New Skilled Regional Visas

– Subclass 491, 494, 191

The Australian Government has

announced that the target ceiling for the

migration program in the next financial

year (2019 -2020), will be 160,000 visas.

While the overall skilled figures have

been reduced, they are pretty constant

with the actual numbers from the

2017/18 year (162,417 visas against a

planned level of 190,000).

The information included in this

Instrument is extensive. The following article provides a summary of the new

legislation to be introduced, associated provisions and amendments to the

Migration Act and Migration Regulations.

These include the introduction of the new Skilled Regional Visas, the criteria and

requirements for the new visas, closure of the visa Subclasses 489 and 187, and

amendments to the Schedule 6D Points Test.

Schedule 1 of the Instrument

Introduces the Subclass 491 Skilled Work Regional (Provisional) visa

Closes the Subclass 489 Skilled - Regional (Provisional) subclass

Amends the Schedule 6D Points Test for applicants sponsored by State/Territory

Governments or family members residing in designated regional areas

Commences 16 November 2019

(14,000 places have been allocated to this visa subclass)

Schedule 2 of the Instrument

Introduces the Subclass 494 Skilled Employer Sponsored Regional (Provisional)

visa

Closes the Subclass 187 - Regional Sponsored Migration Scheme subclass

Brings employers seeking to sponsor overseas workers under Div 3 of Part 2 of

the Migration Act and Part 2A of the Migration Regulations

Commences 16 November 2019

(9,000 places have been allocated to this visa subclass)

Schedule 3 of the Instrument

Introduces the Subclass 191 Permanent Residence (Skilled Regional) visa

Details eligibility criteria for this visa, including pre qualifying visas, minimum

taxable income for three years and compliance with regional visa conditions

Commences 16 November 2022

Point Test changes

Schedule 6D to the Migration Regulations is amended to award:

15 points for nomination by a State or Territory government agency or

sponsorship by a family member residing in regional Australia, to live and work

in regional Australia;

10 points for a skilled spouse or de facto partner

10 points for certain Science, Technology, Engineering and Mathematics (STEM)

qualifications

5 points for a spouse or de facto partner with ‘competent English’

10 points for applicants without a spouse or de facto partner

Invitations for points tested visas

Invitations will be ranked in the following order:

First – primary applicants with a skilled spouse or de facto partner

Equal First – primary applicants without a spouse or de facto partner

Second - Primary applicants with a spouse or de facto partner who can

demonstrate competent English, but does not have the skills for skilled partner

points (age and skills)

Third - Primary applicants with a partner who is ineligible for either competent

English or Skilled partner points. These applicants will be ranked below all other

cohorts, if all other points claims are equal

Transitional Arrangements

Current Subclass 489 holders and applicants with lodged

Subclass 187 applications

Current Subclass 489 visa holders will continue to have access to the Subclass

887 Skilled Regional visa

Applications for first Subclass 489 may be made before 16 November 2019

Applications for second Subclass 489 visas may continue to be made on and

after 16 November 2019

Subclass 187 RSMS applications lodged before 16 November 2019 will not be

impacted by these changes

Amended Schedule 6D points test will apply to new applicants for the Subclass

491 and applicants for Subclasses 189, 190 and 489 who are yet to be assessed

The points test will operate beneficially and no applicant will be adversely

affected by this amendment

Transitional Subclass 457 visa holders

Holders of Subclass 457 visas on 18 April 2017, or applicants for a Subclass 457

visa on 18 April 2017 that was subsequently granted, are exempt from the

closure on 16 November 2019 of the Temporary Residence Transition stream of

the Subclass 187 RSMS visa

Transitional Subclass 482 visa holders

Holders of Subclass 482 visas in the medium-term stream on 20 March 2019 or

applicants for a Subclass 482 visa in the medium term stream on 20 March

2019, that was subsequently granted, are exempt from the closure on 16

November 2019 of the Temporary Residence Transition stream of the Subclass

187 RSMS visa.

New Skilled Regional Visas - features

Designated Regional Areas

At commencement of the new regional visas, it is intended that any area

excluding Sydney, Melbourne, Brisbane, the Gold Coast and Perth will be

designated as a regional area

Regional visa holders may live in any designated regional area and can move

between designated regional areas

Restricted from applying for other visas

Holders of Subclass 491 and Subclass 494 visas or who last held these visas,

are restricted from applying for the following visas, unless they have completed

at least three years in a designated regional area, unless exceptional

circumstances exist:

