Skilled Visa Paper
SKILLED VISAS
Last updated 7 January 2015
By Lorenzo Boccabella, Barrister-at-Law
Accredited Specialist in Migration Law
Preamble
Change of government often leads to a change in policy and/or a change in emphasis. Having observed many changes of government since first commencing practice in 1982, the writer concludes that immigration ministers tend to drift to what the writer calls ‘capture’, the minister ultimately gets captured by the Department and over time the Department’s approach wins the day.
Ultimately the writer finds some inspiration in the adage ‘THE MORE THINGS CHANGE, THE MORE THEY STAY THE SAME’
The new Minister for Immigration & Border Protection, Scott Morrison in an address to the Migration Institute of Australia National Conference, Canberra on 21 October 2013, gives some clues as to the thinking of the new government.
The recent history of skilled visa regulation is traced back to 1 September 2007 when the then Howard government essentially set up and encouraged a clear pathway from student visa to permanent residence. The result was a huge number of students doing minimalist 2 year courses in cooking and hairdressing (and other occupations) leading to permanent residence where many did not ultimately remain in those occupations. As a result there is still a shortage of skilled cooks and hair dressers (although the latter is more due to the low wages and irregular hours in that industry). That policy was a failure and the Labour government in the years after 2007 changed the emphasis from supply based to demand based, ie encouraging employer nomination rather than independent skilled visas. Ironically this has been taken up by the new Minister Mr Morrison.
Here is what he said in his speech on 21 October 2013:
The primary purpose of our immigration programme is economic, not social, in our view. Immigration is an economic policy, not a welfare policy…..
Traditionally, we have structured skilled migration around our permanent programme, made up of the points tested skilled migration stream and the demand driven employer sponsored stream. Around 68% of people migrating to Australia permanently come under the Permanent Skilled Program and it is a critical focus of ours that we keep it that way, if not even higher. That is why the Coalition is committed to ensuring the proportion of skilled migrants does not fall below two thirds of our overall program.
More skilled people now arrive on a temporary visa and then having proven themselves and decided they’d like to stay in Australia, they find an employer who is willing to back them. These are exactly the productive migrants we want to encourage to stay. They have worked in our country. They have paid taxes from day one. They have improved their language skills through engagement in the workplace and in the community and off the clock and they are living and enjoying the Australian way of life they came to this country to enjoy, to experience, to be part of and to contribute to.
While the balance in the Skilled Migration Programme is shifting to employer sponsorship, non-sponsored migrants who have well developed human capital attributes are still important too of course. Particularly for the small business sector, where employers may not always be in a position to use those programs and to meet the obligations of those programs.
Independent skilled migration ensures that there is a pool of skilled workers available more generally to fill shortages in the economy where they develop and cannot be filled from within the Australian workforce.
The Coalition has always approached this issue from the starting point that wherever possible, jobs should be filled from within the Australian workforce. That is our clear commitment and that is our goal.
But where those skills are not available and that can be demonstrated, migration can and should play a vital role in supporting Australian business and creating Australian jobs. It provides the labour and importantly can facilitate the process of getting workers out to the sites where they are actually needed, whether in major projects particularly increasingly infrastructure projects or in other places around the country.
The current points test system was built on the bedrock of skilled migration reforms introduced under the Howard Government. These reforms culminated in the major structural reforms announced in early 2007, by then-Minister Kevin Andrews, and included the rationalisation of skilled visa subclasses and a focus on stronger English language skills and relevant work experience and tertiary qualifications.
The skills and attributes that intending skilled migrants require, as specified in the points test, retain the focus on key attributes such as skilled employment experience and English language proficiency.
Australia’s permanent employer sponsored migration programme plays a pivotal role in ensuring that businesses right across the country, regardless of where their workplace is, can find skilled workers to fill genuine vacancies – and I stress genuine vacancies – where they emerge.
More jobs in SOL
Chefs, bricklayers and wall & floor tilers are added to the Skilled Occupation List (SOL) from 1 July 2014
Note however the limitation on chefs being the footnote in the SOL *** as follows:
*** indicates that for a nomination or visa application for a Subclass 457 visa or a Subclass 186 visa , the occupation excludes positions in Fast Food or Takeaway Food Service
However this limitation does not apply to the subclasses 187 RSMS visa or the 2 skilled visas the Subclass 189 – Skilled — Independent and the Subclass 190 – Skilled — Nominated.
A media release dated 9 June 2014 by Andrew Robb – Minister for Trade and Investment, and Michaelia Cash – Assistant Minister for Immigration and Border Protection stated:
Minister Robb said the Australian Workforce and Productivity Agency (AWPA) works independently of government to provide annual recommendations on the composition of the SOL to ensure it responds to Australia’s changing skill needs.
‘The AWPA analyses evidence such as the labour market, education and training, migration and general economic and demographic data to make sure we get the balance right,’ Minister Robb said.
‘In this case, bricklayers and tilers have been added to the list because of an increase in demand predicted for these occupations as well as a decrease in apprenticeship completions.’
Minister Cash said the addition of chefs to the SOL reflects that the occupation is in short supply, coupled with strong growth projected in the café and restaurant sector.
‘Including chefs on the SOL will provide greater flexibility for businesses to recruit skilled chefs from overseas when they cannot source these skills locally,’ Minister Cash said.
‘The addition of these occupations will be especially welcomed in regional areas, where there is a known deficit of skilled workers in the hospitality and construction industries.’
The SOL is contained in the Legislative Instrument Immi 14/048 dated 14 June 2014 with effect from 1 July 2014.
No jobs were taken off the SOL and the Consolidated Sponsored Occupation List remains the same (apart from the occupations upgraded to the SOL).
Staleness of a skill assessment is now defined by law
The Legislative Instrument dated 12 June 2014 and in effect from 1 July 2014 allows an assessment body to specify how long a skill assessment is valid for and if it is not specified by the assessment body then a skill assessment is only valid for 3 years. Here is what the changes are to the visas affected by a skill assessment regime:
After paragraph 186.234(2)(aa) of Schedule 2
Insert:
(ab) if the assessment specifies a period during which the assessment is valid, and the period does not end more than 3 years after the date of the assessment—the period has not ended;
(ac) if paragraph (ab) does not apply—not more than 3 years have passed since the date of the assessment;
2 Paragraph 187.234(b ) of Schedule 2
Repeal the paragraph, substitute:
(b) all of the following requirements were met:
(i) the applicant’s occupation is specified by the Minister in an instrument in writing for this subparagraph;
(ii) the applicant did not obtain the necessary qualification in Australia;
(iii) the applicant’s skills had been assessed as suitable for the occupation by an assessing authority specified by the Minister in the instrument for subparagraph (i) as the assessing authority for the occupation;
(iv) the assessment was not for a Subclass 485 (Temporary Graduate) visa;
(v) if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment—the period had not ended;
(vi) if subparagraph (v) did not apply—not more than 3 years had passed since the date of the assessment; or
3 At the end of subclause 189.212(1) of Schedule 2
Add:
; and (c) if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment—the period had not ended; and
(d) if paragraph (c) did not apply—not more than 3 years had passed since the date of the assessment.
4 At the end of subclause 190.212(1) of Schedule 2
Add:
; and (c) if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment—the period had not ended; and
(d) if paragraph (c) did not apply—not more than 3 years had passed since the date of the assessment.
5 Subclause 485.224(1) of Schedule 2
Repeal the subclause, substitute:
(1) At the time of application:
(a) the skills of the applicant for the applicant’s nominated skilled occupation had been assessed by a relevant assessing authority as suitable for that occupation; and
(b) if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment—the period had not ended; and
(c) if paragraph (b) did not apply—not more than 3 years had passed since the date of the assessment.
6 At the end of subclause 489.222(1) of Schedule 2
Add:
; and (c) if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment—the period had not ended; and
(d) if paragraph (c) did not apply—not more than 3 years had passed since the date of the assessment.
However Immigration advises as follows:
If an applicant’s skills assessment has or is about to expire under the new 3 year validity policy, some skills assessing authorities are renewing skills assessments where the applicant continues to be skilled in the relevant occupation.
The 3 year validity of these renewed skills assessments will commence on their date of ‘re-issue’ by the skills authority.
Dealing with a stale skill assessment
In Chopra 1212601 [2013] MRTA 3229 (6 December 2013) the MRT dealt with a ‘stale’ skill assessment by the applicant simply getting another one at the time of hearing.
Practice – point – Always engineer a situation where one applies for this visa onshore
If possible one should always engineer a situation so that the permanent residence skilled visas are applied for on-shore. This is necessary in order to maintain appeal rights.
The limitation on appeals on visa applications lodged offshore is contained in s 347 which reads:
(3A) If the primary decision was covered by s 338(7A), an application for review may only be made by a non-citizen who:
(a)was physically present in the migration zone at the time when the decision was made; and
(b)is physically present in the migration zone when the application for review is made.
This is because s 338(7A), states:
A decision to refuse to grant a non-citizen a permanent visa is an MRT-reviewable decision if:
(a) the non-citizen made the application for the visa at a time when the non-citizen was outside the migration zone; and
(b) the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone.
Managing to be in Australia at time of decision could be very difficult to manage.
SOME RELIEF ON CONDITION 8503 (No further stay)
Following on from the last point, one could come to Australia with a no further stay visa but still be able to apply for a GSM visa because of the relief from 8503 (no further stay). The ‘Work & Holiday’ visas from ‘difficult countries could be useful in this regard.
One ground for waiving 8503 is the following:
Reg 2.05
(4AA) For subsection 41 (2A) of the Act….., a further circumstance in which the Minister may waive condition 8503 in relation to a visa is that the holder of the visa has a genuine intention to apply for:
(a) a General Skilled Migration visa; or
(b) a Subclass 132 (Business Talent) visa; or
(c) a Subclass 186 (Employer Nomination Scheme) visa; or
(d) a Subclass 187 (Regional Sponsored Migration Scheme) visa; or
(e) a Subclass 188 (Business Innovation and Investment (Provisional)) visa.
A similar provision applies to condition 8534 (can’t apply for further visas)
State & Territory sponsorship
As stated below state and territories can select which occupations and in what circumstances they will sponsor a visa applicant. For occupations not on the Skilled Occupation List but on the residual Consolidated Skilled Occupation list have some prospect of non-employer sponsored permanent residence. But it is all very ephemeral.
For example – NSW. Here is what the website reported on 23 October 2014:
Skilled nominated migration (190)
Important notice – October 2014 intake – 22 October 2014
Due to high volumes, the application process for state nominated skill migration has temporarily closed. A further update will be posted on Friday 24 October 2014.
Thank you for your patience. We regret any inconvenience this may have caused.
The numbers for NSW are not large, here’s what the website states :
For the 2014-15 program year, NSW Trade & Investment will nominate up to 4,000 skilled workers for the 190 visa.
Here is an important requirement:
commit to living and working in NSW for at least the first two years after being granted the 190 visa;
SA on the other hand is quite expansive.
The Qld material is attached.
Early MRT cases regarding subclass 189 visas are starting to arrive
Walls 1316145 [2014] MRTA 322 (6 February 2014) was uncontroversially about not having a heath assessment at time of decision. By the time it got to the MRT there was a positive skill assessment. Nevertheless this is one of the early review decisions from the MRT on the subclass 189 Skilled – Independent visa.
Minister for Immigration & Citizenship v Li and Another
This is a seminal case on ‘unreasonableness’ and concerned the failure of the MRT to grant the review applicant an adjournment to allow further evidence of a skill assessment to be collected. The case demonstrates that time of decision criteria can be met by further evidence at the MRT stage. Further there is an obligation on the MRT to wait a reasonable time if further evidence is pending but not immediately available at time of hearing.
Tribunal saves applicant from error
In Shamu 1214967 [2013] MRTA 2455 (27 September 2013), the applicant’s agent had mistakenly nominated an ‘Industrial Designer’ (ANZSCO Code 232312) as her skilled occupation in her visa application for a subclass 485 visa. She said that as a matter of fact she had nominated that as a matter of fact her application had actually nominated a ‘Graphic Designer’ (ANZSCO Code 232411).
The MRT used s 54 of the Migration Act as the basis to decide in her favour. S 54 relevantly provides:
(1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
(2) For the purposes of subsection (1), information is in an application if the information is:
(a) set out in the application; or
(b) in a document attached to the application when it is made; or
(c) given under section 55.
What this means is that the application form will only be one source of where to find the source of the determination of what the nominated occupation is. Here is how the MRT found in the applicant’s favour in paragraphs 38 to 43:
The Tribunal further notes that the Courts have held that under the General Skilled Migration visa scheme (post 1 September 2007), it is not possible for an applicant to change his/her nominated skilled occupation during the processing of the visa application, although it is a question of fact for the Tribunal as to which occupation the applicant actually nominated for the purposes of her subclass 485 visa application.
In considering this issue the Tribunal notes that ANZSCO states the role of an ‘Industrial Designer’ to be the planning, designing, development and documentation of “industrial, commercial or consumer products for manufacture with a particular emphasis on ergonomic (human) factors, marketing considerations and manufacturability, as well as the preparation of designs and specifications for mass or batch production”.
On the other hand, ANZSCO describes the role of a ‘Graphic Designer’ to involve the planning, design, development and preparation of “information for publication and reproduction using text, symbols, pictures, colours and layout to achieve commercial and communication needs with particular emphasis on tailoring the message for the intended audience”.
In this case the applicant has completed a ‘Bachelor of Arts (Art)’ at Curtin University. The subjects listed in the associated academic transcript, which was presented with the visa application, focus on visual and graphic arts, rather than industrial design. The Tribunal also gives some weight to the advice from Curtin University dated 7 February 2012 that the applicant had received credit for a unit she had completed under the ‘Bachelor of Arts (Graphic Design)’ qualification for the purposes of her ‘Bachelor of Arts (Art)’ because this lends support to the applicant’s claim that she saw her qualification as being in the graphic design field.
Similarly, the evidence relating to the certificate IV qualifications in interior design the applicant completed, and which were submitted with the visa application, have a strong emphasis on the graphic arts, in terms of units on drawing techniques, digital images, colour therapy, and drawing and the like.
As a result, on balance, having regard to the whole of the evidence before it, the Tribunal finds that the applicant nominated the occupation of ‘Graphic Designer’ (ANZSCO Code 232411) in her visa application.
In a similar vein is Qureshi 1213324 [2013] MRTA 1448 (2 July 2013) where the MRT found In paragraphs 19 – 21) :
The Tribunal notes that according to Patel and Chen , an applicant is not permitted to change his/her nominated skilled occupation during the processing of the visa application. However, the decisions in Patel v MIAC and Shafiuzzaman v MIAC , leave open the possibility that it may be possible to correct an incorrect answer or a mistake in answering the nominated skilled occupation question on the visa application form, for example under s.105. In this case, the applicant has essentially requested the Tribunal to allow him to change his occupation from Chef (as specified on the visa application) to Cook relying on s.105. The Tribunal has allowed this request. It finds that the occupation specified on the visa application form is not and was not his nominated skilled occupation and finds that his nominated skilled occupation is and was Cook (ANZSCO Code 351411). This is on the basis that the qualification the applicant is using to satisfy his Australian study requirement being a Certificate IV in Commercial Cookery and the knowledge and skills he has learnt from this course matches the Cook occupation. The Tribunal accepts that the applicant made a genuine error in not specifying this as his nominated skilled occupation on the visa application form.
The applicant nominated occupation of Cook (ANZSCO Code 351411), is a skilled occupation specified in IMMI 11/035. For that occupation, the relevant assessing authority specified in that instrument is TRA.
The Tribunal has before it a letter from TRA stating that the applicant’s Provisional Skills Assessment application submitted to the TRA has been assessed as successful for the occupation of Cook and that this letter can be used to apply to the Department for a Skilled – Graduate (Temporary) visa (Subclass 485). On the basis of this evidence the Tribunal is satisfied that the applicant satisfies the requirements of cl.485.221(1).
Correcting a visa application
In Duggal 1314475 [2014] MRTA 259 (24 January 2014), the MRT found that a visa applicant could correct a visa application if an inadvertent error had been made. Here the applicant did an on-line application himself and put in ‘chef’ but got a skill assessment for cook. Here how the MRT found for the applicant:
13.The Tribunal considers that the decisions in Patel and Shafiuzzaman leave open that it may be possible to correct an incorrect answer of this kind, such as under s.105 of the Act. Such a view was recently endorsed in KC v Minister for Immigration [2013] FCCA 296), where Cameron J observed (at [16]-[17]):
The Tribunal in this case expressed the view that it was not possible to change a nominated occupation after a valid visa application had been made and cited in support of that proposition the decision of Lloyd-Jones FM in Chen v Minister for Immigration & Citizenship [2011] FMCA 859 at [58]. However, his Honour appears not to have been taken to s.105 of the Act, which requires visa applicants to correct incorrect answers given in visa application forms and which would appear to be the statutory basis for form 1023, two of which documents the applicant lodged prior to the commencement of these proceedings. In Patel’s case, Robertson J left open the possibility that an erroneous occupation nomination could be corrected pursuant to s.105. To determine this case it is not necessary to express disagreement with the relevant conclusion of Lloyd-Jones FM in Chen’s case but I do observe that it does not appear to sit well with Robertson J’s obiter comments in Patel’s case.
