Skilled Migration Visas - Pitfalls for the Uninitiated

A paper prepared for the 2002 NSW State Legal Conference held on 25 March 2002 by David Bitel.

1. General

The skilled migration stream of Australia's migration (non-humanitarian) program is specifically designed for migrants who have skills or outstanding abilities that will contribute to the Australian economy. Government policy sees that the migration to Australia of people with qualifications and relevant work experience addresses specific skill shortages in Australia and enhances the size, skill level and employability factor of the Australian labor force. Under previous administrations, skilled migration was divided into two broad categories: independent skilled migration and concessional family migration. The present government has made provision for two broad skilled categories, namely the independent category and the family sponsored categories.

Within the independent categories there are the following sub-classifications:

1. Skilled - Independent - An applicant must be highly skilled and have education, skills and employability which will contribute to the Australian economy, and must satisfy the basic requirements and pass the points test. (Visa Subclass 136).
2. Skilled - State/Territory Nominated Independent - An applicant must meet the basic requirements and pass the points test or meet the pool mark, and apply for consideration under the skill matching scheme, whereupon the details will be placed in a skill matching database for possible nomination by a State or Territory government or employer. (Visa Subclass 137)
3. Skilled - Onshore Independent New Zealand Category - This is similar to the Skilled - Independent visa category but is only available to New Zealand citizens in Australia wishing to apply for permanent residence under this category, who must pass the points test as well as satisfy the basic requirements. (Visa Subclass 861)
4. Skilled - Independent Overseas Students in Australia category - this is similar to the Skilled - Independent visa category but is only available to eligible overseas students in Australia wishing to apply for permanent residence under this category, who must pass the points test as well as satisfy the basic requirements. (Visa Subclass 880)

Within the family sponsored categories there are the following sub-classifications.

1. Skilled - Australian Sponsored - for potential skilled migrations whose sponsors live outside the certain designated areas covered by the Skilled - Regional Sponsored category. The applicant must have a sponsor (related) and an assurer who may or may not be the same person, and must satisfy the basic requirements and the points test. (Visa Subclass 138)
2. Skilled - Designated Area Sponsored - under this category, the Australian Government is seeking skilled migrants to settle in certain designated regions of Australia. The applicant must have a related sponsor and an assurer (a person living in Australia who agrees to provide financial support). The sponsor and assurer can be the same person. The applicant must also satisfy the basic requirements, but this category is not points tested. (Visa Subclass 139)
3. Skilled - Onshore Australian Sponsored New Zealand Citizen - this is similar to the Skilled - Australian Sponsored visa category but is only available to New Zealand citizens in Australia wishing to apply for permanent residence under this category, who must pass the points test as well as satisfy the basic requirements. (Visa Subclass 862)
4. Skilled - Onshore Designated Area Sponsored New Zealand Citizen - this is similar to the Skilled - Designated Area Sponsored visa category but is only available to New Zealand citizens in Australia wishing to apply for permanent residence under this category. (Visa Subclass 863)
5. Skilled - Australian Sponsored Overseas Student - this is similar to the Skilled - Australian Sponsored visa category but is only available to eligible overseas students in Australia wishing to apply for permanent residence under this category. They must pass the points test as well as satisfy the basic requirements and must nominate at least a 50 point occupation from the SOL and hold a satisfactory skills assessment. (Visa Subclass 881)
6. Skilled - Designated Area Sponsored Overseas Student - this is similar to the Skilled - Designated Area Sponsored visa category but is only available to eligible overseas students in Australia wishing to apply for permanent residence under this category. Applicants must provide a satisfactory skills assessment in any listed skilled occupation from the Skilled Occupations List (SOL). In addition, they must submit a satisfactory sponsorship form with their application. (Visa Subclass 882)

Broadly, it will be seen that there are both offshore and onshore variants of the various different programs. They contain technical differences which will be the subject of this paper, in a discussion which for time reasons will be limited to a comparison of the visa subclasses 136 and 880, through which most of the issues can be discussed.

2. Statutory Regime

As any practitioner familiar with the jurisdiction would be aware, the Migration Act 1958 (the Act) provides the statutory regime which is detailed in the Migration Regulations, 1994 (the Regulations). Explaining the operation of this legislative framework are a complex array of policies mostly grouped in a series of policy advice manuals (PAMs).

Section 31(1) of the Act provides that there are to be prescribed classes of visas. Under s 31(3) the Regulations may prescribe criteria for a visa of a specified class. Section 45(1) provides that a non-citizen who wants a visa must apply for a visa of a particular class. Section 47(1) provides that the Minister for Immigration and Multicultural Affairs ("the Minister") is to consider a valid application for a visa. Under s 47(3) the Minister must not consider an application that is not valid. Section 65(1) of the Act provides that, after considering a valid application for a visa, the Minister, if satisfied as to various matters, including that all criteria for the visa prescribed by the Act or the Regulations have been satisfied, must grant the visa. If not so satisfied, the Minister is to refuse to grant the visa.

Section 46(1)(b) of the Act provides that an application for a visa is valid only if it satisfies the criteria and the requirements prescribed under the section. Under s 46(3) the Regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application. Under s46(4) the Regulations may, in particular, prescribe the circumstances that must exist for an application for a visa of a specified class to be a valid application.

