Tag Archives: DIAC

DIAC no more – welcome to the Department of Immigration and Boarder Protection (DIBP)

For those of you with an interest in trivia here is a list of the names that have graced the various versions of the Federal Government Immigration Department since the end of World War II.

DI – Department of Immigration (1945 – 1974)

DLI – Department of Labour and Immigration (1974 – 1975)

DIEA – Department of Immigration and Ethnic Affairs (1976 – 1987)

DILGEA – Department of Immigration, Local Government and Ethnic Affairs (1987 – 1993)

DIEA – Department of Immigration and Ethnic Affairs (1993 – 1996)

DIMA – Department of Immigration and Multicultural Affairs (1996 – 2001)

DIMIA – Department of Immigration and Multicultural and Indigenous Affairs (2001 – 2006)

DIMA – Department of Immigration and Multicultural Affairs (2006 – 2007)

DIAC – Department of Immigration and Citizenship (2007 – 2013)

DIBP – Department of Immigration and Border Protection (2013 – current)

The changing names give an interesting snapshot of the themes that have swirled around Australia’s immigration program over the years. Really all these changes are just a giant waste of taxpayer’s money. We could have just stuck with the original and bought a few extra hospitals, aircraft carriers or perhaps kept University/HECS and TAFE fees lower to promote the training of the workforce. Alas our politicians really can’t be trusted with our money!

What’s the latest cost for rebranding a Federal Government Department? Anyone know?

The New Student Visa System – The Foundation Stone! – Part 1

Background

On 5 November 2011 the first recommendation of the Knight Review (Strategic Review of the Student Visa Program 2011) came into being – this recommendation was entitled “The Foundation Stone”. In short an applicant for a student visa must now prove to Immigration (DIAC) that they are a ‘genuine temporary entrant’. This seemingly harmless change from the previous requirement to be a ‘genuine student’ also arrived with Ministerial Direction 53 – Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications.

To be complete this change came with a number of other important changes

  • Amended English requirements for AL 5 570 (ELICOS) visas for AL4
  • Reduced funding requirements for AL4 from 36 to 24 months
  • Public interest criterion 4020 applies to all Student visas (more of this in a subsequent post)

Back to the main game; the genuine temporary entrant requirement.

Some background…

  1. The Federal government has been strongly focused on making changes to the sectors of the education industry that provide services to foreign students, especially the Vocational Sector (572 visas).
  2. The Federal government has been determined to sever the link between study in Australia and permanent residence.
  3. A series of policy decisions relating to General Skilled Migration (GSM) – priority processing, especially the Priority 5 classification of many valid GSM applications and more recently the announcement of the new SkillSelect / Expressions of Interest system from 1 July 2012 for prospective GSM has vastly reduced enrolments in the Foreign student market.
  4. Many Vocational Colleges have closed and many more have become extremely marginal financially.
  5. The University or Higher Education Sector has suffered a significant drop in enrolments and hence recurrent funding due to these policy settings.
  6. The University or Higher Education Sector has been lobbying the Federal government very strongly to fix the mess they have intentionally created by targeting the Vocational Sector.
  7. The Federal government sets up the Knight Review. Chaired by a good Labor man and, surprise, surprise, out pops the above mentioned Foundation Stone recommendation.

Basically what I’m saying if you haven’t caught on yet is that what we have seen delivered up is a) not an independent review of the student visa program and b) that this foundation recommendation fits hand in glove with all the other moves to sequester students from any aspiration to gain residence beyond their study in Australia.

Now I’m not being a conspiracy theorist here – this is straight out Labor government policy in action. All the bits and pieces of a somewhat convoluted puzzle have been progressively moved into place. Add to this the recent announcement that the ATO will be tracking all the people with temporary visas – student, working holiday and temporary worker / 457 etc… to check they are all paying tax (which is totally fair enough) and you can see a Labor and Trade Union push to squeeze out what they see as the cheap migrant worker. None of this has been announced as policy in this light but the combined outcome is unmistakable. Perhaps it’s just all a big coincidence?

