Linking Up The Nomination In The Application Process - Employer Can Change Between The Date of Visa Application And The Time of Decision Which Includes Time Of Decision by the AAT
Re-visiting the nomination & sponsorship process which this amendment raises, it can be important to be aware that one can change employer between the date of visa application and the date of decision.
There has also been a tidying up and/or tightening of legislative requirements for a 457 visa application. These amendments include:
Introducing a Schedule 1 criteria that the 457 nomination has been approved (and not ceased) or that a nomination application had been made and no decision had been made in relation to the nomination application.
Item 1223A(3)
(d) In the case of an applicant who seeks to satisfy the primary criteria for the grant of a Subclass 457 (Temporary Work (Skilled)) visa on the basis that the applicant meets the requirements of subclause 457.223(2) of Schedule 2:
(i) a person must have nominated an occupation in relation to the applicant; and
(ii) either of the following applies:
(A) the nomination has been approved under section 140GB of the Act and the approval of the nomination has not ceased under regulation 2.75;
(B) a decision in respect of the nomination has not been made under section 140GB of the Act.
(da) In the case of an applicant who seeks to satisfy the primary criteria for the grant of a Subclass 457 (Temporary Work (Skilled)) visa on the basis that the applicant meets the requirements of subclause 457.223(4) of Schedule 2:
(i) a person must have nominated an occupation in relation to the applicant; and
(ii) either of the following applies:
(A) the nomination has been approved under section 140GB of the Act and the approval of the nomination has not ceased under regulation 2.75;
(B) a decision in respect of the nomination has not been made under section 140GB of the Act; and
(iii) the person who nominated the occupation is not the subject of a bar under section 140M of the Act.
Prior to the above amendments, it was possible to validly lodge a 457 visa application without ever having lodged the nomination application; only the SBS application had to been lodged or approved.
The amendments apply to 457 visa applications made on or after 19 April 2016.
Worth re-iterating here that the sponsor referred to in the Schedule 1 criteria and indeed the nomination referred to in Schedule 1 criteria need not be the same employer at time of decision. Hence a visa applicant can change employer sponsor in the time between visa application and visa grant.
This can have a number of advantages. Sometimes an employer undergoes a corporate re-structure between the time of visa application and time of decision. This can be accommodated in the time of decision criteria for the subclass 457 visa.
Or even more extensively the visa applicant can simply change employer and sponsor between time of application and time of decision. In times of downturn an employer can simply withdraw a job offer between time of visa application and time of decision. Or the employer and employee can have a falling out.
Of course time of decision can be time of decision by the Administrative Appeals Tribunal on review, it being possible therefore to change employers between time of visa refusal and date of hearing before the AAT.
Change of employer necessitates a different nomination. Query whether the occupation can change between time of application and time of decision, particularly at the AAT stage. There would not seem to be a technical reason why this could not occur. This issue is discussed in some detail in both the ENS paper and the skilled visa paper in circumstances where an ‘error’ in the occupation at time of application requires change by time of decision.
Change of employer also requires that the employer be an approved sponsor.