Author Archives: Peng Cheng

  The Subclass 186 Employer Nomination Scheme visa is a permanent residency visa that requires the sponsorship of a nominating employer. There are two separate pathways or streams for the 186 visa. You can satisfy the requirements of either stream before applying for the 186 visa. The streams are called the Direct Entry stream, and the Temporary […]

 

The Subclass 187 RSMS visa is a permanent residency visa that requires the sponsorship of a nominating employer for a role that is located in ‘regional Australia’.

The main difference between a 187 RSMS visa and a 186 Employer Nominated Scheme visa is that for a 187 visa, you need to be nominated by your employer to work in their business which is located in a part of regional Australia. Regional Australia is defined by postcode. Your nominated role must be performed in one of these eligible areas.

While only certain postcodes are eligible for RSMS in New South Wales (NSW), Victoria and Queensland, the entire states of Western Australia, South Australia, Tasmania, the Australian Capital Territory (ACT) and Northern Territory are deemed to be regional and eligible for RSMS. This means that you may be able to apply under RSMS even if you are  nominated to work for an employer in metropolitan Perth, Adelaide, Hobart, Canberra or Darwin.

There are two separate pathways or streams for the 187 visa. You can satisfy the requirements of either stream before applying for the 187 visa. The streams are called the Direct Entry stream, and the Temporary Residence Transition stream.

 

Main eligibility requirements for 187 visa

 

In order to obtain a 187 visa, the visa applicant and the employer will need to satisfy a number of requirements, including the following key requirements:

  • The visa applicant needs to perform the nominated role at the employer’s business premises which is located in a regional area. Regional areas which are eligible are defined by postcode. While only certain postcodes are eligible for RSMS in New South Wales (NSW), Victoria and Queensland, the entire states of Western Australia, South Australia, Tasmania, the Australian Capital Territory (ACT) and Northern Territory are deemed to be eligible
  • If the visa applicant is applying under the Temporary Residence Transition stream, then the applicant needs to complete 2 years of full-time work as a 457 visa holder
  • If the visa applicant is applying under the Direct Entry stream, then the role that the visa applicant is nominated to perform needs to align with an eligible ANZSCO occupation which are all ANZSCO occupations that specify a Skill Level of 1, 2 or 3
  • If the visa applicant is applying under the Direct Entry stream, then the employer will need to lodge an application to the relevant Regional Certifying Body to demonstrate that there is a genuine need for the visa applicant and that the position cannot be filled by an Australian citizen or permanent resident who is living in that area. This generally means that the employer will need to advertise the nominated role in the local newspaper and/or online for a period of 2-4 weeks
  • Visa applicant must satisfy the English requirement for this visa, or one of the available exemptions
  • Visa applicant’s salary must be consistent with the ‘Australian market rate’ for the nominated role

Please note that the above listed requirements are not the only requirements that the visa applicant and the employer/sponsor need to satisfy in order to obtain a 187 visa. The above does outline the key requirements.

 

 

Commitment that you make as a Subclass 187 visa applicant

 

In the visa application form, as the applicant, you are required to declare that you:

  • Agree to work in the nominated position for at least two years
  • Understand that if you as the applicant, or any family members included in the application or third parties acting your behalf, provide (or have provided in a previous application) false or misleading information, or bogus documents either knowingly or otherwise, the visa application will be refused and you may be subject to three year bar in relation to visas to which the fraud criterion applies. Any visa granted may be cancelled.

Effectively, this means that when your visa application is lodged, you must have the intention to work for your sponsoring employer in your nominated role for at least 2 years from the date that the 187 visa is approved.

What are the consequences if you end your employment before completing 2 years following the approval of your visa? Have a read of this post which explains the potential consequences.

 

Temporary Residence Transition (TRT) stream

 

To apply under the Temporary Residence Transition stream, you need to complete two years of employment with the employer that sponsored you for your 457 visa. Employment with a different 457 visa sponsor cannot be counted towards the two years. You need to have been working in the role that you will be sponsored for under the Subclass 187 visa application for at least 2 out of the last 3 years (excluding periods of unpaid leave).

