John’s long and windy road to possible permanent residence in Australia…

Blog by Joan Cuss

A true case study we are currently advising on:

Background

John (fictitious name) is currently employed by our client, ABC Pty Ltd (fictitious name), a spirits distiller, as a production manager (manufacturing) (ANZSCO 133512) on a 457 visa, in Melbourne.

As of 19 April 2017 production manager (manufacturing) (and more than 200 other hitherto available occupations) was removed from both the new Short-term Skilled Occupations List (STSOL) and the new Medium to Long-term Strategic Skills List (MLTSSL).

This means that John can no longer use the occupation of production manager (manufacturing) to apply for his:

• 186 employer sponsored, permanent visa, located in a non-regional post-code area, or
• a new 457 temporary visa (theoretical only – since John has around 3 years left on his current 457)

ABC would like to employ John on a permanent basis.  What are their options?

1. ENS SC186 PERMANENT RESIDENCE: JOHN AS PRODUCTION MANAGER (MANUFACTURING) (ANZSCO 133512) WITH ABC (LOCATION MELBOURNE) – NO LONGER LEGALLY POSSIBLE

• John has been positively skills assessed by Vetassess as a production manager (manufacturing) (ANZSCO 133512) – skills assessment outcome X February 2016. Since production manager (manufacturing) has been abolished, as an occupational code/vehicle for an overseas skilled worker to use to achieve his 186 ENS PR visa through, John can no longer use this occupation for either his 186 direct entry PR nomination (with skills assessment) or a 186 transition entry PR nomination (working for a current minimum of 2 years for sponsor and no skills assessment), whilst employed and sponsored by ABC.
• Obiter: The good news is that despite production managers (manufacturing) no longer being eligible for temporary 457 visas going forwards – the Department have recently confirmed that the changes will not impact the rights of a currently approved 457 visa holder, unless they were to consider changing employers (therefore of academic interest only in this case).

2. DIRECT ENTRY ENS PR SC186: JOHN AS CHEMIST (ANZSCO 234211) WITH ABC (LOCATION MELBOURNE) AS SPONSOR – LEGALLY POSSIBLE

• We have carefully considered the information in John’s current resumé. John completed his M.Sc. in Brewing Science in 2001 and has been employed on an ongoing basis thereafter (and before) and in a role which may be considered relevant to both that of production manager (manufacturing) and ‘chemist’ as defined by the ABS – see http://www.abs.gov.au/ausstats/abs@.nsf/0/3557CAB3F4BD0BAECA2575DF002DA5DF?opendocument – in summary: “studies the chemical and physical properties of substances, and develops and monitors chemical processes and production”. John’s resumé as currently worded does lean towards production manager (manufacturing) – and this is most probably the same wording he used in presenting his tasks and duties to Vetassess, which achieved his formal approval as a production manager (manufacturing).
• However, if John could review and reword his resumé to focus on all the technical aspects of distilling and industrial chemistry he was previously and currently (though peripherally) employed for ABC (of course, if this was/is actually part of his core tasks and duties) – he stands a good chance to get a new skills assessment approved as chemist, as well. There can quite logically and conceivably be an overlap in his specific resumé between the occupations of production manager (manufacturing) and chemist. All details of his previous tasks/jobs are on record with Vetassess, and he will have to carefully explain how/why he now focuses his tasks/responsibilities towards chemist in his new Vetassess skills assessment application. Vetassess must convinced to accept his bona fides in this regard.
• ABC (location Melbourne) will only be able to sponsor John for his 186 permanent position visa after:
  • John has achieved a positive skills assessment as chemist (as it is still included on the new Short-term Skilled Occupation List, after the 19 April 2017 changes – after X March 2018 a visa applicant will no longer be able to use an occupation for PR ENS nomination if it is only included on the STSOL and not on the MLTSSL).
  • ABC (location Melbourne) can then offer him the role as Head Distiller (which in fact, from my initial reading of the job title, seems to more correctly require a ‘chemist’ rather than a ‘production manager (manufacturing)’) (?)
  • ABC (location Melbourne) should also ensure that his intended permanent role as Head Distiller is correctly aligned/placed on its organisation chart – the Department read these charts in great detail and glean a vast array of subliminal information from them:
    • If John has a large team of staff who ABC (location Melbourne) will be expecting to report into him, in this new role – he may possibly still be viewed by the Department as correctly nominated as a production manager (manufacturing) – which since it is no longer a legally eligible occupation for a 186 PR nomination that applications would fail (even if he was called an ANZSCO chemist in the nomination application)
    • If ABC’s (location Melbourne) organisation chart reads of preferably a smaller number of ‘scientist-type’ technical experts, who will be reporting in to him, in his permanent new role, it is more likely to stand up to the Department’s scrutiny and accepted as correctly nominated as ‘chemist’. As stated above he can still use chemist for a direct entry 186 permanent residence nomination and visa application – provided lodgement occurs before X March 2018 (exact date not announced as yet).

3. RSMS – REGIONAL SPONSORED DIRECT ENTRY – PERMANENT RESIDENCE – SC187 OPTION: JOHN AS EITHER CHEMIST (ANZSCO 234211) OR PRODUCTION MANAGER (ANZSCO 133512), WITH ABC (LOCATION REGIONAL) AS SPONSOR – BOTH OCCUPATIONS LEGALLY POSSIBLE

• Should John not be able to achieve a second positive skills assessment outcome as chemist – he can use his current positive skills assessment as production manager (manufacturing) towards an RSMS 187 direct entry nomination and visa application with ABC (location regional). Note: A positive skills assessment outcome is not an absolute prerequisite for RSMS – an applicant has to be able to prove that his skilIs are Australian Qualification Framework (AQF) compliant – and his positive skills assessment as production manager (manufacturing) would merely be one of the ways of evidencing same.
• ABC (location regional) can nominate any occupation that is ANZSCO skill level 1 to 3 (irrespective of whether it is included on the new 19 April 2017 MLTSSL list or the STSOL list. Please note the Department have recently (May 2017) added a subliminal little proviso in this regard – and have stated that these occupations can all still be used for RSMS “at this stage” – the way I read it is that the Department may very well also be considering changes to occupations in the RSMS programme.
• In order to proceed with a direct-entry 187 – ABC (location regional) must first acquire pre-approval from the specific regional certifying body (RCB) which operates across a regional area where the sponsor’s office/business premises are located. This programme does not allow for movement from one regional area to another – different RCB approvals are required. RCB applications are procedurally intricate – however the most important substantive requirement will be to evidence that there is a genuine vacancy for the position in the region, which cannot be filled by a suitably qualified and skilled Australian (citizen or permanent resident). After the RCB approval is obtained:
  • ABC (location regional) will be able to nominate John as a direct-entry 187 nominee, and John can apply for his and his family unit’s associated PR visas.
  • John has to commence his 187 PR employment position within six months of the visa being granted (this means that John just carries on working in his current 457 role with ABC Melbourne, until after his 187 visa is approved by the Department in ABC (location regional).
  • John will then be required to remain employed in his 187 nominated position by ABC (location regional) for at least two years (obiter: actually only a 187 visa ‘obligation’ and not a 187 visa ‘condition’).

Conclusion

Thereafter John would be free to work wherever he wants in Australia and without any impact or possible cancellation of his PR visa by the Department. This could therefore include returning to work for ABC (location Melbourne) in any role whatsoever.