The Regulations have been made by the Governor-General pursuant to ss 504 and 505 of the Act. Regulation 2.01 provides that, for the purposes of s 31 of the Act, the prescribed classes of visa include such classes as are set out in the respective items in Schedule 1 to the Regulations. Regulation 2.02(2) provides that, for the purposes of Part 2 of the Regulations, a part of Schedule 2 is relevant to a particular class of visa if the part of Schedule 2 is listed under the sub-item "sub-classes" in the item in Schedule 1 that refers to that class of visa. As an example, Item 1128C in Schedule 1 is headed "Skills - Independent (Migrant) (Class BN)". Item 1128C refers to two sub-classes as follows:

• 136 (Skilled - Independent); and
• 137 (Skilled - State/Territory Nominated Independent)

Thus there is a Class BN visa, which has two subclasses.

Regulations 2.01 and 2.02 provide for the prescription of visa classes and subclasses respectively.

Regulation 2.07(1) provides that, for the purposes of ss 45 and 46 of the Act, if an application is required for a particular class of visa, the following matters relating to the application are set out in the relevant part of Schedule 1: the approved form, the application charge and other matters.

Regulation 2.03(1) provides that for the purposes of s 31(3) of the Act, the prescribed criteria for the grant to a person of a visa of a particular class are the primary criteria set out in a relevant part of Schedule 2.

3. The July 1999 Regime

From 1 July 1999, the previous skilled migration regime was replaced. This followed a review of the previous points test which had been conducted in 1997-8 which made recommendations to the Minister which have been incorporated in the new visa regime. The intention of the new points test was to enhance the selection process to ensure that migrants will be able to gain employment on arrival and thereby make a positive contribution to Australia's economy. The points test maintained the focus on age, skills and English language ability which had existed in the previous points test, but changed substantially the structure of the points test to maximize the ability of younger English speaking skilled migrants to pass. The significant features of the new regime, apart from the variation in structure of the points test, were the "front end loading" provisions which essentially require an applicant to obtain their skills assessment before proceeding to lodge the skilled migration visa application. In addition, the regime incorporated the new concept of the Skilled Occupations List (SOL) where if an applicant's employment experience in the recent period prior to the date of lodgement of an application was not in an occupation listed on the SOL, the applicant could not proceed to lodge the application. Significant concessions were also granted to self-funded overseas students in Australia to encourage them to lodge applications for skilled migration.

4. The New Points Test

The new points test contains core criteria which must be met as a prerequisite of eligibility. These are:

a) Skills

The points test incorporates the new concept of the Skilled Occupations List ("SOL"). An applicant must nominate his or her skilled occupation. An applicant whose occupation does not appear on the SOL, as gazetted at the time of application, can not apply. The list incorporates only occupations which have skill level requirements in Australia of a degree, diploma or trades certificate, based on the ASCO Dictionary, (the Australian Standard Classification of Occupations), although not all such occupations are in fact listed. Notable exclusions include some business professionals (e.g. manufacturers, wholesalers, exporters and farmers), artists and people involved in artistic pursuits (for whom distinguished talent applications are possible), most occupations in the hospitality and tourism industry and agricultural professionals. These are also essentially occupations where there is real labour market oversupply in Australia, or where newly arrived migrants have real difficulty in obtaining employment. Applicants must have either at least 12 months post-qualifications work experience in the recent 18 months for 60 point occupations or 24 months in the recent 36 months post-qualification work experience in the nominated skilled occupation for 40 or 50 point occupations. Previously, 6 months was acceptable. This requirement of recent employment experience will be waived for applicants who have completed an Australian qualification (at diploma level or above) involving at least 12 months full time study in Australia in the six months immediately before the date on which the migration application has been lodged. A concessionary period of mandatory employment experience applies to applicants for regional sponsored visas.

In a major departure from the previous regime, all applicants must have a skills assessment for the occupation before the application is submitted by a prescribed professional or trade organisation in Australia, otherwise no valid migration is made. Different assessing authorities have different periods of validity for assessment. Applicants should ensure the "use by" date has not expired when the application is lodged. Further, if qualifications are not assessed as suitable for Australian standards for the occupation, the application will not be successful. One reason for this change was to encourage more expeditious migration processing after the application has been submitted, which has in large part occurred. Note that evidence of membership of an Australian professional society is not per se itself a skills assessment and does not meet the Schedule 1 requirements.

b) Age

All applicants must be under 45 at the date of lodgement of the migration application. There is no exception to this rule.

c) English Ability

All applicants must be proficient in English at the vocational level which is defined as evidenced where an applicant achieves a score of 5 or better in each of the 4 subtests of the International English Language Testing System ("IELTS") general module test, unless the applicant meets the exception discussed below. This is a different level to that which previously applied (and which still operates for outstanding old applications) where vocational English was met where an applicant secured an average of 6 or better based on the 3 best of the 4 test results. Although not mandatory, applicants ought be encouraged to submit the IELTS test result with the migration application. An IELTS result remains valid for 12 months from the date of test. For applicants applying for the Skilled-Regional-Sponsored visa, a lower functional level standard may be acceptable in some situations. For regional sponsored visas a lesser level of English language ability is also accepted.

