Last week, and most likely due to an outcry from stakeholders, the Department of Immigration and Border Protection (DIBP) released a statement clarifying that the abolition of the high income threshold to English and skills will not be applied to either Employer Nomination Scheme (subclass 186) visa or Regional Sponsored Migration Scheme (subclass 187) visa applications lodged prior to 1 July 2017.

This is at odds with the Explanatory Memorandum to the instrument abolishing this exemption, stating:

The new instrument applies to all nominations and visa applications made from 1 July 2017, and also to nominations and visa applications made before that date and not finally determined by that date. This change does not disadvantage any applicants except applicants who were seeking to rely on the income exemption…To ensure the integrity of the Subclass 186 and Subclass 187 visas, it is considered appropriate to apply the new instrument to those applicants.

Perhaps more interesting is the instrument declaring that “no consultation was considered necessary or appropriate because the amendments do not substantially alter existing arrangements.”

It seems the Minister and the DIBP were not expecting the subsequent backlash, particularly from the business community who may have executive-level, high-salary applications affected. The major problem with retroactively applying new criteria to lodged applications is not only the injustice from changing the criteria after an application has been lodged, but the impossibility of being able to meet the new criteria. The obvious example is that both evidence of English and skills are required at the time of application. Therefore, even if these could be satisfied at a later date, it could not assist an already lodged application.

The DIBP does, however, warn that any applicant seeming to inflate their salary to avoid the English or skills criteria will be subject to further scrutiny.

Despite this retraction, concerns remain with the abolition of English language exemptions, both for permanent employer sponsored visas and for the Temporary Work (subclass 457) visa. An example was reported on the woes affecting Australia’s national soccer league. The preferred 457 visa for foreign professional footballers, it was written, will not be a viable option now unless the player can pass an English language test. While there is a sufficient alternative in the Temporary Activity (subclass 408) visa, it will limit a player’s options of applying for a permanent employer sponsored visa and citizenship afterwards, which, perhaps surprisingly, is taken up by many professional footballers. For professional sports players, and almost all other permanent visa applicants under the Direct Entry stream, an exemption will only be provided if they are citizens and passport holders from either the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland.