Overview

The Migration Regulations 1994, as amended by instrument F2010L00297, were enacted to address the imbalance in General Skilled Migration (GSM) visa applications, particularly the over-concentration of applications towards occupations listed on the Migration Occupations in Demand List (MODL). The instrument, made under regulation 1.03 of the Regulations, specifies the definition of a ‘migration occupation in demand’ and aims to mitigate its impact on GSM visas. The policy objective of this instrument is to reduce the influence of occupations on the MODL on GSM visa allocations, thereby encouraging a more balanced distribution of skilled migration applications. This change restricts access to the MODL to specific visa subclasses, ensuring that only those who held or applied for a Subclass 485 Skilled – Graduate visa prior to the commencement of the instrument can benefit from the associated points. Effective from 8 February 2010, the instrument was developed following consultations with key government departments including the Department of Prime Minister and Cabinet, the Department of Education, Employment and Workplace Relations, the Treasury, and the Department of Finance and Deregulation.

Scope and Application

The explanatory statement for Instrument IMMI 10/001 specifies that this Instrument is made under regulation 1.03 of the Migration Regulations 1994 and it sets out the definition of 'migration occupation in demand'. This instrument applies to skilled occupations that the Minister specifies in writing, effectively altering the criteria for General Skilled Migration (GSM) visas. The purpose of this Instrument is to limit the influence of migration occupations in demand on GSM visas, aiming to reduce the concentration of applications towards occupations listed on the migration occupation in demand list (MODL). Effective from 8 February 2010, the Instrument restricts access to MODL occupations to applicants for Subclass 885 Skilled – Independent, Subclass 886 Skilled – Sponsored and Subclass 487 Skilled – Regional Sponsored visas who either held a Subclass 485 Skilled – Graduate visa or had an application for such a visa that was not finally determined at the commencement date of the instrument. This effectively means that most new GSM applicants will not be eligible for extra points under the GSM points test due to the MODL, thereby impacting both current and potential applicants who intended to apply for a GSM visa based on their occupation being listed on the MODL before these changes.

Key Provisions

The key provisions of the Migration Regulations 1994, as specified in Instrument IMMI 10/001, revolve around the definition and impact of 'migration occupation in demand' (section 1.03). This regulation clarifies that a 'migration occupation in demand' is a skilled occupation identified by the Minister through a written instrument. The primary aim of this instrument is to mitigate the influence of occupations on the migration occupation in demand list (MODL) on General Skilled Migration (GSM) visas. Specifically, it seeks to reduce the concentration of GSM applications towards occupations listed on the MODL. Under the new regulations, access to occupations on the MODL is restricted to applicants for Subclass 885 Skilled – Independent, Subclass 886 Skilled – Sponsored, and Subclass 487 Skilled – Regional Sponsored visas. These applicants must either have held a Subclass 485 Skilled – Graduate visa at the commencement date of this instrument or have a pending application for such a visa that is not finally determined by the same date. For all other GSM applicants, there will be no skilled occupations on the MODL, meaning they will not receive additional points under the GSM points test due to their occupation. This change will affect new GSM applications from the effective date of the instrument, except for those specified above, and will also impact potential applicants who intended to apply for a GSM visa based on an occupation previously listed on the MODL. The instrument imposes specific obligations on the parties it governs. It restricts the list of occupations eligible for additional points under the GSM points test to a narrower group of visa applicants, namely those who meet the specified conditions related to the Subclass 485 Skilled – Graduate visa. This limitation is intended to balance the demand for skilled workers in certain occupations with the broader goals of the migration program. In terms of consequences for breach, the explanatory statement does not explicitly mention any specific offences or penalties for non-compliance with the new provisions. However, as this instrument is made under the Migration Regulations 1994, any failure to adhere to the stipulated conditions could potentially lead to administrative actions or visa processing issues. The maximum penalties for breaches of the Migration Act 1958 can include substantial fines and, in some cases, imprisonment, although these are not detailed specifically in the explanatory statement for this particular instrument.