I’m going to come back to the title of this post in more detail in a few days (Part 2) but what I’m seeing and hearing and I’m sure this was the intention (as opposed to the stated intention to make the student system better, fairer, bigger etc…) is that Student applicants are being refused in record numbers as “not genuine temporary entrants”. This is a massive subjective decision making process driven by the Minister’s new Direction 53. This document gives a DIAC decision maker the ability to form a view based on almost anything they can possibly imagine or infer that the applicant is not intending to come here, study, graduate and then depart.

Watch this space as I’ll expand on this in the next post. It’s my view that this, more than anything else in Labor policy so far will dramatically change the immigration landscape in Australia.

Bridging Visa E (WE 050) – the not so nice Bridging visa

A word of caution before we begin – this is a complex area – at Migration Regulation 050.212 there are 17 listed requirements that can be met to allow for the grant of a BVE. There is also a second visa subclass in the WE class; a WE 051 which applies to applicants who are immigration cleared and who make an application for a Protection visa. I will not discuss the WE 051 in this post.

First the applicant for a BVE must either be an unlawful non-citizen (a person inside Australia who does not hold a valid Australian visa – what most people refer to as ‘illegal’) or already hold a BVE or hold a BVD (041) (Non-applicant).

You cannot be an eligible non-citizen. This is another quite complex area but for now I’ll just say to be so recognized the Minister for Immigration & Citizenship must make this determination personally and report same to the Parliament. As with the WE 051 I will not discuss this in this post.

The simple summary of the 17 listed requirements at Migration Regulation 050.212 is that this is a BV for -

  • unlawful people making arrangements to depart Australia,
  • people who are detected by DIAC as being unlawful,
  • unlawful people who make an application for a substantive visa or an appeal to a review tribunal or court,
  • unlawful people who make a request to the Minister to personally grant them a visa,
  • BVE visa holders who make an application for a substantive visa or another BVE.

Rather than try to explain the 17 listed requirements at Migration Regulation 050.212 I’m going to look at the common ways people end up on a BVE (WE 050).

  1. Lots of people overstay and become unlawful non-citizens– they arrive on a visa, it expires and they don’t leave. Some are detected by DIAC officers, some come forward voluntarily, of these some just want to leave and others seek to lodge applications.
  1. DIAC cancels a non-citizens visa. This instantly makes this person an unlawful non-citizen. There are a dizzying array of ways to get a visa cancelled – some general (not complying with visa conditions) – some automatic (s.137J relating to Student visas) – some specific (on character grounds) – some that relate to particular visa classes (Business visas).
  1. It is common for people who already have a BVE to apply for another BVE with changed conditions. The most common circumstance is that they can demonstrate a compelling need to work and they ask to have a no work condition changed to permission to work.
  1. Many non-citizens who have had visa applications refused or visas cancelled and who have subsequently applied unsuccessfully for merits review of these decisions, make requests to the Minister to personally grant them a visa. The BV that they held for the review process expires 28 days after the final decision hence they become unlawful and they must apply for a BVE in relation to their Ministerial request.
  1. In 1 above I mentioned unlawful non-citizens who seek to lodge applications for a substantive visa. Here you can get a BVE either when you lodge the application or by convincing DIAC Compliance that you are actively attempting to lodge said application. You may for example need to get DIAC to grant a waiver of condition 8503 (Not Further Stay) in order to be able to lodge an application. There are many similar unusual circumstances – too many to list out here.
  1. Students applying for Revocation (under s.137K) of a decision to cancel a student visa under s.137J will be granted a BVE.
  1. Students who apply for voluntary cancellation of their Student visas as a result of lodging an application for PR (perhaps Partner or GSM) will be granted a BVE (see previous post on this issue).
  1. Unlawful non-citizens who are testing validity or eligibility issues relating to applications before the court will be granted a BVE.

