RIP training benchmarks, SAF levy commencing 12 August 2018; 457/TSS nomination validity extended

Since the training benchmarks were introduced back on 14 September 2009, under policy they had been labelled ‘interim’ benchmarks. Finally, they will be removed from immigration law on 12 August 2018, with one exemption.

In its place is the Skilling Australia Fund (SAF) Levy which had passed into law on 9 May 2018, received royal assent on 22 May 2018, but was waiting for the necessary proclamation for its introduction.

That proclamation finally occurred with associated regulations registered yesterday. This includes regulations confirming the fees required to be paid, which were previously disclosed by the Department of Home Affairs.

For 457/TSS nominations, there will be a base charge of $1200 for any business with an annual turnover of less than $10 million and $1800 for any other business, multiplied by the number of years proposed in the nomination. For 186 and 187 nominations, there is a one-off fee of $3000 for any business with an annual turnover of less than $10 million and $5000 for any other business. Charges are exempt for nominations under the Labour Agreement stream for TSS or 186 visas if the nominated occupation is for either a minister of religion or a religious assistant.

The Skilling Australia Fund Levy Regulations incorporates the charges into nomination applications for temporary and permanent employer sponsored visas. These subclasses are of course:

• Subclass 457 – Temporary Work (Skilled) visas,
• Subclass 482 – Temporary Skill Shortage (TSS) visas,
• Subclass 186 – Employer Nomination Scheme visas, and
• Subclass 187 – Regional Sponsored Migration Scheme visas.

There is a mechanism for a refund of the levy in certain circumstances, which is discretionary and which is liable to be refused should there have been found to be instances of fraud or worker exploitation. There will be no recourse for appealing any refused request for a refund to the Administrative Appeals Tribunal (AAT).

For standard business sponsors the obligation to provide training according to the training benchmarks for any 12-month anniversary period ending on or after 12 August 2018 will be repealed, however, it remains an obligation to retain records of training compliance for any year prior to 12 August 2018. There is a new sponsor obligation to retain records of annual turnover for the purposes of assessing the SAF levy.

Finally, training benchmark criteria for 186 or 187 nomination applications lodged on or after 12 August 2018 are abolished.

It seems though that one application that did not require the training benchmark to be met, will be liable for the SAF, namely, any nomination under the for a 187 visa under the Direct Entry stream.

Besides the SAF Levy, there are other very important changes to 457/TSS nominations. These are:

• The Minister can disregard the need for nominated positions to be full-time if it is reasonable to do so. Nominations for part-time employment were prohibited from 18 March 2018. It is expected that it will only be reasonable for highly-specialised work such as higher learning academics where fractional employment is the norm;
• Businesses that have their application to be standard business sponsors refused can apply to the AAT for any corresponding nominations also refused. Previously, nominations were “otherwise finalised” if a standard business sponsor application had been lodged and refused approved because only approved standard business sponsors could appeal refused nominations;
• The other significant amendment is to the validity of 457/TSS nominations. As earlier reported, nominations can only be valid for a maximum of 12 months, meaning that if a corresponding visa is refused and appealed to the AAT, due to standard processing times at the AAT longer than 12 months, nominations were at risk of expiring even if the visa application was successful. A pyrrhic victory if ever there was one. Now, nominations will remain valid beyond 12 months if a visa application is refused and appealed. This amendment is back-dated for all nominations made on or after 18 March 2018 as since that date only one nomination can be lodged for any one visa application. Before, it was possible to “re-link” new nominations to prior lodged visa applications.

With the training benchmarks abolished, will it be expected that processing for 186 and 187 visas quicken now case officers do not need to wade through training documents submitted? Given the government’s lauding over the reduction in permanent migration numbers, it is doubtful.