Migration Regulations 1994 - Specification of Classes of Persons (Exempt from the Age Criteria) - IMMI 13/059

Administered by Department of Home Affairs

Legislation au F2013L01147 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Migration Regulations 1994

 

CLASSES OF PERSONS (EXEMPT FROM THE AGE CRITERIA)

 

(Regulations 186.221(b), 186.231(b), 187.221(b), 187.231(b)

 

  1. This Instrument is made under paragraphs 186.221(b), 186.231(b), 187.221(b), 187.231(b) of the Migration Regulations 1994 (‘the Regulations’).
  2. Paragraphs 186.221(b), 186.231(b), 187.221(b), 187.231(b) of the Regulations provide that the applicant must be in a class of persons specified by the Minister in an Instrument in writing.
  3. The purpose of this Instrument is to specify classes of persons who are exempt from satisfying the primary criteria in relation to being less than 50 years of age at the time of application for:

(a)                a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream or Direct Entry stream; or

(b)               a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream or Direct Entry stream.

The Temporary Residence Transition stream offers a streamlined pathway for subclass 457 visa holders who have worked for an employer for the last two years, and who the employer wishes to sponsor for permanent residence through either the Employer Nomination Scheme (ENS) or the Regional Sponsored Migration Scheme (RSMS) in order to retain their skills and experience, and is subject to certain specified criteria.

4.                   The Instrument operates to specify that, for paragraphs 186.221(b), 186.231(b), 187.221(b), 187.231(b), the class of persons who are exempt from satisfying the primary criteria in relation to being less than 50 years of age at the time of application for a Subclass 186 (ENS) visa in the Temporary Residence Transition stream or Direct Entry stream; or a Subclass 187 (RSMS) visa in the Temporary Residence Transition stream or Direct Entry stream, are applicants who are employed in certain occupations and industries as follows:

  • Ministers of Religion (ANZSCO 272211) who have applied for a visa under the Regulations to occupy a position as nominated by a religious institution; or
  • Researchers, scientists and technical specialists at ANZSCO skill levels 1 or 2, who  have applied for a visa under the Regulations to occupy a position as nominated by Australian scientific government agencies; or
  • Senior academics who have applied for a visa under the Regulations to occupy a position as nominated by a university in Australia.  A senior academic is a person to be employed at an Academic level of B, C, D or E as a University Lecturer (ANZSCO 242111) or Faculty Head (ANZSCO 134411).

5.                   The Instrument also operates to specify that, for paragraphs 186.221(b) and 187.221(b) the class of persons who are exempt from satisfying the primary criteria in relation to being less than 50 years of age at the time of application for a Subclass 186 (ENS) visa in the Temporary Residence Transition stream; or a Subclass 187 (RSMS) visa in the Temporary Residence Transition stream are:

  • applicants who have been working for their nominating employer as the holder of a subclass 457 visa for at least the four years immediately before applying and whose annual earnings for each year in the four year period was at least equivalent to the Fair Work High Income Threshold; or
  • Medical practitioners (ANZSCO MINOR GROUP 253) who have been working for their nominating employer as the holder of a Subclass 457 visa for at least the four years immediately before applying and whose nominated position is located in regional Australia as prescribed by subregulation 5.19(7); or
  • Medical practitioners (ANZSCO MINOR GROUP 253) who have been working for their nominating employer as the holder of a Subclass 422 visa before becoming a holder of a Subclass 457 visa for the prescribed period of 2 years in the four years immediately before applying and whose nominated position is located in regional Australia as prescribed by subregulation 5.19(7).

6.                   The Instrument also operates to specify that, for paragraphs 186.231(b) and 187.231(b) the class of persons who are exempt from satisfying the primary criteria in relation to being less than 50 years of age at the time of application for a Subclass 186 (ENS) visa in the Direct Entry stream; or a Subclass 187 (RSMS) visa in the Direct Entry stream, are applicants who are:

  • holders of Subclass 444 or 461 visas who have been working for their nominating employer in their nominated occupation for at least two years (excluding any periods of unpaid leave) in the last three years immediately before making their visa application; or
  • Medical practitioners (ANZSCO MINOR CROUP 253) who have been working for their nominating employer as the holder of a Subclass 422 visa for at least the four years immediately before applying and whose nominated position is located in regional Australia as prescribed by subregulation 5.19(7); or
  • Medical practitioners (ANZSCO MINOR CROUP 253) who have been working for their nominating employer as the holder of a Subclass 422 visa before becoming a holder of a Subclass 457 visa in the four years immediately before applying and whose nominated position is located in regional Australia as prescribed by subregulation 5.19(7)

7.                   Consultation was undertaken with a wide range of Commonwealth Government Departments, State/Territory Government Departments and other relevant organisations.

