barker

2 hours ago, Shaktimaan said:

Thanks for the information baker. Mist be relief for some friends. I was going through the list and many of our friends have applied for RETAIL MANAGER occupation in 2016, what do you say about it?? 

Hi Shaktimaan, if you are looking for advise specific to your situation I'd ask your RMA but in general with this statement above by the department, because they applied in 2016, they are subject to that particular instrument. 

Also, the file I posted is simply proposed changes, not confirmed changes. 

1 hour ago, Mr Stinson said:

It means,,,,,sorry we lost a few files ???

 

Basically they are saying if we have a low risk occupation, a low risk nominator and a low risk individual we can approve the application quickly. Some occupations are processed faster to meet the needs of Australia. For example, we have a surgeon that was nominated, approved and had his 187 granted earlier this year in a little over 3 months.

I realise it seems unfair, but you have to understand there are literally thousands of people applying for PR as a cook, retail managers etc, and orders of magnitude smaller amounts of other occupations. 

The DIBP need to meet certain KPI (key performance indicators) like any other business or government agency. I'll use healthcare as an example, if we can get a surgeon in a regional town that will have a much greater impact, on a much broader range of people than say a cook. (No matter how delicious your food is ) 

But with todays good news, I think you guys should rest easy in the sense that now you're just running out the clock. You're not trying to beat March 2018 if you do DE. So that's a heartening and maybe a small glimmer of hope in a process that is shrouded in mystery. 

Also, here is an update about potential changes to the occupations listed on MLTSSL and STSOL. 

Traffic Light Skilled list changes.pdf

Hey guys I'm happy to say I have some relief and for a change some truly GREAT NEWS for you all. So the stack updated today and here is the updated directive. The bold and big text is the most important part. 

10.3.3 Approvable occupations specified in the latest legislative instrument

For RSMS any occupation specified in the relevant legislative instrument with ANZSCO skill levels 1 to 3 may be nominated.

Regulation 5.19(4)(h)(i)(A) (ENS Direct Entry stream) and Regulation 5.19(4)(h)(ii)(D)(RSMS Direct Entry stream) provide that the delegate must be satisfied that that the tasks to be performed in the position will correspond to the tasks of an occupation specified by the Minister in an Instrument in writing. In practice, this means that:

• when assessing nominations under Regulation 5.19(4)(h)(i)(A) delegates must confirm that the nominated occupation is included on the Medium and Long term Strategic Skills List (MLTSSL) or the Short term Skilled Occupation List (STSOL), which lists occupations that can be approved in relation to permanent employer sponsored nominations under the ENS Direct Entry stream;
• when assessing nominations under Regulation 5.19(4)(h)(ii)(D) delegates must confirm that the nominated occupation is included in the legislative instrument in relation to permanent employer sponsored nominations under the RSMS Direct Entry stream.
• delegates must be satisfied that the tasks of the nominated position effectively align with the tasks for that occupation as outlined in the Australian and New Zealand Standard Classification of Occupations (ANZSCO).

Important:

• As of 19 April 2017, the legislative instrument for Regulation 5.19(4)(h)(i)(A) referred to above contains two lists, the MLTSSL, which replaced the former Skilled Occupation List (SOL), and the STSOL which replaced the Consolidated Sponsored Occupation List (CSOL).
• Occupations listed in the MLTSSL and STSOL are eligible for the PESE ENS Direct Entry stream. A full list of these occupations is available on the Department’s website.
• Some occupations on the list are restricted to certain situations via a caveat - refer to the legislative instrument.
• The list will be reviewed periodically and can change with occupations being removed or added. If the Direct Entry stream nomination application was made before the updated list came into effect, then the application will be considered against the list that was current at the time the nomination was lodged. If the Direct Entry stream nomination application was lodged on or after the date the updated list came into effect, then officers should confirm that the nominated occupation is specified in the current legislative instrument. If the nomination application and associated visa application are for a removed occupation, then the applications cannot be further assessed and the applicants should be offered the opportunity to withdraw.

Remember all those posts I made doubting the ability to approve after changes are made to the instrument. Well here’s not just my concern but the migration institute is also concerned.

