Consternation and legal confusion in the house…

Blog by Joan Cuss

On 18 April 2017, the Australian Prime Minister, the Hon. Malcolm Turnbull, called a press conference where he and the Hon. Peter Dutton, Minister for Immigration & Border Protection, announced with one fell swoop that the subclass 457 will be abolished, to be replaced by the new temporary skills shortage (TSS) visa by March 2018 – Read more about Government abolishing 457 visas. Click here.

The announcement came as unexpectedly as the occurrence of a tsunami – with similarly devastating impact on the lives of thousands of skilled foreign passport holders – ending their dreams of being able to make Australia home (temporarily and/or permanently).

As from 19 April 2017, 216 457 occupations were abolished by the Prime Minister with the flick of a very powerful regulatory switch – here is an alphabetical list of the abolished occupations: Click here.

As from 19 April 2017, both the following lists/schedules can be used for 457 visa applications:

• Medium and Long-term Strategic Skills List (MLTSSL) replaced the previous ‘Skilled Occupation List’ (SOL) – see Schedule 1 of the legislative instrument. Click here.
• Short-term Skilled Occupation List (STSOL) replaced the previous ‘Consolidated Sponsored Occupation List’ (CSOL) – see Schedule 2 of the relevant legislative instrument. Click here.

Immigration is used and abused by politicians and political parties across the globe for self-serving, vote-winning purposes – Australia is no exception to the rule. Remember, neither a 457 visa holder nor a permanent resident has the right to vote in Australia.  These foreigners are therefore quite simply irrelevant to our slick, voter-lobbying, Prime Minister whilst working at his own survival strategy, in heading towards the next general Federal election. Many political commentators have concurred that the Prime Minister decided to announce the changes in an attempt to hold on to his job as leader of the Coalition.

From a broader perspective, the Prime Ministers’ announcement and the resultant changes do coincide with current global trends towards laagering and anti-immigration sentiments. It is also reasonably foreseeable that this pro-nationalist myopic pendulum of contraction will one day swing in the other direction again.  The question as to when that might be, is impossible to say: 1 year? 5 years ?, 10 years?

Impact of changes on current 457 visa holders’ rights

It appears that the rights of current 457 holders will continue as is, and apparently do not run the risk of temporary work rights visa cancellation because their occupation has been abolished.

However, should a current 457 visa holder be running out of visa time and require to apply for a new 457, they will do so in terms of the new regulatory framework.

Impact of changes on currently lodged but undecided 457 nomination and 457 visa applications

Any 457 nomination and 457 visa applications which has been lodged, but the Department have not made a decision on those applications as yet, will be subject to the new rules. This means that if a nominated occupation which has been abolished should be withdrawn to avoid a section 48 bar (preventing the possibility of a further onshore visa application lodgement) – the Department have said they will refund the DIBP lodgement charges.

If the occupation remains and is on the new Medium and Long-term Strategic Skills List (MLTSSL) the 457 visa will still be granted for 4 years.

If the occupation remains, but is only on the new Short-term Skilled Occupation List (STSOL), your 457 visa will still be granted for 2 years – and only one further temporary work visa for another period of 2 years can be granted thereafter.  This occupation/visa applicant will not become eligible to apply for transition entry (TRT) ENS permanent residence via an STSOL occupation.

The extent of the grandfathering/sunsetting assisting current 457 visa holders working towards transition entry ENS permanent residence is uncertain

It is also not clear how far the sunsetting/grandfathering (also spoken about during the press conference) will benefit the rights of current 457 visa holders working towards their 2 years employment to become eligible for transition entry (TRT)  permanent residence through ENS. This may mean that current 457 visa holders who have not accumulated a full 2 years with their current sponsors on their 457 visas by X March 2018 (actual date in March unannounced to date) are likely not to be able to apply for TRT PR through ENS, since they no longer qualify for permanent residency as the sponsored TRT minimum employment period will increase to 3 years from X March 2018. The other possibility (not clear – but unlikely) is that provided a 457 holder has enough validity period left in their current 457 visas to accumulate the 3 years of employment, they may be able to apply for TRT PR through ENS.

Should you wish to discuss any of your visa concerns, give us a call to see how we can help you.