Having met the 3 above requirements, applicants must then pass the points test contained in Schedule 6A. Points are allocated in addition to the 3 core factors of skill, age and English language ability for 5 additional factors where the application is for Skilled Independent visas and 6 factors where the application is for one of the Skilled Australian sponsored categories. The current pass score for all of the visa classes (which are subject to a points test) is 110. The pool entry for independent visa class is 70 and the pool entry for the family sponsored category is 105. The scores may change. Note that under the former regime, applicants are assessed against the score in effect at the time of assessment and not application.

More specifically, points are allocated as follows:

a) Skills

The structure is completely new. 40, 50 or 60 points are allocated depending on the occupation nominated by the applicant as prescribed in the SOL. Generally, 40 points are allocated for occupations which have diploma skill level requirements, 50 points for occupations with degree qualifications but considered general occupations where professional registration and regulation does not apply, and 60 points for professions which require a degree and usually specific regulation, or trade level qualifications. Note that VETASSESS which assesses all generalist degree level occupations and most 40-point occupations can not assess work experience, but only academic qualifications, usually relying on the NOOSR Country Education Profiles. It also does not assess relevance of qualification to the nominated occupation. In this regard, see below for the discussion on Regulation 2.27B.

b) Age

The same points are allocated for age as were allocated under the previous points test, namely 18 to 29 = 30 points; 30 to 34 = 25 points, 35 to 39 = 20 points and 40 to 44 =15 points.

c) English

Applicants who score 5 or better in each of the four IELTS subtests are allocated 15 points. 20 points are allocated for applicants who score 6 or better in each of the 4 subtests.

d) Work Experience

5 points are allocated for applicants who have been employed in a skilled occupation which is listed on the SOL for 3 out of the 4 years prior to application and 10 points are allocated where the applicant has nominated an occupation which attracts 60 points under the skills factor and have worked in that occupation or a closely related occupation for 3 of the 4 years prior to application.

e) Occupational Targeting

5 points are allocated for applicants who have recognised skills in the nominated occupation, on the new Migration Occupations in Demand List ("MODL"). There are currently [as at March 2002] only 22 occupations listed, being: 

*Chefs would normally be expected to have a relevant trade level (or higher) qualification, and at least 3 years relevant experience following the completion of that formal qualification.

A further 5 points are awarded to applicants who have a genuine job offer of full time employment in an occupation listed in the MODL by a reputable Australian employer whose business has employed at least 10 people full-time throughout the last 2 years.

f) Australian Qualifications

5 points are awarded where the applicant obtained a diploma, trade qualification or degree from an Australian educational institution after a period of at least 12 months full time study in Australia and 10 points if the degree was a doctorate.

g) Bonus

5 bonus points will be allocated if the applicant satisfies one of the following:

1. 6 months of work experience in Australia in a skilled occupation within the previous 4 years, provided the applicant held a substantive visa at the time of undertaking the work experience.
2. Evidence that the applicant has deposited at least $100 000 Australian in a designated government investment for at least 12 months; or
3. Evidence of language fluency in a designated community language, either by proving that the applicant completed a recognized University degree in that language (by policy at least 80% of the study must be in the community language) or by having language ability recognized by NAATI after completing a very difficult test.

h) Spouse Skills

5 points are awarded where the applicant also meets the above described requirements for skills including work experience, vocational English language ability described above and is aged under 45.

i) Sponsorship

For the skilled Australian sponsored category 15 points are now allocated where the applicant has an Australian sponsor who is a parent, non-dependent child, brother or sister, aunt or uncle and where the applicant is sponsored by a relative who has been residing for at least 12 months in a designated part of Australia, a first cousin or grandparent.

Another significant change was introduced with effect from 1 July 2001.

From 1 November 2001, the Department has discontinued processing the offshore skilled migration visa applications in overseas posts. From that date, all applications must be lodged at the Adelaide Skilled Processing Centre. This too is a Schedule 1 requirement for new offshore visa applications. This will lead to a consistent processing period and remove the previous great time variations between overseas immigration offices.

5. Comparable Analysis of Visa Subclasses Skilled - Independent (Migrant) Class BN and Visa Subclass 136, and Skilled - Independent Overseas Student (Resident) Class DD, Visa Subclass 880

1. Class BN, Subclass 136

   The legal structure of this visa follows the traditional regulatory regime. For ease of reading, I have not incorporated the Regulation criteria numbering in the remaining sections of this paper.

   Schedule 1 provides the following essential validity requirements:

