The Australian immigration department has recently slashed the number of occupations under which people wanting to migrate to Australia are eligible to apply.

The subclass 119 / 857 Regional Sponsored Migration Scheme   (RSMS) visas offer alternative Australian permanent residence pathways to people who may not be otherwise eligible to apply for independent skilled migration to Australia.

To be eligible for the grant of permanent residence under the subclass 119 / 857 pathway you must have an employer willing to sponsor you into Australia, in a regional or low growth area.

The regional sponsored migration visa subclass 119 is for applicants applying outside of Australia and, for those in Australia but who do not hold a ‘qualifying’ Australian visa. Therefore, it is known as an ‘offshore’ application.

Consequently, the subclass 119 Australian visa application, although an ‘offshore’ application,  can be lodged either in or outside Australia but the applicant must be outside Australia when it’s granted.

The regional sponsored migration scheme visa subclass 857 must be lodged in Australia and the the application must be in Australia and hold a qualifying visa.  

There are a number of visa types that allow applicants to lodge an onshore visa including, but not limited to, the subclass 457 Temporary (Long Stay) Visa and selected Australian student visas.

Which Employer’s can Engage in the Regional Sponsored Migration Programme?

Any Australian employer who operates a business in a regional or low growth area of Australia can be part of this scheme.

The regional areas that are included in the regional sponsored migration scheme are set by law, are divided into post codes and most large cities are not included in this list. The list in effect at the time of writing this article is found in  - Gazette Notice; F2009 L03976, 5 November 2009 IMMI 09/120 Migration Regulations 1994 - Regional Certifying Bodies and Regional Post Codes.

Employment Requirements

To be eligible under the Australian RSMS pathway, your offer of employment must be for full time work, valid for at least 2 years and be a position that cannot be filled by an Australian employee and is located in a regional area or low growth area of Australia.

Primary Applicant/Employee

The Primary applicant who is going to be sponsored must meet the minimum criteria to be eligible for this visa. They are age, skill, language and they must have an employer in Australia who is willing to offer them sponsorship under this permanent visa category.

·         The applicant must be under the age of 45.

·         Have been offered a 2-year contract from an Australian employer.

·         Meet all the mandatory licensing and membership requirements of their particular occupation where applicable.

·         Demonstrate they have satisfactory English language ability by scoring at least 4.5 average score across the 4major components of the International English Language Testing System (IELTS) or holding a passport from a country that is exempt (e.g.  United Kingdom, America, Canada etc.)  or other applicable exemptions.

·         The applicant must hold a trade or professional qualification to at least the Diploma level Show any relevant qualifications to the nominated occupation, minimum Diploma level, (a Trade Apprenticeship is equivalent to a diploma level qualification).

Understanding the Basic Steps to this Visa

1.       You must have a willing employer who wishes to sponsor you in a nominated occupation that you are qualified in via work experience or formal qualifications.

2.       Meet all the minimum criteria for a primary applicant including skills, age and language.

3.       All dependent family members should also be able to meet English language requirements and meet health and character.

4.       The employer must apply for certification via a Regional Certifying Body in there regional area. Approval of this application will indicate a need for the business to have an overseas employee to fill the position.

5.       The next stage is your employer applies to the Department of Immigration & Citizenship (DIAC) for approval of your nomination in the position certified by the regional body. Nomination is the employer nominating the prospective employee and any dependent family members for the approved position and indicating relevant salary for which you will be paid.

6.       You then are required to submit a ‘valid’ regional sponsored migration scheme visa application to DIAC.  This application can be lodged at the same time as, or after, the Nomination application has been lodged or approved.

At this stage the visa applicant demonstrates his skills, age and English language requirements; it is also where the family members included in the application demonstrate their eligibility.

After Your Australian Permanent Residence Visa has been Granted

Once approved the RSMS 119/857 Visa, both the applicant and the employer must abide by certain obligations attached to this visa;

1.       The employer must abide by the work contract that was presented in the application. This includes all workplace laws and other conditions.

2.       The applicant or employee attached to the visa must work only for the employer who has sponsored them, unless relevant circumstances prohibiting that can be demonstrated.

3.       Be present and working for the employer for a minimum of 2 years and within 6months of arrival into Australia.

Non compliance with the obligations set out above can result in the cancellation of your Australian permanent residence visa.

Exceptional Circumstances

If an Australian visa application for the regional sponsored migration programme cannot satisfy the basic requirements for grant of the visa, ‘Exceptional Circumstances’ may be applied to certain criteria of this visa.

Age

If the applicant is over 45 years of age then in some instances exceptional circumstances may be applied. 

Based on a scale system considerations vary through each group up to the age of 60 as a maximum. In most cases the applicant must show substantial qualifications, work experience, highly specialised and a valid reason as to why that person’s age should be considered exceptional.

Skills

Skill – Where the applicant cannot meet the diploma level qualifications or higher education, exceptional circumstances may be applied if the applicant can demonstrate one of the following:

-          Has worked for the relevant employer sponsoring them for no less than 2 years on a Temporary (Long Stay) 457 Visa prior to any nomination being submitted.

-          Can demonstrate a skill level of at least AQF Certificate II, this must be within skill levels 3 and 4 only

-          The RCB (Regional Certifying Body) verifies that the employer is operating a business within a regional or low growth area and they can demonstrate a verifiable need to employ a worker for 2 years in a full time position.

English Language

Exceptional circumstances waiver of the ‘functional’ English language requirement on the following grounds:

-          Showing that the job doesn’t require the need to have functional level of English in that workplace.

-          OH&S standards and requirements can still be met by the overseas worker and understood.

-           The employer can show through recruitment and advertising that a suitable candidate has not been found in order to fill the position on offer.

-          If the transfer of skills can be applied and transition easy for the applicant, if the job is in a similar field or cultural background and can easily transition.

-          The applicant has been working in the same position on a Temporary 457 Visa and can demonstrate future training or formal studies to improve English Language abilities.

Conclusions

Gaining permanent residence through the Regional Sponsored Migration Scheme pathway should be an option considered by skilled migrants who have skills in an occupation that is not on the Australian Skilled Occupation List as set for independent skilled migration.  However, the visa application process and the law which lies behind it are very complex.

Any person  making this application without the advice and assistance of a specialist immigration lawyer, even if only for an initial consultation to confirm your own assessment, faces a very real chance of making essential errors that will lead to the refusal of the visa application and may mean the loss of the opportunity of enjoying a future in Australia.

Accordingly, it is our strongest recommendation that specialist immigration lawyers are instructed to assist you with the visa application process to maximize your chances of success.

Please contact either Ray Turner or Stewart Coulson of Turner Coulson Immigration Lawyers to discuss your immigration goals and to ensure you application is given its best chances of a positive outcome for you.

Ray and Stewart can be contacted on +61 (0)2 9264 4654 or by email at info@tcilawyers.com.au

This article should not be taken as legal advice and cannot be relied upon as a complete or accurate representation of the law. It is meant to be indicative only and a general informative guide to the visa application process.