Wrongly refusing some employer nomination visas
By Lorenzo Boccabella, Barrister-at-law and specialist in migration law
It looks like Immigration is wrongly refusing nominations in the Temporary Residence Transition stream for some employees holding Subclass 482 visas in the Short-term stream.
In my view it is about Immigration not understanding basic principles of statutory interpretation.
Like many things in migration law, it’s a complex web. In essence, if there’s no accrued rights, if there’s a law change today which benefits an applicant, it will apply to an application lodged yesterday (in the absence of a transitional or saving provision to the contrary).
There is a pathway for subclass 482 visa holders in the Short-term stream to get a nomination for permanent residence via ENS & even residual RSMS pathways.
The entry is via reg 5.19(5)(a)(iii) which reads:
“(iii) for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or”
It turns on whether at time of nomination application the visa applicant held a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream. The residual question is ‘who is a person specified in a legislative instrument’?
As is often the case, Immigration interprets is own legislative instruments adversely to visa applicants.
A ‘person specified’ for the purposes of reg 5.19(5)(a)(iii) includes the following:
“(3) 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.”
This comes from the Legislative Instrument Migration (Specified persons and periods of time for regulation 5.19) Instrument (LIN 22/038) 2022
The odd things about this instrument is that there are no savings or transitional provisions, it does not repeal the previous legislative instrument and the commencement baldly states as follows:
“Commencement
This instrument commences on 18 March 2022.”
The question is – what is the function and effect of the words ‘Commencing on 1 July 2022’.
Assume the relevant nomination was lodged before 1 July 2022 but after 18 March 2022.
The operative provision for nominations is contained in Reg 5.19(3):
“Approval of nomination
(3) The Minister must, in writing:
(a) approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b) otherwise—refuse to approve the nomination.”
There is no time of application or time of decision dichotomy in Reg 5.19(3).
But reg 5.19(4) says:
“Requirements for approval—general
(4) The requirements to be met for the nomination to be approved are as follows:
(e) if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;”
Then we go to Reg 5.19(5) which states:
“Temporary Residence Transition stream—additional requirements for approval
(5) If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:
(a) at the time the application is made, the identified person holds:
(iii) for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or”
At first blush it may appear that the words ‘at the time of application’ anchors everything to the date of nomination application. But in my view it only relates to what visa the person had to have, the visa the person had to have at that point was the subclass 482 visa.
At time of decision on the nomination after 1 July 2022, the ‘person specified’ is the person who’s been in Australia for the relevant 12 months and is employed!
A good example of in general law is a decision of the House of Lords in Re a Solicitor’s Clerk [1957] 1 WLR 1219. Here are the facts. A Clerk was convicted of stealing but on the law as it stood at time of conviction, he was not prohibited from working for a solicitor which only prohibited him if the clerk stole from his employer or a client. The law was later changed to prohibit a clerk being employed if the clerk at any time was convicted of stealing of any kind. The Court ruled this was not a retrospective operation of a statute, the court found that it merely regulated the future employment of clerks.
It is by no means without doubt and the principle is discussed in detail in ‘Statutory Interpretation in Australia’ Pearce, 9th Edition in Chapter 10 where the cases for and against my ‘thesis’ are discussed in detail.
Another not dissimilar issue is that the subclass 187 RSMS visa is not completely dead.
RSMS is not dead
The RSMS visa did not die on 16 November 2019 – it can still deliver permanent residence.
The basic requirement is that the applicant be a subclass 457 visa holder or a subclass 482 visa holder who on 20 March 2019 either held a subclass 482 visa in the Medium term stream. The occupation the person had while holding the subclass 457 or 482 visa is the same as that nominated for the RSMS.
If the person holds a subclass 457 visa dating back to 18 April 2017 or on that date was an applicant for a subclass 457 visa that was granted, then that person’s occupation is sufficient for the RSMS nomination. For a subclass 482 visa holder the occupation must be on either Medium & Long Term Skills list or the Regional Occupations list unless the person had previously held a subclass 457 visa in which even an occupation on the short term list will suffice.
The applicant must be genuinely performing those tasks.
The applicant is working in the occupation for 3 of the previous 4 years.
The nominator was the sponsor
There is a need for the employee
The person will be employed for 2 years, without an express provision prohibiting an extension.
The nominator has the capacity to pay the employee.
The visa applicant must be under 45 unless exempt
The applicant has competent English
The job is located in regional Australia which now includes the whole of Western Australia.
Reg 5.19
(2) The application must:
(aa) if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa—be made before 16 November 2019 (subject to subclause (2A));
(2A) Paragraph (2)(aa) does not apply if:
(a) the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and
(b) the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made
The Schedule 1 criteria
Schedule 1 - 1114C
(3A) Paragraph (3)(aa) does not apply if:
(a) the stream is the Temporary Residence Transition stream; and
(b) the applicant is a transitional 457 worker or transitional 482 worker at the time the application is made.
transitional 457 worker means a person who held a Subclass 457 (Temporary Work (Skilled)) visa at any time occurring on or after 18 April 2017.
transitional 482 worker means a person who on 20 March 2019:
(a) held a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream; or
(b) was an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream that was subsequently granted.
Perhaps the last word on all of this is what the Minister for Home Affairs the Hon Clare O'Neil MP in a speech to the National Press Club on 27 April 2023 where she stated:
The second big problem is that our migration system has become a bureaucratic nightmare.
Our system is slow and crazily complex. This has real consequences for the quality of our migration program.
We have hundreds of visa categories and subcategories.
It is a mess of three digit visa codes – the 186, the 864, the 408 – so complicated that if I drew you a diagram it would look like a tangled bowl of spaghetti.