Please note that is not an exhaustive list by any means as I’m attempting to keep this relatively simple and understandable. Certain circumstances relating to members of a family unit of BVE applicants, people being released from Immigration detention and involved in criminal proceedings for example can also lead to BVE grants.

I’m sure most will have listened with interest to the Federal government and others discussing the proposed use of Bridging visas in relation to the onshore processing of asylum seekers – these will be BVEs.

How long do BVEs last?

This is a good question and the answer will vary depending on the circumstances of the grant. If the BVE is granted in relation to an application (substantive visa, review or court), the duration is similar to the BVA provisions – until it’s finally decided. If you are seeking to apply for a visa or depart or similar the duration will be quite short and specified. Some BVE grants roll with the circumstances and DIAC will grant say 1 or 3 months at a time and then check how the application or request is proceeding – this is common with Ministerial requests.

It’s also worth noting that DIAC can request a security bond from the applicant when granting a BVE. The bond is forfeit if the conditions of the BVE are not met.

Work

It may be possible to apply for work rights on a BVE – you must demonstrate a compelling need to work.

Travel

You cannot travel on a BVE. It is not possible to change this condition.

Voluntary Cancellation of a Student Visa

International students can lodge a variety of applications for other visas during the validity of their Student Temporary visa. The most common are Partner, General Skilled Migration (GSM) and temporary or permanent employment based visas in either the 457 or Employer Nomination Scheme (ENS) programs.

In many cases this has no impact on their status as a student as they continue their studies and eventually the next visa is granted or their Student visa expires and they go onto a Bridging Visa A (BVA) and wait for the next visa grant. However for some, often with long running Student visas, this can present a problem as their circumstances may have changed (typically a Partner application) or they have managed to meet an education goal which has allowed them to lodge a GSM application. Many in these circumstances do not wish to continue their studies.

The two most common scenarios I see prompting a wish to voluntarily cancel a Student visa are Partner or GSM based. Remember that while ever a Student visa is valid (unless your studies are complete as originally planned) the visa holder MUST meet the conditions of that Student visa – satisfactory progress and attendance plus the work limitation. A student who has completed their studies is still bound by their visa conditions but DIAC consider that they are ‘out of session’ and this means that these major visa conditions no longer really apply.

Example 1

A Student with a TU visa with more than 12 months to run is sponsored by an Australian partner for (onshore Partner 820/801 applications). With the new relationship status come costs and responsibilities as well as the burden of ongoing tuition fees to their college or university. This often leads to a desire to avoid paying ongoing tuition fees and / or to work for more than 20 hours to be able to pay the bills.

Example 2

This student came to study a package of courses – possibly English + Certificate III & Diploma + Bachelor degree. At the end of the Certificate III they find they are eligible to lodge a GSM application. From their perspective this is ‘job done’ and they can no longer see the point of the further study. They have a good job in their nominated occupation and their career focus has changed from study to work.

So what’s the solution?

Ask DIAC to cancel the Student visa as a result of the lodging of a valid PR application.

This is simple enough but there are a number of very important factors to be considered.

First the process –

  1. You go to DIAC Compliance / Student Integrity and say …”I’d like to voluntarily cancel my Student visa under section 116 of the Migration Act 1958. (You don’t need to be that formal)
  2. They (DIAC) issue you with a Notice of Intention to Cancel your Student visa under section116. You sign on the dotted line. This comes with a 5 working day cooling off period (really a 5 w/day period to respond to the notice). You don’t respond. You also sign another letter acknowledging the grounds for your request.
  3. DIAC cancels your Student visa. This also cancels the BVA for the application you have lodged (Partner or GSM). It cancels all visas granted to you in one hit. You are now unlawful – ouch! They send you a letter of notification + a Decision Record + an MRT pamphlet (just in case you want to apply for a review of this decision).
  4. You are told that you need to “attend in person to a DIAC office to apply for and be granted a further Bridging visa”.
  5. You attend and apply for a Bridging Visa E (BVE) – a WE 050. They grant you a BVE – they sign / you sign and off you go.

