New ministerial directions for processing skilled and student visas; Recognised Graduate visa caps before ceasing?

Within two weeks of releasing its migration strategy, the government has created two new ministerial directions to prioritise the processing of skilled and student visa applications. They have also placed a cap on the number of subclass 476 - Skilled - Recognised Graduate visas that will be granted this financial year, potentially before they abolish this visa.

Ministerial Direction 105 – Regional visas now top of the heap of processing priorities

New Ministerial Direction 105 replaced Ministerial Direction 100 on 15 December 2023, which previously saw healthcare and teaching occupations vault to the top of the skilled visa processing priorities.

Ministerial directions for skilled visas affect many subclasses of visas and related nominations:

• Subclass 124 – Distinguished Talent visa,
• Subclass 186 – Employer Nomination Scheme visa,
• Subclass 187 – Regional Sponsored Migration Scheme visa,
• Subclass 188 – Business Innovation and Investment (Provisional) visa,
• Subclass 189 – Skilled – Independent visa,
• Subclass 190 – Skilled - Nominated visa,
• Subclass 191 – Permanent Residence (Skilled Regional) visa,
• Subclass 482 – Temporary Skill Shortage visa,
• Subclass 489 – Skilled - Regional (Provisional) visa,
• Subclass 491 – Skilled Work Regional (Provisional) visa,
• Subclass 494 – Skilled Employer Sponsored Regional (Provisional) visa,
• Subclass 858 – Global Talent visa,
• Subclass 887 – Skilled - Regional visa, and
• Subclass 888 – Business Innovation and Investment (Permanent) visa.

Making good on their promise in their migration strategy to support regional areas and businesses, what was third in the previous list of priorities, which was where an occupation is to be carried out in a designated regional area, is now first.

Second is healthcare and teaching occupations, followed by nomination and visa applications made by an accredited sponsor, and lastly, all other applications.

With processing times for visas being reduced significantly it may seem strange that there is a need to prioritise any application. However, some visas still suffer significantly from delays. As of time of writing, the median time for 189 visas to be processed is 11 months.

Ministerial Direction 107 – offshore student visas processing faster

A new Ministerial Direction 107 that came into effect on 15 December 2023 but that will apply to any application not decided, directs priority processing of subclass 500 – Student visa and subclass 590 – Student Guardian visa applications.

The priorities are:

1. Offshore student visa applications in the Schools sector, Foreign Affairs or Defence sector, and any postgraduate research, higher education, English Language Intensive Course for Overseas Students (ELICOS), Vocational Education and Training (VET), and non-award sector applicants studying at an education provider with an Evidence Level 1, subsequent entrant applications lodged outside Australia that include an unmarried family member under 18 years and all student guardian visa applications (lodged in or outside Australia).
2. Offshore student visa applications where the primary applicant is studying a higher education course or a full-time registered course at an Evidence Level 2 institution,
3. Offshore student visa applications where the primary applicant is studying a higher education course or a full-time registered course at an Evidence Level 3 institution and offshore applications made by subsequent entrants.
4. All other applications.

The direction clarifies that:

• Combined applications (including a partner and/or dependent children in an application) do not change the processing priority. Subsequent applications, which are applications made by family members after a primary visa applicant was approved their visa are affected. Except for any offshore combined or subsequent visa application made with a minor in the application, which has the highest priority, subsequent applicants will be in the lowest priority group. This will incentivise combined applications and therefore the assessment of one application over at least two applications.
• Where there is more than one registered course of study, it is the principal course that determines the priority level.
• Any offshore postgraduate student visa applications made so they can come to Australia for the marking of their thesis will be as if they are studying again – so will have the highest priority.
• Any change in the evidence level of the education provider will also change the processing of any student visa application made. However, if the student changes their education provider while their application is processing their processing priority will not change even if the evidence level changes consequently.

What is interesting is that despite calls to stem the flow of international students, processing priorities are doing the exact opposite. This is because it does not help the reputation of the education provider or the international student market by delaying processing. Instead, the government is concentrating its efforts on ensuring applications are genuine.

Secondly, evidence levels play an important role. These are calculated using a range of factors, including:

• rate of visa cancellations (25% weighting)
• rate of refusals due to a fraud reason (40% weighting)
• rate of refusals (excluding fraud) (10% weighting)
• rate of student visa holders becoming unlawful non-citizens (15% weighting)
• rate of subsequent protection visa applications (10% weighting)

There are some caveats to how these are calculated.

The purpose of this is to of course motivate education providers to ensure only genuine students are enrolled.

How evidence levels are calculated brings back memories of the Modified Non Return Rate for visitor visas. This assessed a country’s visitor visa applicants based on previous visitor visa holders such as the rate of overstaying and protection visa applications lodged.

Including protection visa applications is the assessment of evidence levels without also considering whether the application was ultimately successful implies that lodging a protection visa application is considered inappropriate.

3,735 visas for recognised graduates this financial year

An instrument registered on 19 December 2023 will restrict the number of subclass 476 - Skilled - Recognised Graduate visas to be granted this financial year to 3,735.

The 476 visa is a temporary visa for recent overseas engineering graduates with a Washington Accord accredited degree or from a recognised education institution. The visa was created to support Australia’s mining activities and remained even after a downturn. In their migration strategy, this visa has been earmarked to be abolished, and this visa may no longer exist after 30 June 2024, when this instrument is repealed.

Any 476 visa application still processing or lodged after this cap is reached will be taken to have not been made. Any visa application charges paid must be refunded.

That the government is using its cap and cease powers under section 39 of the Migration Act 1958 (Cth) instead of just its cap and queuing powers under section 85 of the Act, does not bode well for this visa’s future.

Cap and cease powers are rarely used…the last time was in 2015.