 

English language requirement – TRT stream

 

You need to have ‘vocational’ English language ability which is satisfied if any of the following applies to you:

  • If you hold a passport from the United Kingdom, the United States, Canada, Ireland or New Zealand; or
  • The English examination scores that you need to achieve for Vocational English are as follows:
Listening Reading Writing Speaking
IELTS 5 5 5 5
TOEFL iBT 4 4 14 14
PTE Academic 36 36 36 36
OET B B B B

 

You are exempted from having to satisfy the English language requirement if:

  • You are a Minister of Religion nominated by a religious institution, or
  • Your guaranteed annual earnings for your nominated position is at least equivalent to the highest current Australian individual income tax rate (currently $180,001 per annum), or
  • If you have completed at least 5 years of full-time study in a secondary and/or higher education institution where all the tuition was delivered in English

 

Direct Entry (DE) stream

 

To apply under the DE stream, the following needs to be satisfied:

  • The tasks required (and accordingly the nominated position) corresponds to an occupation at an ANZSCO skill level of 1, 2 or 3. These skill levels generally correspond to occupations which are managerial, professional, or trade based.
  • There is a genuine need for the nominator to employ this employee and that the position cannot be filled by an Australian citizen or permanent resident who is living in that area. Applicants need to show, amongst other criterion, that the position is required and genuine given the nature of the employer’s business, the business’ size and operations, whether the business is expanding or diversifying their activities and whether there is a vacancy in the business. Some Regional Certifying Bodies require evidence of advertisement and responses to them from job applicants to demonstrate that the position had been advertised locally and that no suitable candidate was found.
  • The relevant Regional Certifying Body (RCB) has approved the relevant 187 nomination application.

 

Regional Certifying Bodies (“RCB”)

 

A RCB is required to provide advice to the Department in relation to whether the above criteria have been satisfied, that is, the position is genuine given the nature of the business and the position could not be filled by an Australian permanent resident or citizen. They basically conduct their own assessment using similar evidence as that provided for the 187 nomination application, and any additional supporting evidence as specified by the relevant RCB.

RCB application and approval is only required for the 187 DE stream. It is not required for the TRT stream.

Each region has its own RCB and you need to choose the appropriate RCB to conduct this assessment based on your employer’s location (a list of RCBs can be found here). It is also important to note that most RCB charge a fee for this service.

 

Relevant work experience

 

The work experience requirement was recently changed. Previously, for certain trade occupations such as Cook, Chef, Plumber etc., you needed to demonstrate 2 years of on-the job training completed as part of your course, or 2 years of relevant work experience.

For these trade occupations, the visa applicant now just needs to demonstrate that he or she has the relevant qualifications or relevant work experience to satisfy the ANZSCO framework. If the applicant relies on an Australian qualification, that qualification must be as specified within the ANZSCO framework for that occupation. For example, if the nominated position were that of a cook (ANZSCO 351411), the applicant must demonstrate one of the following:

  1. hold a relevant AQF Certificate IV or
  2. hold a relevant AQF Certificate III including at least two years of on the job training or two years of post-qualification work experience or
  3. have at least 3 years of relevant experience.

 

Skill Assessment

 

A skill assessment for your nominated occupation is generally not required unless your nominated occupation is one of these listed trade occupations. If your nominated occupation is one of these listed trade occupations, then you need a positive skill assessment or you need to have a relevant Australian qualification that satisfies that ANZSCO requirement.

 

English language requirement – DE Stream

 

The English language requirements for the Direct Entry and Temporary Residence Transition streams are different.

You need to have ‘competent’ English language ability which is satisfied if:

  • If you hold a passport from the United Kingdom, the United States, Canada, Ireland or New Zealand; or
  • The English examination scores that you need to achieve for Competent English are as follows:
Listening Reading Writing Speaking
IELTS 6 6 6 6
TOEFL iBT 12 13 21 18
PTE Academic 50 50 50 50
OET B B B B

 

You are exempted from having to satisfy the English language requirement if:

  • You are a Minister of Religion nominated by a religious institution, or
  • Your guaranteed annual earnings for your nominated position is at least equivalent to the highest current Australian individual income tax rate (currently $180,001 per annum)

 

Common eligibility requirements

 

Irrespective of whether you are applying under the Direct Entry or Temporary Residence Transition stream, you need to satisfy these common requirements:

  • You can apply for this visa if you hold a substantive visa, or a bridging visa A, B or C. If you hold a bridging visa, you won’t need to address Schedule 3
  • Age requirement
  • Equivalent terms and conditions of employment
  • If it is compulsory for you to obtain registration or licencing for you to practice in your nominated occupation, then you need to obtain this at the time of your application

 

Age requirement

 

You need to be under 50 years of age at the time that you lodge your application. There are only a few allowed exceptions to this requirement for those applicants that are 50 years of age or over which are outlined below:

  • Ministers of religion nominated by a religious institution
  • Researchers, scientists and technical specialists at ANZSCO skill levels 1 or 2 who have been nominated by an Australian government agency
  • Senior academics employed by a university in Australia
  • And for Temporary Residence Transition stream only: Persons holding subclass 457 visas, who have a) worked for their nominating employer for at least the 4 year period preceding the visa application and b) been paid at least the Fair Work High Income Threshold (as of 1 July 2013, this amount is $129,300) for each of these 4 years

