Subclass 189, 190, 491 and 191.

The 189 is independent – no nomination, no sponsor, permanent from grant.

The 190 is nominated by a State or Territory government agency, and is also permanent from grant. Victoria ranks candidates for its 190 and 491 nominations with its own points test: our Victoria points calculator works out that total.

The 491 is provisional. It runs for five years, and it comes either through a State or Territory nomination or through sponsorship by an eligible relative living in a designated regional area. It leads to permanent residence through the subclass 191.

cl 189.511, 190.511, 491.511

Not necessarily, and this is one of the few places where a No Further Stay condition has a way through that does not depend on hardship.

The Regulations allow condition 8503 to be waived where the holder has a genuine intention to apply for a General Skilled Migration visa, or a subclass 186, 187, 188, 191, 482 or 494. General Skilled Migration is a defined term and takes in the subclass 189, 190, 491 and 485. That provision does not require compelling and compassionate circumstances, and it does not carry the written-request requirement that the general waiver does.

Two limits. After a waiver on that route, an application for a substantive visa is valid only if it is for one of those same visas, so it does not open the onshore system generally. And conditions 8535 and 8540 have no equivalent route at all. Check which condition is actually on the visa before relying on any of this.

Migration Act 1958 s.41(2A), s.46 · reg 1.03, reg 2.05(4AA), reg 2.07AG

At the time of invitation.

Your age, your English, your skills assessment and your points are all assessed as at that date. Not when you submitted the Expression of Interest, not when you lodge, and not when a decision is finally made.

So an English test or a skills assessment that expires between your Expression of Interest and your invitation is a problem, and a birthday in that window can end it.

cl 189.222–189.224, 190.212–190.214, 491.214–491.216 · Schedule 6D

In practice you are unlikely to be invited at all.

Invitations are generated by SkillSelect, and the system applies the age rule when it runs a round. An Expression of Interest from someone who has turned 45 simply does not attract an invitation, so there is no refusal to argue with.

Age is measured at the time of invitation, not when you submitted the Expression of Interest, so a birthday between the two closes the pathway even though nothing about your claim has changed. If you are approaching 45, plan around that gap.

The rule sits in Schedule 1 as a requirement for the application to be valid, rather than as a criterion the Minister assesses when deciding the visa. Unlike the subclass 186 and 494, the points-tested items carry no exemption.

Schedule 1 items 1137(4B), 1138(4), 1241(4)

Not immediately. If you hold, or last held, a 491 or 494, you must have held it for at least three years when you apply, unless the Minister has specified circumstances that cover you.

For most people in that position the intended route is the subclass 191 rather than a fresh points-tested application.

cl 189.224A, 190.215A

Then it was not in place when the law measures you, which goes to whether you met the criteria at all.

What can be done depends on where you are in the process and whether an invitation has issued. Acting early changes the options, so get advice.

No. Competent English is the threshold you have to meet to qualify at all. Points are only available for the two levels above it, proficient and superior.

There is also a difference in how each can be proved. Competent English can be established by a specified test at a specified score, or by holding a passport of a type the Minister specifies. Proficient and superior English have no passport route – for those you must sit the test.

regs 1.15C, 1.15D, 1.15EA · Schedule 6D Part 6D.2

Points are prescribed in a Schedule with fourteen Parts. Broadly they cover your age, English, overseas and Australian work experience, an Australian professional year, your qualifications, Australian study, study in a designated regional area, a credentialled community language, your partner’s skills, and State, Territory or regional nomination or sponsorship.

Within each Part, only one qualification can be counted, and if you satisfy more than one you get the highest.

reg 2.26AC(2)–(4); Schedule 6D

Yes, there is a Part of the points test for partner qualifications. What it requires of your partner depends on which limb you are claiming under, so check which one applies before you count on it.

Schedule 6D Part 6D.11

No. These are invitation-only visas.

