DIRECTION NO. 35
MIGRATION ACT 1958
DIRECTION UNDER SECTION 499(1)
Order of Consideration of applications for sponsorship, nomination and visas under the Skill Stream of the Migration Program and the Temporary Residence Program.
PREAMBLE
Australia’s skilled permanent and temporary visa programs are designed to select people who will make a positive contribution to the Australian economy, assist Australian business to access new skills and technology and to address skill needs that cannot be met from the local labour market.
The Migration Occupations in Demand List (MODL) lists occupations where there are existing or emerging skill shortages, and the Government wishes to give priority to applicants who will assist in meeting those shortages. Australia is currently facing skills shortages in the fields of medical practice and nursing, and The Government also wishes to give priority to applicants who will live in regional Australia.
Persons or bodies having powers under the Migration Act 1958 to consider visa applications (or to review decisions pertaining to such applications) have power under section 51 of the Migration Act 1958 to consider and dispose of applications for visas in such order as they consider appropriate. Similarly, if a section 85 determination applies or has applied, persons or bodies having power under section 91 of the Migration Act 1958 may consider or, subject to section 86, dispose of outstanding and further applications (or review decisions pertaining to such applications) in the order they consider appropriate.
Therefore:
I, Amanda Vanstone, Minister for Immigration and Multicultural and Indigenous Affairs, acting under section 499 of the Migration Act 1958, revoke Direction No. 31 given on 26 February 2003, and give the following direction:
- This Direction may be cited as Direction No. 35 of 2004.
- This Direction applies to all persons and bodies having powers under the Act to consider and dispose of applications for visas (or to review decisions pertaining to such applications) under the Skill stream of the Migration Program, applications in the Business Skills (Provisional) class, applications in the Business (Long Stay) visa subclass and applications in the Medical Practitioner (Temporary) class. The Direction addresses the processing priority to be given to these applications that have been validly made but not yet decided before the commencement of this Direction or validly made after the commencement of this Direction.
3. The Direction also applies to all persons and bodies having powers under the Act to consider applications for approval as a standard business sponsor (Business Sponsorship applications), nominations of activities in which an individual is proposed to be employed in Australia (Business Nomination applications), applications for approval of nominated positions as approved appointments (Approved Appointment applications) and applications for the approval of sponsorship for a Medical Practitioner (Temporary)(Class UE) visa (or to review decisions pertaining to such applications). The Direction addresses the processing priority to be given to these applications that have been validly made but not yet decided before the commencement of this Direction or validly made after the commencement of this Direction.
4. The order of processing of applications for Business Sponsorship, Business Nomination, Approved Appointment and visas under the Skill Stream of the Migration Program should be:
applications relating to the entry of a person whose occupation is listed on the MODL; and
applications for State-specific and regional migration visa subclasses; then
all other fully completed applications in the order in which they are received.
5. Visa applications under the Skill Stream of the Migration Program may be affected by a section 85 cap that allows processing to be conducted but prevents grant of a visa. In deciding the order for considering and disposing of applications (or reviewing decisions pertaining to such applications) when the cap is lifted, persons or bodies to which this Direction applies should, in general, give priority to those applications relating to the entry of a person whose occupation is listed on the MODL medical practitioner or a nursing professional or for the State-specific and regional migration visa subclasses.
6. This Direction is to take effect from the date of signature.
Dated 14 May 2004
Amanda Vanstone
Minister for Immigration and Multicultural and Indigenous Affairs
Overview
The Migration Act 1958, enacted by the Parliament of Australia, serves to regulate the entry, stay, and departure of people in Australia. Direction No. 35, issued under section 499(1) of the Migration Act, addresses the order of consideration for applications related to sponsorship, nomination, and visas within the Skill Stream of the Migration Program and the Temporary Residence Program. This Direction was introduced to ensure that skilled permanent and temporary visa programs are effectively aligned with Australia's economic needs, particularly in addressing skill shortages in key areas such as medical practice and nursing, as well as encouraging skilled migrants to reside in regional areas. The policy objective behind this Direction is to streamline the processing of visa applications in a manner that prioritises occupations facing skill shortages and those willing to live in regional areas, thereby facilitating a more efficient and targeted immigration process.
Scope and Application
Direction No. 35MIGRATION ACT 1958, issued under section 499(1), pertains to the order of consideration of applications for sponsorship, nomination and visas under the Skill Stream of the Migration Program and the Temporary Residence Program. This legislative instrument applies to all individuals and entities authorised under the Migration Act 1958 to consider and dispose of visa applications, including those for Business Sponsorship, Business Nomination, Approved Appointments, and specific visa subclasses within the Skill Stream of the Migration Program. It mandates a priority order for processing these applications, placing emphasis on occupations listed on the Migration Occupations in Demand List (MODL), particularly those in medical practice and nursing, and applications for State-specific and regional migration visas. The direction applies nationally, ensuring a uniform approach to the processing of these applications across Australia. This Direction supersedes Direction No. 31 given on 26 February 2003 and aims to address the priority given to applications that are yet to be decided before or after its commencement, thereby ensuring a structured and prioritised approach to managing skilled and temporary visa applications in line with Australia’s economic and skill needs.
Key Provisions
The primary sections of Direction No. 35 under the Migration Act 1958 (section 499(1)) pertain to the order of consideration of applications for sponsorship, nomination, and visas under the Skill Stream of the Migration Program and the Temporary Residence Program. Specifically, Section 4 mandates that the order of processing for applications under the Skill Stream, Business Skills (Provisional) class, Business (Long Stay) visa subclass, and Medical Practitioner (Temporary) class should prioritise applications related to occupations listed on the Migration Occupations in Demand List (MODL), followed by State-specific and regional migration visa subclasses, and then all other fully completed applications in the order they are received (section 4). Section 5 further directs that when a section 85 cap is lifted, priority should be given to applications relating to occupations listed on the MODL, particularly in the medical practitioner or nursing professions, as well as State-specific and regional migration visa subclasses.
Persons or bodies with the power to consider visa applications under the Migration Act 1958 (sections 51 and 91) must adhere to the order of processing outlined in this Direction. This means that these entities must prioritise the processing of applications for occupations in demand, specifically medical practitioners and nursing professionals, as well as applications for State-specific and regional migration visa subclasses. They must also ensure that all other fully completed applications are processed in the order they are received.
Section 6 of the Direction establishes that it takes effect from the date of signature. The primary consequence of not adhering to this Direction is that the processing of visa applications may not align with the government’s priorities for skilled migration. While the Direction does not explicitly state penalties for non-compliance, failure to follow the stipulated order of processing could potentially lead to administrative scrutiny or review, which might result in corrective measures or other administrative actions. The overarching intent of the Direction is to ensure that Australia’s skilled migration programs are effectively addressing current skill shortages and regional settlement needs.