Students graduating from Australian educational institutions who are seeking a subclass 485 Graduate Temporary Visa (formerly known as the Skilled Graduate visa) will be looking closely as legislation related to new provisions for this visa is released in the upcoming weeks. For some, the 485 visa new provisions will bring new work rights and expanded opportunities in Australia regardless of occupation. But for others not fortunate enough to be included in the new provisions, the upcoming 31 December deadline for key existing provisions of this visa will be a problem.

The 485 visa is one of the most popular visas for graduates from Australian schools, colleges and universities. A key provision of this visa up until recent upgrades to the visa was that your educational qualification must be closely related (via a special 485 skills assessment that looks at the qualification only) to one of the occupations on the Skilled Occupation List (SOL). The SOL is the same list that is used for independent skilled migration, and comprises a narrow list of skilled occupations that DIAC decides are in high demand in Australia. If your qualification did not align with one of these occupations, you were generally not able to qualify for the 485 visa.

Special provisions existed for those who held qualifying student visas on 8 February 2010 where they could use the SOL that was in effect as of that date – that previous SOL had many more occupations on it than the current SOL does. The apparent reasoning for this was that students who were already enrolled in educational programs based on those programs and the resulting qualification being on the SOL should not have their educational plans thrown into chaos with major changes to the SOL in effect at that time. But these transitional privileges expire on 31 December 2012.

Recent changes to the 485 visa as a result of the Knight Review into student immigration policy recommendations that graduates should be given easier access to post-graduation work rights have been anxiously awaited for most of this year. While all of the details of the 485 changes have not yet been released, we do know that DIAC has decided to provide expanded work rights to some student visa holders via a new “stream” of the 485 visa called the “Post-Study Work Stream“. The basic details of this new stream include:

* Available to those who applied for their “first” student visa on or after 5 November 2011, the date that new “Genuine Temporary Entrant” restrictions were implemented by DIAC
* Must have completed an Australian qualification at AQF level 7 (Bachelor Degree) or higher within 6 months of applying for the 485 visa
* Must meet Australian Study Requirement (2 year+ program completed in no less than 16 months) within 6 months of application
* Must be less than 50 years old at date of application
* Must be in Australia
* Must have IELTS 6 or better on all four bands of the IELTS test or be exempt from the IELTS requirement (citizens of US, UK, Ireland, Canada, NZ)
* No occupation list restrictions
* 2 years work rights for Bachelor or Masters by Coursework degree holders
* 3 years work rights for Masters by Research degree holders
* 4 years work rights for Doctoral degree (PhD) holders

(There are additional details to this visa that anyone contemplating applying for this visa should research or consult their Migration Agent about)

With no occupation limitations and work rights ranging from 2 to 4 years, this new stream offers major upgrades to the visa for those who qualify. Unfortunately, the choice to only allow people to use this stream who applied for their first student visas on or after 5 November 2011 has created a large group of students who may not be able to access the 8 February 2010 benefits or the new Post Study Work Stream benefits. These students find themselves in a black hole between one set of benefits and another, apparently as a result of the somewhat arbitrary choice of 5 November 2011 as the date the new benefits begin (for applications on or after that date). The fact that these new benefits did not begin for all upon the expiration of the 8 February 2010 transitional benefits on 31 December 2012 has already created problems for many students, and promises to affect many more.

As the specific final legislation has yet to be approved, there may be details that provide opportunities for some who are negatively affected by this new policy. In particular, the definition of “first student visa” will be very important to those who continued their education after 5 November 2011 with a new student visa, but previously held the same or different subclass of student visa for Australia. It is entirely possible that DIAC will determine that any student visa applied for prior to 5 November 2011 and granted means the holder is permanently disqualified from the Post Study Work Stream benefits of the 485, regardless of any future visas applied for – we will have to wait to see the legislation for details. The details of how packaged courses will be treated and how they may or may not qualify will also be very important.

The new Post Study Work Stream also leaves out huge numbers of students who work hard to achieve Diplomas, Advanced Diplomas, and other non-qualifying occupations. These students are relegated to the Graduate Work Stream of the 485 visa, which is largely what we have today – an extremely narrow list of occupations as represented by the SOL list combined with a costly skills assessment process.The new policy has drawn a line under the Bachelor degree level, and treated those above that line with a great visa served up on a golden platter, while those below that line are offered extremely limited choices and a more costly application process since a skills assessment is required. This stark contrast of “haves” and “have-nots”, to some, smells of elitism and prejudice against those who pursue trade careers as opposed to those who pursue higher academic qualifications. It is a simple fact that as much as Australia needs those with higher education degrees, it also needs those whose skills are more aligned with trade occupations.

And speaking of cost, despite delivering golden benefits to a chosen group, DIAC is raising the cost of the 485 visa from the current fee of $315 to a whopping $1,260 effective 1 January 2013. And that fee level is for all 485 applicants, whether you qualify for the new Post Study Work Stream or not.

The idea that a student who applied for their student visa for a Bachelor degree on 4 November 2011 has so relatively few options compared to a student who applied for the same visa on 5 November 2011 is simply not fair or reasonable. Choosing arbitrary deadlines when making major changes in immigration policy where huge groups of students are left out does not send the right message to students or to the rest of the world.

Finally, the controversial Genuine Temporary Entrant requirements, whose introduction has now become the “magic” date for qualifying for expanded 485 benefits, more closely resemble the film “Minority Report” than sound immigration policy – imagine a system where you’re judged and punished based on what someone predicts you might do in the future – as outrageous as that sounds, it’s a reality today with DIAC’s Genuine Temporary Entrant requirements where you can be refused a student visa based on what DIAC thinks you “might” do if they allow you to enter Australia.

We will provide updates as the new 485 legislation is approved in the coming weeks. As always, for more details on this or any other immigration policy issue, please contact us.