Migration (Specified persons and periods of time for regulation 5.19) Instrument (LIN 22/038) 2022, dated 17 March 2022, specify a new cohort of specified persons who, after 30 June 2022, will be eligible to meet requirements under regulation 5.19 of the Regulations for applications seeking approval for a nomination of a Temporary Residence Transition Stream (TRT visa). It also exempts the specified persons from the operation of paragraph 5.19(5)(c) of the Regulations.
Regulation 5.19 of the Migration Regulations 1994 prescribes the process for the approval of nominated positions in Australia, including in relation to a TRT visa. Subregulations 5.19(5) to (8) of the Regulations states requirements relating to approval for nomination for a TRT visa. The changes introduced relates to the provision of Subparagraph 5.19(5)(a)(iii) of the Regulations which states that if a nomination is in a Temporary Residence Transition stream of the subclass 186 or subclass 187 visa, the person identified in the nomination application (i.e. the identified person) must hold a subclass 482 visa in the short-term stream and be a person specified in a legislative instrument. The instrument specifies the following as cohorts of specified persons for subparagraph 5.19(5)(a)(iii), after 30 June 2022:
- A specified 457 visa holder who, on 18 April 2017, held a subclass 457 visa or was an applicant for a subclass 457 visa that was subsequently granted.
- A person who has been in Australia for at least 12 months between 1 February 2020 and 14 December 2021 and at the time of application, is employed by a person actively and lawfully operating a business in Australia.
In addition, the new specified persons and an additional cohort of subclass 457 visa holders, are also exempted, from the operation of paragraph 5.19(5)(c) of the Regulations, which states that the occupation of the identified person must be specified in a legislative instrument unless the identified person is exempted. This means that the specified persons are not required to hold an occupation on the medium and long-term strategic skills list, to have a nomination application made for them.
The new ‘periods of time have also been set out for meeting the requirements for approval which must be met if the nomination relates to a TRT visa for specified 457 visa holders. The following periods of time are specified if the identified person in an application is a specified 457 visa holder:
- a ‘period of 3 years instead of the ‘period of 4 years.
- a ‘total period of at least 2 years, instead of the ‘total period of at least 3 years
- a ‘total period of at least 2 years (not including any periods of unpaid leave)’, instead of the ‘total period of at least 3 years (not including any periods of unpaid leave)’
Also, if the identified person in an application has a COVID-19 reduced work period or unpaid leave period, instead of the total period of at least 3 years (not including any period of unpaid leave):
- For a specified 457 visa holder, a total period of at least 2 years less the COVID-19 reduced work period or unpaid leave period(not including any other period of unpaid leave); or
- For any other person, a total period of at least 3 years less the COVID-19 reduced work period or unpaid leave period (not including any other period of unpaid leave)
These provisions operate to recognize those periods of time as the time they were employed on a full-time basis.
The instrument is registered on the Federal Register of Legislation on 18 March 2022 and commenced on the same day. It is currently in force.
To access the instrument, click here.