Facts & Implications

  1. You now have a BVE which will allow you to stay until DIAC process your application.
  2. You have the following conditions – 8101 NO WORK + 8207 NO STUDY – basically the BVE is the bottom of the pile in the world of bridging visas. The first now requires further action the second was the aim of the exercise.
  3. You can now apply for a change of conditions on your BVE to allow you to work – here you need to prove ‘financial hardship’. All going well this may take a couple of weeks.
  4. You cannot travel – not strictly true – you can leave Australian they just won’t let you back in. No exceptions!

The biggest problem I see here is that potentially you could be on the BVE for a long time, depending on which application you lodged. Employers do not understand bridging visas and especially the BE.  Also the travel bar is a big problem if something urgent comes up in your home country; when it does clients often feel angry and guilty as they can’t be there when they feel that they should. It’s the cost of getting off the Student visa so you need to consider if you’re willing to pay it.

Partner Visas – What’s new October 2011?

It’s common for DIAC to see a surge in onshore Partner visa applications (Subclasses 820 / TR and 801 / PR) when there are significant changes taking place in other visa programs.

Here of course I mean the significant changes in General Skilled Migration (GSM) program – New smaller Skilled Occupations List (SOL) + New tougher Points Test + multiple changes to Priority Processing + the large group of Priority 5 applicants waiting in limbo + the prospect of the new SkillSelect program (Expressions of Interest) from 1 July 2012. It is also important to see the turmoil that has existed in the International student sector in this light as well – DIAC and the Federal government’s clear policies to cause structural changes in this sector have led to significant falls in enrolments, College closures and a great deal uncertainty for current and potential students. All this leads potential applicants to consider the Partner option if it is available to them.

DIAC have increased the allocation to the Partner visa category by 8% for this year but the surge in applications is running higher than the extra places. This means, other things being equal, slower processing times. Onshore Partner average processing is currently at about 9 months. DIAC in September 2012 were processing cases lodged in November 2010 with 14% of allocated cases being decided in 1 month.

This can all seem confusing and understanding the terminology here is important or rather it’s important not to get confused.

Allocated case – application assigned to a case officer for processing (taken out of the pipeline of lodged applications)

Average processing time – from the date it is allocated to a case officer

The time between lodgement and getting allocated to a case officer – the pipeline of applications

So you lodge the application, wait in the queue, get allocated to a case officer who then assesses the application and makes a decision. So remember there are two time streams running here from when you lodge to when your application is allocated & from when your application is allocated to when a decision is made. The quoted numbers refer to the second time stream.

Rejection rates are at historic highs right now running at 5% for onshore 820 / TR and 7% for onshore 801 / PR. First this is not surprising as there are more applications due to the factors above and some of those will be ‘marginal’ for want of a better word. In addition there has always been a ‘market’ in fraudulent Partner applications but this new rate of refusal is above the long-term average. Second more 801 applications (Second Stage processing) are refused as unfortunately relationships breakdown.

It’s interesting to hear that DIAC have recently made 200 random home visits to applicants for Partner visas – checking to see if the reality matches the paperwork. These visits have led to outcomes that mirror the current higher refusal rates for these visas.

I’m often asked if priority processing is an option for Partner visas. The simple answer is yes and that DIAC will consider requests on a case by case basis. You’re not going to be moved up what is basically a chronological queue just by asking. You’ll need a substantial reason to get processed with priority. This could involve some complex personal or employment circumstance. If you feel you have a case worthy of consideration it does no harm to ask.

The best advice for Partner applications is to do your level best to have every necessary document included when you lodge the application. Make your application DECISION READY. Filling in a few forms, attaching a pile of photos and a relationship registration certificate will guarantee that you’ll be at the long end of the processing timeline. It’s up to you to prove to DIAC that you have a ‘genuine’ relationship!