It is not necessary to give detailed consideration to s.105 and its possible operation to permit correction of a mistaken occupation nomination because the Tribunal found as a fact that the applicant did not make a mistaken occupation nomination but, rather, changed his mind about which occupation he wanted to nominate. That finding was open to the Tribunal although, given the nature of the occupational assessment which he had undertaken, the position advocated by the applicant, both at the Tribunal and before this Court, would appear to have been at least as open.
14.Having regard to the evidence before it, the Tribunal accepts that the applicant did not change his mind after lodgement about which occupation he wanted to nominate. Rather, the Tribunal accepts that, in the process of preparing and submitting his online application, he made an unintended clerical error in selecting chef rather than cook as his nominated occupation. In the absence of clear authority on this issue, and in line with the above comments from KC, the Tribunal is prepared to give the applicant the benefit of the doubt in accepting that it is open to him to correct his nominated occupation in these limited circumstances.
Having regard to the above, the Tribunal finds that the applicant’s nominated occupation for the purposes of his application is cook.
Substantial compliance and living in a regional area
In Ismail 0903201 [2013] MRTA 1420 (3 July 2013), the applicant a subclass 495 visa holder did not live in the regional area for 6 months and was therefore in breach of condition 8539. The subclass 887 permanent residence skilled visa required that the applicant and persons included in the application have substantially complied with the conditions of the skilled regional visa previously held, (cl.887.221). The MRT set out the law in paragraphs 13-16:
The issue of substantial compliance will only arise in relation to those conditions which have been breached (Chowdhury v MIMIA [2005] FMCA 1243 at [37]) and to which the concept can logically apply: Jayasekara v MIMIA [2006] FCAFC 167; (2006) 156 FCR 199 at [12].
Whether the applicant has complied substantially with a visa condition is a question of fact, to be determined having regard to the particular circumstances of the case: Kim v Witton [1995] FCA 1508; (1995) 59 FCR 258 (at 271), followed in Baidakova v MIMIA [1998] FCA 1436. For example, the circumstances considered by Sackville J to be relevant in Kim v Witton included:
• the nature of the breach of condition;
• the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;
• whether or not the applicant deliberately flouted the condition; and
• if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.
However, there is no rigid test, and those considerations should not be regarded as exhaustive, or elevated to the status of relevant considerations in every case: see Shrestha v MIMA [2001] FCA 1578 and MIMA v Modi [2001] FCA 1656; (2001) 116 FCR 496.
The substantial compliance requirement contemplates that some degree of non-compliance with visa conditions may be permitted: Kim v Witton (1995) 59 FCR 258 (at 271). Further, the Court in Kim v Witton (at 270) held that an applicant might ‘comply substantially’ with a condition imposing a prohibition, even if the condition has been breached. However, there are some conditions to which the concept of substantial compliance has no logical application. In such cases, the Regulations are to be read as not admitting any qualification of substantial compliance: Jayasekara v MIMIA [2006] FCAFC 167; (2006) 156 FCR 199 at [12].
Here is how the MRT found in his favour (paragraphs 41-43)
In the present case, the evidence indicates that even before the subclass 495 visa was granted to him on 25 January 2006, the applicant was living and working in regional Victoria. This is important in the view of the Tribunal as it goes to the question of the applicant’s intentions, and lends credibility to his claim that after two years in regional Victoria he approached the Department to inquire whether he could return to Melbourne, and was apparently misled by what he was told into thinking he could do so without either breaching his visa conditions or adversely affecting his permanent visa application. That he did form this view is obvious from the fact that he openly declared in that application that after two years in regional Victoria he was now living and working in inner Melbourne. The evidence indicates that once he was informed that he was in breach of condition 8539, via the primary decision itself, he promptly took steps to rectify the situation, leaving his job and moving back to regional Victoria.
Although the purpose of the subclass 495 and other regional skilled visas (ie; to address regional labour shortages and boost regional economic activity) may not be fully served by applicants simply living and working in regional areas for the bare minimum qualifying period before returning to the city, one might well gain the impression that this is permissible from the subclass 887 visa criterion such as cl.887.212, which sets out such minimum qualifying periods.
Having regard to this information, the Tribunal is satisfied that the applicant did not deliberately flout condition 8539, and concludes that the breach of condition 8539 was not a serious one. Applying the analysis in Kim v Witton, the Tribunal finds that the applicant complied substantially with condition 8539.
Some practice points
Overcooking the points
A client claims high points for work experience, in his or her expression of interest. The client is invited to apply, but Immigration trims the points down by 5 in assessing the visa application. This brings the applicant’s points down from 65 to 60. Immigration will want an explanation but generally if it is a question of genuine disagreement and interpretation then it will have no consequence on the visa application. However if the applicant has been positively misleading then the applicant runs the risk of falling foul of Public Interest Criteria 4020 (the fraud provision).
Note that specifically for the skilled visa regime:
“employed means engaged in an occupation for remuneration for at least 20 hours a week.”
Note the points test states:
Part 6D.3 Overseas employment experience qualifications
Item At the time of invitation to apply for the visa, the applicant … Number of points
6D31 had been employed outside Australia in:
(a) the applicant’s nominated skilled occupation; or
5
(b) a closely related skilled occupation;
for a period totalling at least 36 months in the 10 years immediately before that time
6D32 had been employed outside Australia in:
(a) the applicant’s nominated skilled occupation; or
(b) a closely related skilled occupation;
for a period totalling at least 60 months in the 10 years immediately before that time 10
6D33 had been employed outside Australia in:
(a) the applicant’s nominated skilled occupation; or
(b) a closely related skilled occupation;
for a period totalling at least 96 months in the 10 years immediately before that time 15
These terms raise controversy. The important thing to note about a person being employed in a skilled occupation is that it is not necessary that the person be doing the skilled tasks for the whole time. An example is an old Federal Court decision of Singh & Salindera v MIEA [1993] FCA 451; (1993) 44 FCR 495 (10.9.993). The reasoning below is not about skilled visas as such but is about whether a position to be filled was ‘a position in respect of a highly skilled occupation’. Here an Indian dancer was employed full time but the time spent in performance at a theme park was about two or three short performances daily. The court held nevertheless that the position was for a highly skilled person even though the skill was used for a short part of the day. Here is the court’s reasoning:
It is not necessary to show that the person will exercise the high skill associated with the formal training and experience during the whole working day. There are many occupations in which a highly skilled person spends a good deal of time doing routine work that a lesser skilled person could carry out equally well; but where it is essential to have a particular form of training in order to meet the exigencies of the job as they occur from time to time, perhaps only for a relatively small portion of the time. If it is necessary for the person to have the requisite skills in order to occupy the position, this is enough to satisfy the regulation. It is not necessary to show that the skills are called upon for a major proportion of the working day.
19. Provided that it is found that the position is one where the necessary skill is required, it does not matter that a particular employee may have proved competent to do other work not requiring the specified high skill and may spend a good deal of his/her time on that work. The regulation is intended to look at the matter from the employer’s point of view. It envisages an employer who has a vacancy for a position requiring the possession of a particular skill. The questions then are whether or not the particular applicant was employed in that position because of his/her high skill; and, if so, whether he/she uses the skill in that position. If the answers to these questions are in the affirmative, it does not matter that the skill is only used during part of the working day.
This reasoning is apt for the definition of ‘employed’.
Reithmuller FM in De Ronde v MIMA [2004] FMCA 519 considered employed was ‘actively participating in or undertaking duties directly connected with the carrying out of the occupation concerned’
Attempts at fudging the employment history often comes to grief, see 0802933 Mrs Mi Ae Jeon [2010] MRTA 6 (4 January 2010). See also 0909362 [2010] MRTA 2185 (5 October 2010) about a secondary school teacher failing in an attempt to pass off working as a teacher in an English language school as work as a secondary school teacher. The term ‘closely related skilled occupation’ did not come to the rescue because the closely related occupation had to be a job on the skilled occupation list. In that case the teacher was just a private teacher in a language school and not a secondary or primary school teacher. The writer’s opinion is that the decision was quite harsh and perhaps ought to have been taken on appeal to court.
In Croney 071908806 [2008] MRTA 834 (8.9.08) it was established that the applicant was a cook but that her recent work experience was in a pizza shop hence the delegate found she was employed as a Fast Food Cook (ASCO 9932-11) which was not a skilled occupation rather than as Cook ASCO Code 4513-11 which is a skilled occupation. Nevertheless the MRT reviewed the evidence and found for the applicant:
22. As it is, the Tribunal considers that the.. visa applicant has submitted comprehensive evidence that she meets the ASCO Code requirements for Cook, particularly given her extensive experience as Chef for various hotels in England. While past experience cannot be taken into account in determining whether between 29 March 2006 and 29 March 2007, the first named visa applicant meets the legislative requirements, the Tribunal contends that the past experience cannot be completely overlooked in terms of demonstrating that her skills are commensurate with the ASCO Code as it is clear that the first named visa applicant is not embellishing claims about her current capacities and those at the time of application in terms of Cook.
23. The delegate found “from the work reference you have provided, and information regarding the nature of the business sourced from the Internet, that the duties you performed in your position with Perfect Pizza most equate to a Fast Food Cook (ASCO 9932-11)”. The Tribunal concedes that on the basis of the initial reference by the Proprietor of Perfect Pizza, it is not unreasonable that the delegate may have come to the conclusion that the first named visa applicant’s occupation was in the preparation of Fast Food. A second more comprehensive reference has now been submitted which identifies in more detail and particularity the specific duties of the first named visa applicant at Perfect Pizza. This reference letter dated 14 November 2007, clearly shows that the first named visa applicant’s duties were varied, including supervising junior staff and the preparation of other food items apart from pizzas. While the Tribunal appreciates, the delegate’s concern, the Tribunal is satisfied that the duties performed by the first named visa applicant at Perfect Pizza were more in the way of general food preparation consistent with the occupation of Cook. The Tribunal finds, therefore, that the detail set out in this reference letter dated 14 November 2007, shows that the applicant was at Perfect Pizza undertaking the following tasks as required by ASCO Code 4513-11: examines food to ensure quality; regulates temperatures of ovens, grills and other cooking equipment; prepares and cooks food seasons food during cooking; portions food, places it in dishes, adds gravies or sauces, and garnishes; stores food in temperature controlled facilities; may plan menus and estimate food requirements; may prepare food to meet special dietary requirements; may train other kitchen staff and apprentices.
Self Employed
Under Australian corporations law a company need only have one resident director and one shareholder. The term ‘resident’ for corporations law does not mean permanent residence and would cover a person present in Australia on a temporary visa. The cost of buying a company from a shelf company service is not large (about $1000+)
Given the definition of employed is 20 hours per week, a person could set up a company and employ him or herself. For example a person seeking employment experience as a cook would set up a company and do freelance cooking and even cook for things like food festivals, school fetes, cooking food at a food stall at a sporting event, the list could be endless. Of course such a case would have to ‘drip with authenticity’ and show regular deposits of money into a bank account representing revenue from such work and also be backed up by evidence like photographs testimonials, witness statements etc. Plus the work would have to be genuinely ‘chef’ or ‘cook’ and not fast food cook . A freelance cook having his or her own ABN covering him or herself for workers’ compensation, superannuation etc is far easier to employ on a casual basis that putting the person on the formal payroll. The tax rule about using a company to provide services is that one cannot earn more than 80% of one’s income from one customer in a financial year. So a person could have one’s own company and that company could provide services to others, on a short term or medium term basis. Note however the limitation on a cook & chef in the SOL as follows as denoted by *** which is applies to the ENS subclass 186 visa and the subclass 457 visa (and not the skilled visas) :
*** indicates that for a nomination or visa application for a Subclass 457 visa or a Subclass 186 visa , the occupation excludes positions in Fast Food or Takeaway Food Service
The self-employed concept would apply for hairdressers who could set up a mobile hairdressing business or work on contract through the company, there is hardly an occupation, professional or otherwise which would not benefit from this type of arrangement. Even ones requiring registration could work this way, lawyers, doctors etc.
On a fee paying basis the writer can assist with setting up this type of structure, noting that it has to be done properly and authentically. This type of thing would work on the remnants of a student visa, or a 485 or a 457 visa (the last one being a self-sponsorship model which would require more than just the setting up of a company).
What is remuneration?
Moradian v MIMIA [2004] FCA 1590 (6.12.04) concerned the interpretation of ‘remuneration’ for skilled visas purposes. Here the applicant was employed by the the Bahá’í World Centre in Haifa. The case concerned whether the applicant was a ‘volunteer’ and whether certain allowances and payments received amounted to ‘remuneration’. In the end the case was decidedon a natural justice point but Gray J made some pertinent observations about ‘remuneration’:
46 Counsel for the Minister sought to argue that, even if the Minister’s delegate had had available all of the information which Mr M could have supplied about the payments and other benefits he received from the Bahá’í World Centre, the Minister’s delegate could not have found that there was remuneration involved. Counsel.. relied on Austin v AGP, a decision of Snr DP Watson of the Aust Industrial Relations Commission on 17.7.98, (Print No. Q3793). The question… was whether an employee’s remuneration exceeded the maximum amount beyond which he could not proceed in the Commission in respect of the termination of his employment. The crucial element was an allowance paid to the employee for business usage of his private vehicle. As the amount paid only partly reimbursed the employee for the cost of providing his vehicle for business purposes.. DP Watson found… the allowance was for reimbursement of expenses and did not form part of the employee’s remuneration. Such a decision forms no adequate basis for the argument that the provision of free housing, health care, and housekeeping expenses including food, together with a ‘general allowance’, a clothing allowance and a travel allowance could not amount to remuneration. If the Minister’s delegate had been in possession of the information as to what Mr M received, the conclusion certainly could, and probably should, have been.. he was receiving remuneration from the Bahá’í World Centre.
The upshot of Gray J’s comments are that remuneration can come in varying forms and the definition of ‘remuneration’ is not straightjacketed by applying a technical approach.
Moradian v MIMIA also contains a very valuable interpretation of what rules of natural justice not apply at the primary level of decision making and this is set out elsewhere in this journal under the heading of natural justice.
Post qualification work
When one is looking at the term, ‘employed’ in one’s ‘nominated skilled occupation’, this ordinarily means post qualification work. This means the work as an apprentice would not qualify as being ‘employed’ in one’s ‘nominated skilled occupation’. Of course if one did a certificate III in say commercial cookery which is a one year course and then did a Diploma of Business Management for one year, then one could work as a cook while doing that second year diploma and that would count as being ‘employed’ in one’s ‘nominated skilled occupation’ of cook.
More problematic would be an RTO skill assessment by way of recognition of on the job acquired skills and prior learning. Such an RTO skill assessment is a recognition of skills, not the process of the acquisition of a skill. Hence the writer argues that work prior to the formal RTO skill assessment would skill be being ‘employed’ in one’s ‘nominated skilled occupation’.
Plus one does not have to wait for the formal skill assessment from a skill assessing authority before one is classed as a being ‘employed’ in one’s ‘nominated skilled occupation’. The point when skilled work starts (in the writer’s view) is when the qualification is attained, not when it is assessed. Skill assessment merely confirms an existing qualification. So if a student completes a qualification and gets the results in say early January then work done after the examination results would be skilled work.
Problematic would be some professions like law which require formal admission, yet prior to admission a law clerk may be doing legal work. Here the law clerk who has a law degree may in fact be working in a ‘closely related skilled occupation’ like Judicial and Other Legal Professionals nec. In such a case work done after attaining a law degree but prior to formal admission may count as being ‘employed’.
Occupational ceilings
The occupational ceilings are not targets but identify the point in a year when Immigration will stop processing applications for persons who have nominated that occupation and the ceiling has been reached.
ASCO to ANZSCO
If a person has a skill assessment based on an ASCO code generally Immigration will accept that skills assessment for the comparable ANZCO.
By way of example VETASSESS states the following :
34. Will DIBP accept my VETASSESS Skills Assessment if it was issued in ASCO?
All visa applicants to DIBP under the skilled migration program now need to nominate an ANZSCO occupation. DIBP will accept a VETASSESS Skills Assessment with a nominated occupation in ASCO provided that there is a corresponding ANZSCO occupation which may still be nominated for migration purposes. Please check the schedules of occupations on the DIBP website at www.immi.gov.au.
Living in a state
State and territory authorities give some preference for applicants ‘living’ in that state. That term ‘living’ or ‘live in’ or ‘reside in’ are not technical legal terms. They should NOT be related to permanent residence.
A person could move to a state and be ‘living’ there within one or two weeks of arrival, possibly even the day of the arrival. What is required is having a place to call home which can be a flat recently leased in the name of the applicant, with added accoutrements of utility bills in the name of the applicant, driver’s licence in the name of the applicant at that address etc.
Fraud in skilled visa cases
There is a small pocket of organised fraud in skilled visa matters. Plus the whole skilled visa regime over the years has been plagued with instances of false documents, false information and false references. A survey of a number of these cases shows that fraud has risks.
