Visa Options Post-March 2018 Changes - What You Need to Know

As our readers are probably aware, varying changes were made to Australian visa pathways throughout 2017. You may also know that further changes will be coming into effect sometime 'early' March 2018. What you may not know, however, is the true combined effect of these changes and visa pathways for migrants to this country. In this lengthy blog, we will dive a little deeper into what these changes really mean in the context of the Australian visa framework so that hopefully you can start to make an informed decision, or plan ahead, should you be trying to secure a visa to this country in the near future. 
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Accordingly, it is important to start off by saying that changes to Australian immigration laws are not uncommon. We have seen countless immigration policy and legal changes in the last several years. With each change comes new Regulations, new requirements and new ‘stuff’ that we, as registered Migration Agents/Lawyers, need to become very well versed on as quickly as possible. Often, the specifics of these changes are not known until they have taken legal effect, meaning that there is inevitably a very 'intense' short period of time which we, as the professionals in our industry, must read all available resources as quickly and carefully as possible to ‘learn’ the new ‘stuff’ and then be able to advise clients accurately. 

This cycle of change is not new and it will continue to happen simply due to the highly politized nature of Australian immigration. With every newly elected Government, comes an adjusted stance on Australian immigration, sometimes even reversing previous changes implemented by the prior Government. This causes unpredictability, but ultimately, also leads to the need for legally trained professionals who should be able to digest and comprehend these changes better than clients, who often may not be native English speakers.

This now brings me to the current state of affairs. The sweeping changes that came about in 2017 and further proposed changes in early in 2018 have been unprecedented. Since the announcements in April 2017, we, as a migration agency, have found ourselves spending more time explaining to people why they are not eligible for a visa rather than explaining the requirements of a visa someone is eligible for. Let’s dive into this a little more

Pathways into Australia

There are only limited pathways into Australia. I have said this for many years and the saying has never rang truer than today. The simplest and quickest way that I can summarize this is to direct you to this video here where I outline, what was at the time, the ‘Common Pathways to Permanent Residency’ (refer to the image below also). I will say that the pathways to residency have evolved since that video and the image were created, however the initial temporary visas used to enter Australia remain the same (i.e Tourist/Visitor, Student and Working Holiday visas). Statistics show that of the 7.7 million temporary visas granted in the 2015-16 Programme Year approximately 5.3 million (70%) of these were represented by the visas I mentioned above (source: https://www.border.gov.au/about/reports-publications/research-statistics/statistics/year-at-a-glance/2015-16). Of the remaining 30% of temporary visas granted, 1.9 million (25%) of these were Subclass 444 visas available only to New Zealand Citizens. The remaining 5% included Maritime Crew and Transit Visas, other Temporary Visas and the doomed Subclass 457 visas. 

​Accordingly, if you are in Australia, or looking to enter Australia, statistics tell me that you will be on either a Tourist, Student or Working Holiday visa. I call these visas ‘vehicles’ and they are great at getting you here, however, what if you want to stay permanently? What options do you have? Lets have a look.

Permanent Residency Options

​The image above helps to visually demonstrate important statistics that defined the 2014/2015 programme year. It tells us that 190,000 permanent places were available during that period, made up substantially of certain visas types. Although the image above is slightly outdated, the 2016-17 Programme Year followed similar numbers with 183,608 permanent visas granted (Source: https://www.border.gov.au/ReportsandPublications/Documents/statistics/report-on-migration-program-2016-17.pdf). 
 
Accordingly, the 2016-17 Programme Year was made up of the following:
 
·         Skill Stream: 123,567 permanent visas (approximately 67% of all permanent visas granted)
·         Family Stream: 56,220 permanent visas (approximately 30% of all permanent visas granted)
 
Importantly, the above two Streams represented approximately 97% of all permanent visas granted during this period.

