Under section 85 of the Migration Act 1958 (the Act), the Minister for Immigration and Border Protection has the power to 'cap' or limit the number of visas which can be granted each year in a particular visa subclass. Capping ensures the planning levels for various migration categories, decided by the government for each Migration Programme year, are not exceeded.
This limit, or cap, applies only for the Migration Programme year in which it is introduced. When a cap is reached, no further visas will be granted in that visa class in the programme year. Although a visa can no longer be granted until the start of the new programme year, processing of applications continues and applicants who meet the requirements then wait in a queue for visa grant consideration in a following year, subject to places becoming available.
Capping and queuing of family visas
To ensure equity, applications for each type of family visa are assessed in order of lodgement for that type of visa. In family visa programmes that are subject to capping, applicants can be allocated a queue date if the application is found to meet the initial criteria for the grant of the visa.
The queue date is the date on which an application is assessed as having met all the relevant requirements. When a queue date has been assigned it is fixed and the application cannot be given priority ahead of other applicants. Applications are then considered for grant in order of their queue date as places become available within that visa category.
Cap and cease
Under section 39 of the Act, the minister has the power to set the maximum number of visas of a class that may be granted in a particular financial year. The cap and cease provision means that when a cap has been reached for a particular visa class, work on all applications which have not been processed to decision stops, the files are closed and application fees are refunded. These applications are treated as if they have not been submitted. This provision is only used in exceptional circumstances.
Suspension of processing
Section 84 of the Act allows the minister to suspend all processing in a particular subclass for a specific period. If such a notice is issued, the processing of all applications of the specified subclass ceases until the date specified in the notice.
Suspension notices do not affect applications where a decision was taken to grant or refuse a visa before the date of the suspension notice.
Section 499 of the Act allows the minister to give written directions to consider and finalise visa applications in an order of priority that the minister considers appropriate.
This ensures that where there is very high demand for places under the Migration Programme, processing priority is given to applicants who have the most compelling claims in terms of the government's policy priorities.
Higher priority is given to immediate family visa categories such as dependent children, fiancés, and partners of sponsors in Australia. Lower priority is accorded to all other family visa applicants such as parents, carers, aged dependent relatives and remaining relatives.
Applications for parent, aged dependent relative and remaining relative visas are processed in application date order until the applicant is allocated a queue date.
For skilled migration, priority processing arrangements have been designed to ensure the Australian economy gets the skills it needs now. The highest priority is afforded to those seeking migration to a regional area, followed by applicants who are sponsored by an employer. The next priority is afforded to people who have been nominated by a state or territory government agency. Lower priority is afforded to applications from people who have not been sponsored by an employer or nominated by a state or territory government.
Points test pass mark
The points-tested skilled migration visa categories target skilled migrants who are not sponsored by an employer and who have skills in specific occupations required to meet medium to long-term need in Australia.
To select migrants with the skills and attributes considered to be in need in Australia, section 93 of the Act contains the power for the minister to attribute points for a range of factors. Applicants must score sufficient points to reach the pass mark applicable to be eligible for grant of a points tested skilled migration visa.
The pass mark is a tool that allows for management of the skilled migration programme and section 96 of the Act allows the minister to adjust the pass mark in response to Australian labour market needs.