Immigration policy can change suddenly and without warning in Australia, but the consequences of these changes can vary significantly when it comes to the impact on the applicant.

Depending on the circumstances of a case, some changes won’t affect an application at all. Others will suddenly render them completely ineligible, sending the applicants back to square one, or worse yet, a visa application being refused.

However one particular policy change back in August 2013 had a larger impact than most, and has been a thorn in the side of international trade occupation graduates and Australian employers ever since.

The Problem

The new policy stated that all RSMS applicants in a trade occupation were required to have two-years full time post qualification work experience. Previously, the required level of work experience was specific to each type of occupation, as stipulated by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) classification system.

The policy change would have been frustrating enough – some applicants would now be forced to wait an extra two years before being able to apply for a permanent visa – but worse, the requirement was in fact almost impossible to meet.

No temporary graduate post-study work visa existed that would allow a trade occupation graduate to stay and work in Australia on a full-time basis, thus satisfying the new policy requirement.

Suddenly, it looked as though any international student studying in the Vocational Education Training sector (VET) would no longer be able to stay in Australia permanently upon the completion of their study causing significant hardship to local employers wishing to retain their skills.

Despite the outcries of numerous migration industry stakeholders pointing out the flaws in this new policy interpretation, the Immigration Department refused to budge on their new policy.


 The Case

In March 2014, Mr Arun Kumar approached Migration Solutions requesting assistance at the Migration Review Tribunal after having had his application for a permanent RSMS visa refused.

Mr Kumar had completed his Certificate IV in Automotive technology whilst studying in Melbourne, and had been studying in Australia on a Student visa for the past five years. He had also begun full-time work as a motor mechanic for a local South Australian business following the completion of his study.

Despite not having two years post-qualification work experience, Mr Kumar had the necessary qualification required to be eligible for an RSMS visa, as per his occupation’s relevant ANZSCO classification.

Having already submitted an appeal to the MRT, our agents advised Mr Kumar that we believed his case to be strong. The submission would be based on the same argument that had been expressed to the Department for the past year- that the new policy was inconsistent with the overriding regulation.

The Breakthrough

As expected, Mr Kumar’s MRT submission was met with approval in December 2014, and he was awarded a permanent employer-sponsored visa through the Regional Sponsored Migration Scheme.

The outcome was significant for not only Mr Kumar, but all trade occupation students and graduates with the necessary qualifications according to their occupation’s ANZSCO classification.

Despite having previously been led to believe that any attempt to achieve permanent residency through an RSMS visa would have been impossible without the necessary work experience, the case proved that this was not necessarily true, and that the Departmental policy two-year work experience requirement was flawed.

“This decision has proved to be a landmark case for trade occupation students and their Australian employers that wish to retain their knowledge and expertise,” said Migration Solutions’ agent Vanessa De Pretis.

“We hope that this case will pave the way for future applicants by acting as a precedent, will lead to greater clarification and congruence between immigration policy and regulations in future.”

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