Recently, I had many enquiries in relation to the Employer Nomination Scheme (ENS) 186 (transitional stream) refusals.
Disappointed employers and their employees could not comprehend how after 2 years of continuous work in the same occupation (grandfathered subclass 457 provision only), the Nomination application could be refused based on a lack of evidence. Especially after substantial evidence had already been provided with their provisional applications! Why again? Why had no one asked?
Firstly, many applicants mistakenly assume that it is enough to prove that this particular position was held for a duration of 2 years to meet a Genuine Position requirement.
Secondly, if the company no longer has a valid Standard Business Sponsorship (SBS), chances are that it will fail the evidentiary requirement for a lawfully operating business in Australia.
Thirdly, all applicants assume that the Department WILL request further evidence in a separate letter if they are not satisfied with the evidence provided.
It is important to note that the Department upon acknowledgment of the application in an acknowledgment letter puts the nominator (employer) or applicant on notice that the Department may make a decision on this application without requesting additional information.
The Department’s acknowledgement letter usually duly invites the applicant to support the
application with any information that is thought to be relevant. In terms of assisting the applicant with what documents may be relevant, the Department’s acknowledgement letter directs the nominator to refer to their “ImmiAccount” where the Department provides a summary guide.
Please do not ignore the list outlined in your Immi Account and provide ALL relevant evidence at the time of the application as there might not be a further opportunity to do so. In particular:
ENS 186 TRT FACT SHEET
NOTE: If on 18 April 2017 you held (or had applied for, and were subsequently granted) a subclass 457 visa, then you only need to meet the above criteria for 2 years over the last 3 years.
Astute Immigration Advisory may assist you with your ENS 186 application by drafting application, collating material, advising on the relevance of evidence provided, guiding on how to ensure that you have the best chances to achieve a positive outcome.
The Procedural Instructions have been updated at Regulation 5.19 with the following instruction to address transitional arrangements for these visa holders:
4.3.20 Transitional arrangements – in place from 18 March 2018 to march 2022
Decision-makers are reminded that the Government has provided transitional arrangements for certain cohorts of clients who held or had applied for a subclass 457 visa on 18 April 2017 which was subsequently granted. These arrangements are relevant to the TRT stream only.
Where a nomination is lodged on or after 18 March 2018, and at any time until 18 March 2022, in relation to a client in this cohort, standard nomination requirements in place as of 18 March 2018 must be met with the exception that:
This means that 457 visa holders can now make an ENS application after 23 months of continuous employment with the same employer.