 

Equivalent terms and conditions of employment

 

  • Your sponsoring employer needs to demonstrate that the terms and conditions of your employment are no less favourable than the terms and conditions of employment for an equivalent Australian citizen or permanent resident (known as the ‘market rate’ requirement). Your employer can show this by providing a copy of the contract of an Australian citizen or permanent resident that is working in the same position and location as your nominated role under the Subclass 187 visa application (other evidence of the Australian’s salary may be acceptable such copies of payslips or payment summaries).
  • If there is no much equivalent Australian, then your employer can provide evidence of what the Australian market salary rate is for your nominated role and show that your guaranteed annual salary is at least equal to the market rate (e.g. provide salary survey data for your industry and role).

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Dependents who are over 18 – Functional English language ability

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This applies for both the DE and TRT streams.

All adult dependents who are over 18 years of age will need to demonstrate ‘functional’ English language ability. This can be demonstrated in a number of ways:

  1. Achieve English examination results outlined below; or
  2. Complete all years of primary education and at least 3 years of secondary education at educational institutions in which all instruction was conducted in English; or
  3. Complete at least 5 years of secondary education at institutions in which all instruction was conducted in English; or
  4. Complete in Australia at least 1 year of full-time study or equivalent part-time study towards a degree, higher degree, diploma, or associate diploma at an institution or institutions where all the instruction was conducted in English; or
  5. Hold an award (being a degree, a higher degree, a diploma or a trade certificate) that required at least 2 years of full-time study or training; and all instruction (including instruction received in other courses for which the person was allowed credit) for that award was conducted in English.

Required Scores to establish Functional English are as follows:

Test component Average test score
IELTS 4.5
TOEFL iBT 32
PTE Academic 30

 

 

The application process

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You can only lodge an application using the Department’s online portal.

You can only prepare the online visa application form once your nominating employer has at least started to prepare the nomination application for your role (which is also prepared using the online portal). This is because you need the nomination application TRN which will be issued to your employer once they have started to prepare the nomination application.

You can lodge your visa application while you are inside or outside of Australia (but you won’t be granted a Bridging Visa A that is associated with your Subclass 186 visa application if you are outside of Australia at the time of lodgement).

After you have lodged the application, you upload the supporting documents electronically. As part of the initial application, you do not need to submit any actual paper work or forms. It is all online.

In my experience with NSW applications, normal processing time is 3-8 months.

 

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How much does this visa cost?

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The below is just a list of the relevant government lodgement fees:

  • 186 nomination application: $540
  • Base application fee: $3520
  • Additional applicant charge for each additional adult that is 18 years and over: $1760
  • Additional applicant charge for each additional adult that is 18 years or under: 880

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Secondary visa application charge (SVAC)

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This needs to be paid if anyone in your application who does not satisfy the English language requirement that applies to them. However, as the primary applicant, you need to meet the English language requirement. If you do not meet the English language requirement – then one of the exemptions outlined above must apply to you. If one of the exemptions apply to you as the primary applicant, then you need to pay the SVAC if you also do not have ‘functional’ English language ability.

This fee is paid at the time of decision so your case officer will contact you at the time that the payment is required.

As the primary applicant, if you don’t have functional English language ability, then the SVAC is $8,520. For other adult dependents that can’t demonstrate functional English, the SVAC is $4,520.

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Frequently asked questions

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  1. Q: For the TRT stream, can I count work that I completed under another visa like 485 and student visa?
    A: No
  2. Q: For the TRT stream, can I count work completed with a different employer?
    A: No
  3. Q: For the TRT stream, can I lodge my application before I complete 2 years of full-time work if I am close to completing 2 years?
    A: No – you must satisfy the 2 year requirement at the time of application

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How we can help

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Please Contact Us if you require our assistance.

Our Client Testimonials reflect:

  • the excellence of our work
  • our willingness take on the difficult cases and achieve the outcomes that our clients want
  • our willingness to cater our services to the precise needs of our clients, including working outside of normal business hours and providing limited assistance where needed such as  helping to resolve a specific issue or issues with a particular application
  • our ability to assist business and private clients from all over Australia and the world! We are based in Sydney NSW, however, we have assisted business and private clients from all over Australia and the world. We have never had issues with assisting clients that we don’t get to meet in person

 

* Subject to completion of assessment, and confirmation that we can assist with the application.

 

One very common question that we get from 457 visa holders is – what should I be paid? I can’t tell you the exact amount that you should be paid. However, I can outline how you can determine the salary amount that you should be paid under migration legislation.

