Direction no. 87 - Order of Consideration — Certain Skilled Migration
Visas
Direction no. 87 - Order of Consideration — Certain Skilled Migration Visas
KEY DATES AND REFERENCES
Commenced
01/09/2020
Signed
31/08/2020
Status
Current
Revoked
Direction No. 86
Direction no. 87
Migration Act 1958
Direction under section 499
Order of Consideration — Certain Skilled Migration Visas
I, Alan Tudge, Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs give this
Direction under section 499 of the Migration Act 1958.
Dated: 2020
THE HON ALAN TUDGE MP
Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Part 1 - Preliminary
1. Name of direction
This Direction is Direction no. 87 Order of Consideration - Certain Skilled Migration visas.
It may be cited as Direction no. 87.
2. Commencement
This Direction commences on the day after it is signed.
3. Revocation
The Direction given under section 499 of the Act, titled Direction no. 86 Order of Consideration – Certain Skilled
Migration visas, dated 8 November 2019, is revoked.
4. Application
1. This Direction applies to all persons and bodies having powers under the Act, including the AAT, to consider and
dispose of the applications for the visas specified in Schedule A and to review decisions pertaining to those
applications.
2. This Direction also applies to decision-makers, including the AAT, who consider nomination applications in
relation to visas specified in Schedule A.
3. Without intending to limit the scope of (1), this Direction applies to decision-makers performing functions or
exercising powers:
a) under section 51 of the Act; and
b) under section 91 of the Act.
4. This Direction does not apply to:
a) applications that have been remitted by the AAT for reconsideration;
b) applications where the AAT has set aside a decision and substituted a new decision;
c) applications where it is readily apparent that the criteria for grant of the visa would not be satisfied;
d) applications by visa applicants claiming to be a member of the family unit of a person who holds a visa granted
on the basis of satisfying the primary criteria in Schedule 2 to the Regulations and who did not make a combined
application with that person;
e) applications for a Subclass 489 (Skilled - Regional (Provisional)) visa where the applicant seeks to satisfy the
criteria in the Second Provisional Visa stream or claims to be a member of the family unit of such an applicant;
f) applications for a Subclass 189 (Skilled - Independent) visa where the applicant seeks to satisfy the criteria in the
New Zealand stream.
5. Subject to (4) above, this Direction applies to nomination applications and visa applications made both before, on
or after the commencement of this Direction.
5. Preamble
1. Australia's Skilled Migration Program is designed to select people who will make a positive contribution to the
Australian economy and labour market, and assist Australian businesses to access workers with skills that cannot be
met from the local labour market, including in emerging new technology and growth sectors. The Australian
Government also remains committed to assisting employers and communities in regional Australia through
dedicated regional skilled visa programs.
2. In relation to the specified visas in Schedule A, this Direction directs persons and bodies to which it applies with
respect to the performance of functions and exercise of powers (under section 51 or section 91 of the Act) to:
consider and dispose of visa applications in the appropriate order of consideration; and
to review decisions pertaining to those applications in the appropriate order of consideration.
3. Persons and bodies to whom this direction applies are to give due regard to the priority processing directions set
out below in Part 2 of this Direction.
6. Interpretation
1. In this Direction:
AAT means the Administrative Appeals Tribunal.
Act means the Migration Act 1958 in effect and as amended from time to time.
Approved sponsor with Accredited Status means approved sponsors under the Temporary Skill Shortage visa
program awarded Accredited Status by the Department of Home Affairs.
Critical Sector means an industry or part of an industry (however defined), that has been identified by the
Department as being of critical importance during the COVID-19 pandemic and post-pandemic recovery. The
Department of Home Affairs will provide information about the sectors on its website.
Designated Area Migration Agreement means an arrangement between the Commonwealth of Australia and
another party known as a designated area representative.
Designated Regional Area has the same meaning as in regulation 1.15M of the Regulations.
Employer Sponsored visa means a Subclass 186 (Employer Nomination Scheme) visa.
Global Talent Employer Sponsored Agreement means a labour agreement made under the Global Talent Employer
Sponsored program.
Global Talent program refers to the cohort of visa applicants that are covered by the priority processing
arrangements set out paragraph 7(1)(a) under Part 2 of Direction no. 85 – Order of Consideration – Distinguished
Talent visas.
Labour agreement has the same meaning as in the Regulations.
Member of the family unit has the same meaning as in regulation 1.12 of the Regulations.
Minister means the Minister who administers the Act.
Primary criteria means the visa criteria under Schedule 2 to the Regulations for a specified visa subclass that is to
be satisfied by the primary applicant.
Priority Migration Skills Occupation List means the list of priority occupations, as amended from time to time,
identified by the Department of Home Affairs and the Department of Education, Skills and Employment, entitled the
Priority Migration Skilled Occupation List, and published on the Department of Home Affairs website.
Regional sponsored visa means a Subclass 187 (Regional Sponsored Migration Scheme) visa and a Subclass 494
(Skilled Employer Sponsored Regional (Provisional)) visa.
