Migration (LIN 19/210: Pool and Pass Marks for General Skilled Migration Visas) Instrument 2019

The instrument operates on a small set of tightly specified concepts drawn from the Migration Act/regulations context.

• Pool mark and pass mark: The instrument treats "the pool mark in relation to the class of visas" and "the pass mark in relation to the applications" as specific numerical thresholds. It does not define "pool mark" or "pass mark" beyond use in context; instead it prescribes the numeric value to be used "for the purposes of the Act and the regulations" (s 6(2), s 7(2)). Those statutory/regulatory purposes are the selection and invitation processes under the Migration Act and the Migration Regulations 1994.

• Application timing and invitations: The numerical mark that applies depends on two timing axes: (a) the date the application was made (on or after 16 November 2019 for s 6, before 16 November 2019 for s 7); and (b) in some transitional cases in s 7, whether the application was made in response to Ministerial invitations and the date of those invitations (see s 7(1)-(3) table). The instrument defines "invitation" narrowly as an invitation by the Minister (s 5).

• Visa subclasses and legacy equivalents: The instrument distinguishes present-day subclasses (189, 190, 491) and earlier or legacy subclasses (e.g. 489, 175, 176, 475, 487, 885, 886). Section 7(3) explicitly maps which legacy subclasses and which regulatory provisions in force immediately before 1 July 2013 are relevant to the marks specified in Items 3-5. For example, Items 3-5 reference regulations 2.26AA and 2.26AB of the Migration Regulations 1994 "as in force immediately before 1 July 2013".

• Legal force and scope: The instrument is made under s 96(1) and (2) of the Migration Act 1958 and is applied "for the purposes of the Act and the regulations" (s 3, s 6(2), s 7(2)). It therefore functions as a ministerial instrument that binds the administration of the statutory/regulatory scheme by specifying which numerical thresholds are to be used in decision-making processes governed by those laws.

• Repeal mechanism: Schedule 1 repeals the earlier IMMI 18/067 instrument in full, so the new thresholds replace whatever marks that earlier instrument set (Schedule 1).

These concepts together mean that the instrument is not a substantive change to visa eligibility criteria such as skills assessment requirements, English level, health or character tests; rather it changes the numerical thresholds used in invitation/selection steps under the Act/regulations and sets different marks depending on subclass and temporal conditions.

The instrument affects a clearly defined set of actors within the skilled migration ecosystem, and it does so by adjusting the numerical thresholds used to select or invite applicants.

Primary affected groups

• Prospective and actual applicants for Subclass 189 (Skilled,Independent), Subclass 190 (Skilled,Nominated) and Subclass 491 (Skilled Work Regional (Provisional)) who lodged applications on or after 16 November 2019: for these applicants s 6 applies and both the pool mark and the pass mark are fixed at 65 points (s 6(1)-(2)). That means, for "the purposes of the Act and the regulations", the 65-point threshold governs whether an applicant is considered to have the pass or pool mark.

• Applicants who lodged applications before 16 November 2019 for certain subclasses: s 7 applies to applications made before 16 November 2019, but only where the conditions in an item in the s 7(3) table are met. The table covers:

  • Subclass 189, 190 and 489, with different marks depending on whether invitations were given on or after 1 July 2018 (Item 1, 65 points) or before 1 July 2018 (Item 2, 60 points).
  • Legacy sponsored and regional subclasses (175, 176, 475, 487, 885, 886) where earlier regulation 2.26AB applied to the applicants (Item 3, 65 points).
  • Legacy independent subclasses where regulation 2.26AA applied as it stood immediately before 1 July 2013 (Item 4, 120 points).
  • Legacy sponsored subclasses where regulation 2.26AA applied (Item 5, 100 points). Those groups are affected because the instrument prescribes which numerical mark applies to their application for statutory/regulatory purposes (s 7(1)-(3)).