Accompanying this paper is extract from an MRT decision giving details of one particular person Carmine Amarante who has now been convicted of fraud for supplying work references. Also attached is the MARA decision where the migration agent Jingyi Wang had her registration cancelled. In paragraph 43 and 44 of the MARA decision on pages 12 and 13 is the finding that the agent ‘made up’ work experience for Engineering Australia skill assessments.
These types of cases have a knock on effect for visa applicants or visa holders. In many cases either the visa application is refused or the visa is cancelled.
VISAS CANCELLED FOR BOGUS WORK REFERENCES
Subclass 175 Visa cancelled for bogus work experience reference – PR lost
In Singh 006407 [2011] MRTA 1823 (5 August 2011), the MRT affirmed the cancellation of a subclass 176 (Skilled – Sponsored) visa because the 900 work experience reference purchased for $300. The case is the result of investigating organised scams where a single employer supplied hundreds of bogus work references to individual visa applicants to meet Trades Recognition Australia requirements.
Basically any visa including a permanent residence can be cancelled after grant if the visa applicant supplied false documents to obtain the visa or supplied false documents in order to meet certain prerequisite criteria for the visa.
Section 103. Bogus documents not to be given etc.
103. A non-citizen must not give, present or provide to an officer, an authorised system, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented or provided.
The MRT concluded:
24…..Specifically, he obtained a positive skills assessment from TRA on the basis of false and misleading statements regarding his non-existent work experience at Axilleon Cakes. That document was a bogus document within the meaning of s.97 of the Act. He then provided that bogus document in support of his visa application, in breach of s.103 of the Act.
25. In arriving at these findings, the Tribunal has considered evidence that the Department’s investigations disclosed that between 2006 and 2009, about 120 purported work references issued by Tina Galanos/Axilleon Cakes had been presented by overseas applicants for skilled visas. Many showed that the applicant had worked at Axilleon Cakes at the same time as other applicants, or during overlapping periods. During a search of premises belonging to a person who has admitted to producing numerous false work experience references for overseas students in order to assist them to obtain permanent visas, investigators found a vast collection of fraudulent work references, including about 200 in the name of Tina Galanos and/or Axilleon Cakes, many identical to that which the applicant provided to Trades Recognition Australia (TRA) in support of his application for a skills assessment for his nominated skilled occupation. As well, the informant advised the Department that he had been colluding with Tina Galanos in this way for at least three years, paying her $300 per reference. The Tribunal also noted that repeated efforts by the Department to verify the applicant’s work experience claims directly with Tina Galanos have been unsuccessful, with both Ms Galanos and her lawyers failing to respond, or to furnish the evidence sought.
26. The Tribunal finds that there is no truth to the applicant’s employment experience claims and his credibility more generally. These work claims formed part of his application for a skills assessment by Trades Recognition Australia (TRA), and if they had been known to be false, would have resulted in an adverse skills assessment. Without a positive skills assessment, his overall score in the general points test would have been reduced by 60 points, well below the pass and pool marks at the relevant time, resulting in the refusal of his subclass 176 visa application, and the denial of permanent residency.
Rafi 1010592 [2011] MRTA 378 (24 February 2011)
24 February 2011, Melbourne
Mr D Young, Member
SKILLED . INDEPENDENT OVERSEAS STUDENT (CLASS DD) . SUBCLASS 880 . S.109 . CANCELLATION . S.103 . BOGUS DOCUMENT . A delegate of the Minister cancelled the applicant.s Subclass 880 visa under s.109 as he had failed to comply with s.101 (application to be correct) and s.103 (bogus documents) of the Act by providing a bogus document in support of his application.
The applicant claimed that he paid an intermediary AUD$2,700 to obtain a work reference from Via Veneto Restaurant which falsely claimed that he completed 900 hours of relevant work experience. That reference was submitted to Trades Recognition Australia (TRA) in support of the applicant.s application for a skills assessment which was then presented to the Department with the applicant.s Subclass 880 visa application.
The applicant claimed that he came to Australia as a 21 year old from Pakistan and he decided that he wanted to acquire permanent residency ‘at any cost’. He stated that he had specifically enrolled in a cookery course in Australia as an assured and rapid pathway to permanent residency. The applicant agreed that since acquiring the permanent visa, he had not worked in the hospitality industry.
He claimed that he dealt with someone at Della International College who said that the Regulations were to change in September, that he could not rely on the hours that he had worked at E-Gusto restaurant to meet the work experience requirement but, for a fee, someone could assist him to overcome that problem. The applicant stated that he did not know how many hours he worked at E-Gusto restaurant. The applicant claimed he was sorry for this conduct but that he would not be welcomed back in Pakistan, would not enjoy the same lifestyle and had ¡°issues¡± with his parents, whom he claimed were ¡°forcing¡± him to marry a cousin. He claimed he had ¡°invested five precious years¡± of his life in Australia and did not want to return to Pakistan.
Held: Decision under review affirmed.
The Tribunal considered that the alleged breach of s.101 was misconceived by the delegate and dismissed it accordingly. The Tribunal next considered the alleged breach of s.103 and found that the applicant provided a bogus document that was obtained because of a false or misleading statement in support of his visa application. Accordingly, the Tribunal found that there was non-compliance with s.103 of the Act by the applicant.
The Tribunal next considered whether the visa should be cancelled pursuant to s.109(1). The Tribunal was satisfied that the visa would not have been granted if the correct information had been provided. The Tribunal found that the non-compliance had occurred as the applicant was determined to achieve permanent residence in Australia ¡°at any cost¡± and that he enrolled in a cookery course after being informed by a migration agent that this was an assured route to his objective. The applicant knew that he would require relevant work experience in order to acquire the points needed to gain the visa and, in order to advance and expedite his migration plans, he availed himself of the services of a corrupt individual who was widely known to be manufacturing false work references for international students. Knowing that the TRA assessment had been fraudulently obtained on his behalf he lodged it in support of his visa application, fully cognisant of its illegality and of the associated risks. The Tribunal categorically rejected any suggestion that the applicant was a victim of a conniving intermediary or an innocent abroad, and it considered that he was a willing and fully informed party to a joint criminal enterprise designed to secure for him a visa and immigration status to which he knew full well he was not entitled.
In this case, the Tribunal was satisfied that the applicant committed an egregious breach of s.103 of the Act, in a premeditated and deliberate deception that was calculated to secure him a permanent visa to which he knew full well he was not entitled. The Tribunal considered that the review applicant.s misconduct represented an assault on the integrity of the Australian immigration system and undermined the rationale for the Commonwealth.s skilled migration program. The Tribunal found that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, the Tribunal was satisfied that the applicant.s Skilled visa should be cancelled. Accordingly, the Tribunal affirmed the decision to cancel the applicant.s Skilled visa.
Re: Batra 1008589
3 March 2011, Melbourne
Mr D Young, Member
CANCELLATION . SKILLED (RESIDENCE) (CLASS VB) VISA . SUBCLASS 885 . (SKILLED . INDEPENDENT) . s.103 . FRAUDULENT DOCUMENTS . A delegate of the Minister cancelled the applicant.s Subclass 885 visa because he was found to have failed to comply with s.103 of the Act. In 2008, the applicant was granted a Skilled visa on the basis that he was a pastry cook. He supplied to the Department an employment reference, in support of a skills assessment by Trades Recognition Australia (TRA), which stated that he had the relevant work experience for the grant of the visa. The applicant was informed by letter that the Department had subsequently interviewed an individual who admitted to receiving cash payments of between $1500 and $2400 from numerous visa applicants to fabricate their employment references, and paying the employer, O’heas Bakery and Deli, between $300 and $500 for a signature on each document. The Department found hundreds of false work references at the residence of the individual, who confirmed that no international students had worked for O’heas.
The Tribunal put to the applicant in a letter under s.359A that his purported work reference falsely asserted that he had completed the required number of hours of supervised relevant work experience at O’heas, and that he had knowingly submitted the reference to TRA, which had given him a favourable skills assessment, and then submitted it to the Department in support of his visa application. The letter further stated that without the falsely claimed work experience and favourable, but bogus, TRA skills assessment, he would not have been granted the visa. The applicant’s agent replied to the letter, but focussed on issues such as the validity of the s.107 notice and the status of TRA, rather than any of the substantive matters on which comment was invited. The applicant also submitted receipts pertaining to various charities, and a referral letter to a psychologist from a general practitioner, stating that the applicant was suffering from depression and was suicidal. The applicant declined the opportunity to appear before the Tribunal to give evidence.
Held: Decision under review affirmed.
The Tribunal found that the TRA assessment was a bogus document which was obtained as a result of false claims as to the applicant’s work experience. The Tribunal found that the applicant had studiously avoided any direct comment regarding the allegation against him, despite a direct invitation to do so. The Tribunal attached substantial weight to the evidence from the Department regarding their interview with the individual who had received cash for fabricated employment references and then paid the employer for his signature on each document. The Tribunal found that the applicant was never employed in any capacity by the employer and that he knowingly provided to the Department a bogus TRA skills assessment document which had been obtained because of a false or misleading statement.
The Tribunal considered the agent’s submission, and while it commended the agent.s diligence and creativity, it found that the bulk of her arguments were misconceived. The Tribunal’s view was that the express terms of s.103 prohibited the presentation of any bogus document and did not provide for any exceptions or qualifications. The Tribunal regarded the cancellation of a permanent visa as a matter of considerably gravity but was satisfied that the applicant had committed an egregious breach of s.103 of the Act that was calculated to secure him a permanent visa to which he knew he was not entitled. The Tribunal found that the applicant’s conduct had involved a cynical betrayal of the trust and good faith on which the skills accreditation system relied and undermined the rationale for the Commonwealth’s skilled migration program. The Tribunal found that, in the final analysis, a scheme designed to bring skilled individuals into Australia ¡°had netted the country a supermarket worker who had never worked as a pastry cook, or in any other skilled capacity, since acquiring permanent residency. The Tribunal noted that, since becoming aware of the impending cancellation of his visa, the applicant had busied himself with various charitable activities, and while commending him for these belated efforts at civic virtue, did not accept that they could expiate a blatant and calculated fraud. Accordingly, the Tribunal was satisfied there was non-compliance by the applicant in the way described in the s.107 notice, and it was satisfied that the applicant’s visa should be cancelled.
Getting someone else to sit the IELTS
Re: Lohani 0901871 MRT
1 September 2010, Melbourne
Mr D Young, Member
SKILLED (RESIDENCE) (CLASS VB) . SUBCLASS 885 . CL.885.213(b) . IELTS TEST . IDENTITY . A delegate of the Minister was not satisfied that the visa applicant met cl.885.213 of the Regulations, as the delegate found that the person who had undertaken the IELTS test, and whose photograph was scanned onto the score sheet, was not the applicant. The applicant claimed that the IELTS test administration procedures left little room for deception or fraud and that the two photographs presented to the IELTS centre both depicted him. He claimed that the photograph scanned onto the test results sheet was taken 3 years before his passport photograph and that in the meantime he had gained weight, lost some hair, changed his hairstyle, and he hadn.t worn glasses in the latter photograph because the photographer asked him to remove them due to the lenses reflecting the studio flashlight. He also claimed the test centre staff were all Anglo-Australians and may have had difficulty telling Indians apart. The applicant produced a witness at the Tribunal hearing who was a fellow student and who claimed that he was present at the same IELTS test session where he saw the applicant.
Held: Decision under review affirmed.
The Tribunal noted that the visa applicant produced a witness at the hearing who had a similar appearance to himself. As to his similar hairstyle, the witness claimed it was common for young people to mimic the local style. The witness and the visa applicant disputed the Tribunal’s suggestion that had deliberately contrived to look similar, but different from their respective passport photographs, in order to raise doubts in the Tribunal’s mind about the reliability of the photographic evidence, or its own capacity to tell Indian people apart.
The Tribunal did not dispute the IELTS test results, however it questioned whether it was the applicant who had obtained them. The Tribunal noted that there was no claim that the IELTS test centre photograph was incorrectly scanned onto the applicant.s score sheet, nor that there was an administrative error. The Tribunal was satisfied that the person depicted in the applicant.s IELTS test results photograph was not the applicant, whose likeness had been well-captured in his passport photograph. The Tribunal found that there were multiple significant differences between the people in the photos which were manifestly obvious, even to the untrained eye, and which did not generally change. The Tribunal’s observations were consistent with the expert testimony of the Department.s document examiner, and use of specialised facial recognition and matching software. The Tribunal rejected the claim that the applicant was asked to remove his glasses for the latter passport photograph, and noted that passport holders who normally wear visual aids were required to do so in these photos. The Tribunal also noted that the applicant did not explain why he provided the IELTS centre with an old photograph in circumstances where identity might be an issue. The Tribunal was aware of fraud at the IELTS test centre in recent years, and was prepared to countenance the possibility of human error, or even malfeasance, by test centre staff not sensitive to differences in facial features of Indian people. However, the Tribunal considered it was not its task to speculate on the actions or decisions of IELTS test centre staff, but to determine whether the two photographs depicted the applicant on two occasions, three years apart. The Tribunal was satisfied that they did not. Accordingly, the Tribunal found that the applicant did not satisfy cl.886.213 of the Regulation and the decision under review was affirmed.
Charges follow from presenting false documents to Immigration
The CRIMINAL CODE ACT 1995 (Cwth) states:
135.1 General dishonesty
Obtaining a gain
(1) A person is guilty of an offence if:
(a) the person does anything with the intention of dishonestly obtaining a gain from another person; and
(b) the other person is a Commonwealth entity.
Many visa applicants have been charged under this provision
STUDENTS – TIME HAS RUN OUT
In his speech on 21 October 2013, Mr Morrison said:
We believe international students should come to Australia with the bona fide intention to study in some of the world’s finest education institutions, not as a backdoor to a permanent migration outcome. We’re interested in selling education, not visas and I know that is the widespread view not only within the migration agent community but within the international education sector as well. We want to compete on education, not a comparison test on visa classes.
But as discussed later in this paper, properly planned there is a transition from student visa to permanent residence visa the skilled visa regime.
Later in this paper because of the multitude of cases which are working their way through the appeal processes, it is still necessary to know of the transitional arrangements even though from 1 January 2013 it was no longer possible to apply for the old set of GSM visas which created the easy transition from student visa to skilled visa.
Subclass 485 visa re-hashed
The Migration Legislation Amendment Regulation 2013 (No. 1) re-hashes this visa. Firstly it is now called the Subclass 485 (Temporary Graduate) visa, perhaps emphasising that it is a temporary visa, not necessarily a pathway to permanent residence.
There remains the ability of a recent graduate who is able to get a skill assessment in the restricted Schedule 1 occupations (SOL) [as set out in the Legislative Instrument Immi 13/66 (attached)] to then obtain a temporary visa (Graduate Work stream) valid for 18 months (as set by policy in the PAM).
Then there is the Post-Study Work stream whereby the term of the visa is as follows as set by policy in the PAM:
Bachelor 2 years
Bachelor with Honours 2 years
Masters by Coursework 2 years
Masters (extended) 2 years
Masters by Research 3 years
Doctorate 4 years
However this is tempered by the schedule 1 criteria for the Post-Study Work stream
which states:
(l) An applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 (Temporary Graduate) visa in the Post-Study Work stream:
(i) must hold a Student Temporary (Class TU) visa that:
(A) was granted on the basis of an application made on or after 5 November 2011; and
(B) is the first Student Temporary (Class TU) visa that the applicant has held; or
(ii) must have held a Student Temporary (Class TU) visa that:
(A) was granted on the basis of an application made on or after 5 November 2011; and
(B) was the first Student Temporary (Class TU) visa that the applicant had held.
This cuts out a lot of current Ph D students including students who have been awarded a Ph D in the last half of 2013. The policy rational for this restriction is not obvious. Many within the Immigration Department were opposed to the Knight reforms where the visas for university graduates comes from. So we end up with a schizophrenic policy cutting out some graduates but allowing others in (there being no rational reason for the restriction).
For both streams the criteria is that the applicant have held a relevant student visa in the 6 months before the application is made and the application is made within 6 months of having completed the course.
Here is the Schedule 2 criteria:
485.21—Common criteria
485.211
The applicant:
(a) has not previously held a Subclass 476 (Skilled — Recognised Graduate) visa that was granted on the basis that the applicant satisfied the primary criteria for the grant of the visa; and
(b) has not previously held a Subclass 485 visa that was granted on the basis that the applicant satisfied the primary criteria for the grant of the visa.
485.212
When the application was made, it was accompanied by evidence that the applicant had competent English.
485.213
When the application was made, it was accompanied by evidence that:
(a) the applicant; and
(b) …;
had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.
485.214
When the application was made, it was accompanied by evidence that:
(a) the applicant; and
(b) each person included in the application;
had made arrangements to undergo a medical examination for the purpose of the application.
485.215
(1) When the application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.
(2) The applicant has had adequate arrangements in Australia for health insurance since the time the application was made.
485.216
(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4020 and 4021.
(2) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(3) Each member of the family unit of the applicant who is an applicant for a Subclass 485 visa satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020.
(4) Each member of the family unit of the applicant who:
(a) is an applicant for a Subclass 485 visa; and
(b) had turned 18 at the time of application;
satisfies public interest criteria 4019.