This article outlines the obligations that are imposed on sponsors / employers under Australian migration law in terms of salary payment for 457 visa holders. Hence, if your employer is not paying you this salary, they are in breach of migration law and the obligations that are imposed on employers / sponsors.

Before you ask what you exact salary should be, please note: this post pretty much explains that I can’t tell you what your exact salary should be. However, you should be able to work it out yourself by researching what your ‘equivalent terms and conditions of employment’ should be.

 

 

Equivalent terms and conditions – ‘Market Rate’ requirement

 

Your employer needs to demonstrate that your terms and conditions of employment are no less favourable than the terms and conditions which an ’equivalent Australian’ employee is or would be receiving. This includes showing that your ‘Guaranteed Annual Earnings’ (“GAE”) are at least equal to the Australian market salary rate for your role.

The sponsor must pay you the GAE that is specified in the nomination application or the ‘market salary rate’ as it varies over time, whichever is greater. This means that your sponsoring employer is obligated to periodically review your salary and increase it as the Australian market rate for your role increases.

Also, for an occupation to be sponsorable under a 457 visa, the Australian market rate for the role must be equal to or above the Temporary Skilled Migration Income Threshold (see below further explanation).

The nominating employer does not need to show that the ‘market rate’ requirement is met if the applicant’s GAE is $250,000 or greater. This is an exemption to this requirement.

 

What can be included in ‘Guaranteed Annual Earnings’

 

Guaranteed Annual Earnings (GAE) can only include the following types of payments and allowances:

  1. Your base wage
  2. Any payments which are applied or dealt with on your behalf or at your direction (e.g. your accommodation or housing allowance which your employer covers and pays directly to the landlord)
  3. The agreed monetary value of non-monetary benefits (e.g. health insurance, car, mobile phone and laptop etc.). This is just the agreed monetary value as agreed between yourself and your employer

The following cannot be counted towards GAE:

  1. Any payments or allowances which cannot be determined in advance such as commissions, incentive-based payments and bonuses, and overtime (unless the overtime is guaranteed)
  2. Reimbursements
  3. Compulsory superannuation contributions. Guaranteed contributions to superannuation that exceeds the contribution that is required under legislation can be counted towards GAE

 

Demonstrating the Australian ‘market salary rate’

 

Your sponsoring employer needs to demonstrate that the terms and conditions of your employment are no less favourable than the terms and conditions of employment that would be provided to an ‘equivalent Australian citizen or permanent resident’. This can be shown by providing a contract of an Australian citizen or permanent resident that is working in the same position and location as the role that you are nominated to perform for the purposes of the visa application.

Because the Department needs to compare ‘apples with apples’, there may be components of the equivalent Australian’s salary which need to be excluded. Since your employer can’t count bonuses, compulsory superannuation and payments which can’t be determined in advance in calculating your GAE, these types of payments can also be excluded from the equivalent Australian’s salary. Once your employer has excluded these types of payments, it can determine the minimum GAE that you must be paid.

Beyond looking at just the salary, the Department will also compare the equivalent Australian’s terms and conditions of employment and assess whether your terms and conditions are at least as favourable. This includes looking at various aspects of the employment contract such as the number of hours of work required, leave entitlements etc.

 

Relevant industrial award

 

Your nominated occupation may be governed by a relevant industrial award which will specify the salary that you should be paid. For example, a registered nurse working in Victoria will have his or her terms and conditions of employment governed by the Nurses Award 2010, including the salary that he or she should be paid.

You can be paid a salary that is higher than the level specified in the relevant award.

 

No equivalent Australian working

 

Your employer may not have an Australian citizen or permanent resident that works as an employee in the same role and location as your nominated role.

If this is the case, then your employer can provide evidence of what the Australian market salary rate is for your nominated role and show that your GAE is at least equal to the market rate. This is generally demonstrated by providing Australian market salary survey data. This data needs to be relevant to the nominated role and the location where you will be working (i.e. market salary data, such as Hays Salary Guides, will usually give specific data for various capital cities around Australia).

 

Finding appropriate market data for your role/industry

 

This is really just a matter of completing research. So here some of the resources that I use for finding market data:

The market data usually provides you with a range for the Australian market salary rate for a particular role (e.g. $70,000 to $85,000 per annum). If your GAE falls within this range, or is above it, then the market rate requirement is generally met.

You can also rely on job advertisements for similar roles in order to demonstrate the Australian market salary rate for the nominated role, as long as the advertisement relates to a role that is in the same location as the nominated role. You can use online advertising such as Seek, or local advertising such as newspaper advertisements.

 

What if your GAE is below the ‘market rate’?