Secondary affected groups

• The Minister and Departmental officers responsible for issuing invitations and applying selection/assessment rules: the instrument explicitly fixes marks "for the purposes of the Act and the regulations" so decision-makers must apply those numerical thresholds when performing selection and invitation functions (s 6(2), s 7(2)). The instrument also defines "invitation" as an invitation by the Minister (s 5), which is relevant to exercise of ministerial invitation power.

• Employers, state/territory nominators and migration advisors who advise potential applicants: the marks will determine how many points an applicant must aggregate to be eligible for invitation under the relevant statutory/regulatory processes, and advisors will need to rely on the instrument to assess whether an applicant meets the pass/pool mark applicable to the particular application/invitation timing.

• Holders of earlier invitations and applicants in transitional pathways: the instrument’s transitional table (s 7(3)) treats an array of timing and regulatory-history scenarios differently, so individuals with legacy applications or invitations may find a different numerical mark applies to their application than to new applicants.

Who is not affected directly

• Applicants for other visa subclasses not mentioned in s 6(1) or the s 7(3) table are not affected by the numeric settings in this instrument, because the instrument only prescribes marks for the listed classes and situations.

Operational note on who decides

• The instrument is made by the Minister under s 96(1) and (2) of the Migration Act 1958 (s 3). That locates decision-making power to set these marks with the Minister. The instrument’s definition of "invitation" (s 5) and the repeated phrase "for the purposes of the Act and the regulations" (s 6(2), s 7(2)) indicate the marks are to be used in statutory/regulatory decision-making rather than as administrative guidance only.

The instrument does not create new standalone duties or enforceable rights in the sense of criminal offences or private causes of action; rather it prescribes numerical thresholds that become operative "for the purposes of the Act and the regulations" (s 6(2), s 7(2)). That produces concrete administrative duties and practical rights in the following forms.

Duties on decision-makers and administrators

• Duty to apply specified marks when carrying out statutory/regulatory functions: By stating the pool and pass marks "is 65 points" (s 6(2)) or "is the mark specified in column 3 of the item" (s 7(2)), the instrument obliges those applying the Migration Act and the Migration Regulations 1994,namely officers and decision-makers within the Department and the Minister,to use the prescribed numerical marks when assessing whether an application meets the pool or pass mark. This is an administrative duty tied to statutory/regulatory assessment processes.

• Duty to respect the defined scope and timing conditions: Decision-makers must apply the correct mark for the subclass and the correct temporal bucket: s 6 applies only to certain subclasses where applications are made on or after 16 November 2019; s 7 applies to pre-16 November 2019 applications only where the item-specific conditions are met. Administrative practice must therefore identify, record and use the application date and invitation date to determine which item applies.

Rights and entitlements of applicants

• Entitlement to have an application assessed against the prescribed mark: Applicants whose applications fall within the instrument’s scope have a de facto statutory expectation that the assessment/selection process will apply the numeric threshold prescribed by the instrument for the "purposes of the Act and the regulations" (s 6(2), s 7(2)). This is not expressed as a private right of action in the instrument itself, but it is the operative standard that governs ministerial invitations and selection.

• Reliance on the instrument for transitional situations: For applicants in the pre-16 November 2019 cohort, the instrument’s s 7 table specifies which mark governs their applications. If, for example, an application for Subclass 189 was made on or after 1 July 2018 in response to invitations given by the Minister on or after 1 July 2018, s 7(3) Item 1 fixes the mark at 65 points. That is the mark decision-makers must apply.

What the instrument does not do

• It does not alter other statutory eligibility requirements such as skills assessments, English-language requirements, health, character, or sponsorship/nomination conditions. The instrument is limited to pool/pass marks.

• It does not create criminal penalties or administrative fines; it does not itself confer visa status or create new visa pathways. Those functions remain within the Migration Act/regulation framework; the instrument calibrates numeric thresholds used within that framework.

Operational implications of duties and rights

• Decision-makers must be able to determine and record the applicable mark per application, so administrative processes must capture application date, whether the application followed an invitation and the date of that invitation, and whether any legacy regulations (e.g. reg 2.26AA/AB as in force immediately before 1 July 2013) applied to the applicants (see s 7(3) Items 3-5).