(5) Each member of the family unit of the applicant who:
(a) is an applicant for a Subclass 485 visa; and
(b) has not turned 18; and
(c) made a combined application with the applicant;
satisfies public interest criteria 4015 and 4016.
485.217
(1) The applicant satisfies special return criteria 5001, 5002 and 5010.
(2) Each member of the family unit of the applicant who:
(a) is an applicant for a Subclass 485 visa; and
(b) has previously been in Australia;
satisfies special return criteria 5001, 5002 and 5010.
485.218
Grant of the visa would not result in either:
(a) the number of Subclass 485 visas granted in a financial year exceeding the maximum number of Subclass 485 visas specified by the Minister in an instrument in writing for this paragraph, that may be granted in that financial year; or
(b) the number of visas of particular classes (including Subclass 485) granted in a financial year exceeding the maximum number of visas of those classes, specified by the Minister in an instrument in writing for this paragraph, that may be granted in that financial year.
485.22—Criteria for Graduate Work stream
Note: These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream.
485.221
The applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made.
485.222
Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
485.223
When the application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.
485.224
(1) The skills of the applicant for the applicant’s nominated skilled occupation have been assessed by a relevant assessing authority as suitable for that occupation.
(2) If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.
485.23—Criteria for Post Study Work stream
Note: These criteria are only for applicants seeking to satisfy the primary criteria for the grant of a Subclass 485 visa in the Post Study Work stream.
485.231
(1) The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.
(2) Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.
(3) The applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.
485.3—Secondary criteria
Note: These criteria are for applicants who are members of the family unit of a person who satisfies the primary criteria. All criteria must be satisfied at the time a decision is made on the application.
485.31—Criteria
485.311
The applicant:
(a) is a member of the family unit of a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and made a combined application with that person; or
(b) is a member of the family unit of a person who holds a Skilled (Provisional) (Class VC) visa on the basis of satisfying the primary criteria for the grant of a Subclass 485 visa.
485.312
(1) When the application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.
(2) The applicant has had adequate arrangements in Australia for health insurance since the time the application was made.
485.313
(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4020 and 4021.
(2) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(3) If the applicant has not turned 18, the applicant satisfies public interest criteria 4017 and 4018.
485.314
If the applicant has previously been in Australia, the applicant satisfies special return criteria 5001, 5002 and 5010.
485.4—Circumstances applicable to grant
485.411
(1) The applicant who satisfies the primary criteria for the grant of the visa must be in Australia when the visa is granted.
(2) Each applicant who made a combined application with the applicant who satisfies the primary criteria for the grant of the visa must be in Australia when the visa is granted.
(3) In any other case, the applicant may be in or outside Australia when the visa is granted.
485.5—When visa is in effect
485.511
Temporary visa permitting the holder to travel to, enter and remain in Australia until a date specified by the Minister.
485.6—Conditions
485.611
Condition 8501 must be imposed.
485.612
If the applicant is outside Australia when the visa is granted:
(a) first entry must be made before a date specified by the Minister for the purpose; and
(b) condition 8515 may be imposed.
In IMMI 13/013, Federal Register of Legislative Instruments, F2013L00528 [21/03/2013] The following were specified:
(a) Bachelor Degree;
(b) Bachelor (Honours) Degree;
(c) Masters by Coursework Degree;
(d) Masters by Research Degree;
(e) Masters (Extended) Degree and/or;
(f) Doctoral Degree.
Note the absence of any trade qualifications for the Post-Study Work stream.
The subclass 476 Visa
Although a temporary visa the subclass 476 Recognised Graduate visa is a valuable one. It is a 4 year visa with unlimited work rights but is limited to only one profession, engineering. Here is the basic criteria:
476.212
The applicant has completed a course:
(a) in the period of 24 months ending immediately before the day on which the application is made; and
(b) at an institution specified by the Minister in an instrument in writing for this paragraph;
for the award of a degree or higher qualification in a discipline specified in an instrument in writing for this clause.
Legislative Instrument F2014L00130 [07/02/2014] IMMI 14/010, specifies ‘engineering’ as the only discipline but as far as institutions are concerned states:
2. SPECIFY, as an institution for the purposes of paragraph 476.212(b) of Schedule 2 to the Regulations, each institution:
(a) whose name is published on the website of an accrediting body that is a signatory to the Washington Accord; AND
(b) that conducts a course that is accredited by that accrediting body under the Washington Accord; AND
[re The Washington Accord see http://www.washingtonaccord.org/washington-accord/ – LEGEND note]
It also specifies
Country Institution
Argentina Catholic University of Argentina
Brazil Federal University of Minas Gerais
Chile Universidad Catolica del Norte Catholic University of Chile -Antofagasta
University of Chile
University of Concepcion
Finland HUT, Helsinki
Germany RWTH, Aachen
Technical University of Berlin
Technical University of Clausthal
TU Bergakademie Freiberg
University of Hannover
Hungary University of Miskolc
India Anna University—Chennai
Banaras Hindu University—Varanasi
Indian Institute of Science—Bangalore
Indian Institute of Technology, Kharagpur
Indian School of Mines—Dhanbad
Iran Amir Kabir University of Technology
University of Tehran
PRC China Beijing Normal University
Beijing Petroleum University
Beijing University of Chemical Technology
Beijing University of Technology (formerly Beijing Polytechnic University)
China University of Mining & Technology—Beijing
Guangzhou University
Shanghai University of Engineering Science
Shanghai Jiaotong University
Tongji University
Tsinghua University
University of Science and Technology—Beijing
Philippines University of the Philippines
Poland Wroclaw University of Technology
Slovakia TU Kosice
Sweden Lulea University of Technology
Tanzania University of Dar es Salaam
Permanent Residence Skilled Visa application
As far as an application for a visa lodged now, there is only two subclass PR skilled visa which are the Subclass 189 Skilled — Independent and the Skilled – Nominated (subclass 190) visa.
The change in recent time is that one can only apply for this visa after being invited to apply and prior to that one lodges an expression of interest. An expression of interest is not a visa application and therefore no bridging visa rights follow from lodging an expression of interest.
There are 2 ways of obtaining these visas. One is independently and the other is with state or territory sponsorship. The essential difference between the two is that for the independent pathway the list of occupations is limited to the SOL, (schedule 1 of Immi 13/66) whereas the nominated pathway is broad but constrained by nomination limitations of each state or territory. Each state or territory can choose occupations to place on their lists from the broad range of jobs on CSOL (consolidated sponsored occupation list or Schedule 2 to Immi 13/66).
In Immi 13/66:
• the occupations, Hospital Pharmacist, Retail Pharmacist, Aircraft Maintenance Engineer (Avionics), Aircraft Maintenance Engineer (Mechanical) and Aircraft Maintenance Engineer (Structures) were moved from SOL to Schedule 2 (the CSOL);
• Registered Nurse (Paediatrics) assessing authority the Australian Nursing and Midwifery Accreditation Council (ANMAC) was added to the SOL;
• Procurement Manager with the assessing authority Australian Institute of Management, and Nutritionist, Intellectual Property Lawyer, Archaeologist, Hydrographer and Kennel Hand all with the assessing authority Vocational Education and Training Assessment Services (VETASSESS) were added to Schedule 2 (the CSOL).
What is the points test
For the new subclass 189 and 190 visa the pass mark is still 60 . But now the Invitation to Apply can set a higher points level to achieve.
189.214
(1) The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the score stated in the invitation to apply for the visa.
As set out below in the discussion of Skill Select the invitation to apply is used to issue flexible points test requirements depending on the occupation.
Skill Select
No occupational ceilings on sponsored visas
The Immigration website reported in March 2014:
Announcement
In late 2013, the department conducted an evaluation of occupational ceilings to assess how they have operated to date and to consider changes to ensure they are performing their intended function.
Based on feedback received as part of the evaluation, the following changes will be in place from 1 March 2014:
• State and territory nominated visas will no longer be subject to occupational ceiling limitations
• The minimum ceiling for each occupational group will be 1000 invitations.
The nominal points score required is 60 but some occupations require more than 60 to get an invitation as set out below.
SkillSelect – 27 October 2014 round results
The table below shows the number of invitations issued in the SkillSelect invitation round on 27 October 2014.
Visa subclass Number
Skilled – Independent (subclass 189) 1030
Skilled – Regional Provisional (subclass 489) 50
During 2014-15 the following number of invitations have been issued:
Visa subclass July Aug. Sep. Oct. Total
Skilled – Independent (subclass 189) 2500 2500 2547 2430 9977
Skilled – Regional Provisional (subclass 489) 20 110 100 100 330
Total 2520 2610 2647 2530 10307
The above figures do not include invitations issued for state and territory government nominated visa subclasses. State and territory governments nominate throughout the month for specific points tested skilled migration and business innovation and investment visas. Separate results for these visa subclasses are provided monthly.
27 October 2014 results
The following graph shows the points for clients who were invited to apply in the 27 October 2014 round.
Invitation process and cut offs
The highest ranked clients by points score are invited to apply for the relevant visa. For clients who have equal points scores, the time at which they reached their points score for that subclass (referred to as the visa date of effect) determines their order of invitation. Expressions of Interest with earlier dates of effect are invited before later dates.
Visa subclass Points score Visa date of effect
Skilled – Independent (subclass 189) 60 27/10/2014 12:02AM
Skilled – Regional Provisional (subclass 489) 65 13/10/2014 12:48PM
Due to the continuing high numbers of EOIs received for the below occupations, invitations for these occupations will be issued on a pro rata basis in each twice monthly invitation round over the 2014-15 programme year. These arrangements are subject to change throughout the programme year. Please also note that SkillSelect first allocates available places to Skilled – Independent (Subclass 189) visas and then remaining to Skilled – Regional (Subclass 489) (Provisional – Family Sponsored) visas. If all places are taken up by Subclass 189 visas then there will be no invitations issued for Subclass 489 visas in these occupations:
• ICT Business and Systems Analysts
• Accountants
• Software and Applications Programmers.
The points score and the visa date of effect cut-off for the above occupation of ICT Business and System Analysts in the 27 October 2014 invitation round is as follows:
Note: Below points score and visa date of effect is for Skilled Independent (subclass 189).
Occupation ID Description Points score Visa date of effect
2211 Accountants 60 21/10/2014 10:09AM
2611 ICT Business and Systems Analysts 65 22/05/2014 5:12PM
2613 Software and Applications Programmers 60 11/10/2014 8:20AM
State/Territory Nominations 2014
Nominations by State and Territory Governments – September 2014
The number of intending migrants who received nominations from State and Territory Governments in September 2014 is shown in the table below:
Visa subclass ACT NSW NT Qld SA Tas. Vic. WA Total
Skilled – Nominated (subclass 190) visa 67 550 7 22 205 7 141 44 1043
Skilled – Regional (Provisional) (subclass 489) visa 0 107 22 31 45 4 2 4 215
Business Innovation and Investment (subclass 188) visa 0 35 0 10 11 1 165 12 234
Business Talent (Permanent) (subclass 132) visa 0 1 0 1 1 1 6 4 14
Total 67 693 29 64 262 13 314 64 1506
Nominations by State and Territory Governments – 2014/15 total activity
The number of intending migrants who received nominations from State and Territory Governments from 1 July 2014 to the end of September 2014 is shown in the following table:
Visa subclass ACT NSW NT Qld SA Tas. Vic. WA Total
Skilled – Nominated (subclass 190) visa 339 717 30 82 1041 26 478 112 2825
Skilled – Regional (Provisional) (subclass 489) visa 0 287 77 87 170 9 2 9 641
Business Innovation and Investment (subclass 188) visa 0 98 0 33 23 1 520 34 709
Business Talent (Permanent) (subclass 132) visa 0 2 0 1 18 3 25 19 68
Total 339 1104 107 203 1252 39 1025 174 4243
The above figures do not include invitations issued for state and territory government nominated visa subclasses. State and territory governments nominate throughout the month for specific points tested skilled migration and business innovation and investment visas. Separate results for these visa subclasses are provided monthly.
Occupation ceilings
An occupation ceiling will be applied to invitations to apply to migrate under the points based skilled visas of the general skilled migration programme. There will be a limit on how many invitations are issued in these subclasses for a particular occupation to ensure that the migration programme is not dominated by a small number of occupations.
Occupational ceilings do not apply to, State or Territory Nominated, Employer Sponsored or Business Innovation and Investment visa subclasses.
As there are high levels of interest from prospective skilled migrants in the below occupations, pro rata arrangements for this occupational group will apply. These arrangements are subject to change throughout the programme years:
• ICT Business and Systems Analysts
• Software and Applications Programmers
• Accountants.
The table below shows the occupation ceilings for the 2014-2015 programme year for each occupation on the Skilled Occupation List (SOL) by four-digit ANZSCO code unit group, and the number of invitations issued for each occupation in the current programme year to date:
Occupations ceilings for the 2014-15 programme year
Occupation ID Description Ceiling Value Results to date
1331 Construction Managers 5178 58
1332 Engineering Managers 1428 14
1335 Production Managers 3132 1
1341 Child Care Centre Managers 1000 2
1342 Health and Welfare Services Managers 1356 18
2211 Accountants 5478 1805
2212 Auditors, Company Secretaries and Corporate Treasurers 1188 247
2241 Actuaries, Mathematicians and Statisticians 1000 37
2245 Land Economists and Valuers 1000 16
2312 Marine Transport Professionals 1000 12
2321 Architects and Landscape Architects 1476 90
2322 Cartographers and Surveyors 1000 25
2326 Urban and Regional Planners 1000 32
2331 Chemical and Materials Engineers 1000 141
2332 Civil Engineering Professionals 2850 430
2333 Electrical Engineers 1332 147
2334 Electronics Engineers 1000 202
2335 Industrial, Mechanical and Production Engineers 1680 498
2336 Mining Engineers 1000 46
2339 Other Engineering Professionals 1000 307
2341 Agricultural and Forestry Scientists 1000 56
2346 Medical Laboratory Scientists 1092 28
2347 Veterinarians 1000 24
2349 Other Natural and Physical Science Professionals 1000 11
2411 Early Childhood (Pre-primary School) Teachers 1404 41
2414 Secondary School Teachers 7002 200
2415 Special Education Teachers 1044 5
2512 Medical Imaging Professionals 1014 31
2513 Occupational and Environmental Health Professionals 1470 48
2514 Optometrists and Orthoptists 1000 9
2521 Chiropractors and Osteopaths 1000 18
2523 Dental Practitioners 1000 98
2524 Occupational Therapists 1000 36
2525 Physiotherapists 1188 65
2526 Podiatrists 1000 4
2527 Speech Professionals and Audiologists 1000 16
2531 General Practitioners and Resident Medical officers 3672 146
2532 Anaesthetists 1000 11
2533 Internal Medicine Specialists 1000 24
2534 Psychiatrists 1000 11
2535 Surgeons 1000 5
2539 Other Medical Practitioners 1000 185
2541 Midwives 1000 16
2544 Registered Nurses 15042 1144
2611 ICT Business and Systems Analysts 1620 639
2613 Software and Applications Programmers 5004 1681
2631 Computer Network Professionals 1788 469
2633 Telecommunications Engineering Professionals 1000 208
2711 Barristers 1000 1
2713 Solicitors 3426 82
2723 Psychologists 1248 45
2725 Social Workers 1968 70
3122 Civil Engineering Draftspersons and Technicians 1000 25
3123 Electrical Engineering Draftspersons and Technicians 1000 18
3132 Telecommunications Technical Specialists 1000 11
3211 Automotive Electricians 1000 1
3212 Motor Mechanics 6444 56
3222 Sheetmetal Trades Workers 1000 0
3223 Structural Steel and Welding Trades Workers 4482 23
3232 Metal Fitters and Machinists 6816 27
3233 Precision Metal Trades Workers 1000 0
3311 Bricklayers and Stonemasons 1506 23
3312 Carpenters and Joiners 7164 84
3322 Painting Trades Workers 2448 4
3331 Glaziers 1000 1
3332 Plasterers 1980 7
3334 Wall and Floor Tilers 1110 0
3341 Plumbers 4464 44
3411 Electricians 7854 87
3421 Airconditioning and Refrigeration Mechanics 1626 9
3422 Electrical Distribution Trades Workers 1000 1
3423 Electronics Trades Workers 2580 12
3513 Chefs 2547 31
3991 Boat Builders and Shipwrights 1000 0
4112 Dental Hygienists, Technicians and Therapists 1000 9
Patchwork quilt
It is necessary to know about this patchwork quilt as there are still many of visas dating from early 2012 and before are still being processed and are working their way through the system. From 1 July 2012 to the present, the skilled visa regime has become a patchwork quilt, with many of the patches jarring. Obviously the nexus between studying in Australia and obtaining permanent residence via a skilled is over (except for some points granted for Australian study.
The patchwork quilt starts with thousands of visa applicants who had applied for offshore skilled visas before 1 September 2007 who now find themselves unlikely to ever get a visa. The government has offered to give them their application fees back and that is probably the best they can hope for. The only ones exempt from this are the old Subclass 495 – Skilled – Independent Regional (Provisional) applicants. It was possible to apply for this visa offshore and some of those applications are still being processed.