Subclass 124/858 - Distinguished Talent

Subclass 132 - Business Talent

Subclass 186 - Employer Nomination Scheme

Subclass 188 - Business Innovation and Investment

Subclass 189 - Skilled - Independent

Subclass 190 - Skilled - Nominated

Subclass 820 - Partner (Temporary)

Subclass 491 - Skilled Regional (Provisional)

Two streams - State/Territory sponsored and family member residing in

designated area sponsored

State/Territory sponsored stream

Must be nominated by State/Territory Government

Review rights for refusal to grant this visa to an offshore applicant will extend to

State/Territory authorities under Part 5 - reviewable decisions

Family member sponsored stream

Must be sponsored by a family member who is over 18 and is an Australian

Citizen, Australian permanent resident or eligible New Zealand citizen

Sponsor must be usually resident in a designated regional area

Sponsor must be related to the primary applicant or their spouse or defacto

partner

Family member is defined as parent, child or step-child, brother, sister, adoptive

brother, adoptive sister, step-brother or step-sister; or an aunt, uncle, adoptive

aunt, adoptive uncle, step-aunt or step-uncle; or a nephew, niece, adoptive

nephew, adoptive niece, step-nephew or step-niece; or a grandparent; or a first

cousin.

Obligation to assist visa holder to the extent necessary, financially, with

accommodation and to participate in AMEP English language program for 2

years

Applicant requirements

Schedule 6D points test applies

Must have been invited to apply

Must not have turned 45 at time of application

Must have skilled occupation on an applicable list and have a valid, suitable

skills assessment

Primary applicant must have competent English at time of application

Must declare genuine intention to live, work and study in designated regional

area

Health PIC 4005 and character PIC apply to all primary applicants and members

of family unit, whether applicants or not

May apply and be granted inside or outside Australia, but not in immigration

clearance

Must be holder of substantive visa or BVA, BVB or BVC to apply onshore

Temporary visa - five years validity

Conditions 8578, 8579, 8580 and 8581 must be imposed

VAC - Base application charge: primary applicant $3,755; additional applicant

over 18 years: $1,875; under 18 years: $940

Second VAC instalment if required - Less than functional English over 18 years:

$4,890; any other applicant: nil

Safe Haven Enterprise Visa holders or past holders, may apply for a Subclass

491 visa, subject to meeting prescribed requirements.

Subclass 494 - Skilled Employer Sponsored Regional (Provisional)

Two streams - Employer sponsored stream and labour agreement stream

Employer requirements

Nomination, application processes and sponsorship obligations largely mirror

those applicable to Subclasses 457 and 482 sponsorship

Position must genuine, full time and likely to exist for five years

Annual market salary rate (AMSR) must not be less than TSMIT $53,900; annual

earnings including non-monetary benefits must not be less than AMSR, unless

nominated under the Labour Agreement stream; and terms and conditions no less

favourable than for Australian employees must be provided

Minister must be advised by a 'body' (RDA/RCB?) with the responsibility for that

part of Australia, that the nominee will be paid at least the AMSR

SAF charges: $3000 for businesses with turnover of less than $10 million,

or $5000 for others

Cost of fees and nomination training contribution charge (SAF levy) cannot be

recovered from the overseas worker or third party - amendment to Reg 2.87S

If nominating an existing Subclass 494 visa holder, the new sponsor is expected

to assume the sponsorship obligations for family members who already hold a

Subclass 494

Subclass 494 visa holders will be provided with 90 days to find another employer,

if they cease employment with their sponsor

Visa can be cancelled if sponsor provides false and misleading information, fails