• Advisers and applicants gain clarity on the numeric thresholds to target; compliance advice must be tied to which item in s 7(3) applies, or whether s 6 governs a post-16 November 2019 application.

The instrument contains no express penalties, sanctioning provisions or enforcement mechanisms. It operates by fixing numerical thresholds to be used "for the purposes of the Act and the regulations" (s 6(2), s 7(2)); it does not itself create offences or specify administrative penalties.

Consequences arise through application of the Act and regulations

• Administrative consequence: The principal enforcement mechanism is administrative. If an applicant does not meet the pool or pass mark that applies to their application under this instrument, that applicant will be disadvantaged in the selection/invitation process implemented under the Migration Act and the Migration Regulations 1994. The instrument therefore functions as a rule that triggers statutory consequences (non-selection, non-invitation) rather than as a penal instrument.

• Procedural review avenues under the Act and regulations remain the relevant enforcement channels: Because no penalties are created in this instrument, any procedural challenge to the way the marks are applied will have to rely on the remedies and review mechanisms provided in the Migration Act and associated regulations. The instrument itself does not set a dispute resolution or appeal mechanism.

No criminalisation or pecuniary penalties in the instrument

• There are no sections creating offences, fines, or compliance notices. The only legislative actions in the instrument are the prescription of numeric marks (s 6, s 7), the commencement provision (s 2), the definition provision (s 5), the authority clause (s 3) and the repeal of an earlier instrument (Schedule 1).

Administrative compliance risk and enforcement practice

• Enforcement risk for applicants is practical and opportunity-based: failure to reach the applicable pool or pass mark means a lost or deferred opportunity for invitation. That is the normative enforcement effect deriving from the numerical settings, rather than a sanction applied by the instrument.

• For departmental officers, the enforcement task is ensuring correct application of the instrument’s thresholds in administrative processes. Errors in applying the correct item (for example, misclassifying an application’s date, or misinterpreting whether a Ministerial invitation is within the relevant temporal bucket) could expose decisions to challenge under the standard review avenues in the Migration Act regime, but the instrument itself does not specify a remedy.

The instrument sits inside and interacts with the Migration Act 1958 and the Migration Regulations 1994, and it replaces an earlier ministerial instrument dealing with pool and pass marks. Its legal effect is to give a defined numeric input to processes governed by those laws.

Primary statutory interaction

• Authority: The instrument is made under subsections 96(1) and (2) of the Migration Act 1958 (s 3). That locates the instrument as an exercise of ministerial power under that Act. The instrument repeatedly frames its operative effect as being "for the purposes of the Act and the regulations" (s 6(2), s 7(2)), indicating the numbers prescribed are to be used when applying the statutory/regulatory scheme.

• Role within the Migration Regulations: The instrument refers to specific provisions of the Migration Regulations 1994. Section 7(3) explicitly notes items where regulations 2.26AA and 2.26AB of the Migration Regulations 1994 "as in force immediately before 1 July 2013" applied to applicants; the instrument therefore interacts with historical regulatory settings and maps legacy regulatory contexts to current marks. It does not change the wording of the Migration Regulations themselves; it provides the numeric marks those regulations’ operative selection mechanisms require.

Replacement of prior instruments

• Schedule 1 repeals Migration (IMMI 18/067: Pool and Pass Marks for General Skilled Migration Visas) Instrument 2018 in full. That means the 2019 instrument supersedes the 2018 instrument and becomes the operative instrument that decision-makers consult when determining pool/pass marks in the scenarios covered.

Operational interaction with ministerial invitation powers

• The instrument defines "invitation" as an invitation by the Minister (s 5) and links application of certain marks to whether an application was made "in response to invitations given by the Minister" within specified date ranges (s 7(3) Items 1-2). That ties the instrument to the Minister’s exercise of invitation powers and to the administrative record of invitations. The precise content of the Minister’s invitation powers is a matter for the Act/regulations; this instrument fixes the numerical standard to apply in relation to invitations.

