EXPLANATORY STATEMENT
Migration Act 1958
Migration (IMMI 18/067: Pool and Pass Marks for General Skilled Migration Visas) Instrument 2018
(Subsections 96(1) and 96(2) of the Act)
- Instrument IMMI 18/067 is made under subsections 96(1) and (2) of the Migration Act 1958 (the Act).
- The instrument repeals Pass Marks and Pool Marks in relation to Applications for General Skilled Migration Visas (Classes VE, VC, VF, VB, SI, SN and SP) (IMMI 12/017) (F2012L01317) under subsection 33(3) of the Acts Interpretation Act 1901 (the AIA). Subsection 33(3) of the AIA states that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
- The instrument operates to set a pool and pass mark of 65 for the “points” system under Subdivision B of Division 3 of Part 2 of the Act for the following three classes of visa where an application is made on or after 1 July 2018 in response to an invitation given by the Minister on or after 1 July 2018:
- a Skilled – Independent (Permanent) (Class SI) visa;
- a Skilled – Nominated (Permanent) (Class SN) visa; and
- a Skilled – Regional Sponsored (Provisional) (Class SP) visa.
- For these visas, the instrument sets the pool and pass mark at 65 points. This pass mark reflects the high level of interest in skilled migration to Australia and the high calibre of prospective applicants who express their interest in the General Skilled Migration program. This pass mark is consistent with the level set for the points test under repealed regulation 2.26AB, in effect until 1 July 2013.
- The instrument preserves the pool and pass mark from the previous instrument for all visa applications for the above visas made before, on or after 1 July 2018 in response to an invitation given by the Minister before 1 July 2018.
- The instrument also preserves from the previous instrument, all pre-existing pool and pass marks for outstanding applications for the following repealed visa subclasses made before 1 July 2011, and between 1 July 2011 and 1 July 2013:
- a Subclass 175 (Skilled – Independent) visa;
- a Subclass 176 (Skilled – Sponsored) visa;
- a Subclass 475 (Skilled – Regional Sponsored) visa;
- a Subclass 487 (Skilled – Regional Sponsored) visa;
- a Subclass 885 (Skilled – Independent) visa; and
- a Subclass 886 (Skilled – Sponsored) visa.
- These visa subclasses were repealed on 1 July 2013 by item [26] of Schedule 2 to the Migration Amendment Regulation 2012 (No. 2). Clause 102 of Schedule 13 to the Migration Regulations 1994 provides that those amendments applied only in relation to an application for a visa made on or after 1 July 2013. The intention is that the same pool and pass mark as that which applied at the time of application for the visa, should continue to apply to outstanding visa applications.
- Consultation was undertaken before the instrument was made with the Department of Jobs and Small Business, which manages the SkillSelect system.
- The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 23746).
- Under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, the instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
- The instrument commences on 1 July 2018.
Overview
The Migration (IMMI 18/067: Pool and Pass Marks for General Skilled Migration Visas) Instrument 2018 was enacted to address the need for consistent and updated criteria for skilled migration applications under the Migration Act 1958. This instrument, made by the Minister for Home Affairs under subsections 96(1) and (2) of the Act, repeals previous regulations regarding pass and pool marks for general skilled migration visas, specifically for subclasses VE, VC, VF, VB, SI, SN, and SP. The policy objective is to reflect the high demand and calibre of skilled migrants applying to Australia, setting a uniform pass mark of 65 points for skilled independent, nominated, and regional sponsored visas applied for on or after 1 July 2018. The instrument also ensures continuity for existing applications by maintaining previous pass marks for applications made before 1 July 2018, thereby ensuring fairness and transparency in the visa application process.
Scope and Application
The Migration (IMMI 18/067: Pool and Pass Marks for General Skilled Migration Visas) Instrument 2018, made under the Migration Act 1958, sets the pool and pass marks for applications for certain skilled migration visas made on or after 1 July 2018. This legislative instrument applies to prospective skilled migrants who intend to apply for a Skilled – Independent (Permanent) (Class SI), a Skilled – Nominated (Permanent) (Class SN), or a Skilled – Regional Sponsored (Provisional) (Class SP) visa, in response to an invitation issued by the Minister on or after 1 July 2018. It also applies to outstanding applications made in response to an invitation given before 1 July 2018, preserving the previous pool and pass marks for those applications. The instrument does not apply to applications for other types of visas or to applications made before the instrument's commencement date. The instrument is subject to the exemptions and regulatory requirements under the Legislation (Exemptions and Other Matters) Regulation 2015 and does not require a Regulatory Impact Statement or a Statement of Compatibility with Human Rights.
Key Provisions
The primary provisions of the Migration (IMMI 18/067: Pool and Pass Marks for General Skilled Migration Visas) Instrument 2018 (F2018L00920) establish the pool and pass marks for the "points" system under the Migration Act 1958 (the Act) for certain skilled migration visa applications. Specifically, section 1 of the instrument sets a pool and pass mark of 65 points for skilled-independent (permanent) (Class SI) visas, skilled-nominated (permanent) (Class SN) visas, and skilled-regional sponsored (provisional) (Class SP) visas when applications are made on or after 1 July 2018 in response to an invitation given by the Minister on or after the same date (subsection 3(1)). This reflects the high demand and high calibre of prospective applicants for skilled migration to Australia.
The instrument imposes obligations on the parties involved in the skilled migration process. The Department of Home Affairs, which administers the Act, must ensure that the new marks are correctly applied to all relevant visa applications. Applicants for the specified visas must achieve the required 65 points to be eligible for consideration. The instrument also preserves the previous pool and pass marks for applications made before 1 July 2018 in response to invitations issued before that date, as well as for outstanding applications for certain repealed visa subclasses made before 1 July 2011 or between 1 July 2011 and 1 July 2013 (subsection 3(2)-(3)). This preservation ensures continuity for applicants who began the process under previous regulations.
The Act itself does not directly impose offences, penalties, or consequences for breach in relation to these provisions. However, failure to meet the specified points threshold for a visa application may result in the application being rejected. The Minister retains the authority to make such instruments under subsections 96(1) and 96(2) of the Act, and non-compliance with the requirements set out in the instrument may indirectly affect an applicant's eligibility for a visa. There are no explicit criminal or civil penalties stated for breaches of these provisions within the instrument itself.
Consultation with relevant stakeholders, including the Department of Jobs and Small Business, was undertaken prior to the instrument's creation. The Office of Best Practice Regulation has determined that a Regulatory Impact Statement is not required, and under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, the instrument is exempt from disallowance, hence a Statement of Compatibility with Human Rights is not necessary. The instrument comes into effect on 1 July 2018.