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Exceptional circumstances versus exemptions (Post 1 July 2012)

The current permanent employer-sponsored visa categories (ENS & RSMS) accommodate unique and unusual applications through the exceptional circumstances provision for age, skill or qualification and English language requirements. This has allowed applicants who were not able meet these criteria to be considered for permanent residence if they could demonstrate exceptional circumstances.

The existing subjective exceptional circumstances provision will be replaced with more objective exemption categories. This reform will provide more clarity and certainty to applicants, while ensuring the visa programs are still able to respond flexibly to unique cases.

There will be exemptions available for age, skills and English language ability in the Temporary Residence and Direct Entry streams. Exemptions will be based on a person’s nominated occupation, salary or the time they have been employed with their nominator.

Concessions sought under a labour agreement must be negotiated in the existing way.

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 their work, for example Minister of Religion and researchers or scientists employed by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) or the Australian Nuclear Science and Technology Organisation (ANSTO) or
  •  applying through the Temporary Residence Transition stream and have been employed with their sponsor for the last four years and their salary is at least equivalent to the Fair Work high income threshold (AUD118 100 as at 1 July 2011).

Skill and qualification exemptions will be available to applicants who are:

  • nominated in an occupation where formal academic training is uncommon, such as Ministers of Religion
  • in an occupation where they will      be paid executive-level salaries, currently set at AUD250 000
  •  scientific and technical      specialists employed by Australian universities or scientific research      agencies such as CSIRO or ANSTO for research, academic, scientific or      other specialist work.
  • Occupations in ANZSCO classification 1- 3 will qualify for RSMS and there will not be a list

English language exemptions will be available to applicants:

  • nominated in an occupation the Minister for Immigration and Citizenship considers is exempt, for instance Ministers of Religion
  • who are a citizen of and hold a valid passport for the United Kingdom, the United States of America, Canada, the Republic of Ireland or New Zealand
  • applying through the Temporary Residence Transition stream and have completed at least five consecutive years of full-time study in a secondary or higher education institution where all of the tuition was delivered in English.

Losers in the new scheme

People who are unable to meet the higher benchmark for the Direct Entry stream, and are not exempted, will need to obtain a subclass 457 visa. After two years work in Australia, they will be eligible to qualify for the streamlined, fast-tracked, Temporary Residence Transition stream.