Limitations and non-interference

• The instrument does not amend the Act or the Migration Regulations themselves. It only sets numbers to be used "for the purposes" of those laws. It therefore does not alter other statutory eligibility criteria such as health, character, skills assessment, or sponsorship and nomination requirements contained in the Act or Regulations.

• It does not purport to change visa definitions, rights conferred by visas, or any other substantive provision of the Migration Act or Migration Regulations beyond the numeric threshold values used in selection/invitation contexts.

Practical cross-checks required by administrators and advisers

• Decision-makers and advisers must cross-reference the instrument’s numerical settings with (a) the date the application was lodged, (b) whether an invitation was given and on what date, (c) the relevant subclass, and (d) whether legacy regulations (2.26AA or 2.26AB as they stood prior to 1 July 2013) applied to the applicant. The instrument’s table in s 7(3) is the control document for matching legacy cases to the numeric mark.

The instrument itself carries a concise amendment and commencement history within its text. Key points from the instrument:

• Date and maker: The instrument is dated 29 October 2019 and is made by David Coleman, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. That attribution appears at the head of the instrument.

• Authority and instrument citation: The instrument is named Migration (LIN 19/210: Pool and Pass Marks for General Skilled Migration Visas) Instrument 2019, and may be cited as LIN 19/210 (s 1(1)-(2)). It is made under subsections 96(1) and (2) of the Migration Act 1958 (s 3).

• Commencement: Section 2 sets out that the whole of the instrument commences "At the same time as Schedule 1 to the Migration Amendment (New Skilled Regional Visas) Regulations 2019 commences." The table entry in s 2(1) indicates the commencement date as 16 November 2019. The instrument also contains the standard note at s 2(2) that any information in column 3 of the commencement table is not part of the instrument.

• Repeal of prior instrument: Schedule 1 explicitly repeals Migration (IMMI 18/067: Pool and Pass Marks for General Skilled Migration Visas) Instrument 2018 in full. The Schedule states simply: "1 The whole of the instrument , Repeal the instrument."

• No further amendments recorded within the instrument: The instrument contains no internal amendments to itself or expressions of future-changing provisions beyond the commencement link and the repeal of the prior instrument. There are no schedules adding text besides the repeal schedule.

Implication for tracking amendment history

• To follow changes to the pool and pass mark settings historically, one must review the repealed 2018 instrument (IMMI 18/067) that this instrument replaces and then track subsequent instruments (if any) that amend or replace LIN 19/210. The present instrument only records its own commencement and the repeal of the immediately prior instrument.

• The instrument’s linkage of commencement to the Migration Amendment (New Skilled Regional Visas) Regulations 2019 Schedule 1 indicates coordinated regulatory drafting: the numerical settings in LIN 19/210 were timed to take effect together with regulatory changes in those Amendment Regulations on 16 November 2019.

The instrument itself contains no references to litigation, case law, or judicial determinations. It neither cites cases nor records any judicial or tribunal decisions arising from its operation.

What the instrument shows and does not show

• Absent any express reference inside the instrument, there is no internal litigation history to report. The text contains only the ministerial making, commencement, authority and substantive numeric settings; it does not recount any administrative appeals or judicial challenges.

Implications for legal practice

• Because the instrument specifies the markers to be used in administrative decisions, any challenges to those decisions that relate to how the marks were applied, or to whether the correct mark was applied to a particular application, would have to rely on the procedural and merits review avenues available under the Migration Act and related judicial review principles. The instrument itself does not create new adjudicative mechanisms or specify how decisions applying its numbers are to be reviewed.

• If a client intends to challenge a decision said to be made in reliance on these marks, practitioners will need to demonstrate, using administrative records, whether the prescribed mark was in fact applicable and whether it was correctly applied to the client’s file. The instrument’s text provides the legal baseline for what mark should have applied; it does not set the pathway for a judicial review application or tribunal appeal.