Otherwise the key dates are 8 February 2010. Anyone who had applied for or who held a subclass 485 Skilled Graduate visa is subject to the regime in existence as at that date and those persons had until 31 December 2012 to apply for a permanent residence skilled visa onshore being the subclasses 885 and 886 visas.
Further those who held eligible student visas (ie visas leading to an award of a trade qualification or degree or diploma) on 8 February 2010 were eligible to apply for the subclass 485 Skilled Graduate visa on the broad SOL up until 31 December 2012, but otherwise got no special privileges regarding permanent residence.
There would be some students who had not yet applied for the subclass 485 Skilled Graduate visa on 8 February 2012 who nonetheless would be eligible to apply for the 885 and 886 skilled visas and they have a special truncated Skilled Occupation List as their threshold criteria. However for them the access to the subclass 885 and 886 visas closed on 31 December 2012.
The subclass 887 Skilled Regional remains intact and now the new subclass 489 Skilled Regional (Provisional) visa is the new pathway to the 887 visa.
There is now a huge pipeline of GSM visa applications. The key issue is the order of processing of these applications. On 25 June 2012 the then Minister issued a new direction (No 54) setting out the order of processing of visa applications. This direction remains in place. Here is the order as extracted from that direction.
8) Certain skilled migration visas
1) The following processing priorities (with highest priority listed first) should be applied to applications for visas that are specified in Schedule A and Schedule B:
a) Regional Sponsored Migration Scheme visa applications. Within this priority, SkillSelect subclass 187 applications have precedence;
b) employer sponsored applications either through SkillSelect or through other channels. Within this priority, subclass 186 applications have precedence;
c) applications nominated by a State/Territory government. Within this priority, SkillSelect subclasses 190 and 489 have precedence;
d) applications with nominated occupations on the Skilled Occupation List Schedule 1. Within this priority, SkillSelect subclasses 189 and 489 applications have precedence;
e) all other applications.
9) If a section 85 cap applies
1) Applications for a visa may be affected by a section 85 cap that allows processing to be conducted but prevents the grant of visas beyond a specified number in a specified time period.
2) In deciding the order for considering and disposing of visa applications (or reviewing decisions pertaining to such applications) when affected by a section 85 cap, the applications to which this Direction specifically applies should be given priority in the order as provided for under paragraph 8.
3) This Direction prevails over any other directions under section 499 of the Act that outline the order of consideration for visa applications not described in this Direction. To avoid doubt, this Direction prevails over anything contained in Direction No. 49 – Order for considering and disposing of visa applications under section 91 of the Migration Act.
As one can see having state or territory sponsorship is crucial. Next in order of priority are those applicants who applied for a GSM visa after 1 July 2011 and who are subject to the truncated SOL which is set out in Schedule 1 of IIMI 11/069 (this schedule does not include the cooks, chefs and hairdressers).
The third and final priority is all other visas (which is known as Priority Group 5). Here is what the Immigration website says about Priority Group 5. Here is what the Immigration website said about this group which includes these visas :
• Skilled – Independent (subclass 175)
• Skilled – Sponsored (subclass 176)
• Skilled – Independent (subclass 189)
• Skilled – Nominated (subclass 190)
• Skilled – Regional Sponsored (subclass 475)
• Skilled – Regional Sponsored (subclass 487)
• Skilled – Regional (Provisional) (subclass 489)
• Skilled – Independent Regional (Provisional) (subclass 495)
• Skilled – Designated Area-sponsored (Provisional) (subclass 496)
• Graduate – Skilled (subclass 497)
• Skilled – Onshore Independent New Zealand Citizen (subclass 861)
• Skilled – Onshore Australian–sponsored New Zealand Citizen (subclass 862)
• Skilled – Onshore Designated Area–sponsored New Zealand Citizen (subclass 863)
• Skilled – Independent Overseas Student (subclass 880)
• Skilled – Australian-sponsored Overseas Student (subclass 881)
• Skilled – Designated Area-sponsored Overseas Student (subclass 882)
• Skilled – Independent (subclass 885)
• Skilled – Sponsored (subclass 886)
Processing of Priority Group 5 General Skilled Migration Applications
All other applications—priority group 5
Skilled migration applicants with a nominated occupation that is not on the SOL, and who are not nominated by a state or territory government under a state migration plan, will be processed under priority group 5.
Applicants should not contact the department to request that their application be exempt from the priority processing direction. Case officers do not have discretion to exempt applications.
Applicants with a nominated occupation removed from the SOL who have already been allocated a case officer will be contacted directly by their case officer. Applicants with a nominated occupation removed from the SOL who were not allocated to a case officer before 1 July 2013 will only be allocated to a case officer when applications from higher priority groups have been allocated.
Many priority group 5 applicants still face a considerable wait until their application is allocated to a case officer for processing and may wish to consider other options.
Options available to applicants in priority group 5
Visa applicants currently in priority group 5 may want to:
• submit an expression of interest (EOI) in SkillSelect—if invited to apply, this would require a new visa application including payment of the relevant visa application charge (VAC)
See: SkillSelect
• continue to await a decision on their visa application
• consider their eligibility for an employer sponsored visa, which would require a new visa application including payment of the relevant VAC
• consider their eligibility for nomination by a state or territory government under a state migration plan, which may require a new visa application
• apply for another substantive visa
• withdraw their application.
Applicants who decide to withdraw their application are not entitled to a refund of the VAC or compensation for other costs incurred in making an application.
Subclass 189 Skilled Independent visa
Schedule 1 criteria
(3) Other:
(a) An application must be made as an Internet application.
Note An Internet application is taken to have been made at the time, identified using Australian Eastern Standard Time or Australian Eastern Standard Time incorporating Daylight Saving Time in the Australian Capital Territory, that corresponds to the time at which the Internet application is made: see regulation 2.10C.
(b) An applicant may be in or outside of Australia, but not in immigration clearance.
(c) An applicant in Australia must hold:
(i) a substantive visa; or
(ii) a Subclass 010 Bridging A visa; or
(iii) a Subclass 020 Bridging B visa; or
(iv) a Subclass 030 Bridging C visa.
(d) An application by a person claiming to be a member of the family unit of a person who is an applicant for a Skilled — Independent (Permanent) (Class SI) visa may be made at the same time as, and combined with, the application by that person.
(4) An applicant seeking to satisfy the primary criteria must meet the requirements in the table.
Item Requirements
1 The applicant must have been invited, in writing, by the Minister to apply for a Subclass 189 (Skilled — Independent) visa
2 The applicant must apply for that visa within the period stated in the invitation
3 The applicant must not have turned 50 at the time of invitation to apply for the visa
4 The applicant must nominate a skilled occupation:
(a) that is specified by the Minister in an instrument in writing for this item as a skilled occupation at the time of invitation to apply for the visa; and
(b) that is specified in the invitation as the skilled occupation which the applicant may nominate; and
(c) for which the applicant declares in the application that the applicant’s skills have been assessed as suitable by the relevant assessing authority
Schedule 2 criteria Subclass 189 Skilled — Independent
189.1 Interpretation
Note 1 For registered course, relevant assessing authority and skilled occupation: see regulation 1.03.
Note 2 Regulation 1.03 also provides that competent English has the meaning set out in regulation 1.15C.
Note 3 There are no interpretation provisions specific to this Part.
189.2 Primary criteria
Note The primary criteria for the grant of a Subclass 189 visa must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application.
189.21 Criteria
189.211 The applicant was invited, in writing, by the Minister to apply for the visa.
189.212 (1) At the time of invitation to apply for the visa, the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation.
(2) If the assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.
189.213 At the time of invitation to apply for the visa, the applicant had competent English.
189.214 (1) The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the score stated in the invitation to apply for the visa.
(2) The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the qualifying score for that Subdivision.
Note Subdivision B of Division 3 of Part 2 of the Act provides for the application of a points system under which applicants for relevant visas are given an assessed score based on a prescribed number of points for particular attributes, assessed against the relevant pool mark and pass mark: see sections 92 to 96 of the Act.
The prescribed points and the manner of their allocation are provided for in Division 2.6 and Schedule 6D of these Regulations. Pool marks and pass marks are set from time to time by the Minister by instrument: see section 96 of the Act.
189.215 (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020.
(2) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(3) Each member of the family unit of the applicant who is an applicant for a Subclass 189 visa satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020.
(4) Each member of the family unit of the applicant who:
(a) is an applicant for a Subclass 189 visa; and
(b) had turned 18 at the time of application;
satisfies public interest criterion 4019.
(5) Each member of the family unit of the applicant who:
(a) is an applicant for a Subclass 189 visa; and
(b) has not turned 18;
satisfies public interest criteria 4015 and 4016.
(6) Each member of the family unit of the applicant who is not an applicant for a Subclass 189 visa:
(a) satisfies public interest criteria 4001, 4002, 4003 and 4004; and
(b) satisfies public interest criterion 4005 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.
189.216 (1) The applicant satisfies special return criteria 5001, 5002 and 5010.
(2) Each member of the family unit of the applicant who is an applicant for a Subclass 189 visa satisfies special return criteria 5001, 5002 and 5010.
189.217 Either:
(a) the applicant holds a valid passport that:
(i) was issued to the applicant by an official source; and
(ii) is in the form issued by the official source; or
(b) it would be unreasonable to require the applicant to hold a passport.
189.3 Secondary criteria
Note These criteria are for applicants who are members of the family unit of a person who satisfies the primary criteria. All criteria must be satisfied at the time a decision is made on the application.
189.31 Criteria
189.311 The applicant:
(a) is a member of the family unit of a person who holds a Subclass 189 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and
(b) made a combined application with that person.
189.312 (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020.
(2) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(3) If the applicant has not turned 18, the applicant satisfies public interest criteria 4017 and 4018.
189.313 The applicant satisfies special return criteria 5001, 5002 and 5010.
189.314 Either:
(a) the applicant holds a valid passport that:
(i) was issued to the applicant by an official source; and
(ii) is in the form issued by the official source; or
(b) it would be unreasonable to require the applicant to hold a passport.
189.4 Circumstances applicable to grant
189.411 The applicant:
(a) may be in or outside Australia when the visa is granted; and
(b) must not be in immigration clearance.
Note The second instalment of the visa application charge must be paid before the visa can be granted.
189.5 When visa is in effect
189.511 Permanent visa permitting the holder to travel to, enter and remain in Australia for 5 years from the date of grant.
189.6 Conditions
189.611 If the applicant is outside Australia when the visa is granted:
(a) first entry must be made before the date specified by the Minister; and
(b) if the applicant satisfies the secondary criteria for the grant of the visa, condition 8515 may be imposed.
Subclass 190 Skilled — Nominated Visa
The criteria is basically the same as the Subclass 189 Skilled — Independent, except that the schedule 1 criteria states additionally:
The applicant must be nominated by a State or Territory government agency
And this provision is found in the Schedule 2 criteria:
190.215 The nominating State or Territory government agency has not withdrawn the nomination.
The big difference of course is that the definition of skilled occupation for this visa is both Schedule 1, the Skilled Occupation List plus the much wider Schedule 2, the Consolidated Sponsored Occupation List contained in Immi 13/66. Each of the state or territories then choose which occupations and in what circumstances each will nominate a person having a skill assessment in a skilled occupation.
Subclass 489 (Skilled — Regional (Provisional))
Schedule 1 criteria
(4) An applicant seeking to satisfy the primary criteria for the grant of a Subclass 489 (Skilled — Regional (Provisional)) visa in the First Provisional Visa stream must meet the requirements in the table.
Item Requirements
1 The applicant must have been invited, in writing, by the Minister to apply for a Subclass 489 (Skilled-Regional (Provisional)) visa in the First Provisional Visa stream
2 The applicant must apply for that visa within the period stated in the invitation
3 The applicant must not have turned 50 at the time of invitation to apply for the visa
4 The applicant must nominate a skilled occupation:
(a) that is specified by the Minister in an instrument in writing for this item as a skilled occupation at the time of invitation to apply for the visa; and
(b) that is specified in the invitation as the skilled occupation which the applicant may nominate; and
(c) for which the applicant declares in the application that the applicant’s skills have been assessed as suitable by the relevant assessing authority
5 The applicant must:
(a) be nominated by a State or Territory government agency; or
(b) declare in the application that the applicant is sponsored by a person who:
(i) has turned 18; and
(ii) is an Australian citizen, Australian permanent resident or eligible New Zealand citizen
6 If the applicant declares in the application that the applicant is sponsored by a person mentioned in paragraph 5 (b), the applicant also declares in the application that:
(a) the sponsor is usually resident in a designated area of Australia; and
(b) the sponsor is related to the applicant, or the applicant’s spouse or de facto partner (if the applicant’s spouse or de facto partner is an applicant for the grant of a Skilled — Regional Sponsored (Provisional) (Class SP) visa), as:
(i) a parent; or
(ii) a child or step child; or
(iii) a brother, sister, adoptive brother, adoptive sister, step brother or step sister; or
(iv) an aunt, uncle, adoptive aunt, adoptive uncle, step aunt or step uncle; or
(v) a nephew, niece, adoptive nephew, adoptive niece, step nephew or step niece; or
(vi) a grandparent; or
(vii) a first cousin; and
(c) each person who is an applicant, and claims to be a member of the family unit of the applicant, is sponsored by that person
Note designated area is defined in regulation 1.03
(5) An applicant seeking to satisfy the primary criteria for the grant of a Subclass 489 (Skilled — Regional (Provisional)) visa in the Second Provisional Visa stream must meet the requirements in the table.
Item Requirements
1 The applicant holds one of the following visas:
(a) a Skilled — Independent (Provisional) (Class UX) visa;
(b) a Skilled — Designated Area-sponsored (Provisional) (Class UZ) visa;
(c) a Subclass 475 (Skilled — Regional Sponsored) visa;
(d) a Subclass 487 (Skilled — Regional Sponsored) visa.
2 For at least 2 years immediately before the application is made, the applicant must have held one of those visas, granted on the basis of:
(a) satisfying the primary criteria for the grant of that visa; or
(b) being the spouse or de facto partner of the person who satisfied the primary criteria for the grant of that visa
3 The applicant must not have held more than one of a particular kind of those visas
Schedule 2 criteria
489.1 Interpretation
Note 1 For designated area, registered course, relevant assessing authority and skilled occupation: see regulation 1.03.
Note 2 Regulation 1.03 also provides that competent English has the meaning set out in regulation 1.15C.
Note 3 There are no interpretation provisions specific to this Part.
489.2 Primary criteria
Note The primary criteria for the grant of a Subclass 489 visa include criteria set out in streams.
If an applicant applies for a Subclass 489 visa in the First Provisional Visa stream, the criteria in Subdivisions 489.21 and 489.22 are the primary criteria for the grant of the visa.
If an applicant applies for a Subclass 489 visa in the Second Provisional Visa stream, the criteria in Subdivisions 489.21 and 489.23 are the primary criteria.
The primary criteria must be satisfied by at least one member of a family unit, unless a member of the family unit holds one of the following visas on the basis of satisfying the primary criteria:
• a Skilled — Independent Regional (Class UX) visa;
• a Skilled — Designated Area-sponsored (Provisional) (Class UZ) visa;
• a Subclass 475 (Skilled — Regional Sponsored) visa;
• a Subclass 487 (Skilled— Regional Sponsored) visa.
The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application.
489.21 Common criteria
Note These criteria are for all applicants seeking to satisfy the primary criteria for a Subclass 489 visa.
489.211 (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010 and 4020.
(2) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(3) Each member of the family unit of the applicant who is an applicant for a Subclass 489 visa satisfies public interest criteria 4001, 4002, 4003, 4004, 4010 and 4020.
(4) Each member of the family unit of the primary applicant who:
(a) is an applicant for a Subclass 489 visa; and
(b) had turned 18 at the time of application;
satisfies public interest criterion 4019.
(5) Each member of the family unit of the primary applicant who:
(a) is an applicant for a Subclass 489 visa; and
(b) has not turned 18;
satisfies public interest criteria 4015 and 4016.
(6) Each member of the family unit of the primary applicant who is not an applicant for a Subclass 489 visa satisfies public interest criteria 4001, 4002, 4003 and 4004.
489.212 (1) The applicant satisfies special return criteria 5001, 5002 and 5010.
(2) Each member of the family unit of the applicant who is an applicant for a Subclass 489 visa satisfies special return criteria 5001, 5002 and 5010.
489.213 Either:
(a) the applicant holds a valid passport that:
(i) was issued to the applicant by an official source; and
(ii) is in the form issued by the official source; or
(b) it would be unreasonable to require the applicant to hold a passport.
489.22 Criteria for First Provisional Visa stream
Note These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 489 visa in the First Provisional Visa stream.
489.221 The applicant was invited, in writing, by the Minister to apply for the visa.
489.222 (1) At the time of invitation to apply for the visa, the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation.
(2) If the assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.
489.223 At the time of invitation to apply for the visa, the applicant had competent English.
489.224 (1) The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the score stated in the invitation to apply for the visa.
(2) The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the qualifying score for that Subdivision.
Note Subdivision B of Division 3 of Part 2 of the Act provides for the application of a points system under which applicants for relevant visas are given an assessed score based on a prescribed number of points for particular attributes, assessed against the relevant pool mark and pass mark: see sections 92 to 96 of the Act.