Importantly, if we break these statistics down further, we can start to identify and narrow down specifically what type of visa subclasses fall within these Streams:

Of the 123,567 Skilled visas granted:

o    48,250 (39%) of these were for Sponsored visas

• 78.9% of these were ENS 186 visas
• 21.1% of these were RSMS 187 visas

o    67,857 (54%) of these were Skilled (GSM) visas
o    Approximately 7% of these were for other visas
 
Of the 56,220 of Family Stream visas granted:

o    47,825 (85%) of these were Partner visas
o    7563 (13%) of these were to Parent visas
o    Approximately 2% of these were for other visas

So, let’s see what this looks like visually:

What this shows us is that four visa categories (Sponsored, Skilled (GSM), Partner and Parent) accounted for approximately 171,495 permanent visas granted in the 2016-17 Programme Year, which equates to 93.5% of all permanent visas granted to Australia in that period.

Additionally, the current 2017-18 Programme Year has identical planning levels, meaning that by 30 June 2018 we can anticipate that a similar number of visas would have been granted in the streams discussed above (source:  https://www.homeaffairs.gov.au/about/corporate/information/fact-sheets/20planning). 
 
Understanding the statistical significance of Sponsored, Skilled and Partner visas, we can now explore how the changes earlier this year and future propose changes in March 2018, have already, and will impact each of these streams in different ways.

Impact on Sponsored Visas

Since the recent announcements, Sponsored visa pathways were the hardest hit. There have been numerous changes and measures introduced which has made being eligible for these visas very difficult. To date, these include:

• Changing of the occupation lists to the MLTSSL and STSOL
• Removal of occupations from both these lists
• Changing of policy in terms of the length of 457 visa can be granted depending on which list your occupation falls into in addition to removing a transition pathway to residency for non-MLTSSL occupations
• Introduction of ‘Caveats’ (i.e additional criteria) for occupations lucky enough to be still on the lists which narrows eligibility further
• Reduction of age limits for ENS and RSMS visas
• Increase in English language requirements for ENS and RSMS visas

Moreover, come March 2018, future changes will make Sponsored visas even harder as we see the abolishment of the 457 visa and the limiting of permanent pathways to those on the GOOD OCCUPATION LIST (i.e the MLTSSL) or those on a yet to be defined ‘additional list’ for RSMS applications.

Accordingly, let’s summarize the real changes which we will see come March-2018:

1. The 457 will be replaced by the TSS visa, which amongst other things, and will require 2 years skilled employment in the occupation
2. The ENS and RSMS visas will require 3 years skilled employment

With regards to point 2 and 3 above, the question has to be asked how many applicants of these visas were previously recently qualified international students (with no work experience) or working holiday makers which came to Australia shorty after receiving their qualification? Accordingly, these changes will effectively put a line through any Australian international graduate looking to be sponsored and a percentage of those recently qualified from back home as they will not have the required years of work experience in their occupation.

The impact of this is that most Australian Vocational qualifications will become valueless in terms of providing graduates with a pathway to a Sponsored visa or permanent residency. How will this impact the international student sector as word trickles back to common student migrant countries (India, China, Nepal etc) that Australia has made it much more difficult for international graduates to gain permanent residency unless you come and study a very narrow list of occupations that is now updated every 6 months? We have already begun to hear reports of Universities simplifying the process for international students to gain enrolment as well as offering scholarship incentives due to a reduced interest in enrolling in further studies. In addition, we have also received news of smaller educational institutions having to close due to the dramatic drop in international student enrolments already. Sure, the big tertiary institutions will always be in a position to entice international students, however what about the little guys? Unfortunately I predict that many more smaller institutions will face similar issues if they haven't already. 