 

Simply put, the nomination application may be refused if the equivalent terms and conditions of employment requirement is not satisfied. The case officer may contact your employer and let them know that this requirement is not met and ask them whether they would like to withdraw the application (or they may just refuse the application).

The Department may approve a nomination application where the applicant’s GAE is below the market rate. I have seen this happen when the difference between the applicant’s GAE and the market rate is relatively small.

Such nomination applications are always more risky because you are not satisfying one of the eligibility requirements. The employer can provide a statement which explains the short-fall between the applicant’s GAE and the market rate. The explanation can draw on things such as the applicant’s experience level, qualifications and/or skill set etc. But there is a very real possibility (and I would say likely possibility)  that the Department will refuse such an application.

 

Temporary Skilled Migration Income Threshold

 

The Temporary Skilled Migration Income Threshold (‘TSMIT’) only applies to 457 visas. This threshold is set to ensure that all 457 visa holders have sufficient income to support themselves.

In order for your nominated role to be sponsorable under a 457 visa, your sponsoring employer needs to show that the Australian market rate for your role is at least equal to TSMIT (which is currently AUD $53,900 per annum). You will note that with this eligibility requirement (which is addressed as part of the 457 nomination application that your sponsoring employer prepares and lodges), the case officer is comparing the Australian market salary rate for the nominated occupation, not your actual salary, against TSMIT. If the market rate for the nominated role is below TSMIT, then the position itself is not sponsorable under a 457 visa.

Consequently, even if your (proposed) guaranteed annual salary is above the market rate and TSMIT, if the market rate itself is below TSMIT, then the position is not sponsorableThe 457 nomination application will be refused.

The Department generally increases TSMIT every year in accordance with inflation.

 

How we can help

 

Please Contact Us if you require our assistance.

Our Client Testimonials reflect:

  • the excellence of our work
  • our willingness take on the difficult cases and achieve the outcomes that our clients want
  • our willingness to cater our services to the precise needs of our clients, including working outside of normal business hours and providing limited assistance where needed such as  helping to resolve a specific issue or issues with a particular application
  • our ability to assist business and private clients from all over Australia and the world! We are based in Sydney NSW, however, we have assisted business and private clients from all over Australia and the world. We have never had issues with assisting clients that we don’t get to meet in person

 

* Subject to completion of assessment, and confirmation that we can assist with the application.

 

Has your visa application been refused or your visa cancelled? Or are you an employer that lodged a business sponsorship or nomination application which was refused? You may be able to appeal this decision to the Migration Review Tribunal (‘MRT’).

 

What can the MRT do for you?

 

The MRT can make a decision in your favour and decide that the Department’s decision is incorrect and send the matter back to the Department for reconsideration.

If the matter is sent back to the Department for reconsideration, generally speaking, the Department will grant the visa or revoke the visa cancellation.

The MRT can also decide that the Department’s decision was correct and confirm this in its decision. If this occurs, then your appeal is not successful (the consequences of this are explained below).

 

Consultation service

 

Because there is a strict time limit for applying for review, we strongly recommend that you contact us as soon as you receive your refusal or visa cancellation notification.

Here are some examples of successful MRT applications that we have assisted with.

Our consultation service fee is only $195.00 (inclusive of GST). As part of this service, we will provide you with up to 2 hours of consultation with our principal migration agent and solicitor. Depending on your preference, we can arrange for a face-to-face meeting, phone or Skype call, or written email advice. As part of this consultation service, we can advice you in relation to your likelihood of success with an appeal, and so determine if you are eligible to lodge another visa application.

Please feel free to contact us by email or give us a call (02 9593 0335 or 0401 000 568. Please note that our business hours are 9am to 5pm, Monday to Friday, Sydney – Australia Eastern Standard Time).

 

Who can apply for MRT review?

 

You may be able to apply for MRT review in the following situations:

  • You are in Australia, applied for a visa and this application was refused by the Department
  • You are in Australia and your visa was cancelled by the Department
  • You are in Australia and your visa was cancelled and your application to have the cancellation revoked was refused by the Department
  • You are sponsored or nominated by an employer or another person for a visa, and you lodged this visa application outside of Australia. Approval of the sponsorship or nomination must be a requirement for visa approval. Your sponsor or nominator may apply to the MRT for review of the decision to refuse your visa application. Individuals who may be able to apply for MRT review on this basis include applicants who are sponsored by their employer (457, 186 or 187 visas), sponsor or partner (309/100 and 300 visas), family members (carer or remaining relative visas) etc. Note: For Resident Return visas and Visitor visas, only a parent, spouse, child, brother or sister of the visa applicant may apply for review
  • You are an employer that applied for Standard Business Sponsorship and this application was refused

The MRT cannot review:

  • A decision to cancel a visa if the cancellation occurred when the visa holder was outside of Australia

If the visa applicant or holder is in Australia, then they are the person who should apply for review. If the visa applicant is overseas, then in most cases the Australian sponsor, nominator or family member makes the application for review.

