Skilled Immigration Update - August 2017
Written By John Unger
Thu, Aug 17, 2017
As indicated in our recent updates the Department of Immigration and Border Protection (DIBP) has provided greater clarity on what is 'acceptable expenditure' to meet training benchmarks. Further information has now been released at to what 'expenditure periods' will be applied.
Are the training benchmark changes retrospective?
It has been advised that Standard Business Sponsors (SBS) and Employer Nominated Sponsorship (ENS) Direct Entry (DE) applications that were lodged prior to 1 July 2017 will be assessed against the previous instruments and policy, not the new instrument.
Sponsoring employers who lodged SBS applications and/or ENS DE nomination applications on or after 1 July 2017 will need to demonstrate 'recent expenditure'. Recent expenditure has been defined as expenditure incurred in the previous financial year or the previous 12 months that meets Training Benchmark A or B.
How will the DIBP assess previous training benchmarks compliance?
When assessing applicants that have previously been an SBS against regulation, applicants will be assessed against the training requirements that applied during the period of their most recent approval as an SBS.
It is important to note, therefore, that requirements may be different for particular years of their sponsorship agreement, depending on which training benchmarks requirements were in place at the time.
Specifically, the advice has been that under policy, because the benchmark requirements have recently changed, case officers may take a flexible approach. This can extend to considering whether the employer has met the intention of the legislation and is committed to training Australians. In short, this suggests that it may be sufficient to demonstrate that any training provided up to 30 June 2017 complied with the previous benchmark requirements.
Skilling Australians Fund
Existing training benchmark requirements will cease in March 2018, with a new Skilling Australians Fund (SAF) levy to be paid instead at nomination time for the new Temporary Skill Shortage visa, as well as the subclass 186 and 187 visas. The SAF levy will be collected by the DIBP as part of the nomination application process.
The DIBP has confirmed that the SAF will not be collected retrospectively. It will only be collected in relation to nomination applications received for the Temporary Skill Shortage, 186 and 187 visas, after commencement in March 2018. Sponsors will need to indicate the proposed employment period for the visa nominee and the proposed period will be used to calculate the required fee.
The SAF will be managed by the Department of Education and Training (DET). It has been indicated that spending from the SAF will be prioritised towards; apprenticeships and traineeships, occupations in high demand, areas with future growth potential, as well as rural and regional Australia.
The DIBP has indicated that the SAF levy will only be refundable where a refund of the visa nomination fee is also available. For example, if the sponsorship application was refused and the nomination application is otherwise finalised, both the nomination application fee and the SAF levy would be refunded.
TSS Immigration has sought advice to clarify the requirements for companies that still have 457 visa holding employees after the introduction of the SAF levy - specifically whether there will be a residual requirement that companies demonstrate staff training expenditure. We have received advice that although the fine detail of the legislation is still to be drafted, the intention is for the current obligation to cease so that a situation of ‘double dipping’ (i.e. requiring a company to demonstrate expenditure on staff training as well as paying the SAF levy) does not arise.
Further information on the SAF is available from the DET website at www.education.gov.au/skilling-australians-fund.
Visa Processing Times
The DIBP has reported that subclass 457 visa processing times have begun to reduce begun to return processing times to normal now that the April and July changes to the program have been fully implemented. The DIBP forecast that processing times would continue to improve in the coming months.
While subclass 457 visa processing times, the DIBP reported that ENS subclass 186 and Regional Sponsored Migration Scheme (RSMS) subclass 187 processing times have increased. This has been attributed to an increase in lodgement numbers since April 2017 following the announcement of the programme changes.
In a service improvement announced by the DIBP, their systems can now automatically identify nomination applications where the employer sponsor has indicated that the nomination application is being lodged to facilitate a 457 visa holder changing employer. This will ensure that priority processing will automatically apply to such cases — without the need for manual intervention.
Direct Control Provisions
The DIBP has responded to concerns expressed about the wording of amendments to the regulation for ENS/RSMS Temporary Residence Transition (TRT) stream employer nomination applications. In the regulation, it is now specified that the position needs to be under the 'direct control' of the nominator.
It has been clarified that the intent of this is to strengthen the requirement that the nominator's need for the position to be filled is in fact 'genuine'. In other words, it appears to be the intention not to exclude from the TRT stream nominees whose position was based on an associated entity of the sponsor while on their subclass 457 visa.
It has been advised that the wording of the regulation is intended to be further updated to better reflect this. Until this update occurs, however, we understand that the reference to 'under the nominator's direct control' will not adversely impact the assessment of nominations.
The DIBP has advised that they will adopt a wider interpretation in instances of an established corporate relationship, including with associated or subordinate entities, by recognising that a 'direct control' test can potentially be satisfied in the context of the larger corporate structure, while not allowing unrelated businesses to employ the visa applicant. This essentially mirrors the types of commercial relationships allowable for 457 visa nominations.
For further information on any topic addressed in this article, please contact TSS Immigration on 03 9421 1020 or by email through our contact form.
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