You submit an Expression of Interest through SkillSelect, and you can only lodge a visa application if the Minister invites you to apply. An Expression of Interest is not an application, and there is no obligation on anyone to invite you.

cl 189.221, 190.211, 491.213

It goes to whether the visa can be granted. At decision time the Regulations ask one question about the nomination: that the agency has not withdrawn it.

A State or Territory decision not to nominate you, or to withdraw a nomination, is not itself reviewable at the Tribunal under the migration regulations. Each State runs its own process, and that is where any challenge has to go.

cl 190.215, 491.217(1); reg 4.02

Either a State or Territory government agency nominates you, or an eligible relative sponsors you.

A sponsoring relative must be at least 18, an Australian citizen, permanent resident or eligible New Zealand citizen, and usually resident in a designated regional area. The qualifying relationships are parent, child or step-child, sibling including adoptive and step, aunt or uncle, niece or nephew, grandparent, and first cousin. It can also be a relative of your partner where your partner is applying with you.

cl 491.217(2)

No. Points get you into the pool and rank you within it. Whether you are invited depends on how many invitations are issued for your occupation and what other people in the pool score.

The pass mark and the pool mark are set by notice rather than in the Regulations, and invitation rounds vary. The current marks are the ones in the notice in force when the invitation round is run.

Four conditions must be imposed. Under condition 8579, while in Australia you must live, work and study only in a part of Australia that was a designated regional area when the visa was granted. If a region is later removed from the list, that does not put you in breach.

The other three are administrative but not optional. You must tell the Department about a change of address, email, phone, passport or employer within 14 days; produce evidence within 28 days if asked; and attend an interview if asked.

cl 491.612; Schedule 8 conditions 8578–8581

There is no points test, no invitation, no English requirement and no skills assessment at this stage. Two things decide it.

Compliance. You must have complied substantially with the conditions of your provisional visa – except condition 8579, which is held to a stricter standard. For 8579 the Regulations do not say “substantially”; they say you complied.

Tax records. You must produce ATO notices of assessment for three relevant income years.

cl 191.221, 191.222(1)

It is tighter than that.

A year only counts as a relevant income year if it ended before the date you apply and you held the regional provisional visa during all or part of it. Combined with the requirement to have held the provisional visa for three years, the practical timing can run longer than a simple three-year count suggests.

So lodge a tax return every year and keep every notice of assessment.

cl 191.111, 191.222(1)

No.

The Regulations contain a taxable-income limb, but it is drafted entirely by reference to an amount specified in a legislative instrument, and it says the Minister may specify one. Where no amount has been specified, that limb has nothing to operate on.

So the requirement is to produce the notices of assessment. If you have been told there is a minimum, check it against a current instrument.

cl 191.222(2)–(3)

None. The 191 is a permanent visa and the Regulations impose no conditions on it.

Sometimes, and the decision letter is what tells you. It will say whether the decision can be reviewed and by when, so read it first. Time limits are set by law, counted in days, and generally cannot be extended.

The 491 has a rule of its own. Where a 491 applicant was outside Australia when they applied and was sponsored or nominated, the person who may apply for review of a refusal is the sponsor or nominator, not the visa applicant. An application lodged in the wrong name is not valid, and the clock does not stop while that is sorted out.

reg 4.02(4)(la) and 4.02(5)(ka)

No. The Subclass 132 (Business Talent) visa was repealed on 1 July 2021, so no new application can be made.

An application lodged before 1 July 2021 that has not yet been decided is still assessed under the criteria that applied when it was lodged.

Schedule 13 cl 9901 and 14702 · F2021L00852

It depends on where you were when you applied. If you applied in Australia, the refusal is generally reviewable by the Administrative Review Tribunal. If you applied outside Australia, it is generally not reviewable.

The time limit for review is strict and is stated in your refusal letter. Provide us with the refusal letter and we can confirm your review rights and the deadline.

Migration Act 1958 s.338(2) and (5)