To add to this, from March we will see the introduction of a Training Levy applicable to the new TSS and pre-existing ENS visas. Let’s be frank, the amount of Australian employers that would be willing to pay, up-front, thousands of dollars to a training levy in order to sponsor a migrant worker would be, in my humble opinion, limited to big/large businesses. Small businesses will not, again in my humble opinion, be willing to incur these expenses. What this will create is added pressure on the migrant worker to ‘absorb’ these added costs, despite this being regulated against. This could essentially increase the cost to migrants by several thousand dollars. That being said, in my experience, migrants looking for a better quality of life and future in Australia will do whatever it takes as long as they have a pathway to residency. However, if the post-March 2018 landscape only provides a Sponsored pathway to PR for those on MLTSSL occupations, then what will those qualified in STSOL occupation do? Will it be worth it financially for them to spend thousands on a process that may only extend their stay for another 2 years? I predict this will be a genuine question asked by many would-be applicants and how many of them will decide they will give New Zealand or Canada a go instead given that our migration systems are comparable but may have better pathways to residency and Citizenship?

Increased costs will naturally lead to migrants looking to save money elsewhere. This will logically cause applicants to self-prepare more applications with the hope of not needing to engage a migration agent or lawyer. The money spent on the training levy payment can be saved by preparing the application themselves, right? Yes, this may be the case, however anyone who has been in the migration industry long enough knows that there are just some things the DIBP website and generic checklists do not say or tell you what you really need. In addition, the most notorious ‘criteria’ of any Sponsored visa is what is called the genuine need of a position. This is effectively the ability of an employer to be able to prove on paper that the occupation they are nominating is real and is needed in their business. There is, unfortunately, no simple way to do this as the very nature of the assessment is discretionary. How can one really tell if a position is needed? It simply depends on all of the circumstances and all of the evidence provided. 

I don’t say this in an attempt to ‘motivate’ readers to seek out a legal professional, I say this because I simply predict a large volume of self-prepared Sponsored applications which will lead to a:

• Larger volume of incomplete applications submitted to the DIBP
• Larger volume of Request for Information emails sent to applicants outlining generic documents/information needed with no real guidance or templates provided to assist the applicant
• Slower processing time as the DIBP deal with this higher volume of incomplete applications (we have already witnessed an increase in processing time averages)
• Higher refusal rates by the DIBP due to applications that do not sufficiently evidence that the criteria is satisfied (predominantly surrounding the Genuine Need criteria)
• Higher rate of appeals of these refusals to the AAT
• High rate of applicants then looking for legal representation for these AAT appeals

 
So from March 2018 I would conclude that the door on Sponsored visas has not necessarily shut entirely, but has, at best, been left ajar slightly. Lets reflect that this is in relation to a stream that had previously accounted to 26% of all permanent visas granted to Australia.

Unfortunately, the ones thin enough to squeeze in will be limited to the significant minority of those who had once applied for these visas.  The effect of this is that migrants will seek alternative pathways, however, what does that really mean?

Impact on Skilled Visas
 
One alternative pathway is a Skilled Visa, being a visa independently of an Australian employer or Sponsor. Importantly, these visas hinge on an applicant having a migration skills assessment in a ‘skilled occupation’ and meeting a ‘points test pass mark’. Accordingly, when I say Skilled Visas, naturally I am referring to 189. 489 and 190 pathways. The Subclass 189 is bound to the ‘GOOD OCCUPATION LIST’, whatever form it may take at any current point in time, which is currently referred to as the MLTSSL.

Recent changes have reduced the occupations on this, however for the most part, I would say it was not majorly affected. In saying that, what has impacted the 189 is that with the tightening of Sponsored visas, it has caused a greater volume of applicants now seeking to qualify independently. This causes a greater number of Expression of Interests submitted leading to longer waiting times for an Invitation and points cut offs for occupations. Please note, this is not speculative as this is already happening (refer to below):

(Image above taken from the 3rd January 2018 Invitation Round - http://www.homeaffairs.gov.au/trav/work/skil/invitation-round-3-january-2018)
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Accordingly, the image above is taken directly from the Department's website (now referred to as the Dept. of Home Affairs) and suggests that the minimum points required for the most recent round of Invitations for the Subclass 189 visa was 70 points. ​ Importantly, this is consistent with reports that those scoring 65 (being 5 above the pass mark) are still needing to wait months before receiving an Invitation in any given occupation. This is not to mention those highly competitive occupations, such as Finance and IT, which have an even higher points minimum to have any realistic chance of being Invited.   

