Tasmania and Western Australia - State Migration Plans

With holiday season upon us I have been a bit slow off the mark in updating the blog for the announcement of the Tasmanian and WA state migration plans.

Details for the Tasmanian plan are HERE

Details for the WA plan are HERE

Now we're only waiting on Sth Australia and New South Wales.

New Points Test

The new points test has finally been released and it is scheduled to take effect from 1 July 2011 (at least there is some notice this time).

As a service to its members the MIA (www.mia.org.au) provided the following summary of it:

• Distinction between 40/50/60 point occupations abolished, those points removed from test
• Age points adjusted to reflect productive working years rather than youth
• Additional 10 point differential introduced for “Superior English” language ability (IELTS 8)
• Additional points for extended periods of employment in Australia
• Additional points for longer periods of professional experience generally
• Considerable additional points for university graduates, particularly for applicants with PhDs
• Relative advantages of trade and degree qualified occupations have been reversed
• Regional nomination and family sponsorship points reduced
• No indication of difference between independent and sponsored pass marks at this stage
• Pass mark of 65

There is a fact sheet explaining how it works on the DIAC website - click here.

There is already some criticism that it is "underweight" for trade occupations and places too much emphasis on the IELTS score. See for example the press release from the Australian Industry Group.

Like all new things we will have to see how this goes - is the criticism warranted? Is it out of balance .... only time will tell.

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ACT - Migration Plan

The Australian Capital Territory ("ACT"...better known as Canberra) also announced its migration plan this week. To be eligible for ACT sponsorship you will need to have:

• an occupation on the State Migration Plan (SMP) Skills List;
• skills and experience that will be of benefit to the ACT economy;
• sufficient English language ability which will provide reasonable employment opportunities in the current ACT labour market;
• an occupation with sufficient employment opportunities in an industry relevant to the ACT at time of lodgement;
• sufficient financial resources to settle in the ACT while seeking employment;
• a demonstrated commitment to living and working in the ACT for at least 2 years; and
• met all Department of Immigration and Citizenship (DIAC) visa requirements for General Skilled Migration External Link.
  

For more information look at the ACT Business and Industry Development website.

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Recognised (Engineering) Graduates

The Skilled (Recognised Graduate) Visa is available to graduates who:

(a) completed a course in the period of 24 months ending immediately before the day on which the application is made; and

(b) at an institution specified by the Minister...for the award of a degree or higher qualification in a discipline specified.

From 30 October 2010 there will be 104 specified institutions, but the only discipline specified to date is engineering....so this is good news for (some) overseas engineering graduates.

The full list is in the legislative instrument which you can view by clicking here.

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Classification of Occupations: ANZSCO

On 1 July 2010 ANZSCO replaced ASCO as the standard that would be used by the Australian Department of Immigration and Citizenship ("DIAC") to assess and classify occupations for the purpose of immigration to Australia.

Just like ASCO, ANZSCO is available on the ABS Website.

ANZSCO has a different structure to ASCO which means that there isn't a one to one correlation and this lead to some interesting transitional issues (eg ASCO had one classification for "nurse" but ANZSCO has 10). DIAC have provided on their website a useful diagram showing the ANZSCO structure.

There shouldn't be too many problems with visa applications that were already lodged before 1 July and there shouldn't be any ANZSCO related issues for applicants who have a skills assessment with an ANZSCO code. However, what happens if someone has an assessment with an ASCO code and wants to lodge a visa application after 1 July 2010? The short answer seems to be that this will be OK provided:

1. there is a DIAC approved ASCO-ANZSCO correlation for the occupation;
2. the occupation is still on the list of occupations for the visa being applied for; and
3. the skills assessment is still valid.

I would have thought 2 and 3 were self explanatory. The correlation tables have been published on the DIAC website (and come from the relevant legislative instrument) for each of:

• General skilled migration (look at schedules 2 and 3 in that document); and
• Employer Nomination Scheme (ENS).

All that doesn't sound too bad, but I am sure there will be more teething problems.

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List of Lists

The legislative instruments which have enabled many of the changes to the lists of occupations for migration purposes were announced at the end of June.

Although it will be the subject of another post (or posts), 1 July 2010 also sees DIAC switching from ASCO to ANZCO. The various lists of occupations are:

1. The new skilled occupation list for general skilled migration. There are 4 schedules in this list which deal with various categories of transitional arrangements;
2. Employer Nomination Scheme (ENS) occupation list. This list also specifies base salaries and assessing authorities. This list only applies to nominations made after 1 July;
3. The 457 Occupations List (this also includes the occupational trainee occupation list). There are a number of exemptions to the english language requirement for 457 visa holders. One of these is based on salary (the base has just been raised to A$85,090), but there are others. The TSMIT (the income threshold for a 457 has also been raised - an occupation can't be nominated if the proposed pay falls below the TSMIT) has also been amended; and
4. MODL list - although this was abolished certain applicants who lodged before 8 Febraury 2010 can still rely on it.