The prescribed points and the manner of their allocation are provided for in Division 2.6 and Schedule 6D of these Regulations. Pool marks and pass marks are set from time to time by the Minister by instrument: see section 96 of the Act.
489.225 (1) The requirements in subclause (2) or (3) are met.
(2) The nominating State or Territory government agency has not withdrawn the nomination.
(3) The Minister has accepted the sponsorship of the applicant by a person in the following circumstances:
(a) the person has turned 18; and
(b) the person is an Australian citizen, Australian permanent resident or eligible New Zealand citizen;
(c) the person is usually resident in a designated area of Australia;
(d) the person is related to the applicant, or the applicant’s spouse or de facto partner (if the applicant’s spouse or de facto partner is an applicant for a Subclass 489 visa), as:
(i) a parent; or
(ii) a child or step child; or
(iii) a brother, sister, adoptive brother, adoptive sister, step brother or step sister; or
(iv) an aunt, uncle, adoptive aunt, adoptive uncle, step aunt or step-uncle;
(v) a nephew, niece, adoptive nephew, adoptive niece, step-nephew or step-niece; or
(vi) a grandparent; or
(vii) a first cousin;
(e) each member of the family unit of the applicant who is an applicant for a Subclass 489 visa is sponsored by that person.
489.226 (1) The applicant satisfies public interest criterion 4005.
(2) Each member of the family unit of the applicant who is an applicant for a Subclass 489 visa satisfies public interest criterion 4005.
(3) Each member of the family unit of the applicant who is not an applicant for a Subclass 489 visa satisfies public interest criterion 4005 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.
489.23 Criteria for Second Provisional Visa stream
Note These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 489 visa in the Second Provisional Visa stream.
489.231 (1) If the applicant has previously held one of the following visas:
(a) a Skilled — Independent Regional (Provisional) (Class UX) visa;
(b) a Skilled — Designated Area sponsored (Provisional) (Class UZ) visa;
(c) a Subclass 475 (Skilled — Regional Sponsored) visa;
(d) a Subclass 487 (Skilled — Regional Sponsored) visa;
the applicant has substantially complied with the conditions to which the visa was subject.
(2) Each member of the family unit of the applicant who is an applicant for a Subclass 489 visa, and who has previously held a visa mentioned in subclause (1), has substantially complied with the conditions to which the visa mentioned in subclause (1) was subject.
489.232 (1) The applicant satisfies public interest criterion 4007.
(2) Each person who is a member of the family unit of the applicant, and is an applicant for a Subclass 489 visa, satisfies public interest criterion 4007.
(3) Each member of the family unit of the applicant who is not an applicant for a Subclass 489 visa satisfies public interest criterion 4007 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.
489.3 Secondary criteria
Note These criteria are for applicants who are members of the family unit of a person who:
(a) satisfies the primary criteria; or
(b) holds one of the following visas on the basis of satisfying the primary criteria:
• a Skilled — Independent Regional (Provisional) (Class UX) visa;
• a Skilled — Designated Area-sponsored (Provisional) (Class UZ) visa;
• a Subclass 475 (Skilled — Regional Sponsored) visa;
• a Subclass 487 (Skilled — Regional Sponsored) visa.
All criteria must be satisfied at the time a decision is made on the application.
489.31 Criteria
489.311 The applicant is a member of the family unit of a person (the primary applicant) who holds any of the following visas granted on the basis of satisfying the primary criteria:
(a) a Skilled — Independent Regional (Provisional) (Class UX) visa;
(b) a Skilled — Designated Area sponsored (Provisional) (Class UZ) visa;
(c) a Subclass 475 (Skilled — Regional Sponsored) visa;
(d) a Subclass 487 (Skilled — Regional Sponsored) visa;
(e) a Subclass 489 (Skilled — Regional (Provisional)) visa.
489.312 If the applicant previously held:
(a) a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) a Skilled — Designated Area sponsored (Provisional) (Class UZ) visa; or
(c) a Subclass 475 (Skilled — Regional Sponsored) visa; or
(d) a Subclass 487 (Skilled — Regional Sponsored) visa;
the applicant has substantially complied with the conditions of that visa.
489.313 (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010 and 4020.
(2) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(3) If the applicant has not turned 18, the applicant satisfies public interest criteria 4017 and 4018.
(4) If the primary applicant holds a Subclass 489 visa in the Second Provisional Visa stream, the applicant satisfies public interest criterion 4007.
(5) If subclause (4) does not apply, the applicant satisfies public interest criterion 4005.
489.314 The applicant satisfies special return criteria 5001, 5002 and 5010.
489.315 Either:
(a) the applicant holds a valid passport that:
(i) was issued to the applicant by an official source; and
(ii) is in the form issued by the official source; or
(b) it would be unreasonable to require the applicant to hold a passport.
489.4 Circumstances applicable to grant
489.411 The applicant:
(a) may be in or outside Australia when the visa is granted; and
(b) must not be in immigration clearance.
Note The second instalment of the visa application charge must be paid before the visa can be granted.
489.5 When visa is in effect
489.511 If the applicant satisfied the primary criteria for the grant of a Subclass 489 visa in the First Provisional Visa stream, temporary visa permitting the holder to travel to, enter and remain in Australia for 4 years from the date of grant.
489.512 If the applicant satisfied the primary criteria for the grant of a Subclass 489 visa in the Second Provisional Visa stream, temporary visa permitting the holder to travel to, enter and remain in Australia for 4 years after the date of grant of the provisional visa the applicant held at the time of application.
489.513 If the applicant is a member of the family unit of a person who holds a Subclass 489 visa in the First Provisional Visa stream or the Second Provisional Visa stream, temporary visa permitting the holder to travel to, enter and remain in Australia until the day specified for the applicant who satisfied the primary criteria.
489.514 If the applicant is a member of the family unit of a person who holds:
(a) a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) a Skilled — Designated Area-sponsored (Provisional) (Class UZ) visa; or
(c) a Subclass 475 (Skilled — Regional Sponsored) visa; or
(d) a Subclass 487 (Skilled — Regional Sponsored) visa;
temporary visa permitting the holder to travel to, enter and remain in Australia until the day specified for the applicant who satisfied the primary criteria for the grant of the visa mentioned in paragraph (a), (b), (c) or (d).
489.6 Conditions
489.611 If the applicant who satisfied the primary criteria for the grant of the visa was nominated by a State or Territory government agency, condition 8539 must be imposed.
489.612 If the applicant who satisfied the primary criteria for the grant of the visa was sponsored by a person, condition 8549 must be imposed.
489.613 (1) If condition 8539 was imposed on the visa held at the time of application by the applicant who satisfied the primary criteria for the grant of the visa in the Second Provisional Visa stream, condition 8539 must be imposed.
(2) If:
(a) an applicant is granted a Subclass 489 visa on the basis of satisfying the secondary criteria; and
(b) the applicant who satisfied the primary criteria also holds another General Skilled Migration visa on which condition 8539 has been imposed;
condition 8539 must be imposed.
489.614 (1) If condition 8549 was imposed on the visa held at the time of application by the applicant who satisfied the primary criteria for the grant of the visa in the Second Provisional Visa stream, condition 8549 must be imposed.
(2) If:
(a) an applicant is granted a Subclass 489 visa on the basis of satisfying the secondary criteria; and
(b) the applicant who satisfied the primary criteria also holds another General Skilled Migration visa on which condition 8549 has been imposed;
condition 8549 must be imposed.
489.615 If the applicant is outside Australia when the visa is granted:
(a) first entry must be made before a date specified by the Minister; and
(b) if the applicant satisfies the secondary criteria for the grant of the visa, condition 8515 may be imposed.
The subclass 489 visa also becomes a prerequisite visa for the 885, 886 and 887 GSM visas.
THE NEW POINTS TEST
Schedule 6D General points test for General Skilled Migration visas mentioned in subregulation 2.26AC (1)
(regulation 2.26AC)
Part 6D.1 Age qualifications
Item At the time of invitation to apply for the visa, the applicant’s age was … Number of points
6D11 not less than 18 and under 25 25
6D12 not less than 25 and under 33 30
6D13 not less than 33 and under 40 25
6D14 not less than 40 and under 45 15
Part 6D.2 English language qualifications
Item At the time of invitation to apply for the visa, the applicant had … Number of points
6D21 superior English 20
6D22 proficient English 10
Part 6D.3 Overseas employment experience qualifications
Item At the time of invitation to apply for the visa, the applicant … Number of points
6D31 had been employed outside Australia in:
(a) the applicant’s nominated skilled occupation; or 5
(b) a closely related skilled occupation;
for a period totalling at least 36 months in the 10 years immediately before that time
6D32 had been employed outside Australia in:
(a) the applicant’s nominated skilled occupation; or
(b) a closely related skilled occupation;
for a period totalling at least 60 months in the 10 years immediately before that time 10
6D33 had been employed outside Australia in:
(a) the applicant’s nominated skilled occupation; or
(b) a closely related skilled occupation;
for a period totalling at least 96 months in the 10 years immediately before that time 15
Part 6D.4 Australian employment experience qualifications
Item At the time of invitation to apply for the visa, the applicant … Number of points
6D41 had been employed in Australia in:
(a) the applicant’s nominated skilled occupation; or
(b) a closely related skilled occupation;
for a period totalling at least 12 months in the 10 years immediately before that time 5
6D42 had been employed in Australia in:
(a) the applicant’s nominated skilled occupation; or
(b) a closely related skilled occupation;
for a period totalling at least 36 months in the 10 years immediately before that time 10
6D43 had been employed in Australia in:
(a) the applicant’s nominated skilled occupation; or
(b) a closely related skilled occupation;
for a period totalling at least 60 months in the 10 years immediately before that time 15
6D44 had been employed in Australia in:
(a) the applicant’s nominated skilled occupation; or
(b) a closely related skilled occupation;
for a period totalling at least 96 months in the 10 years immediately before that time 20
Part 6D.5 Aggregating points for employment experience qualifications
6D51 (1) If an applicant has a qualification mentioned in Part 6D.3 and a qualification mentioned in Part 6D.4, and the combined number of points that would be awarded under those Parts for the qualifications is more than 20 points:
(a) the Minister must give the applicant 20 points under this Part for the qualifications; and
(b) no points are given under Part 6D.3 or 6D.4.
(2) The prescribed number of points for the combination of qualifications is 20.
Part 6D.6 Australian professional year qualifications
Item At the time of invitation to apply for the visa, the applicant had completed … Number of points
6D61 a professional year in Australia in:
(a) the applicant’s nominated skilled occupation; or
(b) a closely related skilled occupation;
for a period totalling at least 12 months in the 48 months immediately before that time 5
Part 6D.7 Educational qualifications
Item At the time of invitation to apply for the visa, the applicant had … Number of points
6D71 met the requirements for:
(a) the award of a doctorate by an Australian educational institution; or
(b) the award of a doctorate, by another educational institution, that is of a recognised standard 20
6D72 met the requirements for:
(a) the award of at least a bachelor degree by an Australian educational institution; or
(b) the award of at least a bachelor qualification by another educational institution, that is of a recognised standard 15
6D73 met the requirements for the award of a diploma by an Australian educational institution 10
6D74 met the requirements for the award of a trade qualification by an Australian educational institution 10
6D75 attained a qualification or award recognised by the relevant assessing authority for the applicant’s nominated skilled occupation as being suitable for the occupation 10
Part 6D.8 Australian study qualifications
Item At the time of invitation to apply for the visa … Number of points
6D81 the applicant met the Australian study requirement 5
Part 6D.9 Credentialled community language qualifications
Item At the time of invitation to apply for the visa, the applicant had … Number of points
6D91 a qualification in a particular language:
(a) awarded or accredited by a body specified by the Minister in an instrument in writing for this item; and 5
(b) at a standard for the language specified in the instrument
Part 6D.10 Study in regional Australia or a low population growth metropolitan area qualifications
Item At the time of invitation to apply for the visa … Number of points
6D101 each of the following applied:
(a) the applicant met the Australian study requirement; 5
(b) the location of the campus or campuses at which that study was undertaken is specified by the Minister in an instrument in writing for this item;
(c) while the applicant undertook the course of study the applicant lived in a part of Australia the postcode of which is specified by the Minister in an instrument in writing for this item;
(d) none of the study undertaken constituted distance education
Part 6D.11 Partner skill qualifications
Item Qualification Number of points
6D111 The spouse or de facto partner of the applicant (the primary applicant):
(a) is an applicant for the same subclass of visa as the primary applicant; and 5
(b) is not an Australian permanent resident or an Australian citizen; and
(c) was under 50 at the time the invitation to apply for the visa was issued to the primary applicant; and
(d) at the time of invitation to apply for the visa, nominated a skilled occupation, being an occupation specified by the Minister under paragraph 1.15I (1) (a) at that time; and
(e) at the time of invitation to apply for the visa, had been assessed by the relevant assessing authority for the nominated skilled occupation as having suitable skills for the occupation; and
(f) at the time of invitation to apply for the visa, had competent English
Part 6D.12 State or Territory nomination qualifications
Item Qualification Number of points
6D121 The applicant has been invited to apply for a Subclass 190 (Skilled — Nominated) visa, and the nominating State or Territory government agency has not withdrawn the nomination 5
Part 6D.13 Designated area sponsorship qualifications
Item Qualification Number of points
6D131 The applicant has been invited to apply for a Subclass 489 (Skilled — Regional) (Provisional) visa, and: 10
(a) the nominating State or Territory government agency has not withdrawn the nomination; or
(b) if the applicant is sponsored by a family member, the Minister has accepted the sponsorship
English Language Requirements
The English Language requirements are set out respectively in Regulations 1.15C to 1.15E and in Legislative Instrument F2012L01287 Immi 12/018 dated 12 June 2012 with effect from 1 July 2012.
The two English tests approved are as follows:
an International English Language Test System (IELTS test); and
an Occupational English Test (OET).
In relation to the IELTS, Immi 12/018 requires the applicant achieve the relevant score ‘in each of the 4 test components of speaking, reading, writing and listening’ or for the OET, the relevant score ‘in each of the four components of an OET’ In square brackets below the relevant score is set out for each of the various English language requirements from Immi 12/018.
Reg 1.15C Competent English
(1) A person has competent English if:
(a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(b) the test was conducted in the 3 years immediately before the day on which the application was made; and
(c) the person achieved a score specified in the instrument. [6 for IELTS, B for OET]
(2) A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation .
Reg 1.15D Proficient English
A person has proficient English if:
(a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(b) the test was conducted in the 3 years immediately before the day on which the application was made; and
(c) the person achieved a score specified in the instrument. [7 for IELTS, B for OET (sic)]
Reg 1.15EA Superior English
A person has superior English if:
(a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(b) the test was conducted in the 3 years immediately before the day on which the application was made; and
(c) the person achieved a score specified in the instrument. [8 for IELTS, A for OET]
Some points test scenarios
Aged 23 25 25
Aged 27 30 30
Aged 44 15
Competent English 0 0 0 0 0
Superior English 20 20 20
Work experience 3 years in 10 5 5
Work experience 8/10 20
Trade qualification 10 10
Bachelor 15 15 15
Aust study 5 5 5
40 75 65 45 70
Current Points test = 60
Looking at these scenarios one sees that Superior English, a score of 8 would tip most applicants over the line. Young people with a trade qualification but little work experience and only competent English would fail the points test. Older applicants meeting only the threshold Competent English would struggle. Applicants over 25 with good English and a Bachelor qualification do well.
CLOSELY RELATED TEST
The closely related test in the PAM is now much tighter.
The skilled visas criterion about the transition from student visa to a General Skilled Migration (GSM) visa, eg subclass 485 (Skilled – Graduate) visa, typically set out in clause 485.213 of Schedule 2 to the Migration Regulations 1994 states:
485.213
The following requirements are met:
(a) the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made;
(b) each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
The PAM used to state:
The ‘closely related’ requirement is to ensure that applicants have qualifications compatible with their nominated skilled occupation. Under policy, the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skill set/s underpinning the qualification/s are complementary and can be used in the nominated occupation, in terms of both subject matter and the level at which those skills were obtained.
But it now states:
Under policy, the critical factor in determining whether a degree, diploma or trade qualification is closely related to the nominated skilled occupation is whether the skill set/s underpinning the qualification/s are directly transferable to the nominated occupation, in terms of both subject matter and the level of qualification at which those skills were obtained.
Under policy, circumstances of a qualification not being ‘closely related’ to the nominated occupation include where the qualification is not related to the nominated skilled occupation – for example, an applicant’s nominated occupation is Registered Nurse but they satisfied the Australian study requirement on the basis of having completed a Bachelor of Commerce.
Another instance in which policy does not consider a qualification to be ‘closely related’ to the nominated occupation is where the level at which the skills were obtained is inconsistent with the level at which the applicant is skilled to work.
The policy goes on to list examples of ‘acceptable combinations’.
7.3 Acceptable combinations
The following are examples of acceptable combinations of study and nominated occupation:
• an applicant who nominates Pharmacist as their skilled occupation and completes a Bachelor of Pharmacy in Australia
• an applicant who nominates Biomedical Engineer as their skilled occupation and has completed a Bachelor and Masters of Engineering in Australia
• an applicant who nominates Construction Project Manager as their skilled occupation and has completed an Advanced Diploma of Building and Construction in Australia
The difficulty often arises when students do two separate courses. Then as stated above in paragraph 485.213(b) ‘each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.’
Doing a general diploma in association with a more specific one could be fraught with danger. For example doing a one year trade certificate as a cook and a diploma in accounting probably would not meet the test as set out in the PAM. At the very least a person doing the one year trade certificate as a cook would be best advised to do a diploma in hospitality. Better still avoid a combination of courses all together.
If two courses make up the ‘Australian study requirement’ then at the very least they should be both be submitted as part of the skill assessment application so at least it could be argued that they both form part of that skill assessment.
A real question however is whether the current test is an accurate or even proper interpretation of the closely related test. The writer is of the view that the new PAM ‘closely related’ test is too narrow and does not accord with the dictionary meaning.
It is noted that at the MRT level, the MRT is simply not bound by this interpretation. The MRT has total power to simply ignore the PAM. For example in Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 (15 November 2001) the Federal Court (per Ryan J) had this to say:
16 Moreover, this Court has either stated or implied that it is not an error of law for an administrative tribunal to disregard general statements of policy that have been laid down for the guidance of administrative decision-makers but are not mandated by Parliament; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420-21; Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144 at 148-49. Nevertheless, it was indicated by Brennan J in Drake (No 2) (supra) at 645, that the Tribunal should adopt “a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary”. PAM 3 specifically instructs delegates (though not the Tribunal) to give it “due weight” but “decision makers must not give it the same force as law”; Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 at [29].
And in El Ess v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038 (13 August 2004) Gray J concluded:
45 In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 (2000) 61 ALD 641 at [28] – [29] and Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 at [15] – [16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 – 40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.
Recommendation for Ministerial discretion
Re: Shima 0903190
8 February 2011, Melbourne
Ms M Cameron, Member
SKILLED . AUSTRALIAN-SPONSORED OVERSEAS STUDENT (RESIDENCE) (CLASS DE) . SUBCLASS 881 . CL.881.224 . POINTS TEST . IELTS . MINISTERIAL INTERVENTION . A delegate of the Minister refused to grant the visa applicant a Skilled visa on the basis that she did not meet the qualifying score of 110 points when assessed under the points system. The delegate awarded a total of 105 points. The results of the applicant.s most recent IELTS tests in 2010 indicated that she did not achieve a score of at least six on each of the four test components.
The applicant.s employer claimed that he operated a tourist company and the applicant had worked for him for several years. He claimed his company had a large number of Japanese visitors and generated ten million dollars of revenue directly into the state economy. He claimed that the applicant had a very important role in the company through her design work and aesthetics and that she communicated with the company.s Japanese visitors. Although he was aware of the applicant.s repeated attempts at the IELTS test and her fluctuating results, he feared the applicant would be adversely affected by a changing regulatory system and that she may not obtain the visa because of an arbitrary five points. The applicant.s employer claimed that it was unfair that the applicant.s fitness for Australian residency came down to an IELTS test reading score which was half a point below the pass mark. Two other witnesses provided evidence claiming that the applicant communicated effectively with them in English.
The applicant claimed that she had attempted the IELTS test many times over the past four years and that she had undertaken extra tutoring to improve her English. She claimed that she was overcome with fear and nerves during the tests which resulted in her performing poorly. She claimed she graduated from an Australian university with a Bachelor of Arts/Multimedia Design which required high level English skills and her results showed competence in English, and that her underperformance in the IELTS test was the result of pressure and nervousness. She claimed she had worked full time as a consultant and graphic designer with an inbound tour company since 2006, and that she used English daily at work. She claimed she had lived in Australia since 2001 and her English skills were more than sufficient to allow her to function fully. A witness who attended the Tribunal in support of the applicant, who claimed to be an IELTS test examiner and the applicant.s teacher, claimed that the applicant had a very reasonable standard of English but that she had seemed caught in changing IELTS test requirements.
Held: Decision under review affirmed.
The Tribunal found that, at the time of primary assessment for a Subclass 881 visa, the pass mark was 110 points. The Tribunal found that the applicant had achieved a total of 105 points which was below the necessary mark and qualifying score to pass the points test. The Tribunal found that the applicant demonstrated vocational English language ability and was entitled to 15 points. The Tribunal noted that there was no request for a referral for ministerial intervention from the applicant but considered it was appropriate in this case.
The Tribunal took into account the evidence of the applicant.s employer, her work colleagues, and her teachers at university who consistently asserted that the applicant was highly competent in the English language. This was also supported the applicant.s claims that she consistently underperformed in IELTS tests because of her anxiety, which had significant implications for her future. The Tribunal took note of the employer.s evidence that the applicant was disadvantaged in the IELTS testing system because of her need to speak and work largely in Japanese, and the apparent unfairness of her visa application being unsuccessful for want of half a point in her IELTS test reading component. The Tribunal found the present case could raise factors where the application of the legislation led to an unfair or unreasonable result. Therefore, the Tribunal found that the applicant did not satisfy cl.881.222 for the grant of a Skilled (Residence) visa, and this case was referred with the recommendation that the Minister consider the favourable exercise of his discretionary power.
MRT gives applicant time to meet English requirements to no avail
In Patel 1003023 [2011] MRTA 1847 (11 August 2011) the MRT kept giving the applicant time to sit more IELTS tests in order to gain the English language points but the applicant could make the score. Here is what happened at the MRT:
21. By letter dated 13 May 2011 the applicant’s representative wrote to the Tribunal to advise that the applicant had not achieved an IELTS test result sufficient to claim 20 points for competent English, and requesting a further hearing postponement to enable the applicant to undertake a further IELTS test on 25 June 2011. The Tribunal declined the request for a postponement of hearing but advising the applicant through his representative that the Tribunal would not make a decision in the matter the subject of review until such time as the applicant had undertaken the IELTS test on 25 June 2011.
22. ….
23. The applicant told the Tribunal that he hoped that he would be able to improve his IELTS test results in each of the four components of listening, reading, writing and speaking to a score of at least 6 in each component which would entitle him to claim 20 points for competent English in accordance with Schedule 6A. The applicant stated that if he was able to achieve this result then he would take the necessary steps to claim 5 bonus points by the option of making a deposit in a designated security – 6A81(a). The applicant told the Tribunal that would not take this further step until and unless he was successful in achieving addition points in language skill qualifications.
24. The applicant told the Tribunal that has is booked to sit an IELTS test on 25 June, and that the following available test date, to his recollection was on about 9 July. The Tribunal told the applicant that the Tribunal would not finalise the Tribunal decision until on or after 30 July 2011 to enable the applicant to provide the relevant test results.
25. At the time of this decision the applicant has not provided the Tribunal with any further IELTS test results.
However as discussed below this is no longer an option where the threshold criteria is competent English. As discussed above form 1 July 2012 all IELTS results have to come from a test conducted before the application is lodged
Australian study requirement
To claim points for an Australian qualification, the qualification must have been undertaken while the applicant was in Australia and it must have been completed as the result of a course of study that was at least two academic years (that is 92 weeks as registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS)). Study must be closely related to the applicant’s nominated skilled occupation.
Credentialed Community language
The points test awards points to applicants accredited at the para-professional level or above by the National Accreditation Authority for Translators and Interpreters (NAATI) as either a translator or interpreter. Applicants will no longer be able to claim points for designated language on the basis of having obtained a qualification from a university where instruction was in that language.
Partner skills
To claim partner points the primary applicant’s partner will need to meet the following criteria:
• be included on the same visa application as the primary applicant
• not be an Australian permanent resident or citizen
• be less than 50 years old at the time of application
• nominate an occupation on the same SOL as the primary applicant, and be assessed by the relevant assessing authority as having suitable skills for the occupation
Job Ready Program for TRA
As of 1 January 2010, Trades Recognition Australia (‘TRA’) introduced the Job Ready Program. The introduction of the Job Ready Program follows the announcement made by the Government on 12 May 2009 of its intention to introduce a Job Ready Test for GSM applicants:
The Government is introducing a JobReady Test (JRT) from 1 January 2010 for all GSM applicants nominating trade occupations for migration purposes. This measure complements similar measures previously announced for the subclass 457 visa and is designed to ensure a supply of ‘job ready’ applicants to supplement Australia’s labour market needs. The JobReady Test will also ensure a consistent standard of skills and competencies across trade occupations.
The JRT will ensure that GSM applicants who wish to migrate to Australia are able to successfully compete in the Australian labour market in the area of their nominated occupation.
Details of the JobReady Test are being developed by the Department of Education, Employment and Workplace Relations in consultation with the Department of Immigration and Citizenship and key industry stakeholders
TRA Skilled Worker Program Assessment Criteria
It is pointed out that the TRA Job Ready Program only applies to GSM visa applicants who have obtained an Australian qualification and are applying for an onshore GSM visa. Applicants who do not hold an Australian qualification or who are applying for an offshore GSM visa will need to apply under the TRA Skilled Worker Program or the Offshore Skills Assessment Program.
On 31 March 2010, the TRA announced a clarification to their Skilled Worker Program Assessment Criteria (formerly known as the ‘Uniform Assessment Criteria’). TRA have now made clear that it requires all applicants to provide evidence of “at least 12 months full-time paid employment in the nominated trade in the last 24 months before the date of lodgement of application”.
The writer has spoken to TRA who have confirmed that full-time is considered as 38 hours per week. There may be some scope to demonstrate that the award hours for full-time employment in a particular trade is less than 38 hours however TRA will consider this on a case to case basis and strong submissions will need to be made. TRA have indicated that case officers will be generally apply the requirement of 38 hours and anything less than 35 hours work per week is unlikely to be considered full-time employment.
It is also pointed out that applicants are expected to have been working full-time (or the full-time equivalent) for the number of years required to meet the minimum employment requirement for each pathway. For example, if the applicant is applying under Pathway A then the applicant would need to have worked for 4 years full-time in his/her trade occupation.
Please refer to the bundle of documents for further information with regard to the various skills assessment pathways available via TRA.
Employment experience required for VETASSESS
As of 1 January 2010, VETASSESS requires non-trades applicants to provide evidence of between 1 to 3 years relevant work experience, depending on a variety of factors such as the occupation, qualifications obtained, and course content. Attached is a document outlining the VETASSESS changes.
All applicants will be required to demonstrate that they relevant work experience. The relevant work experience must be undertaken within 5 years before the date of the Skills Assessment application.
The writer has spoken to the Co-ordinator of the new VETASSESS assessment scheme and it has been confirmed that VETASSESS will essentially be adopting the definition of ‘employed’ as per Reg 2.26A(7) of the Migration Regulations 1994 and DIAC policy when assessing the work experience. According to VETASSESS, the relevant work experience therefore must be:
• For at least 20 hours per week;
• Be at a skilled level (post-qualification); and
• Be paid work experience.
Applicants who have studied a qualification in Australia and are planning on applying for a Skilled visa based on meeting the Australian study requirement and are nominating at least a 50 point occupation will need to undergo a 2 stage VETASSESS assessment. The 1st VETASSESS assessment will be based purely on the applicant’s qualifications and will be only for the purposes of obtaining a 485 visa. The 2nd VETASSESS assessment will require the applicant to have also undertaken relevant work experience in their nominated occupation in order to obtain a skills assessment for permanent residence visa purposes.
The writer points out that only occupations included in Groups A & B will receive a provisional skills assessment from VETASSES for 485 visa purposes. Students undertaking courses that lead to occupations in Groups C & D will not be able to obtain a provisional skills assessment from VETASSESS. Please refer to the handout for further information.
Note that the VETASSESS changes will have the following effect that all persons studying in Australia with the view to applying for permanent residency must have completed at least 1 years relevant work experience in order to obtain a permanent Skilled visa.
Migration Occupations in Demand
The MODL is dead but rigour mortis has not set in. Because of the patchwork quilt some visa applications lodged prior to 1 January 2013 may be eligible for MODL points.
The Migration Amendment Regulations 2010 (No. 6), Legislative Instrument – F2010L01587, SLI 2010 No. 133 dated 15 June 2010 amended the definition of ‘migration occupations in demand’. The definition of ‘migration occupations in demand’ was amended as follows:
Reg 1.03
migration occupation in demand has the meaning given by regulation 1.15H.
Reg 1.15H Migration occupation in demand
(1) A migration occupation in demand, in relation to a person, means a skilled occupation of a kind that:
(a) is specified by the Minister in an instrument in writing to be a migration occupation in demand; and
(b) is applicable to the person in accordance with the specification.
(2) The Minister may specify in the instrument that a skilled occupation is a migration occupation in demand for a class of persons.
The amendments apply to visa applications that were made but not finally determined before 1 July 2010 and to visa applications made on or after 1 July 2010.
On 1 July 2010, the Federal Register of Legislative Instruments F2010L01308, 24 June 2010, IMMI 10/025 came into effect introducing a new MODL. The instrument also revoked instrument IMMI 10/001 (the previous MODL). A copy of the new MODL can be found in the bundle of documents.
The new MODL only applies to persons who applied for a 861, 862, 880, 881, 495, 175, 176, 475, 487, 885 and 886 visa before 8 February 2010 and the application was not finally determined on 8 February 2010.
The new MODL will also apply to persons who held a 485 visa or applied for a 485 visa before 8 February 2010 and whose application was not finally determined on 8 February 2010, provided that the person applies for a 885, 886 or 487 visa before 1 January 2013.
Claiming MODL points
Reg 2.26AA(5) states:
(5) In working out the number of points to be given to an applicant for Part 6B.7 of Schedule 6B, the Minister must have regard to whichever of the following is more favourable to the applicant:
(a) the occupations that were specified as migration occupations in demand at the time the application was made;
(b) the occupations that are specified as migration occupations in demand at the time the assessment mentioned in subsection 93(1) of the Act is made.
This subregulation follows the Full Federal Court has determined that you get the Migration Occupations in Demand List (MODL) points based on the occupation on the MODL at time of application, NOT at time of decision. This means that it is no longer the case that an applicant loses the MODL points if an occupation falls off the MODL. The case is explained below but first lets look at how the MODL changes.
Occupations come and go from the MODL. Take the occupation of accountant. The occupation of ‘accountant’ which returned to the MODL in the Gazette signed on 31 August 2004 (see GN36, 8 September 2004). The occupation accountant was in the MODL as gazetted in SGN on 2 October 2002 (signed on 25 September 2002). But it was removed from the MODL on 12 March 2003.
In Aomatsu v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 139 (29 July 2005) the Full Federal Court had to consider the meaning of the following in Schedule 6A:
6A72 The applicant has nominated a migration occupation in demand in her application 10
Moore J in the leading judgement concluded:
24 It can be seen that the first 3 items in Part 1 of Sch 6A concern the question of whether the occupation nominated by the applicant is a skilled occupation for which either 60, 50 or 40 points are available. If an applicant is required to nominate a skilled occupation and provide evidence of having the skills for the occupation, at the time of application, it is highly likely that the assessment required is by reference to a skilled occupation which was specified in a Gazette Notice at the time the application was made and not at the time the assessment was made. It is unlikely that these demands would be made of an applicant to provide this material, on the footing that their utility would depend on whether the nominated skilled occupation continued to be specified in a Gazette Notice at the time the points were assessed. It is far more likely that the scheme was intended to operate on the basis that the nominated skilled occupation was one appearing in a Gazette Notice at the time the application was lodged. This view is reinforced by the fact that one criteria to be satisfied at the time of application, is that the applicant has nominated the skilled occupation in his or her application: see cl 136.212. It also reinforced by Part 4 of Sch 6A which focuses attention on whether the applicant had worked in a position, which was the nominated skilled occupation, for specified periods immediately before the application was made. Doubtless this information would be provided in the application. The information would be rendered meaningless, or its analysis impossible, if the assessment was not done by reference to skilled occupations (and the points they attract) identified in a Gazette Notice in force at the time the application was made.
25 If the question of whether the nominated occupation is a skilled occupation (and the points it attracts) is considered (at the time of points assessment) by reference to a Gazette Notice in force at the time of the application, it would be anomalous that the question of whether that occupation was a migration occupation in demand would be determined by reference to a Gazette Notice in force at the time of the decision. The definition of “migration occupation in demand” depends on the occupation being, at the time, a skilled occupation. The definition suggests that whether an occupation is a skilled occupation and, additionally, a migration occupation in demand is determined by reference to the Gazette Notices in force at the same time.
26 It would be curious if, when considering an application where the nominated occupation might be a migration occupation in demand, the assessment of whether the occupation is a skilled occupation (and the points it attracts) was made by reference to the Gazette Notice in force at the time of the application but the further question of whether that occupation, if it was a skilled occupation, was a migration occupation in demand was assessed by reference to the Gazette Notice in force at the time the assessment was being made. In addition, the language of item 6A72 is, in material respects, the same as cl 136.212 and, as discussed earlier, that clause requires consideration of the Gazette Notice at the time the application was filed. Further, item 6A71 provides for additional points to a person who not only as an occupation which is a migration occupation in demand but also has “an offer of full-time employment in that occupation”. Doubtless the existence of that offer would be made known when the application was lodged (and, in fact, form 47SK (see cl 1128C(1) at [7] above) provides for that information to be furnished).