Email I got from MIA on Wednesday as an FYI:

Dear Colleagues,

I have as a matter of urgency asked the Assistant Minister for Immigration and Border Protection and the Assistant Secretary of the Department of Immigration and Border Protection in charge of visa policy for transitional arrangements to apply to RSMS applications in the pipeline which will be affected by Migration (IMMI 17/059: Regional Certifying Bodies and Regional Postcodes) Instrument 2017 https://www.legislation.gov.au/Details/F2017L01460 which comes into effect on Friday 17 November 2017 and replaces and repeals the current Instrument (IMMI 16/045)

The major effect of this Instrument is to re-define “Regional Australia” and exclude the postcodes of Perth metropolitan area. Specifically, the Instrument re-defines the postcodes that make up “regional Australia” under subregulation 5.19(7)

The relevant part of Regulation 5.19, that deals with Direct Entry RSMS Nominations, falls under Subparagraph 5.19(4)(h)(ii), which has seven sub-subparagraphs, A, B, C, D, DA. E and F.

All these 7 sub-subparagraphs are “Time of Decision” requirements.

The relevant sub-subparagraph affected by a re-definition of “Regional Australia” is sub-subparagraph 5.19(4)(h)(ii)(A): “the position is located in regional Australia”.

Without any transitional arrangements to this new Instrument, any Nominations on or after 17 November 2017, will not meet Sub-subparagraph 5.19(4)(h)(ii)(A) and must be refused. 

This would also retrospectively affect Nominations refused prior to 17th November 2017, that are still undecided with the AAT.

I am grateful for WA Branch President James Clarke and his Committee for alerting me to this.

We will keep you informed of the progress of our request

Second email:

Dear Colleagues,

Update on processing of Perth RSMS applications lodged prior to 17 November 2017 when Legislative Instrument IMMI 17/059 (which removes Perth as a “regional” area) comes into effect:   NO RETROSPECTIVITY!

Following my representations to the Assistant Minister and the Department I have just received the following advice from the Department of Immigration and Border Protection:

Hi Kevin,

The new Instrument applies to applications lodged from 17 November and will not be applied retrospectively.

Under the new Instrument [Legislative Instrument IMMI 17/059] the Perth metropolitan area is not considered regional for RSMS applications.

The RSMS applications in the Perth metropolitan area that we have on-hand and lodged before the 13 March 2017 with RCB certification will proceed to assessment.

Those RSMS applications lodged from 13 March 2017 onwards do not have RCB certification as the WA government’s RCB declined to provide certification. These applications will be finalised and as they cannot be approved without RCB certification, will be offered the option to withdraw or be refused.

The department will be sending an e-newsletter shortly with this information.

The department has since confirmed that this means that those applications lodged before 13 March 2017 with RCB certification from Perth will proceed to assessment AND when they are assessed the consideration of sub-subparagraph 5.19(4)(h)(ii)(A), which is a time of decision matter, will use the old Instrument and Perth will be acceptable for those applications.

I trust this information will be of some comfort to many of you and your clients.

Kind regards,

Kevin Lane
National President
Migration Institute of Australia

54 minutes ago, hyat said:

it means no visa for rsms until new policy will come ... simple n understanding .....dont know why they do it like that ... they simply remove rsms in all over australia so no one will wait for so long ... 

Yeah it does seem like they definitely aren’t putting a high priority on rsms. The thing is that “timer” they have is a reflection of the application being lodged that month. For example if you lodged today they are saying 15 months from that day. However I do agree that if they for example didn’t honor the stsol list in March and instead choose to refund everyone it would be to their benefit to not process applications in a timely manner. 

Another possibility and likelihood is a surge in applications, similar to what we saw in citizenship numbers.

Bad news guys!

That decrease in processing time was short lived.

1 hour ago, Yvi said:

It is not a restriction, it is the main condition of the 186 DE visa which also must be part of your employment contract handed in to DIBP with your application. You don't find everything on their website, that's why I would advise everyone to get an immigration agent, even better an immigration lawyer because they can advise you of legal consequences what agents are not always doing.

For the 187 visa the two years is a requirement even after the visa is granted.

For the 186 you only need to have the INTENTION to work for two years at the time of application. You can change your mind of course.

1 hour ago, ljarc said:

Hi Mate

where did u see this news？did you know why only Perth and why before March 2017？thanks

Perth has been removed by request of the premier of WA from the RSMS list. As for the timing I am not sure.