The business sponsor or employer must apply for review in relation to a refusal of a Standard Business Sponsorship or nomination application.

 

What is the MRT application fee?

 

The MRT application fee is currently $1,604.00.

Half the application fee will be refunded if you are successful with your MRT appeal.

There is no refund if your application is not successful, or if you later withdraw your MRT application.

 

What is the time limit on applying for MRT review?

 

It is important to note that there is a strict time limit by which you need to submit your MRT appeal application. The time limit will depend on the decision which is being challenged. However, the time limit within which you need to apply for MRT review is generally short.

It is important that you carefully read the refusal or cancellation notice from the Department – this will tell you whether your refusal or cancellation is MRT reviewable, and the time by which you need to submit your application for review.

The MRT cannot accept an application for review that is submitted outside of the allowed time frame. This is very strictly enforced and there are no exceptions.

 

How long do I have to wait before my matter is heard?

 

Generally speaking, waiting times are very lengthy and is around 12 to 18 months. Check the MRT website for average processing time.

If you have circumstances that may warrant the MRT treating your case with priority, you should bring this to the attention of the MRT (preferably when you lodge the application for review), together with appropriate evidence of why you require priority processing. Relevant circumstances could include:

  • being in detention
  • suffering from a serious medical condition
  • experiencing serious financial hardship, or
  • separation of a child from a parent or care giver

 

How does the MRT process work?

 

The MRT will consider your case as if it is a fresh application, and will look at:

  • All evidence, forms and interview records held by the Department
  • Any submissions or evidence which you submit to the MRT for their consideration, and
  • Any evidence provided at the hearing

The MRT also has independent power to conduct its own investigations. For example it may contact your employer, friends or family if you have provided evidence from, or about, them.

If the MRT has any adverse information about you (i.e. information which may cause the review application to fail) then it will notify you and ask you to comment on that information. If you receive such a notification it is very important that you do respond to the request for comments within the time limit specified, otherwise your review application may fail.

Generally speaking, the following events will occur when you appeal to the MRT:

  1. You will lodge your MRT application within the allowed time limit
  2. The MRT will send you a letter confirming that they have received your application. This letter also ask you to lodge any documents or information that you think is relevant to your appeal
  3. Your case will be allocated to a Tribunal Member who will review the documents relevant to your matter
  4. The Tribunal Member may be able to make a favourable decision just based on considering the documents and evidence that they have before them. If a favourable decision can be made on this basis, then the MRT will contact you once the decision is made. If a decision cannot be made based on considering only the documents and information held by the MRT, then you will be invited to provide comments or provide further information to the MRT – it is important that you do respond to this invitation
  5. In most cases, you will be invited to attend a hearing that is conducted by the Tribunal Member. Your migration agent can attend the hearing with you. However, generally speaking, your migration agent cannot act as your representative and speak on your behalf. You can speak with your migration agent, and get advice and clarification from him or her during the hearing. You can request an interpreter if required
  6. After the hearing is finalised, the MRT will generally send you a written statement advising of the Tribunal Member’s decision

 

What if the MRT appeal is successful?

 

If your MRT application is successful, then your application will actually be remitted back to the Department for a final determination and decision.

The Department’s processing time for such applications is generally relatively short – say 2-4 weeks. However, processing times do vary significantly, and it may be months before you receive a decision from the Department.

Approval of your MRT appeal does not guarantee that your application will be approved. The Department will still check to ensure that all the relevant eligibility requirements are satisfied. I have seen cases where the applicant has been successful with their MRT appeal, but then the visa application is later refused for a different reason, such as not satisfying the relevant health and character requirements.

 

What if my review is not successful?

 

If your application for review at the MRT is not successful then you will be notified that you have 28 days in which make arrangements to leave Australia. If you do not want to leave Australia then you have two potential further avenues for review:

  • you can make a written request to the Minister to exercise her/his personal discretion to grant you a visa, or substitute a more favourable decision. This is an application for Ministerial Intervention
  • In limited circumstances you may be able to appeal to the Federal Court or the Federal Magistrates Court – there are strict time limits for any such appeal

 

Can I apply for another visa while I am waiting for my MRT hearing?

 

If you are still holding a substantive visa, then you should be able to lodge another visa application – assuming that you meet the relevant eligibility requirements. A ‘substantive’ visa is basically any visa which is not a bridging visa.

