In an unexpected, and unannounced, Christmas present from the Australian Department of Immigration and Citizenship (DIAC) new legislation has been made regarding Australian skilled migration that will be implemented from 1 January 2010.

At the date of publishing this blog this information had not been released on the DIAC website, and it is likely that this information would not be announced publically by the department until the date in which it comes into effect.  

While the majority of the new legislation deals with onshore applications for the graduate stream of migration, there are  also serious changes that affect the work experience requirements for 175 Skilled Independent, 176 Skilled Sponsored, and 475 Skilled Regional Sponsored applications. The changes will affect applicants whose nominated occupations appear on a not-yet-released DIAC occupations list.

In order to apply for a visa you must first have your skills assessed by a relevant assessing body. The occupation in which you obtain a skills assessment for is known throughout the entire migration process as your nominated occupation. Following the skills assessment is the visa application to the Department of Immigration and Citizenship (DIAC).

Under current legislation it is not necessary for an applicant to have recent experience in their nominated occupation; it is acceptable to be working in any occupation falling on the Skilled Occupation List (SOL) for the mandatory period of 12 months in the 24 months preceding the application.

What do the changes mean?

The just-published changes will mean it will no longer be acceptable for applicants with occupations on the new list to have recent work experience in an occupation other than the nominated occupation. 

It is most likely that these changes will mostly affect trade occupations (although other occupations may be included) as the legislation has been put together after consultation with Trades Recognition Australia.

All applicants in a position to lodge with DIAC, or close to this point, are advised to do so immediately or to contact their migration agent to work towards this before that date.

Applicants who have an occupation on the new list, and who have two different occupations for the skills assessment and the visa application will not be able to lodge a successful application after 1 January.

While there is potential for certain applicants with work experience in similar occupations, for example solid plasterer and fibrous plasterer, to make a successful application after that date by showing they are working for at least 20 hours per week in their nominated occupation it is by no means guaranteed for all applicants. For those with experience in two entirely different occupations it will require a close analysis of the tasks and responsibilities for each role, and it could potentially also involve additional costs (if an RTO was required and/or another skills application was required). Also, depending on the visa subclass and an applicant’s circumstances, it may have other repercussions on the visa pathway available.

Our priority in the next few weeks will be to help those who can lodge their applications with DIAC in the immediate future. If this is not you, we appreciate your patience and we will be assessing all our clients’ circumstances to see if we can formulate another strategy by which you will remain eligible under the new legislation and we will be in touch shortly. 

You can read the new legislation in full here, and the explanatory statement here.

UPDATE: The new list of occupations has now been released (and includes only trades occupations in ASCO series 4). It can be found here.

- Lauren Mennie is Casework Department Manager for the Australian Visa Bureau.

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