Now I have to go and try and get my head around the ANZCO changes!

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Capping is coming

Public submissions are currently being sought on the Migration Amendment (Visa Capping) Bill 2010.

This bill is part of the package of reforms that the Australian government is currently implementing to the General Skilled Migration program. One of the problems is that various things are coming to light in a piecemeal fashion and many things seem to have (apparently unforeseen) collateral consequences. This bill would give the Minister power to cap the number of visas granted either by visa class or by other characteristic (such as occupation). In other words if the Minister decided enough visas had been granted to accountants (for example) in a given year, then no further applications from accountants would be allowed.

The draft bill is available and it has already had its first and second reading in parliament.

The bill's homepage (includes explanatory memorandum and speeches) is available by clicking here.

Watch this space as more changes come to light....makes me curious what's going to happen to the points test?!

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New Skilled Occupation List

The much awaited skilled occupation list was announced today (17 May 2010).

The following extract from the accompanying fact sheet is a fair summary in my view:

"The current SOL has more than 400 occupations. The new list of occupations, which was announced by the Minister on 17 May 2010, includes 181 occupations. The new list is available on the Department of Immigration and Citizenship’s (DIAC) website at: http://www.immi.gov.au/skilled/general-skilled-migration/whats-new.htm

It is intended the new list of occupations would deliver a general skilled migration (GSM) program more tightly focused on delivering high-value nation building skills. The new list is intended to align the GSM program with Australia’s overall workforce development strategy, also developed by Skills Australia. The new list is focused on targeting specialised occupations that require a long lead time of formal education and training. It includes managerial, professional, associate-professional and trade occupations. The list of occupations will be reviewed annually but it is expected that it will be relatively stable over time."

I have provided links to:

1. the SOL
2. the Factsheet
3. FAQ

High Court Case: Berenguel

I previously blogged about an interesting case about the timing of the requirement to have an acceptable level of english (usually by doing an IELTS test). DIAC would have everyone believe that regulation 1.15B which says:

(5) If a person applies for a General Skilled Migration visa, the person has vocational English if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged

means that applicants have to have the test result at the time of application. However, in the Berenguel Case (High Court of Australia 5 March 2010), it was found that:

The requirement in reg 1.15B that the requisite test has been conducted "not more than 2 years before the day on which the application was lodged" is susceptible of the construction that the test was conducted no earlier than two years before the application was lodged. So construed, it does not require that the test has to be conducted before the application is lodged. That requirement can only be imposed by some direct operation of the undefined heading "Criteria to be satisfied at time of application".

As a result an applicant who obtained his IELTS after lodgment of his application won his appeal....I can feel a legislative change in the wind to plug this "gap".

Review of the points test underway

The review of the points test for Australian general skilled migration is underway - with changes to be implemented around the middle of the year.

The departmental discussion paper is available by clicking HERE, but the executive summary of the objectives to be achieved is:

"The Government has agreed on the following important principles which should underpin a new Points Test:

• it should contribute to the selection of applicants who offer the most human capital and will therefore make the optimal contribution to Australia’s demographic and economic future;

• it should not preclude very good applicants from offshore or in Australia, including former international students;

• it should be able to operate flexibly under both current arrangements and any new arrangements for skilled migrant selection;

• it should enable applicants with high value attributes across a number of areas such as English language ability, academic qualifications and work experience, to achieve the maximum number of points; and

• it should not give undue weight to any one factor, so as to avoid distortions in the program arising from applicants seeking to meet that factor."

None of that (in my view) is controversial - the real challenge will be how it will be implemented. We continue to wait and see.

Meanwhile review of the skilled occupation list is also underway by Skills Australia.

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Baird Review

The Baird Review was a review of the overseas education system commissioned by the Minister for Education. The report was released earlier this week.

Among its key recommendations are that the Education Services for Overseas Students Act (ESOS) be amended to:

1. Require providers to uphold the integrity of the student visa program and maintain appropriate support, English language entry levels and professional outcomes
2. Only allow providers to maintain registration if they meet a series of thresholds
3. Introduce financial penalties and clear standards
4. Require an independent complaints body
5. Ensure students can accurately compare potential study choices
6. Introduce financial penalties for providers whose offshore agents act unethically
7. Implement a unique identifier for each student

It is interesting to note the comments of the Minister for Immigration and Citizenship in his press release about the report:

"It is most pleasing to note Mr Baird's support for the Rudd Government's changes to the skilled migration program announced on 8 February 2010.

