Migration (Specification of Study and English Language Requirements (Subclass 403 (MATES Stream) Visa) (LIN 24/072) Instrument 2024

This instrument, the Migration (Specification of Study and English Language Requirements (Subclass 403 (MATES Stream) Visa) (LIN 24/072) Instrument 2024, specifies which foreign qualifications, institutions, industries and English language test results count for particular eligibility hooks in the Migration Regulations 1994 that govern the Subclass 403 (Temporary Work (International Relations)) visa in the Mobility Arrangement for Talented Early‑professionals Scheme (the MATES stream). The Minister for Immigration and Multicultural Affairs made the instrument on 8 November 2024 (instrument header). It commences concurrently with the Migration Amendment (Mobility Arrangements for Talented Early‑professionals Scheme) Regulations 2024 (s 2).

Mechanically, the instrument performs specification tasks required under the Migration Regulations (s 3). It:

• lists the foreign education institutions from which an applicant must have graduated (Schedule 1; see s 6);
• specifies which degrees and higher qualifications qualify (Schedule 2; see s 7);
• identifies specified related industries relevant to the immigration test (s 8);
• names acceptable English language tests (s 9);
• fixes the test scores and component minima that applicants must achieve (Schedule 3; see s 10); and
• sets the permitted timing for undertaking the language test and a sitting‑rule for components (s 11).

The instrument operates as a specification instrument under identified provisions of the Migration Regulations 1994: item 4(a) of the table in paragraph 1234(3F)(c) of Schedule 1; paragraphs 403.261(1)(a) and (b) and subclause 403.261(2); and subclauses 403.262(1) and (2) of Schedule 2 (s 3). It does not itself create visa types or migration policy in the abstract; instead it gives the precise, mechanical content needed by the Migration Regulations’ assessment rules to determine whether an applicant meets the study and English language criteria those rules require (see s 5 and the cross references in s 6-11).

The instrument therefore changes, in operational terms, what evidence an applicant must provide to satisfy the specified parts of the Migration Regulations: only qualifications of the listed kinds, awarded by listed institutions, in the specified related industries, and with English test results from specified tests at specified component and overall levels, taken within the specified period, will satisfy the relevant eligibility predicates in the cited Migration Regulations provisions.

The instrument rests on a small set of defined concepts and functional lists that attach to specific paragraphs and subclauses of the Migration Regulations:

• Specified foreign education institution (s 6; Schedule 1). Schedule 1 enumerates 100 named institutions (all appearing to be Indian universities and institutes). The instrument declares that for the purposes of particular items in Schedule 1 and Schedule 2 of the Migration Regulations, the foreign education institution from which an applicant must have graduated is one listed in Schedule 1.

• Qualification (s 4 definition; s 7; Schedule 2). The instrument defines "qualification" as one of the degrees or higher qualifications mentioned in Schedule 2 and then, in s 7, makes clear that such a qualification is specified only where three conditions are met: (a) it is mentioned in Schedule 2; (b) it was conferred by a foreign education institution specified in Schedule 1; and (c) it is equivalent to an AQF level 7 degree or higher qualification (s 7(a)-(c)). Schedule 2 lists a small menu: Bachelor Degree; Bachelor Degree (Honours/Research); Postgraduate Diploma; Masters (all); Doctoral Degree (all) (Schedule 2 table).

• AQF reference (s 4). AQF is defined by cross‑reference to the Australian Qualifications Framework as framed in the Higher Education Support Act 2003. The instrument therefore anchors the equivalence test to the AQF (s 4).

• Related industries (s 8). The instrument explicitly specifies seven related industries for the purposes of the cited Migration Regulations paragraphs: renewable energy; mining; engineering; information communications technology; artificial intelligence; financial technology; and agricultural technology (s 8).

• English language tests and components (s 4 definition of test component; s 9; s 10; Schedule 3). The instrument specifies five acceptable tests (CAE, IELTS, OET, PTE, TOEFL iBT) (s 9). It defines the test components as listening, reading, speaking and writing (s 4). It fixes component minima and overall minima in Schedule 3 (see s 10).

• Timing and sitting rules (s 11). The instrument specifies a 1 year validity window for language tests, measured either from the date of application (if test evidence is provided at application time) or from the date the decision to grant or refuse the visa is made (if evidence is not provided at application) (s 11(a)(i)-(ii)). It also imposes a single‑sitting requirement for all specified tests except OET (s 11(b)).

Primary affected parties are applicants for a Subclass 403 (Temporary Work (International Relations)) visa in the MATES stream who must satisfy the study and English language requirements cited in the Migration Regulations (the instrument’s stated application) and the administrative decision‑makers who apply those Migration Regulations provisions.