5 minutes ago, zanfo said:

Hey,

11months waiting here...

will he Health check last 12months correct? Would you suggest to re-book them immediately or just if I get asked?

same story for police checks

Health checks can be accepted as far as 18 months if through no fault of the applicant it has expired. 

Police checks are also at the discretion of the CO.

7 hours ago, Perthrsms said:

Hi everyone ....is there anyone applied from Perth before march 2017?? 

 

 

I certainly hope this is clarified soon, this is also the troubling bit surrounding the upcoming changes in March. The way the legislation and policy is interpreted/written as of now means any changes to the rules affect a lot of people and doesn’t leave much wiggle room for DIBP to be flexible.

22 minutes ago, Muntasir said:

Permanent Employer Sponsorship update 

https://www.acacia-au.com/permanent-employer-sponsorship-update-november-2017.php 

Thanks for this! More importantly they include the new DIBP flyers down below as references.

This is good news for those applying for a transitional PR. 

Unfortunately the department still needs to clarify the DE stream requirements and whether the MLTSSL applies to those people 

2 hours ago, Leo RMA Brisbane said:

Hello Barker,

Thank you for sharing the updated PI with us. Please note that the most current PI (previously called 'PAM 3' ) was issued on 27 July 2017, which means all applications lodged on or after 27 July 2017 will be affected by this new instruction, but the previous ones will not.

Please correct me if any faults.

 

Cheers

 

Leo

Hi Leo, 

To be honest I'm not sure how they interpret the PI/PAM3 because it's not "law" per se it's just policy. So once again, it's all up to the person interpreting the law and making policy. The dates don't make a huge difference if they decide to change something. 

Several MA's have commented that there is some disagreement about the policy vs. law, but to be honest no one really knows for sure how the department will interpret the law until they announce it. The best guess I've heard is people "should" be unaffected but this is just a guess. 

If

1 hour ago, Ozdream1 said:

Hi guys,

For those who have followed up with DIPB on the status of their applications by email, how long does it take to get an answer?

Does it take also months just to get a status? 

Thanks

If your application is still within the published service standards, your email will be deleted and you will not receive a reply.

7 hours ago, Alex.alex said:

March 2018 changes will affect future applicants only (clearly says on DIBP website) Stop worrying and stay positive. Don’t listen to people who just want to spread false info.

Thanks for that screenshot Alex, however as you can see this is a general document from DIBP and does not address whether the changes affect undecided applications. The "Who is affected?" simply designates the target audience of the circular. I don't think you can rely on one word (prospective) to make a presumptive claim. Technically anyone who currently has an application pending is "prospective".

As I have previously posted, their internal documents as of now state that if the nominated list (legislative instrument) changes, the application cannot be approved. We need to wait for updated information to see how they will proceed.

I'm not spreading false information, rather to the contrary. People need to be aware of all the issues so they can be prepared for any contingencies that arise.

6 hours ago, lomous said:

Do u hav any idea the new changes coming later might effect us cuz office manager is nt in current skill list anymore.

I really hope that the changes are applied only as of applications lodged on or after March 1, 2018 and that they aren't just stalling all the STSOL applications only to reject them, but nothing would surprise me with DIBP. 

I think it's important for people's expectations to be tempered and understand that until the department issues some form of guidance (hopefully soon) that making definitive statements may hurt more than it helps. 

Essentially, no one knows what the new rules will be other than the department. 

11 minutes ago, GnS said:

I had the same answer from my migrant agent, that is, all new laws/rules do not apply if the application has been submitted. They will apply for only new applications. Anyhow next week there will be an update regarding the visa processing time again...any bet?

Once again, I think that saying that the rules do not apply without an official update from the department is misguided. Here's my post from last month that seems to have been ignored, keep in mind this is from the PAM3 which the department decision makers use as their "brain". The thing is if nothing changes this is their current line of thinking. I have underlined and bolded the most important part which is "If the nominated occupation is not listed on the current legislative instrument at the time of making the decision, the nomination cannot be approved."

Quote

Here are the relevant sections. Basically it's stating that Reg 5.19 is a time of decision requirement and not a time of application requirement. Now as some MA's have said this is policy and not law, however it certainly is a troubling interpretation of the law on DIBP's part. As we all know in March 2018 the MLTSSL will replace the current legislative instrument, once this occurs, based on this it appears they could deny unapproved nominations. 