Practical note for litigation research

• To establish any litigation history concerning these marks, one must look beyond the instrument text to decisions of courts or tribunals that reference LIN 19/210. The instrument itself provides the operative numbers and temporal/subject-matter boundaries that such cases would discuss, but it does not summarise or record case law in its text.

The instrument is short and precise, but a number of specific drafting and transitional features create traps for practitioners and administrators if they are overlooked.

Narrow definition of "invitation"

• Section 5 defines "invitation" as "an invitation by the Minister to apply for that class of visa." That definition excludes any other possible forms of invitation or communication (for example, automated system messages, state/territory nomination offers, or employer-initiated communications) from the instrument’s reference to "invitation". In s 7(3) Items 1-2 the instrument conditions the applicable mark on whether applications were made "in response to invitations given by the Minister" on particular dates. Therefore, whether an applicant's submission was "in response to" a Ministerial invitation may be decisive in determining the applicable mark.

Temporal and subclass distinctions

• Section 6 applies only to Subclass 189, 190 and 491 applications made on or after 16 November 2019. It does not apply to Subclass 489 or to older legacy subclasses. Practitioners must therefore identify the exact subclass code and the application date to find the correct rule.

• Section 7's table includes Subclass 489 but not 491. That distinction is important: 491 is a newer subclass listed in s 6(1), whereas 489 appears in s 7(3) for pre-16 November 2019 applications. Misreading the subclass numbering could lead to applying the wrong mark.

Complex legacy regulatory references

• Items 3-5 of the s 7(3) table refer to regulations 2.26AA and 2.26AB of the Migration Regulations 1994 "as in force immediately before 1 July 2013". Applying those items therefore requires establishing whether those regulations "applied to the applicants" in their pre-1 July 2013 form. That is a fact-specific and potentially document-sensitive inquiry, since it requires looking at which regulatory provision actually governed the applicant at the time. Advisers and officers must check records and historical regulation versions, not merely current regulation text.

Multiple marks depending on invitation timing

• For Subclass 189, 190 and 489 applications made before 16 November 2019, Items 1 and 2 in the s 7(3) table give different marks depending on whether the Minister’s invitation was given on or after 1 July 2018 (65 points) or before 1 July 2018 (60 points). Therefore, the date of the invitation,distinct from the application lodgement date,may change the applicable mark. Practitioners must track both dates precisely.

Commencement linkage and published materials

• Section 2 links commencement to the Migration Amendment (New Skilled Regional Visas) Regulations 2019 Schedule 1; the instrument contains a tabular commencement note saying the commencement date is 16 November 2019. Section 2(2) warns that the information in column 3 of the table is not part of the instrument and may be edited in published versions. Reliance on ancillary published commentary in column 3 without checking the instrument text could be misleading.

Repeal of prior instrument

• Schedule 1 repeals the 2018 instrument entirely. That means the pre-existing numbers in IMMI 18/067 are no longer operative once LIN 19/210 commences. Practitioners reviewing file history must therefore map which instrument applied at the time decisions were made to avoid retroactive confusion.

No change to non-point eligibility criteria

• The instrument only fixes pool/pass marks. It does not amend other eligibility conditions (skills assessment, English, health, character). A frequent gotcha is treating the marks as altering substantive visa eligibility; they do not.

Administrative records and proof

• Because the instrument’s application can depend on whether an application was "in response to invitations given by the Minister" and on the date of those invitations, adequate administrative records of invitations and of whether an application was submitted in response will be crucial. Lack of clear records makes it more difficult to demonstrate which mark applied.

Precision required for transitional cases

• Items 3-5 deliver markedly higher marks in some legacy scenarios (for example, Item 4 lists 120 points). These are exceptional numbers tied to very specific historical regulatory contexts. Failure to identify correctly that a legacy regulation applied to an applicant could lead to substantial errors in assessing whether an applicant met the relevant mark.

