreement stream. This stream is very important for Designated Area Migration Agreement applications and other forms of labour agreement, but is not as commonly used as the other two.
There are three possible stages for an ENS 186 visa or RSMS 187 visa:
- Regional Certifying Body Advice application (RSMS 187 Direct Entry Stream ONLY) to the relevant Regional Certifying Body
- Employer nomination application to the Department of Home Affairs
- Visa application to the Department of Home Affairs
Genuine position refusals
One of the most common reasons for refusal of ENS 186 visas and RSMS 187 visas is that the position is not genuine.
“Genuineness” is a complex assessment which does not have a concrete definition.
Case officers examine the entirety of the application, including the business circumstances, and develop an opinion as to whether the position being nominated is a genuine position required by the business which fits within the employer-sponsored migration program, or whether the whole or part of the position has been created solely to achieve a migration outcome.
There are certain occupations which are at a high risk of additional scrutiny for genuineness. These are high-volume occupations which may have attracted low-quality applications in the past. The two main examples are:
- 149212 Customer Service Manager
- 511112 Program or Project Administrator
It is important to ensure you are nominating the occupation that best matches the position in the business.
For the above occupations, it is important that the nominated position fits clearly within the relevant occupation. The case officer will be looking to the position description, organisational chart, employment contract and any other explanatory information and documents you are providing.
If the position does not appear to align with the occupation you have nominated, the case officer may find that the position is not genuine.
Temporary Residence Transition Stream – ENS 186 and RSMS 187 Visas
If using the Temporary Residence Transition, the application must be consistent with everything in the subclass 457 or subclass 482 visa.
One of the key matters which will be checked by the Department of Home Affairs is whether the visa applicant has been paid the nominated earnings for the whole duration of their subclass 457 or subclass 482 visa. A common issue here is where superannuation has been included in the nominated Guaranteed Annual Earnings. Because superannuation is not included in Guaranteed Annual Earnings (it is considered to be a separate employer obligation), this may inflate the earnings which were required to be paid to the visa holder.
Special attention must be given to this when applying for an ENS 186 visa or RSMS 187 visa under the Temporary Transition Stream.
Limited Availability of RSMS TRT Going Forward
With the RSMS subclass 187 visa closure on 16 November 2019, the Temporary Residence Transition stream of this visa will remain only available to a small group of people.
This group comprises two subgroups:
- Transitional 457 workers – those who held or had applied for (which was subsequently granted) a subclass 457 visa on 18 April 2017
- Transitional 482 workers – those who held or had applied for (which was subsequently granted) a TSS 482 visa on 20 March 2019
Currently, this appears to leave a group of people in the middle unaccounted for. These applicants may not be able to access the RSMS temporary transition after 16 November 2019.
For these workers, it may be worth considering whether Direct Entry can be completed prior to the shut-off.
If a negative decision is received from the Department of Home Affairs at either the nomination or visa application stage, a merits review at the Administrative Appeals Tribunal (AAT) may be available. The ordinary timeframe for applying for this is 21 days, so it is important that you act quickly.
If such a decision occurs at the nomination stage, it is important that both stages are appealed to the AAT. If the nomination is not appealed, the visa applicant will not be able to be successful on appeal.
It is very important if appealing that all efforts are made to strengthen the circumstances of the application while waiting for a hearing date to be set. It can currently take quite some time for a new employer-sponsored matter to be constituted at the AAT and a hearing date set.
This time presents both a difficulty and an opportunity for the business and the worker. During this time, the employer and employee need to strengthen their relationship to have the best prospects of success. The employee should continue working in the business and the business should maintain detailed records to clearly demonstrate this.
An appeal to the AAT is a merits review process, so the Tribunal Member will stand in the shoes of the decision maker and look at the situation anew. You are able to provide new evidence to seek an improved outcome.
Do you need help with an Australian visa application?
At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Partner Visas, Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.
If you require further information regarding your Australia visa options you can contact us through: