Australian Immigration Daily News

On Friday, the Government released new Legislative Instrument revising the age requirement for Points Tested Subclass 189 visa.  The same instrument also clarifies GSM Pathway for NZ Citizens on the basis of residing in Australia for a period of five years.  The paradoxical nature of this announcement is unfortunate. On one hand, this is unwelcome news for applicants who are 45 or over as they will no longer be able to meet the associated age requirement.  On the other, NZ citizens may apply for GSM with lesser restrictions.

Applicants who are 45 and over

The Instrument confirms that applicants for a 189 visa assessed from 1 July 2017 must be under 45 years of age at the time of receiving an invitation to apply.  No doubt, this is placing further restrictions on permanent visa options (or lack of) which are currently available to skilled migrants wanting to migrate to Australia.  Subclass 189 applicants who have lodged an Expression of Interest and are/will be 45 or over at the time of Invitation, will no longer be able to meet the age requirement for this visa.  Applicants who are impacted may be eligible for another visa including State Nominated permanent residence or permanent residence via the Employer Nomination Scheme.

Does it seem to you that the Department is running a small “cottage industry” involving cancelling visas on character grounds?

If you have a look on Austlii, you can certainly get that impression!

Cases before the Tribunal challenging cancellations by delegates of the Minister. Judicial review applications in the Federal Court against decisions made personally by the Minister to cancel, or to refuse to revoke cancellation decisions made by delegates. Appeals to the Full Court from decisions of the Federal Court dismissing judicial review applications against cancellation decisions.

There is no doubt that the removal and addition of occupations to the List is somewhat of a mystery.  Unfortunately, the short answer is that there is no way to predict whether a particular occupation will remain on the List for the following financial year.  However, it is important to understand how decision is made to keep or to remove a particular occupation.  The understanding of the review process is now more important than before given the Government’s recent overhaul of the Temporary Visa Framework.

The Consolidated Skilled Occupations List (SCOL)

This List has been significantly condensed from 651 to 435 occupations, with 216 occupations removed. The Consolidated Sponsored Occupation List (CSOL) has been renamed to the new Short-term Skilled Occupations List (STSOL) and will be updated every six months based on advice from the Department of Employment.

What is the scope of the Full Court’s decision in the Waensila case?

Remember? Waensila  was the case where the Full Court overturned the Federal Court’s previous decision in the case of Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs that held that the only matters which can be taken into consideration when the Department/Tribunal are deciding whether to “waive” Schedule 3  criteria are matters that were in existence at or before the time of the application.  

In Waensila,  the Full Court held that regulation 820.211(2)(d) (ii), which permits the “waiver” of Schedule 3 where there are compelling reasons for not applying the Schedule 3  criteria, is not itself a “time of application” criterion. Accordingly, the Full Court decided in Waensila that when it considers whether to exercise the discretion to waive Schedule 3,  the Tribunal is not limited only to circumstances in existence at the time of the visa application.  Rather, under Waensila the Tribunal is at liberty to consider any matter that is in existence at the time that the decision whether to waive Schedule 3  is made.

Dear Migration Alliance Members

Thank you for the opportunity to serve you all on the board of Migration Alliance Inc.

I have decided to resign from the position of Secretary, immediately.