   1. The application must be made on the prescribed form 47SK (Application for general skilled migration to Australia), which for the purpose of this visa class should be noted is not also a form for a bridging visa application. Note also that the form submitted should be the current version of the form, the most recent edition of which was introduced on 1 March 2002. This sometimes causes real problems for clients where forms have been sent offshore and may be delayed in the post. Although the Department says it exercises a discretion in this area, the regulatory basis for this practice is in doubt.
   2. The visa application charge which must be paid at the time of application, is currently $1,125.00 and the second instalment (English Education Charge) payable for each applicant aged 18 years or more at the time of application who is assessed as not having functional English (as defined), is currently $2,380.00.
   3. The other prescribed criteria are:
      • The application must be made in Australia but not in immigration clearance.
      • The application must be made by posting with the correct prepaid postage to the post office box specified by the Minister or by having the application delivered by a courier service to the address specified by the Minister. Given the precision of the wording used here, there may well be a doubt that an application personally delivered to this address may be invalid, although current Departmental practice would appear to accept this means of lodgement. Similarly, an application posted, for example from offshore, without the correct prepaid postage may be invalid even if received.
      • The application may include members of the family unit.
      • The application must be accompanied by satisfactory evidence that a relevant assessing authority has assessed the skills of the applicant for his or her nominated skilled occupation. Each of these highlighted terms has significance. The term "relevant assessing authority" means the person or body specified under Regulation 2.26B which are essentially the bodies gazetted as the relevant assessing authority for particular skilled occupations. The term "skilled occupation" is defined in Regulation 1.03 as an occupation specified by Gazette notice as a skilled occupation for which a number of points specified in the notice are available. Thus, it is not possible to nominate a skilled occupation unless it is specified in the gazette notice. As noted above, an analysis of the current gazettal will see that many occupations including occupations traditionally seen as skilled are in fact not gazetted. Within this provision however, there is no regulatory definition of what is required as satisfactory evidence. In the usual course, a letter from the relevant authority is provided. The only requirement is that the applicant produce evidence of assessment. It is significant that it is not necessary for the assessment to be positive as a validity requirement at the time of application. However, the assessment limitation period if specified by the Authority must not have expired.

   The Schedule 2 requirements for the visa subclass are divided into "Time of application" and "Time of decision" requirements. Significantly, Time of application Schedule 2 requirements which may not be met do not affect the fundamental validity of the application. Thus, whereas an applicant who fails to meet a validity requirement will find the application returned together with the filing fee, where a Schedule 2 time of application requirement is not met, the application will be refused with the consequential loss of the filing fee. There is no merits review of a decision to refuse a Subclass 136 visa.

   The "Time of application" requirements are:

   1. The applicant must be aged less than 45 years. Practitioners should therefore ensure that the application is received by the Department before the 45th birthday of an applicant. This can sometimes be confusing for clients where the aging system classifies a person as turning 45 on in fact their 44th birthday, which is in use in some countries.
   2. The applicant must nominate a skilled occupation in the application.
   3. The applicant must have recent employment experience unless the applicant meets the exemption for overseas students. The employment requirement is for over 12 months in the 18 months immediately before the day on which the application is made (for 60-point occupations) or 24 months in the 36 months immediately before the day on which the application is made (40 or 50-point occupations). It is significant that, whilst the applicant must have been employed in a skilled occupation, such doesn't have to be in the nominated skilled occupation. The Minister though must assess the applicant's employment experience from documentation submitted with the application to ensure the work done is consistent with the full range of duties for the occupation at the relevant Australian skill level standard. Employment is defined in Regulation 2.26A to mean "engaged in an occupation for remuneration for at least 20 hours weekly". Remuneration should involve payment of a salary at a commercial rate. Overseas students who have a 20-hour work limitation can meet this test, if they have worked this amount of time. Work undertaken before qualifications are received will not usually be accepted as it may not be at the "skilled" level, e.g. apprentices before achieving recognised trade skills. Full-time, part-time or casual employees can apply, provided they meet the 20 hours a week requirement at a skilled level. Periods of employment while unlawful, or as the holder of a bridging visa, or against visa permission may not be included for the purpose of Regulation 2.27C. Query if an applicant who has employment experience acquired illegally in another country can rely on this experience. Probably, the applicant would have a problem though under Section 501 at the least.

   The exception to this recent employment experience is for applicants who have been overseas students in Australia who have in the 6 months immediately before the day on which the application was made, completed a degree, diploma or trade qualification for award by an Australian educational institution as a result of at least one year of full-time study in Australia. This provision contains several significant aspects as follows:

   • The wording of the current regulation provides that the 6-month exemption applies from a date to the date of application. When the regulation was first introduced with effect from 1 July 1999, the then applicable policy in fact gave some latitude on this point, essentially conceding as acceptable applications made within the month of the 6-month anniversary of completion. Practitioners however should be wary not to rely on this latitude as it is my view that the policy latitude was an incorrect interpretation of the regulatory requirement.
   • The 6 months commences from the date of completion, which is defined within the visa sub-class regulation to include when the applicant met the requirements for the award of the qualification. This is a date different to the date the award is actually conferred. It is essential to submit a completion letter as evidence of this from the Institution, in addition to the academic transcript even if this specifies the date. Usually in practice, the date of completion is the date the student has met all the requirements for graduation, usually by notification. It is thus the date on which the final results were available or published. In some institutions, the date of notification of this can be some weeks before the date the student actually receives the notification and this can result in that student losing some weeks in the subsequent assessment process. There is limited discussion of this term in re LEI (2001) MRTA 5183 dated 7 November 2001, one of the few reported MRT cases on the new regime. The policy notes that a completion letter is required as the academic transcript is often not clear enough evidence of this point.
   • The terms "degree", "diploma" and "trade qualification" are defined in Regulation 2.26A(6). The regulation excludes "associate diplomas", "certificates" or "advanced certificates", all of which are similarly defined, as eligible prerequisite qualifications.
   • The applicant must have completed at least one year of full-time study in Australia. For the purpose of this regulation, the study may have been completed at several institutions. The term "full-time" is not defined in the regulations. By policy, this is one academic year, usually two academic terms, and may include part-time study that is equivalent to one academic year of full-time study, all of which occurred in Australia. In the normal course, one would assume that a statement by an educational institution that a course was completed full-time should be sufficient for the Department. An interesting, and worrying, development however appears to have recently arisen at the Adelaide Skilled Processing Centre, where case officers would seem to be looking behind the statements made by Institutions that the courses were completed on a "full-time" basis. Officers are looking to the academic transcripts and where students have completed less than what is considered to be a full-time academic load in particular semesters, decisions have been taken that the course was not completed on the basis of full-time study, notwithstanding the statement to the contrary by the relevant educational institution.

   As will become apparent in the discussion below relating to the onshore visa applications, the above discussed issues have considerable significance.

   The "Time of decision" requirements for the visa subclass include:

   1. The Department has the power under Regulation 2.27B to change an applicant's nominated occupation and require a new skills assessment for the new occupation. This discretion may be exercised if an applicant has qualifications or employment experience in a different occupation, according to policy, where licensing or registration is required in Australia. The occupations currently identified as relevant appear at paragraph 3.11 of PAM3/ Schedule 6A/Skills. The policy further provides that the discretion should only be considered if the applicant's qualifications and all of their skilled work experience is in one of the listed occupations.
   2. The requirement that the assessment by the relevant assessing authority be suitable for the nominated skilled occupation. It is therefore conceivable that an applicant may rely on a second skills assessment for the purpose of the Schedule 2 requirement to that produced at the time of application to meet the Schedule 1 validity requirement. This may be more than a technical statement in the case of skilled occupations which are trades or professions where a requirement of acceptable employment experience is a prerequisite of the relevant assessing authorities. Examples where this is the case are occupations assessed by Trades Recognition Australia, manager occupations assessed by the Australian Institute of Management (AIM) and IT occupations assessed by the Australian Computer Society where if the academic qualifications of the applicant are assessed at associate standard only, an applicant is required also to have relevant employment experience. In this context, reference should be made to the only Federal Court case on the new regime, Silveira v AIM (2001) FCA 803 which considered the assessment process of the AIM.

   3. The applicant must meet the applicable qualifying score under the points test, as discussed above. The requirement to pass the points test at the date of assessment continues the unsatisfactory regime which has been in place since December 1989. Clients need to be advised that pass and pool entry marks may change between the date of lodgement and the date of assessment. If there is an adverse change, applicants who may have been eligible at the time of application can find themselves excluded and refused if the pass mark rises. This becomes more than an academic issue when processing times can be substantially extended, as has developed with this visa subclass. Thus, London amongst other overseas posts is now quoting an average of 20 months from the date of lodgement to the date applications are assessed. This regime was particularly unsatisfactory, given the differing processing times at different posts. As all applications from 1 November 2001 are now lodged and assessed at the Adelaide Skilled Processing Centre, at least this differential should now disappear. Nevertheless, the skilled migration "lottery" continues to exist to the bewilderment and frustration of clients.

      If the occupation however is removed from the skilled occupation list after the date of application, this will not affect the application as the nomination of the skilled occupation is a time-of-application requirement. Note however if an occupation is downgraded in the value of the points to be allocated to it between the time of application and the time of assessment, an applicant could suffer a loss of points. Conversely, if points for a particular occupation are increased, then an applicant would benefit. To date, this has not occurred, except in relation to nomination of occupations listed on the Migration Occupations in Demand List (MODL) where there have been changes in specified occupations. Finally, on this point, the regulations still do not define when an application is assessed. This can lead to problems in practice if a challenge is made to a particular decision.

   4. The applicant must establish that he or she has vocational English. This term is defined in Regulation 1.15B(3) as being either a score of 5 or better in each of the 4 IELTS test components of speaking, reading, writing and listening in a test conducted not more than 12 months before the day on which the application was lodged or during the period of processing of the application, unless an applicant can satisfy the Department that he or she is proficient in English and the Department accepts that it is not reasonably practical or necessary for the person to be tested. The relevant PAM provides that the IELTS test requirement can be waived where an applicant has passed an occupational English test required by a professional authority, is a native English speaker, has sat an IELTS test more than 12 months before applying for the visa and where the applicant's English has not deteriorated since sitting this test, holds an award being a degree, diploma or trade qualification from an institution where all instruction has been conducted in English involving at least 2 years' full-time study, holds NAATI accreditation, has an English test score for a comparable English proficiency test similar to the IELTS test minimum applicable score or has studied and/or worked in an English-speaking country for a considerable period. As the IELTS testing centers usually require an applicant to wait a period of at least 3 months between each test, it is nevertheless possible for an applicant who may not have vocational English at the time of application to re-sit the tests during the period of processing to achieve the required standard to produce this test result for the purpose of establishing vocational English.
   5. The regulation requires that no evidence has become available since the time of application that information given or used as part of the skilled occupation assessment was false or misleading in a material particular. It is interesting that this regulation seems to limit the evidence to evidence available since the time of application. The issue however may be academic given the overriding provisions of Section 501 of the Act which enable an application to be refused if a person is not of good character (see also Section 65(1)(a)(iii).
   6. The applicant must satisfy public interest criteria relating to health and also public interest criteria 4009 which provides that the applicant must intend to live permanently in Australia and that family unit members of the applicant could obtain support from their principal in Australia. In addition, applicants must meet public interest criteria 4010 which permits refusal of applicants who are not likely to become established in Australia without undue personal difficulty and without imposing undue difficulties or costs on the Australian community. This condition is rarely applied adversely against applicants, but remains as a residual ground for refusal in appropriate circumstances.
   7. In addition, overseas students who were former AusAID scholars or who came to Australia to study with financial support provided by the government of a foreign country must meet the provisions of Special Return Criteria 5010 which basically require an applicant to be at least 2 years outside Australia since ceasing or completing their course.
   8. The regulation contains further provisions in relation to family unit members.
   9. The visa class is limited in numbers and the visa cannot be issued if all available visas for the relevant financial year have been met.
   10. The regulation requires the applicant to be outside Australia when the visa is granted. However, there is no comparable requirement that the applicant be outside at the date of application. Provided an applicant holds a valid substantive visa, or bridging visa (in which case provided Section 48 does not apply or the applicant's last visa had a Regulation 8503 (no further stay) condition), the applicant can be onshore at the time of application. The PAM even contemplates an onshore applicant who is unlawful applying provided there is no bar on lodgement. However, presumably in this situation, again Section 501 would apply. As the application is fundamentally an offshore application, however, an applicant does not obtain a bridging visa by lodging this application and is also not able to apply for a bridging visa to remain in Australia merely by lodging this application. In consequence, if an applicant is in Australia, they must maintain through other means their lawful status in Australia during the period of processing of the application and until approval, or else depart Australia to await finalisation.