Priority 5 GSM & GSM trivia – Light at the end of the tunnel?

Last week I attended a talk by David Stewart – Program Director for General Skilled Migration for the Department of Immigration & Citizenship. David is the person in charge of allocating all GSM applications to case officers for processing (amongst many other things) – he’s the GSM boss.

I learned that …

  • 1200 applications are allocated each week
  • There are about 80,000 applications pending in the onshore queue
  • It is possible, if nothing else changes, that some ‘old’ applications as he put it will get to the top by November 2012
  • There are over 750 people (DIAC staff) processing Global Skilled & Family applications (GSM is only a part of this overall group though)
  •  Some ‘old’ GSM applications have 2006 lodgement dates (possibly even 2005)
  • Demand for GSM places far outstrips the supply of available places
  • Applicants are struggling to meet the new points test pass mark of 65 points and this has seem a reduction in application rates
  • SkillSelect, (the Skilled Migration Selection Register) the new Expressions of Interest (EOI) system is seen as the savior of GSM as it will allow DIAC to clear up ‘old’ applications
  • DIAC hopes to get GSM processing back to their service standard in 2011/12 and this means getting to the Priority 5 applications
  • Business Skills visa applicants will be subject to the SkillSelect / EOI system
  • SkillSelect initial sorting of applications will be done according to the Points claimed by applicants

OK that’s enough dot points…What does it all mean?

  1. The light at the end of the tunnel for Priority 5 applicants may not be a train. Don’t go getting too excited though as Mr. Stewart made all the usual qualifications to his commitment to actually process ‘some’ of these applications – if nothing else changes – subject to the number of applications in higher priority groups.
  1. DIAC clearly plan to use the first period of “SkillSelect” to allow them to clear out the pipeline of old applications hence those in Priority 5 have some hope of being allocated to a case officer, but not until next year.
  1. There is a plan, in the background to move the emphasis in the Skilled Migration Program away from Independent GSM and towards employment, State/Territory nominations and Regional Engagement Strategies for Migration and Enterprise Migration Agreements (EMA).
  1. DIAC are convinced that the Business Skills section of the Skilled Steam is not delivering the anticipated type of applicant hence their decision to require an EOI in this program to allow them to pick and choose applicants.
  1. Unless DIAC put in place a robust system for checking out points bids under SkillSelect many (what’s a nice word?) bogus points claims will be filtered to the top and gum up the system that they hope will “minimize processing times”.
  1. A side comment by Mr. Stewart about the rate of new applications and a possible need to look at the 65 pass mark was interesting. However I suspect this plays straight into the overall DIAC plan (less GSM) and that we will not see a reduction in the pass mark any time soon.
  1. It’s interesting that everywhere one turns and listens ‘people’ are talking skills shortages – this includes business at all levels and DIAC. I get the bad feeling that the system DIAC are developing will not be able to respond in a timely manner and that demand will outstrip supply even though the supply is ready, mostly willing and potentially able to respond. Time will tell.

Generally then some hope here if nothing else happens (has that ever been the case?). When viewed in conjunction with the recently released review of Student visas (Knight Review) it is possible to see pathways to migration for onshore foreign students.

For those who already have onshore GSM applications in the pipeline the waiting game will continue.

The Mysterious World of Bridging Visas

I get a significant number of questions every week from clients and readers of my BLOG that have at their core the status and rights of a person on a Bridging Visa.

Some examples…

What is the difference between the different sorts of Bridging visas?

Will I get a Bridging visa if I apply to the MRT / RRT?

Can I make another visa application while I’m on a Bridging visa?

Can I travel and for how long?

What are the conditions on my Bridging visa?

Are the conditions on my Bridging visa the same as those on my last substantive visa?

How long do Bridging visas last?

When does a Bridging visa expire after a decision by DIAC or a Review Tribunal?

Will have permission to work on my Bridging visa?