What I'm getting at is that no one besides the DIBP can guarantee how they will process these. To do so is disingenuous. 

The final paragraph is the most damning one in that it specifies the time of decision rule. 

10.3.3 Approvable occupations specified in the latest legislative instrument

For RSMS any occupation with a skill level within ANZSCO skill levels 1 to 3 may be nominated.

Regulation 5.19(4)(h)(i)(A) (ENS Direct Entry stream) and Regulation 5.19(4)(h)(ii)(D) (RSMS Direct Entry stream) provide that the delegate must be satisfied that the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in a legislative instrument. In practice, this means that:

when assessing nominations under Regulation 5.19(4)(h)(i)(A) delegates must confirm that the nominated occupation is included on the Medium and Long term Strategic Skills List (MLTSSL) or the Short term Skilled Occupation List (STSOL), which lists occupations that can be approved in relation to permanent employer sponsored nominations under the ENS Direct Entry stream;
when assessing nominations under Regulation 5.19(4)(h)(ii)(D) delegates must confirm that the nominated occupation is included in the legislative instrument in relation to permanent employer sponsored nominations under the RSMS Direct Entry stream.
delegates must be satisfied that the tasks of the nominated position effectively align with the tasks for that occupation as outlined in the Australian and New Zealand Standard Classification of Occupations (ANZSCO).

Important:

As of 19 April 2017, the legislative instrument referred to above contains two schedules, the MLTSSL, which replaced the former Skilled Occupation List (SOL), and the STSOL which replaced the Consolidated Sponsored Occupation List (CSOL).
Occupations listed in Schedule 1 (MLTSSL) and Schedule 2 (STSOL) to the instrument are eligible for the PESE ENS Direct Entry stream. A full list of these occupations is available on the Department’s website.
Some occupations on the list are restricted to certain situations via a caveat - refer to legislative instrument
The list can change with occupations being removed or added. If the legislative instrument has changed since the application was made, officers should confirm that the nominated occupation is specified in the current legislative instrument. If the nominated occupation is not listed on the current legislative instrument at the time of making the decision, the nomination cannot be approved.

The STSOL and MLTSSL will be updated every six months based on advice from the Department of Employment. Listed caveats will provide additional requirements or exclusions for a number of listed occupations. Since Regulation 5.19 are time of decision requirements, this can mean that an occupation on the STSOL and MLTSSL at the time of lodgement is either no longer on these lists or is further constrained by caveats at time of decision and therefore cannot be approved. In these instances applicants will be afforded the opportunity to withdraw the nomination and associated visa application. The improved agility of the STSOL and MLTSSL to respond to ‘on the ground’ labour market conditions will strengthen the skilled migration programme to react to real-time skill shortages. The STSOL and MLTSSL continues to cover a range of managerial, professional, technical and trade occupations at ANZSCO skill levels 1, 2 and 3.

I certainly hope for everyone's sake that the new rules apply from that date forward, but without any actual guidance it is very difficult for anyone to make a claim one way or the other. Like I've said before it's one of those things that depends on their interpretation of the rules and right now on the PAM3 their interpretation is if the occupation isn't on the list, the nomination can't be approved. I really hope they clarify this soon. 

Quote

3 hours ago, Muntasir said:

Is there any chance for Retail Manager occupation to fall of the List on 1st March 2018?

 

According to the information we have at the current time, as of March 2018 the MLTSSL will apply to the 187 (supposedly with additional regional occupations), at first glance it appears that Retail Manager 142111 is not on the MLTSSL. 

The DIBP has not made any announcement or provided guidance on whether this change is a time of decision or time of application criteria. 

23 hours ago, Amy Aussie said:

I have also serious concerns that they just hand-picking a few applications then move forward. 
 

They are doing this and they freely admit it. It does make sense though to prioritise needed occupations, and also if they can approve applications quickly they might as well approve them. 

2 hours ago, Cippalippa said:

 

My migration agent said the same.


Sent from my iPhone using Tapatalk

 

Here are the relevant sections. Basically it's stating that Reg 5.19 is a time of decision requirement and not a time of application requirement. Now as some MA's have said this is policy and not law, however it certainly is a troubling interpretation of the law on DIBP's part. As we all know in March 2018 the MLTSSL will replace the current legislative instrument, once this occurs, based on this it appears they could deny unapproved nominations. 

