Age is no limit for some onshore ENS visa applicants
By Lorenzo Boccabella, Barrister-at-law and specialist in migration law
A ‘legacy subclass 457 worker’ is not subject to any age restriction when applying for a subclass 186 visa in the ‘Temporary Residence Transition stream’. So, even a person aged 60 or more in some circumstances can apply for a subclass 186 visa!
A ‘legacy subclass 457 worker’ is defined as follows:
“a person who:
(a) held a subclass 457 visa on or after 18 April 2017; and
(b) was in Australia for at least 12 months between 1 February 2020 and 14 December 2021.”
There will still be many people in that category who probably now hold a subclass 482 visa.
A ‘legacy subclass 457 worker’ is exempt from the age requirement because of clause 186.221(b) and the application of the legislative instrument Migration (LIN 19/216: Exemptions from Skill, Age and English Language Requirements for Subclass 186, 187 and 494 Visas) Instrument 2019.
Thus a ‘legacy subclass 457 worker’ could still be aged 60 (or indeed more) and still apply for and be granted a subclass 186 visa today (providing of course all the other requirements of the subclass 186 visa are met).
If we combine this with the legislative instrument LIN 22/038, then a person whose occupation is on the Short‑term Skilled Occupation List could be aged 60 or more as long as that person was a ‘specified person’ for the purpose of LIN 22/038. A ‘specified person’ includes the following:
“Commencing on 1 July 2022—a person who:
(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.”
Of course, a sixty year old person would still have to be a ‘legacy subclass 457 worker’.
Note the full title of LIN 22/038 is the “Migration (Specified persons and periods of time for regulation 5.19) Instrument (LIN 22/038) 2022”.
Thus if the person was a ‘legacy subclass 457 worker’, a baker, pastry cook or even cook, could be 60 or more and still apply for a subclass 186 visa and not be affected by any age limit.
A full study of the age exemption in LIN 19/216 will reveal a number of gems for example the ‘transitional 457 worker under 50’ which means:
transitional 457 worker under 50, in relation to an application for a visa (the new visa), means a person who:
(a) on 18 April 2017:
(i) held a Subclass 457 (Temporary Work (Skilled)) visa; or
(ii) was an applicant for a Subclass 457 (Temporary Work (Skilled)) visa that was subsequently granted; and
(b) on the day the application for the new visa was made, had not turned 50.
The slight advantage of the ‘transitional 457 worker under 50 is that one does not have to have been present “in Australia for at least 12 months between 1 February 2020 and 14 December 2021.”
Also exempt from the age requirements for the ‘Direct Entry stream’ only are New Zealanders and their non-NZ spouses who fall into the category of Subclass 444/461 worker:
Subclass 444/461 worker, in relation to an application for a visa, means a person in relation to whom both of the following paragraphs apply:
(a) during the 3 years ending immediately before the day the visa application was made, the person spent at least 2 years (whether made up of a continuous period or 2 or more non‑consecutive periods) working:
(i) for the employer who made the nomination to which the visa application relates; and
(ii) in the nominated occupation to which the visa application relates;
(b) at almost all times during those 3 years, the person held:
(i) a Subclass 444 (Special Category) visa; or
(ii) a Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) visa.
Not as useful nowadays following the ease of restrictions for New Zealand citizens to obtain Australian citizenship, but may be useful for those New Zealanders who have some criminal convictions that may not lead to visa cancellation but might lead to not passing the tougher character test for citizenship (which is that positively the person must be of ‘good character’.
There are a host of other age concessions in LIN 19/216 but these require the applicants to have been paid at ‘the high income threshold’. This is adjusted annually under the Fair Work Act and is currently $167,500 (before 30 June 2023 it was $162,000.
Take care in artificially drawing up a contract which meets ‘the high income threshold’ as often employers either never get round to paying that figure or after a while don’t pay that figure.
The window for those aged over 45 for the subclass 186 visa may close in due course, so if any of your clients fall into the above category, the usual adage applies, if your client is eligible for a visa today, apply for that visa today, especially if it is a permanent residence visa!
Migration (Specified persons and periods of time for regulation 5.19) Instrument (LIN 22/038)