Compliance with the instrument falls into two distinct streams: (A) actions for administrators and decision-makers who must apply the marks; and (B) steps for applicants, nominators and advisers to ensure applications are measured against the correct mark. The instrument’s short text makes compliance a matter of accurate classification and record-keeping.

A. For decision-makers and departmental administrators

1. Capture and record the key dates and facts for each application

• Record the date the application was made (to determine whether s 6 or s 7 applies).
• Record whether the application was made "in response to invitations given by the Minister" and the date(s) of any such invitations (s 5; s 7(3) Items 1-2).
• Record the visa subclass code precisely (e.g. 189, 190, 491, 489 or older legacy subclasses).

2. Apply the correct numeric mark per the instrument

• For Subclasses 189, 190, 491 with applications made on or after 16 November 2019, apply 65 points for both pool and pass mark (s 6(1)-(2)).
• For applications made before 16 November 2019, use s 7(2)-(3) table matching: determine the applicable item and apply the mark specified in column 3 of that item.
• For legacy cases under Items 3-5, verify whether regulations 2.26AA or 2.26AB "as in force immediately before 1 July 2013" applied to the applicant; if so, apply the itemised mark.

3. Ensure administrative procedures and IT systems enforce the numeric thresholds

• Update selection criteria in any points-calculation modules to reflect the marks in s 6 and s 7(3).
• Build validation checks that prevent misapplication of legacy/regulatory-history items.

4. Use the defined term "invitation" consistently

• Only treat Ministerial invitations as "invitations" for purposes of the s 7 table (s 5).
• Maintain an audit trail of Ministerial invitations to enable correct determination of which item applies.

B. For applicants, nominators and migration advisers

1. Determine which instrument provision governs the application

• Check the visa subclass code and application date: post-16 November 2019 applications for subclasses 189, 190, 491 fall under s 6 and need 65 points; pre-16 November 2019 applications may fall under s 7 and the correct table item.

2. Verify whether the application was "in response to invitations given by the Minister"

• If so, establish the date of the Ministerial invitation. For pre-16 November 2019 cases in s 7(3) Items 1-2, the date of the invitation determines whether a 65- or 60-point mark applies.

3. Where legacy regulation references are invoked, obtain documentary evidence

• Items 3-5 require confirming whether regulations 2.26AA/2.26AB as in force immediately before 1 July 2013 applied. Secure documentary proof of the applicable regulatory regime at the time the applicant’s rights were assessed.

4. Check total points carefully against the applicable mark

• Ensure the applicant’s points claim (skill assessment points, age, English, work experience, state nomination or sponsorship points where applicable) reaches or exceeds the pass/pool mark that the instrument prescribes for their case.

5. Advise clients on strategic choices

• Where an applicant’s estimated point total sits below the applicable mark, consider whether to delay, to obtain additional points (for example by gaining state nomination, partner skills, higher English score, or further skilled employment where legally and practically available), or to explore alternate visa subclasses not governed by this instrument.

C. Practical record-keeping and evidence

• Keep contemporaneous records of which instrument governed the assessment for each application, and the factual basis for applying a particular item in s 7(3) (invitation date, legacy regulation applicability, subclass code). That record is necessary both to defend decisions and to advise clients accurately.

D. Repeal and transitional awareness

• Be aware that the instrument repealed IMMI 18/067 in whole (Schedule 1). For files that straddle the repeal date, confirm which instrument was operative at the time of the decision or invitation and apply the appropriate marks for that historical period.

E. Interacting with the broader statutory framework

• Remember the instrument only sets numeric thresholds; compliance with the substantive eligibility criteria contained in the Migration Act and Migration Regulations 1994 remains necessary. Ensure skills assessments, English requirements, health and character checks and any nomination/sponsorship conditions are in order in addition to meeting the applicable point mark.

In short, compliance requires precision in identifying which subsection and table item applies to each application, robust administrative records of invitations and dates, and an understanding that the instrument sets numbers to be used within the existing statutory/regulatory decision-making framework.