The End of The Subclass 175, 176 and 475 Visa & The 885, 886 Visas Become Priority 4
The end of the subclass 175 Skilled – Independent, 176 Skilled – Sponsored and 475 Skilled – Regional Sponsored visas has come. On 15 September 2015 a Legislative Instrument was enacted setting the cap for these visas at 219 for the subclass 175, 36 for the subclass 176 and 29 for the subclass 475 visas to be allocated for the year to 30 June 2016. But by 25 September 2015 all those visas were allocated. All the rest of the visa applications in those 3 subclasses will be subject to cap and cease and their visa application charges will be refunded. Form 1424 is used to request the refund.
Now the remaining subclass 885 Skilled Independent, 886 Skilled Sponsored and 487 Skilled Regional Sponsored visas move up to priority 4 from priority group 5.
A ministerial direction was issued on 15 September 2015 (Direction No. 67 – Order of consideration – certain skilled migration visas) which changed the last two priorities as follows :
“(d) [ie priority group 4] applications with nominated occupations on the Skilled Occupation List Schedule 1 and applications of subclasses 885, 886 and 487 visa applications. Within this priority, SkillSelect subclasses 189 and 489 visa applications have precedence;
(e) [ie priority group 5] all other applications.”
The 885 and 885 visas are the last of the student progression visas, there no longer being a direct pathway from student visa to permanent residence via the skilled visa regime. There is still such a pathway but it needs to be carefully and properly planned.
Note the Ministerial direction exempts these visas from the priority :
“(3) This Direction does not apply to:
(a) applications that have been remitted by the AAT for reconsideration;
(b) applications where it is readily apparent that the criteria for grant of the visa would not be satisfied;
(c) applications by visa applicants claiming to be a member of the family unit of a person who holds a visa granted on the basis of satisfying the primary criteria in Schedule 2 to the Regulations and who did not make a combined application with that person;
(d) applications for a Skilled – Regional Sponsored Subclass 487 visa or Skilled – Regional (Provisional) Subclass 489 visa where the applicant holds a Skilled – Independent Regional (Provisional) Subclass 495 visa, Skilled – Designated Area –Sponsored (Provisional) Subclass 496 visa, Skilled – Regional Sponsored Subclass 487 visa or Skilled – Regional Sponsored Subclass 475 visa at the time they apply.”
Note that the subclass 485(Temporary Graduate) visa is not classified as a skilled visa for the purpose of this direction.
The Skilled – Independent Overseas Student Subclass 880, the Skilled – Australian-sponsored Overseas Student Subclass 881 and the Skilled – Designated Area-sponsored Overseas Student Subclass 882 would now be the main visas in Priority 5.
For some of these subclass 880+ visas, the writer’s advice is to leave that visa application in the pipeline but consider applying for other visas. It is often difficult to convince either the client or the migration adviser to take that course, there being some type of emotional attachment to the visa application already made. There is no legal prohibition on having more than one visa application in train at any one time. For some of these subclass 880+ applicants even a subclass 457 and ENS/RSMS pathway may be a faster pathway to permanent residence.
Returning to the subclass 175 visa here is what the cap and kill clause stated :
Grant of the visa would not result in either:
(a) the number of Subclass 175 visas granted in a financial year exceeding the maximum number of Subclass 175 visas, as determined by the Minister in an instrument in writing for this paragraph, that may be granted in that financial year; or
(b) the number of visas of particular classes (including Subclass 175) granted in a financial year exceeding the maximum number of visas of those classes, as determined by the Minister in an instrument in writing for this paragraph, that may be granted in that financial year.”
So for the 2015/16 financial year the cap was set at 219 and that number was reached on 25 September 2015.
The change in processing priorities allows applications for the Skilled Regional Sponsored (Subclass 487), the Skilled Independent (Subclass 885) and the Skilled Sponsored (Subclass 886) to be processed and finalised.
Note that s 39 of the Migration Act states :
“Section 39 Criterion limiting number of visas
(1) …. a prescribed criterion for visas of a class, other than protection visas, may be the criterion that the grant of the visa would not cause the number of visas of that class granted in a particular financial year to exceed whatever number is fixed by the Minister, by legislative instrument, as the maximum number of such visas that may be granted in that year (however the criterion is expressed).
(2) For the purposes of this Act, when a criterion allowed by subsection (1) prevents the grant in a financial year of any more visas of a particular class, any outstanding applications for the grant in that year of visas of that class are taken not to have been made.”
So paragraph 175.228 is an enactment of the criteria permitted by s 39. Now that the cap has been reached then s 39(2) takes over and all the remaining visa applications are taken not to have been made” The subclasses 176 and 475 visas are in the same category.
Another mechanism by which visas are limited is via ss 85 and 86 of the Migration Act which read as follows :
Section 85 Limit on visas
(1) Subject to subsection (2), the Minister may, by legislative instrument, determine the maximum number of:
(a) the visas (including protection visas) of a specified class; or
(b) the visas (including protection visas) of specified classes;
that may be granted in a specified financial year.
Section 86 Effect of limit
(a) there is a determination of the maximum number of visas of a class or classes that may be granted in a financial year; and
(b) the number of visas of the class or classes granted in the year reaches that maximum number;
no more visas of the class or classes may be granted in the year.
Of course Australia has a migration program and quite simply no more permanent residence visas are issued in any year beyond the program numbers. This is just an administrative function.