If you do not hold a substantive visa (i.e. your last substantive visa has expired and you now hold a bridging visa that is associated with the MRT appeal), then Section 48 will bar you from making a further ‘substantive visa’ application because you have had a visa refusal.

Despite s48, you can still lodge a valid application for the following types of visas: partner visas, bridging visas, Subclass 444 for New Zealand citizens and child visas.

 

Bridging visa

 

If you were granted a Bridging Visa A as a result of the visa application which the Department refused, then if you apply for MRT, this bridging visa will continue to be valid and will allow you to remain in Australia until the MRT has made a decision (assuming that you have applied for the MRT within the allowed time period). If you do not appeal to the MRT then your Bridging Visa will expire and you will need to depart Australia or become unlawful.

 

Can I work while I wait for my MRT hearing?

 

That depends on the visa that you are currently holding. If you are holding a substantive visa, which are basically all visas except for bridging visas, then you need to comply with the conditions of your substantive visa. For example, if you are holding a student visa, then there may be restrictions on the number of hours that you can work. If you are a primary 457 visa holder, then you can only work for your sponsoring employer.

If you are holding a bridging visa, then you need to check the conditions of your bridging visa. If you are holding a bridging visa and there are restrictions on your work rights, you may be able to apply for unrestricted work right.

This generally means that you need to demonstrate a ‘compelling need to work’. You need to provide evidence to show that you will suffer ‘financial hardship’ (or your household will suffer such hardship) unless you are allowed to work and earn an income.

The Department’s policy guidelines indicates that ‘financial hardship’ is established if you can show that your living expenses are greater than your ability to pay for these costs.

 

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The below are the 10 most common questions that I receive in relation to the Employer Nomination Scheme Subclass 186 visa.

Also, in this post, we outline the eligibility requirements for the 186 visa for the primary visa applicant in detail.

 

1) I’ve lodged my 186 visa application, and the company has lodged the nomination application. How long is it going to take to process?

According to the Department’s website, processing time is around 5-8 months. We think that this is a pretty good estimate of current processing times. However, this is just an indication of current average processing times. The Department’s processing time can be much longer.

Please do not ask me to predict the processing time for your application, or why there is a long delay with the processing of your application. I honestly do not have an answer for you. If you want an update in relation to your application, you will need to contact the Department.

2) Can I contact DIAC or my case officer directly and ask for an update on my application?

You can certainly do this. It is your application so even if you have a solicitor or migration agent acting for you. You can call up or email yourself and ask for an update.

But do not be surprised if this does not achieve much. Following up with the Department is not going to result in faster processing for your application. It may be difficult to contact your case officer directly, and you may not receive a clear response or any useful information (or any response at all).

3) I’ve lodged my 186 visa application and/or the company has lodged the nomination application. However, ‘something’ has come up and I don’t think that I will be able to work in the nominated position once the visa is approved. What is going to happen?

As part of the application, your sponsor makes the commitment that the nominated position will be available for 2 years on a full-time basis from the date of visa approval. Also, the terms and conditions of your employment cannot exclude the possibility of you extending your employment beyond the initial 2 years.

I am going to assume that sponsor has lodged the 186 nomination application and that the Department has not made a decision yet. You may or may not have lodged the 186 visa application. In this situation, if for whatever reason, the nominated position is no longer available, or if your sponsor is no longer able to make the commitment that is outlined above, then your sponsor’s nomination application no longer meets the eligibility requirements for nomination approval. Once your employer has determined that the eligibility requirements are no longer met, the nomination application should be withdrawn (and any associated visa application should also be withdrawn since the visa application cannot be approved without an approved nomination).

The above scenario can result from any number of causes, and may not be caused by the visa applicant at all. Below are some examples that I have encountered:

a) Due to my sponsor’s business slowing down, my nominated position has been made redundant / my employer is no longer able to provide me with full-time work / my employer cannot make the commitment that the nominated position will be available to me for 2 years from the date of visa approval; and

b) Due to personal circumstances (e.g. illness, situation with family member etc.), I am no longer able to work in the nominated role.

The cause can basically be any reason. It may be due to the action or situation of the sponsor, or the visa applicant. The result should be the same though. A ENS 186 visa is a permanent residency visa that is associated with a particular approved nominated position. If the nomination position is no longer available, or if the role no longer meets the eligibility requirements, then the nomination application should be withdrawn.

4) I have obtained my 186 visa. However, I need to leave my employer before I have completed 2 years of post visa approval employment. What is going to happen to my visa?