And so it goes on…

With the possibility that some applicants for onshore visas will spend many years on a Bridging visa I thought I’d start a short series of articles on this topic. This one is the introduction.

I regularly see clients for onshore General Skilled Migration (GSM) who, it would seem, have lodged valid applications that have already been waiting for more than 3 years on a Bridging Visa A (BVA). As the Minister continually fiddles with GSM Processing Priorities these poor patient applicants see their time as BVA holders stretching off over the foreseeable horizon. Other Family applicants for Onshore Remaining Relative, Carer or Aged Dependent Relative visas may, if the DIAC website is a good guide, be waiting 10.5 years. Onshore Aged Parent Applicants waiting time on a BVA will, it seems be much longer.

I often wonder if anyone at DIAC or for that matter the Minister sees this as a little odd.

Now I think it is fair comment to say that having a system that works so poorly that applicants languish, without many of the fundamental rights that Australians take for granted, for year upon year on a non-substantive temporary visa is not a satisfactory or sensible situation. For most, if they live long enough (and I’m not joking here in the case of Aged Parent applicants), they will be granted a substantive visa. In the case of almost all the long-serving BVA holders this will be permanent residence visa.

It is a measure of the dysfunction of our Migration system that it has been allowed to generate an underclass of people who must live in the Bridging Visa nether world. Now some ask what’s their problem. They can stay and they often, perhaps mostly, have work permission. They should just get over it. Well no that’s not fair – it is substantially more difficult to get a job, especially one for which you’re qualified, if you hold a Bridging Visa. Many employers are at best wary of Bridging visa holders and most employers have no idea what a Bridging visa means. If I lose my job I can head off to Centrelink and get financial support – Bridging Visa holders get to fend for themselves.

Once you’re on a Bridging Visa (and here I’m mostly talking about those on a BVA) and you move beyond what Schedule 3 of the Migrations Regulations charmingly call the “relevant day” (for most 28 days after the expiry of your last substantive visa) you are basically blocked from making another visa application onshore (it’s complicated but there are exceptions to this that are not relevant to the point I’m making here). This means you’re locked into the Bridging Visa world for the course of the time it takes DIAC to decide on your application – a week, a month, a year, a decade or longer.

The other day I say a client who’d been on a BVA for 16 years. Last year a couple who’d made it past 20 years. These are both odd and I must admit exceptional circumstances but there are onshore Aged Parent Applicants who could well pass these milestones in the normal course of waiting for their applications to be decided.

My plan is to offer a series of shorter articles explaining each of the various Bridging visas over the next few weeks and giving links to where readers can find more detailed information on the specific Bridging visa and the area in general.

There are seven (7) bridging visas – BVA, BVB, BVC, BVD, BVE, BVF & RPBV. To set the scene if you list these visas from most to least beneficial the order would be BVB, BVA, BVC, BVD, RPBV, BVE & BVF. Confusing? Well yes – just when you thought that the alphabet could be your guide.

If you’ve got an interesting Bridging Visa story to tell or just one you need to get off your chest  get in touch with me and we can help everyone out there appreciate the problems, pains, frustrations and obstacles that confront holders of long-term Bridging visas.

Leave a comment!

GSM – More Priority Processing Changes

DIAC and the Minister have announced yet another version of the GSM Priority Processing arrangements for all those lucky souls who were previously Priority 4 applicants. From 1 July 2011 they now become Priority 5.

Basically this group of some 31,000 applicants are the bottom of the GSM pile and this means they will wait and wait and wait to have their applications processed. They were all either informed by email (if they had an authorised email address) or given (not sure how) the option of emailing gsm.processing@immi.gov from 15 July 2011 and referring to the attachment in the auto response provided to get this information. How those without authorised emails know they should know to do this is unclear.