The skilled migration program changes will encourage overseas students to focus on obtaining a quality education from a high quality provider by removing incentives for students to apply for a course simply in the hope of being granted permanent residence."

The full report in PDF format is available by clicking HERE and you can read the Minister's press release HERE.

I am indebted to the Migration Institute of Australia for providing as a service to its members the summary of the key recommendations above.

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Migration reforms announced

In a speech (and press release) on 8 February 2010 the Minister for Immigration and Citizenship,Senator Evans announced some sweeping changes to the skilled migration program:

1. All applications lodged before 1 September 2007 and not decided (about 20,000 of them) will be withdrawn and the application fee refunded. I am astounded that there are that many in the system!
2. The occupations in demand list (MODL) is immediately abolished;
3. The points test is going to be reviewed to ensure that it selects the "best and brightest". One of the problems with the current test is that it: "puts an overseas student with a short-term vocational qualification gained in Australia ahead of a Harvard-educated environmental scientist.";
4. The Minister will have the power to limit the numbers of particular occupations; and
5. State and Territory sponsored migration plans are to be refined so that states can prioritise the types of migrants that they want.

As often happens there was no (or little) notice of these changes and there will be a lot of unhappy applicants/potential applicants who had made plans based on the law as it stood on Sunday night. We will have to wait and see what happens and how the changes evolve.

Full text of the Minister's press release is available here.

See also the articles from yesterday's Sydney Morning Herald and The Australian.

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Is the skills shortage back?

According to two reports released by Clarius (a listed recruitment services business), Australia has moved from a job slump to the brink of a skills shortage in the space of about 6 months.

This was described by Kym Quick (the chief operating officer of Clarius) in a media release published on the Clarius web site Australia rolls from jobs slump to skills crisis in the following colourful terms:

``The skilled labour shortage issue might have fallen off a cliff in March last year but it has dusted itself off in the last eight months and is now climbing back up the rock face faster than most recruitment experts would have predicted.....

Of most concern is the underlying trend back to chronic skills shortages, which is moving the fastest among the building and engineering professionals and tradespeople who are so desperately needed to fulfil the nation's infrastructure agenda.''

This is another illustration of how difficult it is to set and adjust migration policy - should we turn on the flow of skilled migrants or not?...of course it is good news for skilled migrants seeking to work in Australia.

See also the Clarius Skills Index December 2009 Quarter

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Over crowding & too much migration?

In a speech to the Australian Environment Foundation conference (held on 20 October in Canberra), the former immigration minister in the Howard government, Mr Andrews questioned the rationale behind bringing more people to Australia and has called for a debate on how many people the nation needs.

He told the conference that:

1. There was no rationale for bringing more people to Australia;
2. "Our roads are congested, our public transport overcrowded, our water supply inadequate and our amenity under threat"; and
   
3. There is a shortage of housing and hospital beds
   

I am not sure all these problems are caused by Australia's migration program.

This speech was reported in the main stream media (see for example: http://au.news.yahoo.com/thewest/a/-/breaking/6362877/govt-slams-andrews-immigration-stance).

The comments of the current minister (Senator Evans) brought a smile to my face:

"It is a bit rich of Kevin Andrews to be talking about immigration levels being too high when the Howard Government ramped up Australia's migration program, effectively doubling the numbers,"

Politics at work!

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Breaking the link

I have previously blogged about the difference between the "immigration outcome" and the "education outcome" as one of the factors which contributed to the problems being encountered by overseas students. It appears that the government was listening (or they had the same idea).

In a speech to parliament earlier this week in support of changes to the Education Services for Overseas Students Act ("ESOS Act"), labour MP, Kelvin Thomson blamed the uncontrolled growth (and the lack of quality that came with it) on the previous government's policy of facilitating applications for permanent residence by graduating foreign students. So while it's true that:

"Agents overseas have had a field day telling students that all they have to do is sign up for these courses in Australia, pay big fees, and they'll be guaranteed permanent residence here in Australia....and...[that] international students being bashed, and exploited, dodgy colleges ripping them off and going bankrupt"

The proposal is basically for a 2 year cooling off period - so the graduating students would be required to return to their home country (or at least leave Australia) for two years before being eligible to apply for permanent residence. It is argued that this will clean up the sector.

I don't doubt that this will probably stamp out lots of the dodgy operators but I'm not sure what impact it will have on "real" high quality university courses. Our universities have come to depend on the income that students generate. It would not be good for local students if university income was dramatically cut by this change. On the other hand, I can't see why people who have substantially invested in an Australian education shouldn't be given some incentive to stay. Nothing in immigration policy is ever easy!

