Immigration to Australia 2023 Key February Updates

Immigration to Australia 2023 – Summary of February Updates

The Australian Government is focusing on improving the temporary and permanent skilled migration programs in support of various industries and reduce the impacts COVID-19 had on skilled migration programs.

Welcome to our first VISA LOUNGE immigration to Australia 2023 update!

Transitional arrangements – Two year 408 visas

Temporary Graduate Visa (TGV) holders whose visas expire/d between 1 September 2022 and 1 July 2023 may apply for an extension of their work rights using a Temporary Activity SC 408 COVID-19 Pandemic event visa with two years validity.

Temporary Graduate Visa holders who were in Australia throughout the pandemic period and are therefore not eligible for the TGV Replacement stream, may also be eligible for the SC 408 visa with two years validity.

You must be working in Australia or have an offer of employment to be eligible.

You must apply for the Subclass 408 visa 90 days before your Temporary Graduate visa expires, or 28 days after your subclass 485 visa expires to be eligible for the subclass 408 Pandemic event visa.

If you are granted a 408 Pandemic Event visa, you will not be eligible to then apply separately for an extended Temporary Graduate visa (as was recently announced).

Further information is available on the Education Portfolio website and here.

Subclass 485 Extended post-study rights for international graduates

This is one of the major immigration to Australia 2023 updates.

From 1st July 2023, international education graduates, with eligible qualifications from an Australian higher education provider, will be granted an extra two years of post-study work rights.

The extension applies to key industries including:

  • Health
  • Teaching
  • Engineering
  • Agricultural fields

Post-study work rights for select degrees in areas of verified skill shortages will be increased from:

  • Two years to four years for select Bachelor degrees
  • Three years to five years for select Masters degrees
  • Four years to six years for all doctoral qualifications.

Existing regional and remote Australia settings will be maintained and where relevant will be eligible for the additional two years.

These targeted skills will be considered on an annual basis and updated as needed in response to the labour market.

Eligible graduates with a valid Temporary Graduate Visa on 1 July 2023 or who apply for a Temporary Graduate Visa after 1 July 2023, will be considered for the two year extension.

The Government has released the list of occupations and the eligible qualifications, check this link to the Department of Education website.

The qualifications listed in this document are a summary of the eligible qualifications. A comprehensive list mapped to CRICOS course codes will be released by the Department of Education before implementation on 1 July 2023. This change will increase the options for international students for immigration to Australia 2023.

Increased work rights for student visa holders

The Minister for Home Affairs has announced this week that student visa holder work rights will be increased from 1 July 2023 to assist in Australia’s economic recovery and growth.

Work right restrictions for students were relaxed during the COVID pandemic but this will end on 30 June 2023. From 1 July 2023 student visa holders with work rights will be capped at 48 hours per fortnight, this is another important immigration to Australia 2023 update.

Australia’s Engagement in the Pacific and Other Measures

The Government has introduced two new Bills into Parliament which, once passed, will enable the Minister for Immigration to implement a ballot style system as part of the pre-application process for specified visa subclasses and impose a fee for entering into a ballot.

Once the ballot is operating for a prescribed visa subclass, applicants will randomly be selected from a pool of ballot participants, making them eligible to apply for the relevant visa.

Importantly, although the primary and immediate purpose of these Bills is to facilitate a ballot system for the Pacific Engagement Visa (PEV), which is a new class of visa that the Government is intending to introduce, the Government is planning to introduce a visa ballot to other visa subclasses (which are yet to be identified).

And so, whilst the Bill specifically refers to how a Pacific Visa Ballot will be conducted in regard to the PEV, it is a useful guide as to how the pre-application process may change (with the introduction of a ballot) for other visa types in the future.

SC 186 ENS Provisional or Limited registration can now be accepted for all AHPRA regulated occupations

To be eligible for a Subclass 186 Employer Nomination Scheme (ENS) visa in the occupation of Medical Practitioner, applicants must hold either the relevant licensing and/or registration in order to perform the duties of the occupation in which they have been nominated, or they must be eligible to obtain the relevant registration.

Where the applicant only has (or is eligible for) Provisional or Limited Registration, this is accepted under Immigration policy.

The Department of Home Affairs has now advised that as of 22 December 2022, this policy measure has been extended to all AHPRA regulation occupations, a top immigration to Australia update for the health care industry. 

This means that a Provisional or Limited Registration is now accepted for all AHPRA occupations for Subclass 186 visa applicants.

