Nicholas Tebbey
Senior Associate, Snedden Hall & Gallop
One of the major changes to the ENS/RSMS visa system that takes place on 1 July is the removal of “exceptional circumstances” as a way of overcoming age, English ability and/or the lack of formal qualifications.
As most readers will be aware, the current system allows an applicant some leniency in these areas if he or she can establish “exceptional circumstances”. For many years, this has proven a successful way of overcoming what can otherwise be very rigid criteria.
For example, the former age limit of 45 is widely accepted (at least by the migration profession) as failing to take into account that many Australian employers need employees with skills and wisdom that can sometimes only come with age. Without the ability to argue exceptional circumstances, an age limit of 45 years appears to send a message that workers aged over 45 are not a valuable part of the Australian economy, or, at least, do not add enough to the Australian economy to balance their perceived “needs” and therefore result in a net-negative outcome for Australia.
English language skills and formal qualifications are also currently viewed less strictly if the employer and employee can demonstrate that the position is exceptional – perhaps a result of the employee’s other skills (considerable work experience, for example) or ability to communicate with the employer (and importantly, understand OH&S requirements) despite not meeting certain IELTS benchmarks.
The government is a firm believer in the benefit of the ENS and RSMS visas. It says so itself at almost every opportunity, spruiking the benefits of migrants having jobs before they migrate. The economics would appear to indicate that a migrant with a job, and with the support network that comes with that, is more likely to use their skills and become a contributing member of society. The Department of Immigration and Citizenship (DIAC) says the program is “well-suited to addressing short-to-medium term demand for specific skills…” (http://www.immi.gov.au/skilled/skilled-workers/_pdf/perm-sponsored-reforms.pdf).
For this reason the ENS/RSMS migration program receives top priority. And so it should. But why, then, are we now facing significant changes?
In August 2011, the government commenced a review of the system, releasing a discussion paper (http://www.immi.gov.au/media/publications/discussion-papers/_pdf/discussion-ens.pdf) and calling for public submissions on the “operation and effectiveness” of the system.
Subsequently, DIAC has developed a series of recommendations for changes, and they, in turn, are now being implemented.
Some of the changes include:
- Removing the distinction between onshore and offshore visas and shrinking the number of visa subclasses from 6 to 2 (though note that of course there are some different criteria depending on whether the applicant is onshore or offshore);
- Creating three streams of visa application within each of the two subclasses (ie, 6 streams total), to deal with (a) Direct Entry, (b) Temporary Transition, and (c) Labour Agreements;
- Raising the upper age limit to 50 years;
- Introducing a consolidated skilled occupation list; and
- Changing some of the skill and English language requirements.
Details of the changes are available on the DIAC website at http://www.immi.gov.au/skilled/skilled-workers/_pdf/perm-sponsored-reforms.pdf and I do not propose to discuss them in too much detail.
Of interest is the decision by DIAC to remove the opportunity for an applicant to claim exceptional circumstances for age, English language ability and/or skill, and replace this with some exemptions. DIAC says these exemptions are “clear and objective” but, while that may be true, they are sadly much more limited than the previous exceptional circumstances regime.
After 1 July, for any client aged over 50, or who does not pass the English requirement, instead of being able to argue the specific exceptional circumstances that apply to a client’s case, agents will need to see if their client meets one of a few very specific exemptions:
- For age:
o Nominated occupations specifically identified by the Minister as being “specialised” (at this stage, indications are that this will include Ministers of Religion, researchers or scientists employed by CSIRO or ANSTO, and academics employed by universities; or
o An applicant who has worked in Australia for at least 4 years on a Subclass 457 and has been paid a salary above the Fair Work Australia high income threshold (currently AUD 118,000.00)
- For English language skills:
o Nominated occupations specifically identified by the Minister (at this stage, indications are that this will include Ministers of Religion);
o Citizens of the UK, USA, New Zealand, Canada or Republic of Ireland;
o Anyone who has passed an OET test result of “B”; or
o Anyone applying as a 457 holder of at least two years who has completed at least 5 years training at a secondary or higher level where all of the tuition was delivered in English.
- For skills exemptions:
o Nominated in an occupation where formal training is uncommon (eg Ministers of Religion)
o Paid at executive-level salaries;
o Scientific and technical experts employed by universities, CSIRO or ANSTO; or
o Academics employed by universities.
(see http://www.immi.gov.au/skilled/skilled-workers/_pdf/perm-sponsored-reforms.pdf)
It may seem like a lot of exemptions, and they all seem perfectly reasonable, but what is missing is the ability to exercise discretion where a case is sufficiently out-of-the-ordinary to make it “exceptional”. Many of the writer’s previous clients who have benefited from the “exceptional circumstances” test would never fit under one of these exemptions. These clients now work, pay taxes, shop, pay rates, etc – ie, they contribute.
Sadly, post 1 July, this will no longer be possible.
The Migration Act is, for the most part, strict and unyielding. For most agents, it is only too apparent that square pegs do not, indeed, fit into round holes.
It is not actually surprising that the “exceptional circumstances” test has disappeared. This is just the latest in a long series of reforms that have changed the Migration Act from an open, discretionary system in the 1970s and 1980s (not without its own problems, I freely admit) to a formal, structured system of visa classes and subclasses.
Many readers may recall our previous Minister for Immigration, Senator Evans, expressing his discomfort at exercising the ministerial intervention powers under the Act (ie, s351, s417, etc) (see http://www.theage.com.au/news/opinion/the-buck-stops-with-the-immigration-minister/2008/03/02/1204402269514.html), but we can only hope that they, and the discretionary nature of most visa cancellation powers, do not go the way of “exceptional circumstances”. They are essential to ensure the visa system does not become irrelevant and unworkable.
Perhaps there have been problems with discretion, and the “exceptional circumstances” test, in the past – but surely those issues were in its application. Policy, procedure and proper training can be used to ensure that such discretion is not abused. It is the writer’s opinion that without it, many applicants will be excluded and it will be Australia, not just the applicant, who misses out.
