Subclass 186 (Employer Nomination Scheme) Permanent Visa

Subclass 186 visa applicants must be aged under 45 or be a person in any of the following six categories of applicants – 

  • academic applicants
  • regional medical practitioner applicants
  • science applicants
  • subclass 457/ 482 workers
  • transitional 457 workers under 50
  • subclass 457/482 coronavirus concession workers (applications lodged on or after 24 November 2020)

Our client was a subclass 457 visa worker applicant who did not meet the age requirement. 

A Subclass 457/482 worker applicant is a person who, at the time of application:

  • has been employed by their nominating employer in their nominated occupation at all times during the three years immediately before applying; and
  • had annual earnings for each of the three years, that were equal to or greater than the Fair Work High Income Threshold (FWHIT) that applied at the end of that year; and
  • at all times during that three year period, held a: 457 or 482The FWHIT is indexed every year on 1 July.

Since 1 July 2016, the FWHIT has been as follows:

  • 1 July 2016: AUD138,900
  • 1 July 2017: AUD142,000
  • 1 July 2018: AUD145,400
  • 1 July 2019: AUD148,700
  • 1 July 2020: AUD153,600

Problem 

To successfully apply, the sponsor must have paid our client annual earnings for each of the three years, that were equal to or greater than the Fair Work High Income Threshold (FWHIT) that applied at the end of that year; 

Our client met the FWHIT for only one out of the four last financial years. The underpayment was due to an administrative error by the employer’s HR manager, which jeopardized our client’s ability to obtain permanent residence.

The sponsor was quick to recommend a back payment to the visa applicant and to revise his ATO Notice of Assessments for three out of the last four years before lodging the subclass 186 employer nomination. 

We were not so enthusiastic. Australia’s immigration laws prohibit the act of a person asking for or receiving a benefit from another person in return for the occurrence of a sponsorship-related event. 

The word ‘benefit’ is used to describe the wide range of payments and other arrangements that may be asked for, offered, received or provided in return for a sponsorship-related event. The definition of ‘benefit’ is intentionally broad and can encompass a diverse range of scenarios that could be applied in favour of the legal definition of the term. 

The Migration Act and Regulations define the sponsorship-related events that could constitute a paying for visa sponsorship arrangement. For our purposes, this includes the scenario where a sponsorship-related event might have resulted in our client’s lodgement of the subclass 186 visa application.

The Australian employer, visa applicant and registered migration agent might have unwillingly found themselves on the receiving end of criminal proceedings in the event the incorrect procedure was followed.

Our Role

We presented a submission supported by documentary evidence to demonstrate that our client was inadvertently underpaid and that his annual income for each year of the three years immediately prior to the date of ENS application was meant to be at least equivalent to the Fair Work High Income Threshold. 

(WARNING – Written verification from the compliance and monitoring section to confirm that our approach was not unlawful was obtained before commencement). 

Outcome 

The case officer was satisfied that no party received a benefit for the occurrence of the sponsorship-related event. 

Our clients subclass 186 visa application has since been approved.