9.4 The Department of Immigration and Citizenship (DIAC) is responsible for the administration of the Migration Act 1958 (Cth), the object of which is to ‘regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’. The Migration Act empowers the Minister for Immigration and Citizenship to grant a non-citizen a visa to remain in Australia, either temporarily or permanently. The Migration Regulations 1994 (Cth) address matters of detail within the framework established by the Migration Act.
9.5 Australia’s skilled migration program plays a ‘crucial role in assisting Australia to meet human capital needs’, and one of the key policy goals is to ‘maximise lifetime earnings—and therefore the maximum contribution to productivity growth and fiscal impact’. There are several key pathways by which a person can gain entry into Australia as a skilled migrant: the General Skilled Migration (GSM) program (for those who are not sponsored by an Australian employer); Employer-Nominated Categories (employer-sponsored visas); and the temporary skilled worker program (referred to as the ‘457 scheme’).
General Skilled Migration
9.6 The current age limit for GSM visas is set at 50 years of age. The age limit ‘reflects the level of benefit to the Australian work force and economy expected of persons entering Australia under this stream of the migration program’.
9.7 In order to obtain a range of visas under the GSM category, applicants must obtain a pass mark in a ‘points test’. The points test provides a ‘transparent and objective method of selecting skilled migrants’ based on a number of factors, including the applicant’s age at the time of application. The points awarded for age reflect the applicant’s ‘potential contribution to the Australian economy in their lifetime’. The points that may be awarded for age for GSM visa applicants range from 0–30, with the fewest points for applicants aged 40–44 and no points for those aged 45–49.
9.8 In correspondence, DIAC emphasised that there are strong arguments for using the points test in order to target those potential migrants with the most ‘human capital’. In selecting migrants in order to achieve the policy goal of maximising lifetime earnings and therefore contribution, DIAC modelling indicates that the optimal points differential for age includes zero points for those aged 45–49 as there is ‘some risk that their lifetime earnings in Australia may not reach the base case’, that is of the ‘typical’ Australian male commencing work at age 20 whose earnings trajectory follows that of all males based on a median figure. It then follows that the age limit of 50 reflects a concern about the higher risk that a migrant’s lifetime earnings in Australia may not reach the base case.
9.9 Both New Zealand and Canada have similar skilled migration programs. In New Zealand, the age limit is set at 55 years of age and points are available under the points test for those in the 40–44, 45–49 and 50–55 age ranges. In Canada, there is no upper age limit, however, zero points are awarded for those who are aged 54 years and over at the time of application. In the Issues Paper, the ALRC noted that in addition to imposing a barrier to mature age skilled migrants seeking to work in Australia, the age limits may also in turn affect Australia’s ability to compete with other countries for such skilled workers. It is important to note, however, that there are structural and contextual differences with respect to the migration policy of each of these countries. For example, Australia’s GSM program designates significantly more skilled migration occupations than Canada. The age criterion and other criteria for skilled migration may therefore reflect the need to impose some form of restriction in order to limit applicants for GSM visas.
9.10 While most permanent employer-sponsored visas do not require an applicant to meet the points test, one criterion for applying for such visas is that the applicant is under 50 years of age. This age limit will apply unless the person is an ‘exempt person’ specified in the relevant legislative instrument. The current instrument specifies exempt persons to include ministers of religion; researchers, scientists and technical specialists;  senior academics;  and holders of a 457 visa for at least four years immediately prior to applying whose annual earnings for each year in that period were at least the equivalent to the ‘Fair Work high income threshold’.
9.11 In 2011, DIAC undertook a comprehensive review of the permanent employer-sponsored visa program. As a result of the review, the upper age limit was increased from 45 to 50 years of age, and revised exemptions were introduced in order to ‘provide more clarity and certainty to applicants, while ensuring that visa programs are still able to respond flexibly to unique cases’.
Other visa categories
9.12 The temporary 457 visa scheme is ‘the most commonly used program for employers to sponsor overseas workers to work in Australia on a temporary basis’, subject to certain sponsorship and eligibility requirements. As at 31 March 2012, the total number of 457 visa workers in Australia had increased by 22% in the previous year. There is no age limit on applications under the 457 scheme or a cap on the number of 457 visas issued.
Migration Act 1958 (Cth) s 4.
 Ibid s 29.
 R Cameron, ‘Responding to Australia’s Regional Skill Shortages Through Regional Skilled Migration’ (2011) 14 (3) Journal of Economic and Social Policy Article 4, 12.
 Department of Immigration and Citizenship, Correspondence, June 2012.
 See Department of Immigration and Citizenship, Professionals and other Skilled Migrants <www.immi.gov.au/skilled/general-skilled-migration/visa-options.htm> at 10 April 2012. Some GSM visas require sponsorship by a relative or nomination by a state or territory government.
