Immigration news that isn’t formalised is a dangerous game

Immigration news that isn’t formalised is a dangerous game

The beast that is Australian Migration Law is forever changing, updated through legislative instruments (statutory updates) and policy changes (the decision maker’s guide). What would be the consequence though, if you heard an official Department of Home Affairs change that benefited your circumstances but you couldn’t pinpoint the exact provision? An example of this is the recent announcement to allow 23 months of work experience on 457 visa holders with 24 month visa duration when transitioning to 186TRT permanent residency, a policy change which is yet to be formally introduced, therefore would struggle to stand in a tribunal hearing. If this is of interest to your circumstances then please read on to find out more.

If your 457 visa was granted for only 2 years, meeting the 2 year work requirements to apply for a 186 (TRT) permanent visa is risky business, due to the exact 2 years ending on the day of visa expiry. Whilst applying at the end of the working day (after 5pm) for the nomination and then the visa application has seen success in practice, it was a stressful timeline nonetheless, and one with no guarantees. There has been a lot of debate whether TRT applications can be lodged on the last day of validity, but when the 457 visa holder only has a 2 year visa to work 2 years, they are left with no other choice.

About a month ago, the Department of Home Affairs announced a change in policy to now accept 23 months of work experience to validly apply for the 186TRT visa application. This is only applicable to those who held or had applied for a subclass 457 visa on 18 April 2017 which was subsequently granted, and only relevant to the pathway to PR on transitional arrangements (TRT stream) only. The announcement avoids the above post-5pm situation and potentially saving the employer sponsor and the visa applicant a lot of month from applying for a further 482 nomination and visa (given the 457 can no longer have new applications lodged). Common sense prevails here, as applying between the end of the work day (5pm) but before midnight on the same day was quite a pain. Sounds good and fair doesn’t it? The catch: the policy is yet to be amended.

I deliberately didn’t post an update last month when this was announced, because I am still yet to see the policy change. Without being able to pinpoint the policy requirement, it’s as good as fake news. One month on, I think it’s paramount that individuals in the above circumstances learn the potential pitfalls should the announcement never formally become a policy change, rather than just accepting this good news as solid.

Policy (formally PAM3, short for Procedures Advice Manual), allows further advice to the Case Officer when making decisions, as not all terms are defined precisely in the Migration Act 1958 and the Migration Regulations 1994, so the aim of policy is to provide more consistency. Without this announcement of the 23 month requirement for 457 holders applying for PR formally being changed in the policy, there is no specific instruction for accepting 23 months of employment, only the current 24 month period. The 23 month period is completely contrary to the legislation (the Migration Regulations 1994), and it would run huge risk of not standing up in a tribunal hearing at the AAT as the Member assesses only on the law, not ‘announcements’. You can now see why I call such immigration news that isn’t formalised as a ‘dangerous game’.

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