I have heard of all sorts of reasons for why people want or need to leave his or her employer. The below are just some examples:

  1. My employer is making me do duties which are not in my nominated role – I do not want to do these tasks
  2. My employer is not paying me the salary that was specified in my contract and/or visa application
  3. The ownership of my employing company has changed – I do not get along with the new management / owner
  4. I have been offered a role with another company and I want to take this
  5. My employer no longer needs my services and they have terminated my employment

Once you become an Australian permanent resident, the situation does change a bit. Generally speaking, there is nothing from a migration law perspective that can really prevent you from changing your employer or your role.

People tend to worry about whether their permanent residency visa will be cancelled if they leave their employer before completing 2 years of employment. But I would say that this generally will not occur unless you have provided the Department with ‘false or misleading information, or bogus documents either knowingly or otherwise’.

In my view, even if the Department is informed about your cessation of employment, they will not act to cancel your permanent residency visa unless they are provided with some clear evidence of fraud or misleading behaviour in relation to your visa application.

5) Do I need to work for 2 years on a 457 visa in the nominated position before I can apply for a ENS 186 visa?

Not necessarily. There are three eligibility pathways which you can satisfy in order to obtain a 186 visa. Completing 2 years of work as a 457 visa holder in the nominated role with your sponsoring employer is just one of the pathways.

Have a read of this post which explains the Temporary Residence Transition Stream (i.e. 2 years of employment as a 457 visa holder) and the pathway under the Direct Entry Stream.

6) For the Temporary Residence Transition Stream, can I count work from another employer, or work that I completed while holding a visa other than a 457 visa?

You can only count the duration of your employment as a 457 visa holder (not any other visa). The employment must be with the sponsor for your 186 visa. You cannot count employment with a previous employer.

Your work as a 457 visa holder must be the same role, or a similar role, as the role that is the subject of the 186 visa application (i.e. you cannot count employment with a different role, even if it is with the employer that is sponsoring you for the 186 visa).

7) What is the English language requirement for the 186 visa?

I have outlined English language requirement and the available exemptions. This post also covers the English language requirement for included dependents that are over the age of 18 years.

8) How much should I be paid if I obtain a 186 visa? What if I am not paid the salary specified in my contract and the nomination application?

Have a read of the ‘Market Rate’ requirement. If your sponsor is not paying you the salary specified in my contract and the nomination application, then this is more of a contract law and employment law issue. You can notify the Department, but I am not sure what action, if any, the Department would take in such a situation.

9) I’m on a 457 visa. I can submit a 186 visa application without my employer’s sponsorship?

No. You must be sponsored by an employer in order to lodge a 186 visa application. You cannot even start the online 186 visa application form until your employer has at least started to prepare the 186 nomination application (you need the reference ID from the nomination application in order to start the visa application).

10) Do I need a positive skills assessment outcome for my nominated occupation?

You need a positive skills assessment for your nominated occupation if you are applying under the skills assessment pathway of the  Direct Entry Stream.

 

Main eligibility requirements for 186 visa

 

In order to obtain a 186 visa, the visa applicant and the employer will need to satisfy a number of requirements, including the following key requirements:

  • Employer will need to satisfy the ‘training benchmark’ requirement, which generally means that it will need to provide training to its Australian citizen and permanent resident employees
  • If the visa applicant is applying under the Temporary Residence Transition stream, then the applicant needs to complete 2 years of full-time work as a 457 visa holder
  • If the visa applicant is applying under the Direct Entry stream, then generally speaking the visa applicant will need to obtain a positive skill assessment for the nominated occupation and have 3 years of relevant work experience
  • Visa applicant needs to make the commitment to work in the nominated role for a period of at least 2 years from the date that permanent residency is granted. The employer will also need to make the commitment to ensure that the role available to the visa applicant for that period
  • The role that the visa applicant is nominated to perform needs to align with an eligible occupation on theConsolidated Sponsored Occupation List
  • Visa applicant must satisfy the English requirement for this visa, or one of the available exemptions
  • Visa applicant’s salary must be consistent with the ‘Australian market rate’ for the nominated role

Please note that the above listed requirements are not the only requirements that the visa applicant and the employer/sponsor need to satisfy in order to obtain a 186 visa. The above does outline the key requirements.

requirements

 

How we can help

 

Please Contact Us if you require our assistance.

Our Client Testimonials reflect:

  • the excellence of our work
  • our willingness take on the difficult cases and achieve the outcomes that our clients want
  • our willingness to cater our services to the precise needs of our clients, including working outside of normal business hours and providing limited assistance where needed such as  helping to resolve a specific issue or issues with a particular application
  • our ability to assist business and private clients from all over Australia and the world! We are based in Sydney NSW, however, we have assisted business and private clients from all over Australia and the world. We have never had issues with assisting clients that we don’t get to meet in person

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