 The requirement that a person be under 50 years of age is expressed as a criterion for making a valid application. See, eg, Migration Regulations 1994 (Cth) sch 1 item 1135(3)(b) in relation to a Skilled (Independent) subclass 175 visa. For applications made prior to 1 July 2011, the age limit was 45 years.
 Department of Immigration and Citizenship, Procedures Advice Manual 3, sch 6B General points test—Qualifications and points (General Skilled Migration visas).
 See Department of Immigration and Citizenship, What is the points test? <www.immi.gov.au/skilled/general-skilled-migration/points-test.htm> at 10 April 2012. These include: Skilled (Migrant) (Class VE) Independent subclass 175; Skilled (Migrant) (Class VE) Sponsored subclass 176; Skilled (Provisional) (Class VC) Regional—Sponsored subclass 487; Skilled (Provisional) (Class VF) Regional—Sponsored subclass 475; Skilled (Residence) (Class VB) Independent subclass 885; Skilled (Residence) (Class VB) Sponsored subclass 886.
 SeeMigration Regulations 1994 (Cth)sch 6. Other factors include the applicant’s English skills, employment in a skilled occupation in Australia or overseas, educational qualifications and nomination or sponsorship by a state/territory government.
 Department of Immigration and Citizenship, Procedures Advice Manual 3, sch 6B General points test–Qualifications and points (General Skilled Migration visas).
Migration Regulations 1994 (Cth) sch 6B which applies to GSM visa applications made after 1 July 2011.
 Department of Immigration and Citizenship, Correspondence, June 2012.
 These are 20, 10, and 5 points, respectively. See Immigration New Zealand, Points and bonus points <www.immigration.govt.nz/migrant/stream/work/skilledmigrant/caniapply/points/default.htm> at 10 April 2012.
 See Citizenship and Immigration Canada, Skilled Workers and Professionals—Selection factors Age <www.cic.gc.ca/english/immigrate/skilled/factor-age.asp> at 10 April 2012.
 There are approximately 190 skilled occupations on the Skilled Occupation List for Australia which applies to applicants for GSM visas on or after 1 July 2012: Department of Immigration and Citizenship, IMMI 12/023 Skilled Occupations, Relevant Assessing Authorities and Countries for General Skilled Migration Visas, Schedule 1. In Canada’s equivalent General Skilled Migration Program, there are only 29 ‘designated occupations’: Government of Canada, Ministerial Instructions (MI 3): Federal Skilled Workers, Immigrant Investor Program, Entrepreneurs <www.cic.gc.ca/english/department/
mi/index.asp#mi3> at 11 September 2012.
 See, eg, Migration Regulations 1994 (Cth) sch 2, subclass 186–Employer Nomination Scheme, cl 186.221 (Temporary Residence Transition Scheme), cl 186.231(Direct Entry Scheme).
 Department of Immigration and Citizenship, IMMI 12/058 Classes of Persons (Exempt from the Age Criteria). The age exemptions apply in relation to the Temporary Transition and Direct Entry Scheme.
 Ministers of religion who have applied for a visa under the Migration Regulations 1994 (Cth) to occupy a position as nominated by a religious institution: Department of Immigration and Citizenship, IMMI 12/058 Classes of Persons (Exempt from the Age Criteria).
 At ANZSCO skill levels 1 or 2: Department of Immigration and Citizenship, IMMI 12/058 Classes of Persons (Exempt from the Age Criteria). The Procedures Advice Manual 3 suggests that such specialist positions could include Chief of Division, Chief Research Scientist, Director of Institute, Post-doctoral Fellow and Principal Researcher: Department of Immigration and Citizenship, Procedures Advice Manual 3.
 A senior academic is a person to be employed at an Academic Level of B, C, D or E as a University Lecturer (ANZSCO: 242111) or Faculty Head (ANZSCO: 134411): Department of Immigration and Citizenship, IMMI 12/058 Classes of Persons (Exempt from the Age Criteria).
 See Ibid. The Fair Work high income threshold is indexed annually. From 1 July 2012 it is $123,000. See Fair Work Regulations 2009 (Cth) reg 2.13; Fair Work Ombudsman, Website <www.fairwork.gov.au> at 6 September 2012.
 Department of Immigration and Citizenship, Reforms to the Permanent Employer-Sponsored Visa Program <www.immi.gov.au/skilled/skilled-workers/_pdf/perm-sponsored-reforms.pdf> at 10 April 2012.
 R Cameron, ‘Responding to Australia’s Regional Skill Shortages Through Regional Skilled Migration’ (2011) 14 (3) Journal of Economic and Social Policy Article 4, 19.
 ACTU, Submission 38.