Immigration law in Australia has undergone very significant changes over the past 12 months. Many of these changes have a political origin, in that the Australian government has responded to the economic and other pressures brought about by the global economic crisis of 2009.
The Minister for Immigration Chris Evans has brought about major changes to both skilled migration and the employer sponsored schemes over the past months. An example is the overhaul of the popular temporary work visa (Subclass 457 visa) in September 2009 and the recent capping and temporary suspension of offshore skilled migration. The government has a preference for new migrants to access Australia through the employer sponsored stream, rather than through independent skilled migration. This is a significant shift from past migration programs, where skilled migration or the so-called ‘points test visa' was the flagship for Australian immigration. This resulted in hundreds of thousands of new permanent visa holders for Australia over the past number of years.
The minister made it clear that skilled migration (in a narrow sense), that is, points tested skilled migration, would be restricted in future, limiting the number of applicants by significantly narrowing the scope of occupations that qualify as gazetted occupations on the new skilled occupation list. The Department of Immigration and Citizenship (DIAC) flagged the reduced number of occupations beforehand, earmarked to become effective from July 1, 2010. In an unprecedented move, however, DIAC then suspended skilled migration visas in the weeks leading up to July 1, effectively prohibiting any offshore skilled migrant visa application until after the July 1 era. Thousands of potential applicants were negatively affected by this intervention with a very unfair result for many potential applicants, especially those turning 45 years old during this period.
Australia's new Prime Minister, Julia Gillard, further made the current governments intentions clear in relation to its view on restricting immigration to Australia. Her famous phrase that a “bigger (Australia) is not better” implies that the Labour government is not planning on increasing the population for Australia via their various migration programs at the same level as earlier Liberal party governments. These recent statements again have a political significance, given that it is an election year and the current government has been severely criticised in the past for their perceived soft-handed approach towards asylum seekers to Australia.
There is a general (incorrect) perception by Australians that Australia is ‘filling up' and that the country is too easily accessible by asylum seekers who are typically understood to not contribute significant skills or resources to the country. Prime Minister Gillard in response, and in view of the upcoming elections later this year, has introduced very strict new policy on asylum seekers.
The Australian government's shift to prefer employer sponsored applicants is underpinned by the fact that independent skilled migrants (especially visa holders from certain regions in the world) have over the past number of years had difficulty in finding employment locally. This was also fuelled by the relatively high unemployment in Australia, brought about by the global economic crisis. The government, being very protective of its favourable economic figures, including very low unemployment, appears to blame independent skilled migrants as part of the problem for unemployment, which reached a peak of almost 5,8% at the height of the global economic crisis. The benefit of employer sponsored visa holders are that they are by definition immediately employed, earning an income and paying tax dollars to the government.
The position for the independent skilled migrant, in the brave new world of immigration post July 1 and with a government that is restricting the access of migrants, is daunting. There are now significantly fewer nominated occupations through which an applicant may qualify and there has been no return to the very helpful occupation in demand points that were previously available to reach the high pass mark set for successful applicants.
The new SOL list is available at http://www.immi.gov.au/skilled/_pdf/sol-schedule3.pdf
Except for these changes, increased filing fees and new application forms there have been relatively few other changes to the regulations that would affect current skilled migrants. The government indicated that state governments will in future have a bigger say in sponsorship of skilled migrants to their individual states. We await the publication of such new regulations to assess what potential alternative options may become available through State government sponsorship in future years.
A further shift to skilled migration, effective from July 1, 2010, is the introduction of the ANZCO code, which replaced the ASCO code whereby occupations are categorised and classified for migration purposes. All skills assessing authorities producing skills assessment letters will from July 1, 2010 use ANZCO classification, which will correlate with the DIAC skilled occupation list, employer sponsorship lists and so on. Major changes have also occurred in the skills assessment criteria for most of the skills assessing authorities. Examples are: VETASSESS as the key assessing authority for professional occupations from January 1, 2010 will only produce a positive skills assessment for applicants with a relevant qualification and work experience, whereas previously successful applicants merely had to show an academic qualification at a certain level (whether relevant or not). Trades Recognition Australia (TRA) now also has a new set of criteria which makes a positive assessment much more difficult, expensive and taking much longer than before.
It is important for visa holders to ensure that the correct procedures are followed and that lawful decisions in relation to their immigration matters are made by the authorities. It is a good investment to seek appropriate legal advice in relation to one's position, especially in the area of immigration law. An individual or family has most likely gone to significant expense and inconvenience to leave their home country to settle or work in Australia and repatriating sooner than planned may be financially disastrous.
Dr Etienne Hugo is a South African born lawyer based in Australia. He is the legal practitioner director of Teleo Immigration, a leading Sydney-based law firm specialising in Australian immigration law.