The Department may still request additional information to confirm that the applicant has a sufficient level of registration.

In this situation, the Department can request a statement from the nominating employer stating:

  • their awareness of the applicant’s registration type; and
  • that they agree that the type of licensing and/or registration that the applicant holds (or is eligible to hold) will allow them to effectively perform the duties of the occupation in which they have been nominated.

The Department of Home Affairs has advised that this new policy will be applied to ENS applications that have already been lodged, as well as to all newly lodged applications.

We have been proceeding with limited registration for subclass 186 applications under the Direct Entry stream for a number of years now, but it is pleasing to see the Department formally acknowledging this policy.

GSM skills assessment obtained within 60 day invitation period will be accepted

The Department of Home Affairs has confirmed that it will now accept a suitable skills assessment for an applicant’s nominated skilled occupation which has been obtained within the 60-day invitation period for the following General Skilled Migration (GSM) visas:

  • Subclass 189 Skilled (Independent) visa;
  • Subclass 190 Skilled (Nominated) visa; and
  • Subclass 491 Skilled Work Regional (provisional) visa.

Prior to this change, a skills assessment was required to have been obtained by the time an applicant was invited to apply for a GSM visa.

This now means that applicants can technically lodge an Expression Of Interest (EOI) and obtain a skills assessment after an invitation has been received.

We do not, however, recommend taking this course of action.

We continue to advise applicants to obtain a skills assessment before submitting an EOI to ensure maximum chances for immigration to Australia 2023.

This change of approach has been made as a result of the decision of Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 686 (Thapa).

This update can be read on the Department of Home Affairs’ s skills assessment page.

Thapa precedent and expired English language tests for EOIs

As already mentioned above, we are aware that the Department of Home Affairs has indicated that it will accept skills assessments that have expired and been renewed within the invitation period for GSM applications, based on the precedent created by Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) FCCA 686.

This precedent does not apply to English language tests as the migration regulations require that the test – ‘was conducted in the 3 years immediately before the date of the invitation’.

This is different to skills assessments where the Thapa precedent provides a definition of ‘time of invitation’ that includes the full 60 day invitation period.

We should be wary of the construction of the Thapa precedent and that it may be narrowly interpreted by processing officers.

In the Thapa case, the applicant was able to obtain an updated skills assessment during the 60 day invitation period. There is no guarantee that skills assessments updated after the invitation period has ended will be accepted at this stage.

The update on skills assessments can be read here – the Department of Home Affairs’ s skills assessment page.

We are still waiting for Home Affairs to confirm whether other expired requirements, such as NAATI certification, will be dealt with in the same manner as skills assessments.

Permanent residence pathway for TSS 482 visa holders with an occupation on the Regional Occupation List (ROL)

The Government has introduced significant changes to improve access to permanent residence in Australia for certain holders of a Subclass 482 Temporary Skill Shortage (TSS) visa. This is an extremely immigration to Australia 2023 update for holders of 482 visa. 

Under the changes, which commenced on 13 February 2023, eligiblity for permanent residency has been extended to include the following specified persons:

A person who, commencing on 1 July 2022, was in Australia for a cumulative total of at least 12 months between 1 February 2020 and 14 December 2021, and is employed by a person actively and lawfully operating a business in Australia at the time the nomination application is made.

This improves access to permanent residence for existing subclass 482 visa holders with an occupation on the Regional Occupation List (ROL).

Prior to this change, TSS visa holders with an occupation on the ROL were restricted to a four-year stay in Australia (under the medium-term stream), with no pathway to permanent residence.

This pathway is currently available for two years from 1 July 2022.

New Direction 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501 CA

A new Ministerial Direction No 99 will commence on 3 March 2023. This Direction revokes Direction 90 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA 15 April 2021.

Under Direction 90 the strength, nature and duration of ties to Australia were considered under other considerations, under this new Direction 99 this has now been added as a primary consideration under Part 2 Section 8, with the effect that these considerations should generally be given more weight.

The principles under Subsection 5.2 have also been amended with the following paragraph added under 5.2(5):

With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

Thinking about Immigration to Australia 2023?

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Published by Maddie Phillips

Australian Immigration Law Specialist with over 12 years experience, I provide high touch immigration solutions for businesses and individuals, all aspects of Australian immigration law. OMARA Licenced, Member Migration Institute of Australia and Australian Human Resources Institute.

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