 

2.   Class DD, Subclass 880

   The Skilled - Independent Overseas Student (Residence) visa introduces a substantial variation on the traditional regulatory regime framework. Furthering the Department's growing tendency to "front end load" applications, a large number of the requirements which in the Subclass 136 visa were Schedule 2 "Time of application" requirements have been incorporated into Schedule 1 as essential validity requirements. The significance of this is obvious and the consequence to applicants who fail to comply with these requirements can be draconian and particularly distressing, in particular where between the date of lodgment and the date of advice of invalidity (which period can be many weeks in practice) the applicant's former student visa has expired. Practitioners must therefore be particularly alert to the validity requirements. Departmental advice has been that in the first six months of operation of the new Regulations in the order of 25-30% of visa applications were invalid. Recent advice from the Department indicates that the validity rate has dropped a little to between 15-20%. Concerningly, the Department reports that applications lodged through agents have a comparable invalidity rate to applications lodged by self-applicants. One of the particularly difficult areas in this context is the lack of clarity of departmental policy explaining the operation of the regulatory requirements, especially with regard to those terms where there is no formal definition incorporated into the Regulations.

   Where an application is deemed invalid the filing fee will be refunded. This however may be of little consolation to an applicant who is stranded without a visa. Given that there is no merits review of the decision that the application is invalid, and given the amendments to the Act which took effect from 28 September 2001 removing Section 476 and introducing the privative clause to limit judicial review, there will be an increasing hurdle imposed on applicants seeking to challenge the validity determination. It may be significant that my research has failed to indicate any judicial determination to date made by either the Federal or High Court on the regulation. We are therefore left with little guidance in interpreting the regulation other than the somewhat illusive policies.

   Schedule 1 provides the following essential validity requirements.

