298. One of the key Australian Government policy objectives underlying this Inquiry is to attract and retain people in the workforce, and paying taxes, longer. A complementary objective is to utilise the skills and experience of older persons, including to fill labour market shortages.

299. The Department of Immigration and Citizenship (DIAC) is responsible for the administration of the Migration Act 1958 (Cth). The object of the Migration Act is to ‘regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’.[382] 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.[383]

300. Australia’s Skilled Migration Program is aimed at attracting highly skilled workers from overseas to fill labour market shortages. But where the migration law system imposes barriers that could discourage older persons from migrating to Australia in order to participate in the workforce, this may conflict with Government policy objectives in relation to utilising the skills of older persons. However, there are also concerns that mature age skilled migrants may contribute to the financial strain on the Australian economy posed by an ageing population where they are not in a position to self-fund retirement.[384]

301. There are two 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), or through Employer Nominated Categories (where a person needs to be sponsored by an employer).[385]

General Skilled Migration

302. The current age threshold for GSM visas is set at 50 years of age.[386] According to DIAC, the age limit ‘reflects the level of benefit to the Australian work force and economy expected of persons entering the Australia under this stream of the migration program’.[387]

303. In order to obtain a range of visas under the General Skilled Migration category, applicants must obtain a pass mark in a ‘points test’.[388] 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.[389] The points that may be awarded for age for GSM visa applicants range from 0–30, with the least points for applicants aged 40–44 and no points for those aged 45–49.[390]

304. The age limit and the points test reflect the policy position that:

workers do not reach their full potential until their mid to late 40s, and that significant work experience is a key factor in determining a skilled migrant’s labour market performance. While applicants aged 45–49 will be eligible to apply, no points will be awarded for age. This means that those applicants will have to have outstanding results in other areas in order to meet the pass mark.[391]

305. 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.[392] In Canada, there is no upper age limit, however, zero points are awarded for those who are aged 54 or above at the time of application.[393]

306. The current arrangements with respect to age may impose a barrier that could discourage 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. For example, 12.3% of principal applicants in New Zealand’s skilled migration program were aged between 45–54, compared to only 1.6% for Australia.[394] This may suggest that the higher age limit is a factor in New Zealand’s ability to attract highly skilled mature age workers.

Question 53. A skilled migration visa under the Migration Regulations 1994 (Cth) may only be obtained if the applicant is under 50 years of age. Should the age limit be increased?

Question 54. In order to obtain a range of visas under the General Skilled Migration category, applicants must obtain a pass mark in a ‘points test’ where points are allocated according to age, with no points for those aged 45 and over. Should this be amended, and if so, how?

Permanent employer-sponsored visa program

307. Most permanent employer-sponsored visas do not require an applicant to meet the ‘points test’. However, one criterion for applying for such visas is that the applicant is under 45 years of age.[395]

308. In March 2012, the Australian Government announced reforms to the employer-sponsored visa program, to take effect from 1 July 2012.[396] The reforms seek to streamline and simplify the visa classes, and create simplified pathways to permanent residence. As part of the package of reforms, the upper age limit for visas in the employer-sponsored program are to be raised from 45 to 50 years of age.[397]

309. The upper age limit will apply unless the person is an ‘exempt person’. DIAC has indicated that age exemptions will be available to applicants:

  • nominated in specific occupations where the typical age profile is older due to the specialised or technical nature of the work;[398] or
  • applying through the Temporary Residence Transition stream and has been employed with their sponsor for the last four years, with a salary equivalent to the Fair Work high income threshold (currently $118,000).[399]

310. These exemptions are intended to ‘provide more clarity and certainty to applicants, while ensuring that visa programs are still able to respond flexibly to unique cases’.[400] It is not clear how these reforms will be implemented in legislation, most likely through changes to the Migration Regulations 1994 (Cth).

Question 55. An applicant over 50 years of age may not apply for a permanent employer-sponsored visa under the Migration Regulations 1994 (Cth) from 1 July 2012 unless they are an ‘exempt person’.

(a) Should the age limit be increased?

(b) What considerations should be taken into account in determining whether a person should be eligible for an age exemption?

[382]Migration Act 1958 (Cth) s 4.

[383] Ibid s 29.

[384] Such arguments were made in Joint Standing Committee on Migration, To make a contribution: Review of skilled labour migration programs 2004, Parliament of the Commonwealth of Australia, 109. Such concerns about strains on the welfare system may be tempered by the fact that there is a 10 year waiting period for eligibility for the aged pension.

[385] 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. However, some visas in the GSM program require an applicant to be sponsored by a relative or a nomination from a state or territory government.

[386] The requirement that a person be under 50 years of age is expressed as a criterion for making a valid application. For example, see, 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.

[387] Department of Immigration and Citizenship, Procedures Advice Manual 3, Schedule 6B General points test—Qualifications and points (General Skilled Migration visas).

[388] 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.

[389] 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.

[390] Ibid, sch 6B which applies to GSM visa applications made after 1 July 2011.

[391] Department of Immigration and Citizenship, Procedures Advice Manual 3, sch 6B General points test – Qualifications and points (General Skilled Migration visas).

[392] 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.

[393] 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.

[394] International Migration Settlement and Employment Dynamics, Competing for Skills: Migration Policies and Trends in New Zealand and Australia (2011), prepared for Department of Labour, 70.

[395] For example, a time of application criterion for Employer Nomination (Migrant) Subclass 121 visa specifies that an applicant be less than 45 years of age at the time of application: Migration Regulations 1994 (Cth), sch 2, cl 121.210(1)(a).

[396] 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. It is not clear how these changes will translate to legislation, as they are likely to result from changes to the Migration Regulations 1994 (Cth), rather than from legislative change to the Migration Act 1958 (Cth).

[397] Ibid.

[398] Ibid. For example, researchers or scientists employed by the Commonwealth Scientific and Industrial Research Organisation or the Australian Nuclear Science and Technology Organisation.

[399] This could mean, for example, that a 46 year old person who is sponsored for four years could be eligible for permanent residence when he or she is 50. Such a situation is not possible under the current arrangements.

[400] 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.