Here are three thoughts from our practice leader, Troy Andres (aside: the idea of three random thoughts is taken from a podcast called 5 thoughts by Thinking Basketball – have a listen if you love all things NBA).
Nominating an occupation
In a recent blog, I discussed the foreboding that many subclass 482 visa holders on the short term list may be feeling with their upcoming visa expiries, particularly those who are on their second subclass 482 visa and are therefore legally prohibited from lodging a further application onshore.
The question keeps arising: can I move to the medium-term list?
Our approach has always been to work with our clients to find a solution that meets the business’ needs. Often this involves a deep dive into the role which can lead to subtle albeit critical additions to the position description so that it fully captures the day-to-day activities, which, in some cases, enables the candidate to nominate an occupation on the medium-term list.
However, I found some interesting discourse around this between industry colleagues who have taken a very strict interpretation of the ANZSCO Dictionary and Migration Regulations when it comes to nominating an occupation. It seems that there is a legal position that there can only ever be one occupation that aligns to a role.
Business is evolving rapidly and by its very nature, we know how quickly technology and information can lead to changes in how we work, engage our customers, go to market and operate.
Accordingly, it is a reasonable contention that what you were doing last year is not exactly what you are doing this year and as such, it is important to revisit your position description to ensure that you are complying with your visa conditions (and more importantly, not cheating yourself of a possibility to move to an occupation that leads to permanent residence).
As a general proposition, when determining the nominated occupation, we consider the following against the Skilled Occupations Lists:
- The nature of the business, and;
- The primary tasks in the job description, and;
- The skills and qualifications of the nominee.
Where these three intersect are the possible occupations that could be suitable for sponsorship.
The reference point for nominating an occupation begins with the ANZSCO Dictionary and it is important to understand the very nature of that document, which we find in the glossary:
ANZSCO is primarily a statistical classification designed to aggregate and organise data collected about jobs or individuals. The classification definitions are based on the skill level and specialisation usually necessary to perform the tasks of the specific occupation, or of most occupations in the group. The definitions and skill level statements apply to the occupation and not persons working in the occupation.
Importantly, we treat the ANZSCO as a guide as the document itself states that it should not be used prescriptively.
So, we ask ourselves:
- What are the business activities?
- What is the role?
- Does the role fit within the core business activities?
- What is the skill level required?
After considering the answers to these questions, we can then move towards selecting a nominated occupation.
The position includes a significant majority of the tasks specified for the occupation
Based on a typical assessment, there can be a number of suitable occupations and as such our role is to work with our client to meet business needs in accord with the considerations above. That said, each application must be assessed on a case-by-case basis and requires a deeper understanding of the day to day tasks that often are not fully captured in standard position descriptions. The use of the word ‘majority’ means that not all tasks set out in the ANZSCO must be in the nominated position, instead, we consider each task and align those (as closely as possible) to an occupation.
Accordingly, this is where you may find scope with potentially making an application to move between the Skilled Occupations Lists.
So, if you find yourself in an occupation that may be considered hybridised, I recommend reaching out to your immigration provider to discuss further and feel free to show them this article as there is definitely scope to explore changing your occupation provided that your employer can certify the new occupation.
Quick little mention that the Department has been issuing warnings that they have the power to cancel a visa under s 116(1)(e) in relation to COVID-19 if a visa holder’s presence in Australia “is or may be, or would or might be, a risk to: (i) the health, safety or good order of the Australian community or a segment of the Australian community; or (ii) the health or safety of an individual or individuals”.
I am surprised and shocked that the Government is employing these tactics and if you do hear of a friend receiving any notice from the department (NOICC or NOC), we would be glad to provide some legal advice around their rights and how to respond.
Speaking out (being heard)!
Strange how the container “Three Thoughts” has enabled me to voice such a wide range of discussion points that linger in my psyche deep into the night. The simple idea that I have a voice and people are willing to listen to it is strange to me. I felt like a bit of an imposter, like why would anyone want to listen to my views if they were not invariably tied to a legislative update – aaah is that imposter syndrome?
Perhaps it could be due to decades of conditioning where we are coerced to tiptoe around a range of issues, just in case you offend someone. Well, I think I’m at a stage in my life where I am okay with being heard. It’s not so much the speaking out, as I do this anyway, but the being heard part which always bothered me.
Now I don’t mind being heard, so if you are hearing this, thank you.
I would like to hear from you too.
On that note, I am off for a week. Stay safe and keep smiling.