The domino effect of this is that due to the increased competitiveness of the 189, migrants are now also seeking State/Territory Nominated options such as the 489 and 190. In my experience, these visas are an enigma. Everyone wants to know about them, but only a very small minority meet the requirements. Keep in mind that Australia has seven (7) States/Territories, each with their own ‘list’ of occupations they are looking to nominate into their State/Territory in addition to specific application guidelines, procedures, forms and even criteria for any given occupation. All of this combines to make State Nomination a marathon with many hurdles for anyone exploring this pathway.

However, the fact of the matter is that since all of the changes in 2017, migrants are now panicking, and understanding the limiting of Sponsored options, are now looking into State nominated pathways. We have seen a x10 increase in State nomination enquiries since April 2017, however, the percentage of enquirers that met any State requirements could be approximately be calculated at around 5%. This is reflective of recent trends where we find we are spending more time explaining to people why they aren’t eligible for a visa. In saying this, State Nominated pathways do still exist and migrants will still be eligible, however it will be the minority of those seeking it. Furthermore, the flow on effect from all this will also include the following:

• More people will apply for migration skills assessments required for most Skilled Visas (a win for the assessing authorities)
• More people will try and improve their IELTS/English scores to meet the increased points criteria for the 189, 489 and 190 (a win for the testing centers and English tutors)
• More people will apply for State Nomination which will increase competition for already limited positions which could lead to the increase of criteria by the States/Territories as they start to fill their vacancies quicker than before – or, it will lead to the removal of occupations altogether
• More migrants will move to regional locations and other States/Territories as they secure a State nomination (a win for the States/Territories)
• More migrants, arguably the majority of which will be international student visa holders or Graduate 485 visa holders, will not receive an Invitation to apply for the 189, 489 or 190 prior to the expiration of their current visa, leading to more non-genuine Student visa applications in an attempt to extend their stay ‘until they can get invited or find another option’ (a win for Education agents and short-term win for international colleges and tertiary institutions - discussed further below)
• This will lead to more Student visa refusals > more Student visa appeals > longer AAT processing for these kinds of appeals etc

Impact on Graduate 485 Visas 

In addition, as mentioned above, another visa which is impacted by these changes is the 485 Graduate visa available to international students who have studied certain qualifications for at least 2 years in Australia. This visa is currently available under 2 streams as explained below:

• Graduate Stream > for those who have completed trade qualifications or higher in an occupation on the MLTSSL (i.e the good list)
• Post-Study Stream > for those who have completed a Bachelor level of higher from an approved university/school

Let’s break these down a little more.
 
Graduate Stream

The fundamental requirement of this stream is that the international student have qualifications relevant to an occupation on the MLTSSL. Looking at the MLTSSL itself, we can generalize available occupation types as Construction, Child Care Management, Health Administration, Finance, Architecture/Surveying, Engineering, Agriculture, Veterinarian, Teaching, Medical/Health Professionals, Nursing, IT, Legal, Social Work and Trades.

Importantly, aside from Trade occupations, most of the remaining occupations on the MLTSSL require at least a Bachelor level qualification if a student is to be sufficiently qualified to obtain 485 Skills Assessment needed for this stream of the Graduate visa. Accordingly, this suggests that Vocational qualifications (such as non-trade related Diploma's or above) may be of little benefit to international students looking for a post-Student visa option independently of an employer. If I were a college offering non-trade vocational qualifications relying on the international student market, this would make me very nervous.
 
