Background
• Independent Skilled Migration Numbers are declining (the Government is reducing the number of General Skilled Migration Applications that they will approve each financial year).
• Traditionally, if an application was not approved in the same financial year it was lodged, the application rolled over into the next year (and so on) until it was approved.
• This created a back log of applications in the system with some applicants waiting up to three years for their visa to be approved.
• Many of the applications in the system are for a “limited” number of occupations on the Skilled Occupation List – EG – there are 17,594 valid lodged applications where the nominated occupation is either hairdresser or cook.
• The Australian Government feels this is creating a problem in the job market as there will be an oversupply of some professions / occupations.
• For the Australian economy to thrive, a broad range of occupations and skills are needed.
• Since the Global Financial Crisis the Australian Government has introduced a number of drastic changes to the General Skilled Migration Programme (removal of MODL, introduction of CSL, and its subsequent removal, at least 2 changes to priority processing).
• These changes have been implemented to try to meet the needs of employers in certain industries where there are skills shortages (Medical, Allied Health, Nurses, Engineers, construction, some trades).
• Australia’s Migration Programme continues to move to a demand driven system which means that applicants who have a company or business to sponsor them will be given priority as there is a clear need for that person with those specific skills.
• Even with the introduction of these changes, the number of lodged applications in the system is continuing to grow creating a back log of applications.
• There are close to 147,000.00 applicants waiting for a decision on a visa application and there are only 61,500 places set aside for general skilled migration in the next budget year ending June 2011).
• The backlog represents more than two years’ worth of migrants for that migration stream.
• There are an additional 44,150 places reserved for migrants nominated by employers.

Australian Government’s Solution
• The Bill (if it is passed into law) will give the Minister for Migration the power to cap applications based on certain characteristics (such as on the basis of the nominated occupation, English language ability, age, time of lodgement, etc).
• For the time being, it is intended that the power will be used for applications where the nominated occupation is in oversupply (such as cook or hairdresser).
• If the Minister caps applications then these capped applications will be treated as having never been made.  A refund of the lodgement fee only will be refunded to the visa applicant by the Australian Government.
• If the Minister caps a class or subclass of applications in a financial year then no more applicants for that class or subclass can be made in that financial year.
• The Australian Government feels that this will then allow the applications with occupations that are in demand that are in the system to be approved.
• The Government also feels this will remove the uncertainty for applicants who have lodged applications whose applications are unlikely to be finalised as their occupations are not in demand.
• There are no appeal or review rights for applications that have been capped as they are treated as if they have never been made.
• The cap and cease laws can be used on any visa category – parent, spouse, student, tourist etc with only Protection Visas being exempt.

Conclusion
• If the Bill is passed in to Law, it is not known if the Minister will use the power immediately.
• Once he does, it will take some time for this to filter to the Case Officers in DIAC who will start to issue the “cap and cease” letters to applicants.
• If the applicant is onshore (as is the case for around 44,150 onshore student applicants) they will be given a “28 day” letter which will give them 28 days to make arrangements to leave Australia or to apply for another visa (if they are eligible).
• The DIAC website states clearly that this Bill is NOT YET OPERATIONAL and no actual cap is being considered at present. 
• In an interview with ABC Radio Mr Evans said that, “This is a power that we would use very, very rarely if we need to manage the program in that way".
• If you are on a student visa and have already lodged a GSM application which is then capped, your student visa will not be effected (you can continue with your study).
Action
• If you are an onshore student and you have lodged a GSM application (for permanent residency) then you might want to consider approaching your boss to see if they will sponsor you for permanent residency under the Employer Nomination Scheme or Regional Sponsored Migration Scheme.  Both these visas are employer driven.  You will need to have passed IELTS and have your skills assessment and in some cases will need at least three years work experience.  If you are offered work in a regional area (outside the Capital cities) then you may find this easier.
• Contact your registered migration agent with specific queries if you have concerns.