What I'm getting at is that no one besides the DIBP can guarantee how they will process these. To do so is disingenuous. 

The final paragraph is the most damning one in that it specifies the time of decision rule. 

10.3.3 Approvable occupations specified in the latest legislative instrument

For RSMS any occupation with a skill level within ANZSCO skill levels 1 to 3 may be nominated.

Regulation 5.19(4)(h)(i)(A) (ENS Direct Entry stream) and Regulation 5.19(4)(h)(ii)(D) (RSMS Direct Entry stream) provide that the delegate must be satisfied that the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in a legislative instrument. In practice, this means that:

when assessing nominations under Regulation 5.19(4)(h)(i)(A) delegates must confirm that the nominated occupation is included on the Medium and Long term Strategic Skills List (MLTSSL) or the Short term Skilled Occupation List (STSOL), which lists occupations that can be approved in relation to permanent employer sponsored nominations under the ENS Direct Entry stream;
when assessing nominations under Regulation 5.19(4)(h)(ii)(D) delegates must confirm that the nominated occupation is included in the legislative instrument in relation to permanent employer sponsored nominations under the RSMS Direct Entry stream.
delegates must be satisfied that the tasks of the nominated position effectively align with the tasks for that occupation as outlined in the Australian and New Zealand Standard Classification of Occupations (ANZSCO).

Important:

As of 19 April 2017, the legislative instrument referred to above contains two schedules, the MLTSSL, which replaced the former Skilled Occupation List (SOL), and the STSOL which replaced the Consolidated Sponsored Occupation List (CSOL).
Occupations listed in Schedule 1 (MLTSSL) and Schedule 2 (STSOL) to the instrument are eligible for the PESE ENS Direct Entry stream. A full list of these occupations is available on the Department’s website.
Some occupations on the list are restricted to certain situations via a caveat - refer to legislative instrument
The list can change with occupations being removed or added. If the legislative instrument has changed since the application was made, officers should confirm that the nominated occupation is specified in the current legislative instrument. If the nominated occupation is not listed on the current legislative instrument at the time of making the decision, the nomination cannot be approved.

The STSOL and MLTSSL will be updated every six months based on advice from the Department of Employment. Listed caveats will provide additional requirements or exclusions for a number of listed occupations. Since Regulation 5.19 are time of decision requirements, this can mean that an occupation on the STSOL and MLTSSL at the time of lodgement is either no longer on these lists or is further constrained by caveats at time of decision and therefore cannot be approved. In these instances applicants will be afforded the opportunity to withdraw the nomination and associated visa application. The improved agility of the STSOL and MLTSSL to respond to ‘on the ground’ labour market conditions will strengthen the skilled migration programme to react to real-time skill shortages. The STSOL and MLTSSL continues to cover a range of managerial, professional, technical and trade occupations at ANZSCO skill levels 1, 2 and 3.

10 hours ago, Fran said:

What will be the condition of undecided 187 visa applications by March 1

I'll repost what I wrote previously. This of course would be most relevant to those occupations which are not present on the MLTSSL, however with the other changes we also don't know too much as yet. I would expect some guidance from the department in the next few months. 

I've asked this question of both the department, and of several migration agents, as well as an open post in this forum. There is currently no guidance in regards to this. The PAM3 states that under DE, this is a time of decision requirement not time of application, however there appears to be disagreement among MA's. We will just have to wait for further guidance. 

The worst case scenario is that they enact similar restrictions to what happened in the 457 situation, allowing those no longer eligible to withdraw their applications for a refund. This is of course of little solace to those who paid for police checks, medical exams etc.

TLDR; We just don't know right now. 

3 hours ago, Guu said:

Does time spent working for nominating employer count towards the 2 year commitment whilst on bridging visa?

The department states that the 2 years begins from the date of the grant of the 187 visa. 

4 hours ago, simar27 said:

Secondly, the applicant confirmed in the application form that the business is employing

two Australian citizens and permanent residents and two foreign employees. The gross

payroll expenditure of the business in the past 12 months (from 16 April 2015 to 16 April

2016) is $75,000.00

 

No wonder this was refused, it sounds a bit shady. 4 employees with a gross expenditure of 75,000???