   1. The application must be made on the prescribed form 47SK. This is the same form as used for the Subclass 136 visa application which is also the form for the accompanying Bridging Visa application. It is clearly most significant to ensure the current version of the form is used.
   2. The visa application charge is $1,670.00 payable at the time of application. There is no second instalment payable, presumably because it is envisaged that all secondary applicants will have English fluency at least to a functional level, given the requirement that to be eligible to be included in the application they must be in Australia also on a student visa or bridging visa associated with a valid Subclass 497 visa application.
   3. The other prescribed criteria substantially differ from those applying for the Subclass 136 visa application. These include:
      • The applicant must be in Australia and make the application in Australia in the same manner as prescribed for the Subclass 136 visa application.
      • As a requirement that the application be accompanied by satisfactory evidence that the applicant has undertaken a medical examination. There is no regulatory requirement as to the time within which the medical examination needs to be conducted. Current policy provides that the medical examinations have been undertaken within three months prior to the date of lodgment. This policy has no legal basis and when the senior officer responsible for administering the Adelaide Skilled Processing Centre (ASPC) was questioned by me in relation to this policy I was advised that in fact the policy was not applied. It is not necessary to submit the results but merely evidence the applicant has undergone the medical examination. Thus, the receipt from Health Services Australia should suffice. The requirement for medical and police evidence relates to all applicants, not just the primary applicant. Each adult applicant must also submit satisfactory evidence of having completed an Australian Federal Police criminal check during the twelve months immediately before the day on which the application is made. Given the absence of the definition of what is satisfactory evidence it is in fact not essential to submit the AFP report, although this should be provided if possible. A statutory declaration confirming the lodgment of the AFP application and confirmatory telephone advice by the deponent to the declaration that the AFP have confirmed completion of the check has been accepted as acceptable satisfactory evidence by the ASPC.
      • All applicants must be either the holder of a Bridging A or Bridging B visa granted pending determination of a Graduate - Skilled (temporary) visa - Class UQ, Subclass 497 visa, or the holder of a substantive visa other than student visas where the applicant was a student visa holder undertaking an English language course or a course of study paid for wholly or in part by the Commonwealth, the Government of a State or Territory, the Government of a foreign country or a multi-lateral agency or an AusAID or defence scholarship or training program or a non award course. The exclusion extends beyond AusAID students who have the Condition 5010 exclusion applicable to the 136 visa. Further, all applicants (including family unit members) must have held an eligible student visa at sometime in the six months immediately before making the application and must not have been an unlawful citizen at any time in the six months immediately before making the application. These requirements interestingly adopt a different temporal terminology to that used elsewhere in the Regulation, where the wording "six months immediately before the day on which the application is made" is used. The significance of the distinction could well lie in a policy interpretation that the period extends to any period within the month before which the application was made. An interesting issue will arise in the case of an applicant who had had a visa cancelled and subsequently was successful in appealing this cancellation. Such persons in my view would nevertheless be excluded from eligibility to apply for this visa. Spouses and other family unit members outside Australia, or who don't meet the above requirement, who have in theory not previously been health tested and character screened, cannot be included in the application and must be subsequently sponsored. This involves additional delay and expense, and may be an incentive to an applicant to apply for the 136 visa instead.
      • The primary applicant must be aged less than 45. Again, it is significant that this is a Schedule 1 requirement.
      • Not all overseas students are eligible to proceed with the Subclass 880 visa applications. The student must have completed a doctoral degree in the six months immediately before the day on which the application is made in which all instruction was conducted in English for award by an Australian educational institution as the result of at least one year of full time study in Australia at that institution and nominate an occupation for which 50 points are gazetted or in any other case nominate a 60 point occupation. In addition the applicant must submit with the application satisfactory evidence that the applicant has in the six months immediately before the day on which the application is made completed a degree, diploma or trade qualification for award by an Australian educational institution as the result of at least one year of full time study at that institution while the applicant was present in Australia and all instruction for that award was conducted in English. These Sub-Regulations contain significant terms which are not defined in Regulation and which have the potential to cause serious problems for applicants. Thus:
        • There is a requirement of completion six months "immediately before the day on which the application is made".
        • The term "completed" again is used. The same issues arise as those discussed above for a Subclass 136 visa.
        • Only applicants who have completed degrees, diploma or trade qualifications can apply, again mirroring the Subclass 136 regime.
        • The applicant must have completed at least one year of full time study. In considering what is one year the Department by policy incorporates the definition of one year referred to in the Education Services for Overseas Students Act 2000. This involves a course of study taken over 36 weeks. The Department will look behind the completion letter provided by applicants to see if in fact the course did involve at least one year study. There must be however some discretion in this regard. Thus, a course which commenced on 5 March and completed on 28 November (the Graduate Diploma in Information Systems Management offered by Central Queensland University in 2001) has been accepted as a one year course even though it is for a period of less than 36 weeks
        • The course must be full time. Again, the Department will look behind the statement from the Institution that the course is full time to see if this in fact is the case and the relevant code of practice is met. In practice, it will be not uncommon for students to present who will have undertaken studies in various other combinations, eg where they have fast tracked the course to enable completion within twelve months. Such students will be excluded. Conversely though where a student has taken more than 12 months to complete because of deferral or failure, in some situations the student may be eligible even though the student may have not undertaken in a semester a full case load.
        • The study must have been completed at one institution. Students who swap between institutions and obtain credits are excluded from eligibility. Note however this particular requirement does not apply to the Subclass 136 visa.
        • The applicant must have been present in Australia throughout the course. Thus external students are excluded.
        • As there is a requirement that all instruction for the course be in English, presumably students who have undertaken courses involving foreign language study will be excluded. This is in fact expressly discussed in the relevant PAM.
      • The application must be accompanied by satisfactory evidence of assessment. In this, the same issues arise as for the Subclass 136 visa.
      • The application may include onshore and eligible members of a family unit, all of whom must meet the prescribed public interest criteria. If one fails, all fail. Only newborn children can be added to the application once made.

   There are no "Time of application" criteria. This is because all such criteria incorporated for the Subclass 136 visa have been transferred to Schedule 1.

   The "Time of decision" requirements largely mirror the requirements for the Subclass 136 visa. I will not proceed to repeat the discussion above in this respect. Rather, I draw attention to the following differences.

   The Regulation does not contain a requirement that the applicant have an assessment from the relevant assessing authority that the qualifications are suitable at the time of decision. This is incorporated as a Schedule 1 requirement. The window of opportunity referred to above therefore does not apply for onshore applicants.

   Given that the application is one made on-shore, the special return criteria do not apply. The requirement of Regulation 5010 is essentially incorporated into Schedule 1.

   It is significant that the Department can still request an assurance of support (requested only if an applicant is likely to need any social security allowance recoverable under the AOS scheme), and all applicants must satisfy public interest criteria 4009 and 4010. The Regulation also requires that all members of the family unit who are not applicants for the Subclass 880 visa also satisfy public interest criteria 4001 (the character test), 4002 (the national security test), 4003 (another national security test), 4004 (no debts to the Commonwealth) and 4005 (the medical criteria) unless in relation to this the Minister is satisfied that would be unreasonable to require the person to undergo assessment.