Regulations means the Migration Regulations 1994 in effect and as amended from time to time.
Section 85 cap means the maximum number of visas of a specified class that may be granted in a particular financial
year, as specified by the Minister in a legislative instrument made under section 85 of the Act.
Skilled regional points-tested visa means a Subclass 489 (Skilled Regional (Provisional)) visa and a Subclass 491
(Skilled Work Regional (Provisional)) visa.
Part 2 - Directions
7. Order for considering nominations
1. The following processing priorities (with highest priority listed first) should be given due regard to in relation to
nominations:
a. Nominations lodged in relation to an occupation specified in the Priority Migration Skilled Occupation List, and
separately nominations lodged in relation to a Global Talent Employer Sponsored Agreement, and separately
nominations lodged in relation to a Subclass 188 visa in the Significant Investor stream;
b. Nominations for an occupation within a Critical Sector, other than those mentioned in (a) above.
c. Nominations lodged in relation to an Employer Sponsored visa or a Regional Sponsored visa by an employer
who is a party to a labour agreement under a Designated Area Migration Agreement;
d. Nominations lodged in relation to a Subclass 494 (Employer Sponsored Regional (Provisional)) visa. Within this
priority, nominations lodged by approved sponsors with Accredited Status and nominations lodged by a party to a
labour agreement not mentioned in paragraph (a) or (b) are to have precedence;
e. All other nominations lodged in relation to an Employer Sponsored visa. Within this priority, nominations by
approved sponsors with Accredited Status, or nomination lodged by a party to a labour agreement not mentioned in
paragraph (a) or (b) are to have precedence;
f. Nominations lodged in relation to a Subclass 187 (Regional Sponsored Migration Scheme) visa. Within this
priority, nominations lodged by approved sponsors with Accredited Status are to have precedence.
g. All other nominations.
2. For categories c – g above, priority will be given to onshore nominations ahead of offshore nominations.
8. Order for considering visa applications
1. The following processing priorities (with highest priority listed first) should be given due regard to in relation to
applications for visas that are specified in Schedule A:
a. Visa applications for an Employer Sponsored visa or Regional Sponsored visa in relation to an occupation
specified in the Priority Migration Skilled Occupation List, and separately visa applications where the applicant is
nominated by an employer who is a party to a Global Talent Employer Sponsored Agreement, all applications
identified through the Global Talent Program and separately visa applications for the Subclass 188 visa in the
following order:
a. Subclass 188 visa applications in the Significant Investor stream
b. All other Subclass 188 visa applications.
b. Visa applications for an occupation within a Critical Sector.
c. Visa applications lodged in relation to an Employer Sponsored visa or a Regional Sponsored visa by an employer
who is a party to a labour agreement under a Designated Area Migration Agreement;
d. Visa applications for a Subclass 494 (Employer Sponsored Regional (Provisional)) visa. Within this priority, visa
applications where the applicant is nominated by an approved sponsor with Accredited Status or nominated by a
party to a labour agreement not mentioned in paragraph (a) are to have precedence;
e. Visa applications for a Subclass 491 (Skilled Work Regional (Provisional)) visa;
f. Visa applications for an Employer sponsored visa. Within this priority, visa applications where the applicant is
nominated by an approved sponsor with Accredited Status, or nominated by a party to a labour agreement not
mentioned in paragraphs (a) and (b) have precedence;
g. Visa applications for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Within this priority, visa
applications where the applicant is nominated by an approved sponsor with Accredited Status are to have
precedence;
h. Visa applications for a Subclass 489 (Skilled - Regional (Provisional)) visa;
i. Visa applications for a Subclass 190 (Skilled - Nominated) visa;
j. Visa applications for a Subclass 189 (Skilled - Independent) visa in the Points-tested stream;
k. All other visa applications.
2. For categories c – g above, priority will be given to onshore applications ahead of offshore applications.
9. If a section 85 cap applies
1. Applications for a visa may be affected by a section 85 cap that allows processing to be conducted but prevents
the grant of visas beyond a specified number in a specified time period.
2. In deciding the order for considering and disposing of visa applications (or reviewing decisions pertaining to such
applications) when affected by a section 85 cap, the applications to which this Direction specifically applies should
be given priority in the order as provided for above.
3. This Direction prevails over any other directions under section 499 of the Act that outline the order of
consideration for visa applications not described in this Direction.
10. Schedule A
1. The following visas are specified:
a) Subclass 124 Distinguished Talent;
b) Subclass 186 (Employer Nomination Scheme);
c) Subclass 187 (Regional Sponsored Migration Scheme);
d) Subclass 188 (Business Innovation and Investment);
e) Subclass 189 (Skilled - Independent) (Points-tested Stream);
f) Subclass 190 (Skilled - Nominated);
g) Subclass 489 (Skilled - Regional (Provisional));
g) Subclass 491 (Skilled Work Regional (Provisional));
h) Subclass 494 (Employer Sponsored Regional (Provisional));
i) Subclass 858 Distinguished Talent.