27 It would be curious (and probably unintended), for the reasons given in [24] above in relation to the skills assessment, that an applicant would have to secure an offer before making the application on the footing that the offer would have no relevance if the occupation was not in a Gazette Notice in force at the time the assessment was made but had been in a Gazette Notice in force at the time the application was made and the offer secured.
28 For these reasons I think the better view is that the question of whether an occupation is a migration occupation in demand is to be determined by reference to the Gazette Notice in force at the time of the application, though the matter is not free from doubt. In the result, the appeal in QUD 91 of 2005 should be dismissed with costs. The appeal in VID 1416 of 2004 should be allowed with costs and the orders of Selway J set aside and, in lieu, orders made that the decision of the delegate of the Minister made on 3 December 2003 be set aside, and the matter remitted to the Minister for consideration according to law.
Gyles J was quite direct in his approach:
The construction favoured by Spender J and Moore J would best serve the objectives of clarity, certainty and fairness in the effect of delegated legislation. All of the objectives are laudable. It is what the psychologists call an ‘approach-approach conflict’ – one of the most difficult to resolve.
54 Compliance with the requirements of this scheme by visa applicants is quite onerous. Preparation of a valid application would involve a significant commitment of time and would also, no doubt, involve expense of one sort or another. Furthermore, as submitted by counsel, making such an application involves choices affecting the lives of the applicant and the family of the applicant. The procedure is not solely for the benefit of the applicant. It is designed to achieve the importation of relevant skills for the benefit of the Australian economy. It should not be construed so as to impose unfair burdens upon visa applicants. Prompt and efficient administration of the scheme is the best way of ensuring that all objectives are met.
There may be some residual cases from the past where a skilled visa application was rejected on the basis that the occupation fell off the MODL between time of application and time of decision. It may be possible to revive these applications from the past because Aomatsu decided the law for all time ie it decided that Immigration had always been wrong in its interpretation of the MODL points. The first thing to do is write to the Adelaide Skilled Processing Centre and ask them to review the decision based on the Full Federal Court case of Aomatsu.
With the recent revocation of the MODL, the case of Aomatsu and the existence of Reg 2.26AA(5) are of particular significance. According to Aomatsu and Reg 2.26AA(5), visa applicants are able to claim MODL points provided that their occupation is listed as a migration occupation in demand at time of application or at time of decision.
The Federal Instrument (IMMI 10/001) dated 4 February 2010 and which took effect on 8 February 2010 and revoked the MODL did so by not specifying any occupations as a migration occupation in demand. (In other words, all occupations were removed from the MODL as of 8 February 2010.) Therefore while visa applicants may no longer have an occupation on the MODL at time of decision, they will still be eligible to claim MODL points on the basis that they had an occupation on the MODL at time of application, pursuant to Aomatsu and Reg 2.26AA(5)(a).
It is worth noting that Schedule 6B of the Regulations has not been amended and visa applicants may therefore still be able to claim points as set out in Part 6B.7:
Part 6B.7 Occupation in demand qualifications
Column 1
Item Column 2
Qualification Column 3
Number of points
6B71 The applicant:
(a) has nominated a migration occupation in demand in his or her application; and
(b) has been employed in that skilled occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made; and
(c) has an offer of full-time employment in that occupation in an organisation that had at least 10 full-time employees at all times in the 24 months immediately before the day on which the application was made 20
6B72 The applicant:
(a) has nominated a migration occupation in demand in his or her application; and
(b) has been employed in that skilled occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made 15
Evidence of English proficiency can be provided after time of application for the earlier GSM visas where vocational English was the criterion
In Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (5 March 2010), the High Court of Australia decided that clause 885.213 of Schedule 2 of the Migration Regulations requiring a 885 visa applicant to have competent English need not be satisfied at time of application despite the fact that the clause was grouped with a number of other clauses under the heading ‘885.21 Criteria to be satisfied at time of application’.
In a joint decision by French CJ, Gummow and Crennan JJ, the High Court was not satisfied that the heading ‘885.21 Criteria to be satisfied at time of application’ sufficiently operated to impose a requirement that the evidence of English language proficiency must be met at time of application. The High Court considered the construction of the regulations as well as the definition of vocational and competent English (as set out in Regs 1.15B and 1.15C) and the decision of Minister for Immigration and Citizenship v Kamal [2009] FCAFC 98 (21 August 2009) and instead decided that the English language proficiency requirements could be satisfied after the visa application date but prior to the time of decision.
The High Court stated in its decision:
24. The evident purpose of the alternative criteria in cl 885.213 is to ensure that, when the Minister or delegate decides upon the application for a visa, the applicant will have demonstrated recent competency in the English language. It does not follow that the criterion can only be satisfied by evidence provided to the Minister at the time of submitting the application. In this connection it is useful to note the contrast between the requirements of cl 885.213 and cll 885.214 and 885.215.
25. The requirement in reg 1.15B that the requisite test has been conducted “not more than 2 years before the day on which the application was lodged” is susceptible of the construction that the test was conducted no earlier than two years before the application was lodged. So construed, it does not require that the test has to be conducted before the application is lodged. That requirement can only be imposed by some direct operation of the undefined heading “Criteria to be satisfied at time of application”.
26. Although cl 885.213 is part of the group of clauses headed “Criteria to be satisfied at time of application”, the heading does not connect grammatically to its terms. Applying s 13 of the Acts Interpretation Act, it may be regarded as “part of the regulations”. It may therefore inform their construction. But the text of Pt 885 does not support any general conclusion that the criteria in Pt 885 speak exclusively to satisfaction at the time of application. For example, cl 885.212 reads:
“The Minister is satisfied that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.” (emphasis added)
27. Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.
While Berenguel only considered the provisions for the 885 visa, the High Court decision potentially applies to all visa applicants seeking to satisfy the English language proficiency requirements for all the GSM visas. Therefore any visa applicant who has had a GSM visa refused at the delegate, Tribunal or even judicial review stage on the basis that they did not satisfy the English language proficiency requirements at time of application criteria may be able to contest that decision and have their visa refusal overturned.
Based on the decision of Berenguel, visa applicants who have had a GSM visa refused for failure to meet a Schedule 2 ‘time of application criteria’ such as the English language requirements may be able to get that decision overturned. The writer is willing to review any cases (for a fee) to determine a visa applicant’s prospects of getting such a refusal overturned.
But Berenguel has now been superseded by the new regulations applying the new points test.
Now definitions of ‘Competent English’ and ‘Proficient English’ say this:
Reg 1.15C Competent English
[1.15C substituted by SLI 2011, 74 with effect from 01/07/2011 – LEGEND note]
If a person applies for a General Skilled Migration visa, the person has competent English if the person:
(a) satisfies the Minister that:
(i) the person undertook a language test, specified by the Minister in an instrument in writing for this subparagraph; and
(ii) the test was conducted in the 2 years [ 3 years] immediately before the day on which the application was made; and
(iii) the person achieved a score specified in the instrument; or
(b) satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
The part in bold now says the test must have been done before the application. It may allow the result to be obtained after application but it must be sat prior to the application.
The MRT is taking a very sympathetic approach to this issue as long as the sklled application was lodged prior to 1 July 2011. Have a look at these two cases to see the approach : Wan 1214072 [2013] MRTA 2375 (25 September 2013) & Munasinghe 1102773 [2013] MRTA 1622 (22 July 2013).
In Wan, the MRT simply applied Berenguel and found the applicant had Competent English even though the result came from a test undertaken AFTER the visa application was lodged!
TURNING 50
Take care that the age criteria for the skilled visas is the applicant ‘must be less than 50’. It means one can not apply on one’s 50th birthday, one has to apply at the latest, the day before one turns 50. There is some scope for the interesting argument about the exact time of birth and in which time zone. For example a person born in Western Samoa which is east of the International Date Line, would be less than 50 on his birthday in Australia because at some stage in that person’s like he or she would have lost a day crossing the International Date Line. Similarly a person born one minute to midnight arguably is still less than 50 at two minutes to midnight! Better not to have these arguments and simply apply at the latest, the day before one turns 50.
WHAT IS WORK EXPERIENCE
In Nixon 071606120 [2009] MRTA 47 (15 January 2009), DIAC alleged that a person was working as a supervisor rather than a manager. But the MRT concluded in favour of the applicant:
50. It can be seen from the tasks of each of these positions, as outlined above, that the tasks and duties of the two positions have some significant correlation and overlap. From the description of the nature of the first named visa applicant’s employment at the Slouch Hat, in particular the duties the first named visa applicant claimed to have performed in her evidence at the Tribunal hearing and the tasks and duties as outlined in the job description for her position as front office supervisor, it appears that she was performing a combination of duties and that some of these duties would fit into the description of the tasks associated with a Hotel or Motel Manager whilst others would fit into the tasks associated with a Hotel Service Supervisor.
51. The Tribunal is mindful of the fact that an applicant can perform duties associated with more than one occupation or skilled occupation in the course of their employment and is also mindful of the fact that it must assess the actual duties performed by an applicant rather than the designated position of an applicant.
52. In the first named visa applicant’s case, she was not designated as a manager but was designated as a supervisor. However, on the basis of the evidence before it, the Tribunal accepts that the first named visa applicant did exercise some significant level of control over the business operations, did oversee the front desk operations of the business including reservation, reception and housekeeping, did supervise property maintenance as well as bar and restaurant activities, dealt with customer complaints and was involved in some purchasing activities. As stated in the ASCO task list for Hotel or Motel Manager, the Tribunal is also mindful of the fact that this position may include management of only a specialised service area rather than the entire range of services offered by the business. In the case of the applicant, she has only claimed to have managed the front office operations in her capacity as supervisor. The Tribunal also finds that the first named visa applicant’s significant involvement in the hiring and firing of staff, which on the evidence before it was done on her recommendation and after her own evaluation and assessment, elevates her position to one above being a mere Hotel Service Supervisor. Additionally, there are no issues in relation to the necessary qualifications for the position of Hotel or Motel Manager as the first named visa applicant is the holder of a relevant diploma as required in the skill level requirement of the position in ASCO Code 3323 – 11.
53. Based on all of the above, on balance, the Tribunal is prepared to accept that whilst being employed in a position that combined both elements of Hotel or Motel Manager (ASCO Code 3323 – 11) and Hotel Service Supervisor (ASCO Code 6321 – 11), the first named visa applicant was employed in a skilled occupation being Hotel or Motel Manager (ASCO Code 3323 – 11) from 4 January 2005 to 31 January 2006.
WORK EXPERIENCE CAN NOT BE DISMISSED IN A GENERAL WAY – SPECIFIC FINDINGS NECESSARY
In Martinez v MIAC [2009] FCA 781 (23 July 2009), the Federal Court was not satisfied as to the way the delegate went about assessing work experience (for an offshore 136 skilled independent visa). The applicant was a cook but investigations by the Manilla post revealed that in the 18 months prior to the application there was been some gaps in the applicant’s employment at a restaurant and there was some doubt as to whether his tasks were at the level of a cook.
34. The Minister submitted that it was unnecessary for the delegate to consider and make a finding in relation to the period or periods within which the appellant had been employed in a skilled occupation given the delegate’s finding that the appellant was not employed in a skilled occupation and performing the duties of a cook equivalent to the level of Australian Standards as per ASCO. The Minister submitted that where the delegate found that the appellant was not employed as a cook equivalent to the level of the Australian Standards, then there was no need to go any further and it was open to the delegate to act on her conclusion that the appellant was not employed in a skilled occupation.
35. I do not accept these submissions. In my opinion, the delegate was obliged to determine the nature of the work which the appellant had undertaken and the duties he had undertaken in the course of his work and also the period or periods during which the appellant claimed to have undertaken that work and performed such duties. These matters were intertwined and both had to be addressed specifically in order for the delegate to determine whether the appellant satisfied subcl 136.213(1).
36. As a matter of legal analysis, in order for the delegate to determine whether she was satisfied as to the nature of the employment of the appellant in the skilled occupation and that he had performed the duties of a cook it was necessary for the delegate to examine, consider and make a finding in respect of the period or periods during which the appellant had been employed in that occupation and performing those duties. If the delegate had turned her mind to identifying, and making a finding in respect of those periods, she may well have reached a different conclusion from the conclusion she reached in respect of her level of non-satisfaction as to the nature of the occupation undertaken by the appellant and the duties he performed as a cook.
37. This interconnection between the two matters or analyses is highlighted by the matters referred to by the first delegate in the letter dated 27 November 2006 which sought further or additional supporting information from the appellant as to the fact that he was employed as a cook prior to February 2006 on a non-continuing basis and that the exact dates of that non-continuing employment were not available at the time of investigation by the Embassy in Manila. The appellant responded to this letter in the manner to which I have referred earlier.
38. In the letter of 7 April 2008 which was withdrawn, the second delegate stated that the Department’s investigations noted that the employment of the appellant prior to February 2006 was not on a continuing basis but that “specific dates of employment able to be confirmed”. The delegate then said that:
“It was advised that the applicant does not plan the menu; he does not teach and train staff and it is not the applicant’s duty to check inventory”.
However, this letter did not state, and it is not known, whether that observation related to the time at which the Department conducted its investigations or whether it related to any and which of the periods of time prior to February 2006.
Although not specifically raised in the case, the reasoning of the delegate was clearly cursory and unsatisfactory – here is what the ACSO dictionary says about a cook:
4513-11 Cook
Prepares, seasons and cooks food in catering and dining establishments.
Skill Level:
The entry requirement for this occupation is an AQF Certificate III or higher qualification.
Tasks Include:
examines food to ensure quality
regulates temperatures of ovens, grills and other cooking
equipment
prepares and cooks food
seasons food during cooking
portions food, places it in dishes, adds gravies or sauces, and
garnishes
stores food in temperature controlled facilities
may plan menus and estimate food requirements
may prepare food to meet special dietary requirements
may train other kitchen staff and apprentices
The delegate does not seemed to have understood the nature of the tasks involved in assessing work experience as a cook.
The case is also illustrative of the point that although there is no merit review for an offshore non-sponsored visa, here the applicant has achieved a result by way of judicial review directly.
In Tagala 071890633 [2009] MRTA 20 (12 January 2009), the MRT accepted paid leave as part of the time needed to make up the ‘employed’ requirement. The MRT concluded:
The relevant PAM also makes mention of Leave Periods at 18.3 stating that “As work must be for remuneration, only period of leave on full pay can be counted as time during which an applicant was employed” It is clear, therefore, that in the calculation of any period of employment, actual work plus paid leave must be taken into account. The Tribunal has had regard therefore to the employer certification about her paid leave; the payslips during the period of leave and the Certification of Payment/Tax Withheld.
Note that Reg 2.26A (7) reads:
‘employed’ means engaged in an occupation for remuneration for at least 20 hours weekly
One interesting element of this case is that paid leave could be constructed based on 20 hours per week and still meet the ‘employed’ requirement. So by taking pregnancy leave for example on close to half pay (ie at the rate of 20 hours per week instead of 38 hours per week) the period of employment could be extended.
Study on Bridging C, D or E does not count
This restrictive provision, Reg 2.27D now applies:
2.27D Study in Australia
In determining whether an applicant satisfies a criterion for the grant of a General Skilled Migration visa that the applicant has studied in Australia for a certain period, a period of study cannot be counted unless the applicant:
(a) held:
(i) a substantive visa; or
(ii) a Subclass 010 (Bridging A) visa; or
(iii) a Subclass 020 (Bridging B) visa;
authorising him or her to study during that period; and
(b)complied with the conditions of that visa.
Obviously students with authority to study on a Bridging C, D or E could not count that study. Students affected by this may have to do an additional course while holding a qualifying visa while doing a calculation of whether the student has done the equivalent of 2 years of academic study. The situation is slightly complicated by the fact that 2 years of academic study can be done in 16 months recognising that 2 years of study is 4 academic semesters and that by doing a summer semester, a student can achieve the 2 year rule in 16 months.
Students who have had their visas cancelled ordinarily go onto a bridging visa E. But if the student’s visa cancellation is overturned then at common law it means that the visa was never cancelled. On that basis then the bridging E would not be a disqualifying visa for the purposes of Reg 2.27D.
Work on bridging visa counts for work experience & bonus points
Reg 2.27C (a) was amended from 1.11.05 to allow bridging A & B visaholders who have permission to work, to count that time for work experience for skilled visa applicants. Here is what that reg now says in full:
2.27C In determining whether an applicant satisfies a criterion that the applicant has been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant:
(a) held:
(i) a substantive visa; or
(ii) a Subclass 010 Bridging A visa; or
(iii) a Subclass 020 Bridging B visa;
authorising him or her to work during that period; and
(b) complied with the conditions of that visa.
Doctors
Doctors once had the equivalent of the AIDS for migration purposes. Reg 2.26 provides that 25 points be deducted when calculating points for the now redundant subclass 105 & 126 visas.
But that deduction does not apply to any current visa because doctors were simply not on the skilled occupation list. Some doctors used to creep in as medical scientists while the traditional permanent residence path for doctors was through the employer nomination scheme (or marrying an Australian citizen or permanent resident).