 

3.   Class UQ, Subclass 497

   Accompanying the Subclass 880 visa is the Graduate - Skilled (Temporary) Class UQ, Subclass 497 visa which has been introduced to enable eligible students to obtain within the six months period the required documentation for the purpose of the Subclass 880 visa. Note, only one subclass 497 visa can be granted. Given the detailed analysis above I do not propose to undertake a similar detailed analysis of the prescribed Schedule 1 and Schedule 2 criteria for this visa as they largely mirror those required for the Subclass 880 visa. The relevant form is Form 1182, and the fee is $155.00.

   There is an additional Schedule 1 requirement that the applicant has an intention to make a valid application for the onshore Skilled visa established by appropriate completion of the form. Further, the regulation requires the Australian qualification to be appropriate to the applicant's nominated skilled occupation. The term "appropriate" is not defined but requires a consideration of how many points it attracts and who is the relevant assessing authority.

   There is a Schedule 2 "Time of application" requirement that the applicant has complied substantially with the conditions of the visa currently held. This is an important requirement. It also draws attention to the importance of ensuring that students continue to comply with all relevant conditions of their student visa until that visa expires and the applicant then becomes the holder of a Bridging A visa pending the determination of the valid Subclass 497 or other onshore Skilled visa application or alternatively that other application has been approved and replaces the student visa. This is particularly significant with regard to the requirements to maintain private health insurance, condition 8501, and maintain enrolment (condition 8202). The 497 visa specifically provides that the Department will impose the 8501 condition on the visa. Once granted however a student is not required to continue to study and may undertake full time employment. This does create an anomalous situation for students who have an extended period to run on their current student visas and to wish to proceed to lodge the onshore Skilled visa application. If the student does not proceed to lodge the Subclass 497 visa application they will be expected to continue with their studies until they have been granted their permanent residence. Those students whose student visa expires shortly are in the more favourable position that they will not have to continue with their studies after lodgment of the permanent residence application and once they have been granted their Bridging A visa.

   In considering the eligibility to lodge an onshore application, regard must also be had to whether the student had a student visa containing a condition under Regulation 8534 or Regulation 8535. Both conditions preclude the grant of a further substantive visa to the visa holder with certain exceptions. Significantly, the student who has the 8534 condition cannot proceed to lodge the onshore Skilled Residence visa directly but must first submit the application for the Subclass 497 visa and can only then proceed to the permanent residence application once the former visa application has been approved. Students with the 8535 condition are precluded from applying.

    

   6. Family Sponsored Visa Classes

   The regulations for the family sponsored onshore and offshore visa classes fundamentally mirror the regulations for the onshore and offshore independent skilled visa classes. For the purpose of the offshore visas, they contain the additional requirement of the appropriate sponsorship and assurance of support which are "Time of application" Schedule 2 requirements. There is also a provision which is also a Time of application requirement for substitution of an applicant's spouse for the purpose of points test assessment for the purpose of Regulation 2.27A. Significantly, the onshore visa provides that the requirement for a properly completed sponsorship form and a properly completed assurance of support are Schedule 1 requirements. The Regulations further specify with regard to the assurance of support that the application must be accompanied by satisfactory evidence that the person giving the assurance of support is an Australian citizen, Australian permanent resident or eligible New Zealand citizen and copies of that person's tax assessment notices for the two years occurring immediately before the application is made, duly certified, and satisfactory evidence of that person's current employment status, must also be provided. A failure to provide even one of these documents of evidence will lead to the application being declared invalid with potentially disastrous consequences for the visa applicant.

    

   7. Conclusion

   As will be evident from this paper, the Regulations are a minefield of minutiae. The Department's explanatory book provides a simplistic explanation of the requirements. It does contain a useful checklist of documentation and I commend to persons practicing in this area the suggestion that they prepare for both themselves and office staff assisting them their own checklists which mirror the Department's requirements for each visa class. Before the application is submitted, I have always followed the practice of both myself and my assistant, checking the application and supporting documentation against checklists to ensure that all mandatory requirements are met. Another useful mechanism for ensuring compliance is to develop consistent, accurate and comprehensive accompanying letters for the application which themselves provide an internal checklist for the practitioner and also for the Departmental officer who will be assessing the application. Such correspondence, will of course reflect the style of each author, but should be framed in my view in a manner which mirrors the regulatory requirements, without being verbose. I also believe that it assists Departmental officers to tag all documents produced with the application by reference to this supporting letter. Finally, one can never overemphasize the importance of dates in the immigration area. Practitioners must develop their own mechanism for ensuring that applications are lodged before relevant dates have expired. Given the mandatory directions in the way in which lodgement must take place, sufficient time should be provided to ensure that lodgement of the application will occur before relevant cut-off dates such as:

   • the 6-month anniversary date of the date of completion,
   • the date of expiry of a substantive visa,
   • the date a person attains a particular age,
   • the date after which a person has acquired the minimum necessary employment experience.

   Whilst in my experience negligence claims against defaulting practitioners would appear to be rare. Given the Department's statistics on the large number of invalid applications being lodged for onshore visas, it may well be that negligence lawyers may find a sunrise industry in providing assistance to clients of migration agents who have been poorly represented.