to meet sponsorship obligations, is cancelled or barred from being a sponsor or

where a party to a labour agreement, it is terminated, suspended or ceased

Applicant requirements

Must not have turned 45 at time of application

Employer sponsored stream - must have skilled occupation on an applicable list

and have valid, suitable skills assessment; Labour agreement stream - may be

required to demonstrate has necessary skills to perform tasks of nominated

occupation

Nominated occupation to be specified by corresponding 6-digit ANZSCO code

Must have been employed in the nominated occupation for at least three years on

a full-time basis and at level of skill required for the occupation; Labour

agreement stream - unless Minister considers it reasonable not to require this

Employer sponsored stream - applicant must have competent English at time of

application, unless specified in a legislative instrument by the Minister; Labour

agreement stream - English language skills suitable to perform the nominated

occupation

Employer sponsored stream - health PIC 4007; Labour agreement stream -

health PIC 4005

Character PIC apply to all primary applicants and members of family unit

whether applicants or not

May apply and be granted inside or outside Australia, but not in immigration

clearance

Must be holder of substantive visa or BVA, BVB or BVC to apply onshore

Temporary visa - five years validity

Conditions 8503 and 8534 may be waived where that visa holder has a genuine

intention to apply for a Subclass 494 visa

Conditions 8578, 8579, 8580, 8581 and new Condition 8608 must be imposed

Visa can be cancelled if the visa holder did not have a genuine intention at the

time of grant to perform the nominated occupation or ceased to have a genuine

intention to perform that occupation or the position was not genuine

VAC - Base application charge: primary applicant $3,755, additional applicant

over 18 years: $1,875, under 18 years: $940 (*Minister of Religion or member of

their family unit VAC: nil)

Second VAC instalment if required - Primary applicant less than functional

English over 18 years: $9,800; secondary applicants over 18 years $4,890; any

other applicant: nil

Safe Haven Enterprise Visa holders or past holders, may apply for a Subclass

494 visa, subject to meeting prescribed requirements

Subclass 191 - Permanent Residence (Skilled Regional) visa

Only Subclasses 491 and 494 visa holders are eligible to apply for this visa

Must have held the Subclass 491 or 494 for at least three years and substantially

complied with the conditions of the visa and Condition 8579

Must have met a minimum threshold taxable income level for at least three years

while holding the Subclass 491 or 494 (threshold to be specified by legislative

instrument)

Dependent children included as members of family unit for the Subclass 491 or

494 visas, may be included in Subclass 191 application, even if no longer able

to meet the definition of dependency

Health PIC 4007 and character PIC apply to all primary applicants and members

of family unit, whether applicants or not

May apply and be granted inside or outside Australia, but not in immigration

clearance

VAC - Base application charge: primary applicant $385; additional applicant

over 18 years: $195, under 18 years: $100

Permanent visa allowing holder to travel to and enter Australia for a period of 5

years from grant date

New Schedule 8 Conditions

Condition 8578

Notify Department within 14 days of changes to visa holder's residential address,

contact details, passport details, employer address, location of position

Condition 8579

Requires applicant to live, work and study (where relevant) in designated regional

area

Permits visa holder to move between designated regional areas

Prevents visa holder from accessing any other skilled migration visa for at least

three years

Cancellation provisions may apply if not compliant with Condition 8579

Condition 8580

Requires within 28 days, if requested in writing by the Minister, the visa holder's

residential address, address of employer, address of location of position

employed in, address of any educational institution attended by visa holder

Condition 8581

Requires visa holder, if requested in writing by the Minister to attend an interview

which may be undertaken face to face or by video conferencing applications

Condition 8608

The holder must work only in the nominated occupation identified in the

application for the most recent Subclass 494 visa granted to the holder, must

only work in position in nominating business or associated entity, unless

occupation specified by the Minister or to fulfil a legal requirement after giving

notice; commence work within 90 days of arriving in Australia; not cease work

employment for more than 90 days; continue to hold license or registration.