The Points System Migration Act

Subdivision B of Division 3 (Part 2) of the Migration Act 1958 covers matters in relation to the points system. There are 6 Sections under Subdivision B titled “the points system.” 

What is the points system? In Australia migration, it refers to the system used to determine the eligibility of skilled foreign workers for permanent residency. The points system is based on various factors, such as age, education, work experience, English language proficiency, and other factors.

As of 2023, to qualify for the skilled migration program, an applicant must score a minimum of 65 points on the points test. Applicants obtain points based on various factors, including:

1. Age: Applicants between 18 and 44 years of age get certain number of points.
2. Education: Points based on the level of education and qualifications of the applicant.
3. Work experience: Points based on the number of years of work experience in a nominated occupation.
4. English language proficiency: Points based on the results of an English language test, such as IELTS or PTE.
5. Other factors: Additional points based on factors such as regional study, partner skills, and state/territory sponsorship.

The Australian government regularly reviews and updates the points system to reflect changing economic and labour market needs. In this article, we go over the points system as outlined under the Migration Act.

Section 92: Operation of Subdivision

Subdivision B of Division 3 applies when the requirement for a specific visa is that the applicant achieves a qualifying score.

Section 93: Determination of Applicant’s Score 

The Minister will assess the applicant’s qualifications by assigning a number of points for each qualification that the applicant meets. This will be according to regulations in force at the time of assessment. 

In this Section “prescribed” means prescribed by regulations in force at the time the Minister makes the assessment.

Section 94: Initial Application of Points System

This Section outlines the following points:

1. If an applicant’s score is equal to or above the applicable pass mark, the Department will consider that the applicant has met the qualifying score.
2. If an applicant’s assessed score is below the applicable pool mark, they will not meet the qualifying score.
3. In case an applicant’s assessed score is more than or equal to the applicable pool mark but less than the applicable pass mark, the Minister is required to put the application aside and deal with it in accordance with Section 95, unless the application is withdrawn. If the Minister puts the application aside, the application is deemed to have been placed into a pool.
4. If the Minister puts an application aside under this Section, they will not be considered to have failed to make a decision to grant or refuse a visa, for all purposes.

Section 95: Applications in Pool

Subsection (1) states that this Section applies if the Minister puts the application in pool. Moreover, it outlines how the Minister and DHA must deal with applications.

Subsection (2) states that if within 12 months after the assessment of the applicant’s score (points), the Minister gives a notice under Section 96 varying the applicable pass mark or the applicable pool mark: 

• (a) The Minister must compare the score of the applicant, without re-assessing it, with the applicable pass mark and the applicable pool mark.
• (b) If the assessed score is equal to or above the applicable pass mark, the applicant meets the qualifying score.
• (c) If the assessed score is below the applicable pool mark, the applicant does not meet the qualifying score.
• (d) If the assessed score is equal to or greater than the applicable pool mark but less than the applicable pass mark, the application will remain in the pool until it is taken out of the pool, as specified in subsection (3).

Subsection (3) details points in relation to removal of applications from pool. An application that is in the pool will be considered to have been removed from the pool at the earliest of the following times:

• (a) After the expiration of 12 months from the assessment of the applicant’s assessed score;
• (b) The earliest time, if any, when the applicant meets the qualifying score due to the operation of subsection (2);
• (c) The earliest time, if any, when the applicant does not meet the qualifying score due to the operation of subsection (2).

Section 95A: Extension of Period in Pool

Subsection (1) states that this Section applies to an application that:

1. is in the pool at the commencement of this Section, or
2. is in the pool after the commencement. 

Subsection (2) states that Section 95 has effect in relation to the application as if references in subsections 95(2) and (3) to 12 months were references to 2 years. 

Section 96: Minister May Set Pool Mark and Pass Mark

Section 96 highlights the following points:

1. The Minister has the authority to periodically specify, for a specific class of visas, the pool mark through a notice in the Gazette.
2. The Minister has the power to periodically specify, for visa applications of a particular class, the pass mark through a notice in the Gazette.
3. If the Minister publishes a notice under subsection (1) or (2), it revokes the previous notice under that subsection for the same class of visas, and changes the specified mark in the previous notice.
4. Within 15 days of publishing a notice in the Gazette, the Minister must provide copies of the notice under subsection (1) or (2) to each House of the Parliament.
5. This Act does not prohibit a pool mark and a pass mark from being equal.
6. This Act does not prevent the pool mark and the pass mark from being varied independently of each other.

Importance of Seeking Advice from Immigration Lawyers

This article has covered relevant information about the Australian points system. If you are looking for advice for migration law matters, it is essential to speak with experienced migration lawyers.

We have a team of experts in JB Solicitors. We van help you with visa applications, permanent residency, citizenship applications, partner visa applications and appeals.

For more information, contact our team today.