The full text of Mr Thomson's speech is available on Hansard for 19 October (page 47) - click here.

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Guide to Australian Slang

Apparently new migrants sometimes struggle with words and phrases that are in every day use but not in the dictionary!

I was amused this week by an article on the ABC website titled “I’m stuffed: migrants boggled by Aussie slang”. It’s true we do have lots of colloquialisms that would make life difficult for newcomers - eg “No worries”, “I reckon”, “that’d be right”, “flat out” and “give it a crack”. One that I never really thought about was “how good is this?” - look at the site!

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Welfare of International Students

All the submissions to the Senate's Inquiry into the Welfare of International Students have been published on the APH website.

The disparate views expressed only highlight what a difficult issue this is. Apart from the submissions made by various professional bodies (including the MIA and various universities and colleges) there are a range of individual submissions from foreign students. Some of those submissions recount stories of racism and bad experiences and others of "happy days". There are also a number of submissions from foreign students studying medicine who are disenchanted with their local career prospects.

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The Immigration two step

"The Immigration two step" was the title of an interview with Immigration Minister, Senator Chris Evans on ABC Radio National on 3 July 2009. I thought it was a very balanced look at the way Australia's migration policy has slowly changed from one where most applicants came from offshore to one where most applications for permanent residence come from onshore applicants.

I set out below an extract from the introduction, but you can read the transcript or download the audio file by clicking on the link above:

"When immigration issues capture headlines, it's usually because another boat carrying asylum seekers has been intercepted off the West Australian coast, as happened earlier this week. But the fixation with border security can cause us to overlook longer term structural changes, such as the gradual shift from permanent to temporary migration that has been under way in Australia for more than a decade now. ... In fact, these days almost every second 'new' migrant to Australia is already living here as a temporary worker or as an international student..."

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Which outcome? - education or migration

Since my last post about the adverse publicity received by migration professionals, I've been doing some more thinking about the problems faced by overseas students in Australia.

There are some clearly dishonest/disreputable practices going on. There are the "dodgy" colleges or course providers who are under resourced or over crowded can't deliver on what they promise. There are also the people perpetrating fraudulent english test results or fabricating job references. These people are ripping off foreigners and locals alike and should be prosecuted to the full extent that the law allows.

However, has government policy inadvertently created this problem? Many people choose to advance their education by studying overseas (if only I had the time or the resources to go to Oxford or Cambridge for a year) and then return to their own country with newly acquired knowledge and experience. Isn't the problem that the emphasis has shifted from achieving an education outcome to achieving a migration outcome. The introduction of the graduate student visa and the presence of trade occupations such as cook and hairdresser on the occupation in demand list, has encouraged the establishment of bad courses and colleges who have sold their wares on the expectation that if you do our course, you will be eligible for permanent residence.

This advertising has been very effective and many foreign students now have the expectation that they will be able to stay in Australia i.e. their study is a gateway to a whole new life, not just an opportunity to learn new things and go back to their home country to practise them! The balance has tipped in favour of the migration outcome rather than the education outcome.

Although it's true that it probably wasn't foreseeable that the unscrupulous would see it as a business opportunity, perhaps the introduction of the onshore graduate visa wasn't a great idea after all? Of course the flipside to that argument is that potential permanent residence is big incentive for some students to invest in their education in Australia. Unfortunately like all investments, there are good ones and not so good ones.

Ministerial Intervention

There are a number of sections of Australia's Migration Act (ss 351, 391, 417, 454, 501J) which allow the Minister for Immigration to substitute a more favourable decision to a visa applicant after the review process is finalised - this is known as "ministerial intervention".


The powers are non-delegable and non-compellable and should only be used where the Minister decides it is in the public interest to do so. This usually arises if there is some compassionate or compelling circumstance or in a situation where there is some unintended consequence in a strict application of the Migration Act.

The current Minister (Senator Evans) was the subject of adverse comment, by the Shadow Minister in parliament on 15 June over his use of this power. In the 18 months that he has been Minister, this intervention power has been used over 100o times. In contrast Minister Ruddock (1996-2003) only used it 1916 times in that whole period. I suspect that Minister Vanstone used it even less!

I am a supporter of the concept of discretion (in all areas of law) and I am not sure if the use of this power is a reflection on a more compassionate Minister or whether there was a backlog from the previous government that is now being cleared. In any event, I'm not sure the criticism is warranted.

If you want to read the whole debate it's in the House of Representatives Hansard (ie the daily transcript of parliament) which is downloadable in PDF format from this link. The relevant part starts at page 116 and is a speech by Dr Stone.

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