Exemptions for Age and English Recast

 
 

Age

Here is the typical age restriction for both RSMS & ENS

[186.221]   At the time of application, the applicant:

(a)      had not turned 50; or

(b)      was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

The Legislative Instrument Immi 15/083 coming into force on 1 July 2015 now sets the following as the exemption:

 

Class 6

Persons:

  1. who have been working for their nominating employer as the holder of a Subclass 457 – Temporary Work (Skilled) visa for at least four years immediately before applying for their Subclass 186 or Subclass 187 visa; and whose annual earning for each year in the four year period was at least equivalent to the Fair Work High Income Threshold [$138,900 from 1 July 2016] ;

[Note this does not mean that the person needs to be on the same subclass 457 visa over all of the four years. The applicant needs to meet the requirements – one assume for the temporary residence stream (2 years out of 3) but the rest of the time can be on a difference subclass 457 visa in a different position.]

or

  1. Medical practitioners (ANZSCO MINOR GROUP 253):
    1. who have been working in their nominated occupation as the holder of a Subclass 457 – Temporary Work (Skilled) visa for at least four years immediately before applying for their Subclass 186 or Subclass 187 visa;
    2. this employment was located in regional Australia, as prescribed in an instrument in writing made under subregulation 5.19(7), for at least two of these years; and
  • whose nominated position is located in regional Australia, as prescribed in an instrument in writing made under subregulation 5.19(7); or
  1. Medical practitioners (ANZSCO MINOR GROUP 253):
    1. who have been working in their nominated occupation as the holder of a Subclass 422 – Medical Practitioner visa before becoming a holder of a Subclass 457 – Temporary Work (Skilled) visa at least two years in the four years immediately before applying for their Subclass 186 or Subclass 187 visa;
    2. this employment was located in regional Australia, as prescribed in an instrument in writing made under subregulation 5.19(7), for at least two of these years; and
  • whose nominated position is located in regional Australia, as prescribed in an instrument
  1. in writing made under subregulation 5.19(7).

Class 7

Persons:

  1. Persons who hold Subclass 444 – Special Category visa; or Subclass 461 – New Zealand Citizen Family Relationship (Temporary) visa and who have been working in their nominated occupation for their nominating employer for at least two years (excluding any periods of unpaid leave) in the previous three years, immediately before applying for their Subclass 186 – Employer Nomination Scheme visa or Subclass 187 – Regional Sponsored Migration Scheme visa.: or
  1. Medical practitioners (ANZSCO MINOR GROUP 253):
  2. who have been working in their nominated occupation as the holder of a Subclass 422 – Medical Practitioner visa for at least the four years immediately before applying for their visa;
  3. this employment is located in regional Australia, as prescribed in an instrument in writing made under subregulation 5.19(7), for at least two of these years; and
  • whose nominated position is located in regional Australia, as prescribed in an instrument in writing made under subregulation 5.19(7); or
  1. Medical practitioners (ANZSCO MINOR GROUP 253):
  2. who have been working in their nominated occupation as the holder of a Subclass 422 – Medical Practitioner visa before becoming a holder of a Subclass 457 – Temporary Work (Skilled) visa in the four years immediately before applying for their Subclass 186 or Subclass 187 visa;
  3. this employment was located in regional Australia, as prescribed in an instrument in writing made under subregulation 5.19(7), for at least two of these years; and
  • whose nominated position is located in regional Australia, as prescribed in an instrument in writing made under subregulation 5.19(7).

The Fair Work High Income Threshold is $136,700 (check www.fairwork.gov.au from time to time for this figure as it is adjusted on 1 July each year).

It is important to note what that figure consists of (according to the Fair Work Ombudsman) which is:

‘Earnings’ for the high income threshold, include:

  • wages
  • money that is paid on their behalf (e.g. superannuation top-ups or salary sacrifice)
  • the agreed value of non-monetary benefits (e.g. laptops and mobile phones).

An employee’s earnings don’t include:

  • payments that can’t be set in advance (e.g. commissions, bonuses or overtime)
  • reimbursements
  • superannuation contributions that the employer has to make.

This is a slightly different calculation to that normally done in migration law and a point yet to be determined is if the figure is based on a 38 hour week or not.  Some mining employees in the trade area may very well earn much more than $136,700 once all allowances and regular overtime are taken into account.

Barbara DavidsonExemptions for Age and English Recast