In DIAC speak they are told in the email that – “The information contained is for information only and you do not need to take any action” and then a little further down they are told somewhat mysteriously that due to “recent reforms” “The Department does not anticipate that the creation of an additional priority group…will impact negatively on the processing of applications…”

Wow that’s all very clear. This is then followed by a whole page and half of what is essentially non-information about the migration program for 2011-2012, how members of Priority 5 can view updates on the status of their application (I assume this is just put there to annoy them – ‘status?’), some suggestions of alternate options for Priority 5 applicants (which can be summarised as do something else or withdraw your application) and of course the ever present ‘Contact Us’ which as usual says – well don’t.

Now I’m not suggesting that our government should not be entitled to make decisions about who should ‘migrate’ here – heaven forbid that – but one could be forgiven for thinking that the process of inviting valid applications from skilled applicants, accepting valid applications and accepting payment from them for their valid applications (the old elements of a contract being… offer + acceptance + consideration) is, under these circumstances, at best deceptive. No that’s not strong enough a term it borders on the dishonest. The Federal government has entered into an agreement with these applicants however they continually reset the terms of the agreement at the whim of the Minister. It’s like playing football with continually moving and partly obscured goalposts.

What’s next I wonder? If DIAC / the Minister / the Federal government (take you pick) can just keep delaying valid applications seemingly indefinitely will they next, having failed to deter applicants who just sit and wait, adopt the cap and cease strategy they applied to a very large group of offshore GSM applicants last year?

DIAC has already announced the Expressions of Interest (EOI) system to come in on 1 July 2012, which will effectively stop applicants joining the GSM processing queue and possibly the whole GSM system, as we now know it. Are we to believe that these Priority 5 applicants will ever get their applications processed? How long can the Federal government seek to delay valid GSM applications?

New GSM Points Test from 1 July 2011

Migration Amendment Regulations 2011 (No.3) Select Legislative Instrument 2011 No. 74 – The New General Skilled Migration Points Test commences on 1 July 2011.

Most with an interest in the Skilled Migration Stream and in particular General Skilled Migration (GSM) will be very aware of this change. DIAC has had a draft of the new points test available for many months.

This new Points Test applies to the following subclasses:

(a) Subclass 175 (Skilled — Independent);

(b) Subclass 176 (Skilled — Sponsored);

(c) Subclass 475 (Skilled — Regional Sponsored);

(d) Subclass 487 (Skilled — Regional Sponsored);

(e) Subclass 885 (Skilled — Independent);

(f) Subclass 886 (Skilled — Sponsored).

The new Points Test Pass Mark is as previously announced 65 points (IMMI 11/027).

This is the link to find the correct information on the DIAC website

http://www.immi.gov.au/skilled/general-skilled-migration/pdf/points-test.pdf

There are some changes to the draft that was originally released by DIAC.

  • In the previously published version of the new Points Test in the points allocated for work experience in Australia and Overseas there were a number of different divisions based on the number of years worked in a specified period – for example 10 points for 3 years in the past 5 years of Australian Employment. The new version allows points for employment undertaken in the 10 years prior to application. This much simpler.
  • There are now four categories for Australian Work Experience in the last 10 years – 1 year = 5 points, 3 years = 10 points, 5 years = 15 points and 8 years = 20 points. (The 8 year category is new)
  • There are three categories for Overseas Work Experience in the last 10 years – 3 years = 5 points, 5 years = 10 points and 8 years = 15 points (Clearly DIAC place a lower value on overseas work experience)
  • Finally you can now get up to 20 points from both overseas and Australian work experience. In other words if you have a combination of overseas and Australian work experience you can claim both. Again this is a welcome and more realistic change.