Post-Study Stream

The fundamental requirement of this stream is that the international student have completed a Bachelor level or higher qualification. This again provides that completing vocational qualifications may not assist a migrant in meaningful way with regards to opening doors to long term visa options, aside from perhaps acting as a qualifying course to a higher level qualification.
 
What Does this All Mean?
 
If we accept that Sponsored visas will be more difficult from March 2018 (which in my humble opinion is indisputable) then we must also accept that migrants, namely international Students (being one of the main temporary visa types held by non-Citizens in this country) will seek alternative pathways to stay permanently. If we accept that permanent Skilled visa options (189/190 and the temporary 489) will also become more competitive (which we can see that they already have), then we are left with the Graduate 485 as one possible way to extend your stay in the country. However, as indicated above, regardless of either stream chosen, unless the migrant has completed a trade qualification or Bachelor level degree it suggests that they may not be eligible for this visa.

Even if students are eligible and they do eventually get granted their 485 visa, what do they do next? The 485 is not an automatic pathway to residency and it has, in the past, been commonly used as another ‘vehicle’ allowing the visa holder to secure a pathway to permanent residency, which generally was Sponsored, Skilled or Family. Leaving aside Family options for a moment (which can be summarized as Partner or Parent visas – as indicated by the Statistics mentioned above) and noting the challenges surrounding Sponsored visas post-March 2018, this only leaves Skilled visas. However, we have discussed above that a Skilled visa is also not a walk in the park with increased competition and many requirements to be satisfied.
 
The question then is, who will commit to coming to Australia and completing a Bachelor or qualification in a field when the Australian Government has now committed to ‘continually re-evaluating the skilled occupation listed on a regular basis’? International students now face the very real possibility that at the time they commence their qualification their industry/occupation is on the 'good list' with prospects for permanent residency, however by the time they have finished (say, 2 – 3 years later) it has been removed and they are left stranded on a temporary 485 visa with limited Sponsored visa options and Skilled visas being even more remote.
 
What does this leave as a permanent or long stay visa option? I would respectfully suggest that it leaves open the door to the abuse of the Family visa streams, and specifically, an increase of the submission of Partner visa applications as migrants access potentially the only remaining option. 

Impact on Partner Visas
 
As mentioned above, Partner visas are the third remaining ‘most common pathway to permanent residency’. With the tightening of rules on Sponsored visas and the increase in competition for Skilled Visas, migrants will have limited options but to apply for Partner visas with their Australian partners. This is, of course, a legitimate and genuine visa option, however we predict the following:

1. Increased applications of Partner visas generally
2. Increased applications of Partner visas by couples that are not yet in a strong position to evidence their de facto or married relationship however are pressured by approaching visa expiry dates with little remaining options
3. The above two points will lead to an increase in the average processing times of these visas (which has already begun given that at the time of writing average processing times are advertised at being 25 months for 90% of applications (see here - http://www.border.gov.au/about/access-accountability/service-standards/global-visa-citizenship-processing-times). Keep in mind these were once upon a time around the 6-9 month range).
4. Increase in Civil Registrations of de facto couples in an attempt to strengthen Partner visa claims
5. Increase in Marriages in an attempt to strengthen Partner visa claims (a win for marriage celebrants)
6. Increase number of refusals of Partner visas due to the points raised above
7. Increased number of Partner visa refusal appeals to the AAT leading to increased waiting times for the AAT

What Does all This Mean?

In a nutshell, this means that things are about to get tougher. Visa options are narrowing and criteria for what is left is increasing. Australia has not shut its door entirely, however only very select  migrants may have the key to get in. Given these changes, in attempt to try and help as many as we can, we would invite any reader to join our private Facebook Group here. Inside you will find close to 1000 members and our team answering questions to help the community.

Leave an Enquiry

If you think you are eligible for a visa discussed above, please feel free to leave an enquiry below and our office will respond as quickly as possible.

​Martin Salvo
Director
MARN 1175200
Immigration Lawyer