8.                   The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required (OBPR Ref 2013/15007).

9.                   Under section 44 of the Legislative Instruments Act 2003 the Instrument is exempt from disallowance and therefore a Human Rights Statement of Compatibility is not required.

10.              This Instrument, IMMI 13/059, commences on 25 June 2013.

Overview

The Migration Regulations 1994, enacted to provide detailed provisions for the administration of the Migration Act 1958, were amended by the legislative instrument F2013L01147 to address a gap in the age criteria for certain visa subclasses. Specifically, this instrument was introduced to exempt certain classes of persons from the requirement of being less than 50 years of age when applying for a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream or Direct Entry stream, or a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream or Direct Entry stream. The policy objective is to facilitate the retention of skilled workers by allowing older applicants in specific occupations and industries to be eligible for these visas, thus supporting the skilled migration program and addressing labour shortages in key sectors. This legislative instrument was made under the authority of the Migration Act 1958 and commenced on 25 June 2013.

Scope and Application

The Migration Regulations 1994 (Explanatory statement) specify classes of persons exempt from the age criteria for certain visa subclasses under the Employer Nomination Scheme (ENS) and Regional Sponsored Migration Scheme (RSMS). This applies to applicants for a Subclass 186 ENS visa in the Temporary Residence Transition stream or Direct Entry stream, or a Subclass 187 RSMS visa in the Temporary Residence Transition stream or Direct Entry stream. The classes of exempt persons include Ministers of Religion, researchers, scientists, technical specialists, senior academics, and medical practitioners, among others, provided they meet specific employment and occupational criteria. This regulation applies across Australia and is subject to the broader Migration Act 1958 and associated Regulations. It does not specify exclusions beyond those outlined but allows for further specification through subordinate instruments. This Instrument, IMMI 13/059, took effect on 25 June 2013.

Key Provisions

The key provisions of this Instrument, made under paragraphs 186.221(b), 186.231(b), 187.221(b), 187.231(b) of the Migration Regulations 1994, specify classes of persons exempt from the primary age criteria when applying for a Subclass 186 (Employer Nomination Scheme) or Subclass 187 (Regional Sponsored Migration Scheme) visa, either in the Temporary Residence Transition stream or Direct Entry stream (paragraphs 186.221(b), 186.231(b), 187.221(b), 187.231(b)). This exemption applies to applicants employed in specific occupations and industries. For instance, Ministers of Religion (ANZSCO 272211) applying for a position nominated by a religious institution, researchers, scientists, and technical specialists at ANZSCO skill levels 1 or 2 applying for a position nominated by Australian scientific government agencies, and senior academics applying for a position nominated by a university in Australia are exempt (paragraph 4). Further, the Instrument specifies additional exemptions for certain applicants in the Temporary Residence Transition stream. These include applicants who have worked for their nominating employer as a subclass 457 visa holder for at least four years immediately before applying, with annual earnings at least equivalent to the Fair Work High Income Threshold, and medical practitioners working for their employer for at least four years in regional Australia (paragraph 5). For the Direct Entry stream, exemptions include holders of Subclass 444 or 461 visas who have been working for their nominating employer in their nominated occupation for at least two years in the last three years immediately before applying, and medical practitioners working for their employer for at least four years in regional Australia (paragraph 6). This legislation imposes specific obligations on applicants and employers. Applicants must ensure they fall within the specified classes exempt from the age criteria and provide necessary documentation to support their eligibility. Employers nominating applicants must confirm the applicant's employment history and the nature of their occupation to substantiate the exemption claim. Failure to provide accurate information or meet the specified criteria can result in the visa application being rejected. The Migration Regulations 1994 do not explicitly state specific offences, penalties, or civil/criminal consequences for breaches of these provisions within the explanatory statement. However, providing false information to the Department of Home Affairs can result in serious consequences, including the refusal of a visa application, cancellation of an existing visa, and potential bans from future visa applications. Additionally, under Australian law, knowingly making a false or misleading statement in a visa application can be considered an offence, potentially leading to criminal charges. Penalties for such offences can include fines and imprisonment, depending on the severity and circumstances of the offence.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.