Further comments:

  1. The changes above are a significant improvement and make the Points Test more pass mark more accessible.
  2. The new system does allow for older applicants – previous upper age was 45 it’s now 50. However the age group 45 – 49 years = 0 points
  3. English Points:
  • You need IELTS 6.0 in each band to get in the door but this gets you zero (0) points – this is Competent English.
  • Proficient English is at IELTS 7.0 in each band = 10 points
  • Superior English is at IELTS 8.0 in each band = 20 points
  • No matter where you come from, native English speaker or not you must give DIAC a recent (in the 2 years prior to application – remember the Berenguel loop hole has been plugged) IELTS result to get these points. I must admit I struggle with this for applicants from countries where English is the native language. In fact I’d have to say we have a real arrogance asking UK applicants to sit this test. It’s hard to see the point for those with passports from UK, Canada, USA, Ireland, NZ who have secondary schooling and post secondary qualifications that will be successfully assessed for GSM having to prove the obvious.
  • The DIAC point is always that better English levels equate to better migrant outcomes – yes we all agree but this is ‘taking coal to Newcastle’ for those whose English may well be better than our and it makes us look just silly. Perhaps we should have all bought shares in English testing companies?
  • DIAC have moved finally acknowledged that overseas PhDs are equal to Australian PhDs and allocated 20 points. Long overdue.
  • Designated Language Points now require the applicant to hold an accreditation at para-professional level or above from NAATI. You can no longer use a degree awarded in a designated language to get these points. I can’t see the point of this beyond it’s much easier for DIAC to assess – this is expediency rather than seeing the real value in migrant’s multi-lingual abilities.

As we are all aware and as I often say to clients – The rules are the rules if you want to play you have to play by the DIAC rules. It serves little purpose to get too excited or to plead injustice, as the system really does not care.

Remember that on 1 July 2012, just one year hence, DIAC will move to an Expressions of Interest (EOI) system that may well make GSM a problematic anomaly while they dig their way through the huge backlog of existing valid GSM applications.

IELTS Change – Beware – Berenguel Reversed

Many readers will have heard of the Berenguel Case in which the High Court (and this is a simplification) held that an IELTS English test taken and provided after the date of application should be accepted by DIAC. In Berenguel the applicant could not get an IELTS booking until after he had to lodge his General Skilled Migration application. The High Court held that his IELTS test should be accepted.

This is a summary of the case from a BLOG called The Lamp Post – High Court of Australia Case Summaries and Comment http://lamppostblog.blogspot.com/2010/04/berenguel-v-mic.html

Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (5 March 2010)

The appellant lodged an application for an Australian permanent residency visa. At the time of lodgement, the appellant had booked, but had not sat for a language test. The relevant regulations required the Minister to be satisfied of the appellant obtaining a particular grade on the language test. That requirement was under a heading entitled ‘Criteria to be satisfied at time of application’. The High Court found, notwithstanding the heading of that provision, that given the wording of that part and the operation of the Act, the regulations were not intended to prevent the Minister receiving test results subsequent to lodgement of the application. Certiorari ordered quashing the decision of the Minister

Many applicants have taken advantage of this decision and DIAC acknowledged the precedent and has to date been accepting IELTS that were dated after the date of application. Also quite a large number of cases have been won at the Migration Review Tribunal (MRT) as a result of the Berenguel ruling.

The Federal government has now legislated (effective date 1 July 2011) to reverse this ruling. This is not an unusual process. Basically someone manages to pry open a gap in the system and after consideration of the position and the ruling in question the government closes the gap via legislation. New legislation overrules Court precedent.

Essentially therefore Berenguel has been reversed to quote

David Stewart, Program Director, General Skilled Migration, DIAC


I have been advised there are Regulation changes on 1 July, which change the definition of Competent, Proficient, etc, English. This change effectively is a reversal of the position created by the Berenguel decision, as it is will be defined in the Regulation that the English test must have been conducted in the two years immediately preceding the date of the visa application.”

So from 1 July 2011 this is the situation…

To claim points for proficient or superior English language, all applicants, including citizens of United Kingdom, Canada, New Zealand, the United States of America or the Republic of Ireland, will need to complete an English language test. The test must be completed before the visa application is lodged.

This will mean that for applications lodged from 1 July the required International English Language Testing System (IELTS) / Occupational English Test (OET) results must be provided with the application; if not, the application must be refused.