• Prospective visa applicants: The instrument changes the subset of foreign graduates who can meet the specified study requirement. Under s 6-7 an applicant must have graduated from one of the 100 institutions listed in Schedule 1, and their qualification must be one of the categories listed in Schedule 2 and be equivalent to an AQF level 7 degree or higher (s 7). The instrument therefore excludes applicants whose qualifications are not conferred by a Schedule 1 institution or not within the listed qualification types unless the Migration Regulations provide alternate pathways elsewhere. The instrument also affects applicants’ English test choices, by specifying which tests will be accepted (s 9) and the scores and component minima required (Schedule 3; s 10).

• Test takers and test providers: Applicants must achieve the specified scores (Schedule 3) and, for non‑OET tests, achieve them in a single sitting (s 11(b)). That affects test planning and costs for applicants (who pay for tests), and produces predictable demand for the listed tests among affected cohorts.

• Educational institutions listed in Schedule 1: Those institutions’ graduates are directly advantaged; graduates of other institutions are excluded from meeting the "from which an applicant must have graduated" element for the relevant Migration Regulations provisions unless alternate criteria apply elsewhere. The instrument therefore concentrates benefit on the named institutions (Schedule 1).

• Decision‑makers in the Department of Immigration and Multicultural Affairs: The instrument provides legally binding specifications to apply when officers assess qualifications, institutions and English language evidence under the cited Migration Regulations provisions. Officers will use the lists and cut‑offs in Schedule 1, Schedule 2, Schedule 3 and s 8 and s 11 when making grant/refusal decisions.

• Third‑party advisers: migration agents, lawyers and institutions advising applicants are affected because they must ensure applicants rely on the listed items and comply with sitting/timing rules (s 11) and AQF equivalence (s 7(c)).

Who pays: the financial burdens fall primarily on applicants. They bear the costs of taking English tests that meet the specified tests and scores, timing tests within specified periods, and any costs of having foreign qualifications assessed for AQF equivalence where that assessment is required to show equivalence to AQF level 7 (s 7(c)). Employers or sponsors may be indirectly affected if they assist or recruit from the listed institutions or if their talent pipelines must be adjusted.

This instrument imposes specification obligations on decision‑makers and creates evidentiary expectations for applicants; it does not create criminal liabilities or new penalty regimes itself. The substantive duties and rights to note from the instrument text are:

• Duty to rely on the specified lists and thresholds when applying the cited Migration Regulations provisions. The instrument expressly ties the foreign education institutions, qualifications, related industries and English tests/scores to specified paragraphs and subclauses of the Migration Regulations (s 3; ss 6-11). Decision‑makers must therefore use Schedule 1 institutions, Schedule 2 qualifications and Schedule 3 scores when assessing the relevant eligibility predicates in paragraphs 403.261(1)(a) and (b) and subclauses 403.261(2), 403.262(1) and (2).

• Applicant evidentiary duty on institution and qualification. An applicant must have "graduated" (s 4 definition) from an institution listed in Schedule 1 (s 6). Section 7 requires that a qualification be both listed in Schedule 2 and conferred by a Schedule 1 institution, and that it be equivalent to an AQF level 7 degree or higher. The instrument therefore requires applicants to produce documentation proving conferral by a specific listed institution and to satisfy equivalence to AQF level 7 (s 7).

• Applicant timing and sitting duties for English tests. Under s 11(a), the applicant must have undertaken the specified language test within one year: (i) before the day the visa application is made if evidence is provided at lodgement; or (ii) before the day on which the decision to grant or refuse is made if evidence is not provided at lodgement. Section 11(b) imposes a single‑sitting requirement for the tests specified in s 9 unless the test is OET. Applicants therefore have the duty to plan testing to meet timing and sitting rules.

• Right to use OET component results obtained non‑simultaneously. By carving out OET from the single‑sitting requirement (s 11(b)), the instrument implicitly allows OET components to be aggregated across sittings. Schedule 3 requires a C in each OET component; the rules therefore allow cumulative proof of each component where the test is OET (per the exclusion in s 11(b)).

• The instrument confers no explicit appeal or review rights; those procedural rights are governed by the Migration Regulations and other administrative law instruments external to this instrument. This instrument is a specification of content for the purposes of making eligibility decisions; it creates operational obligations for decision‑makers but leaves administrative review and merits review pathways to the base legislation and regulations it references.

The instrument itself contains no express penalty clauses, fines or criminal offences. It is a specification instrument: its legal effect is to supply content for assessment under the Migration Regulations 1994 (s 3). Enforcement and penalties for non‑compliance with the applicable Migration Regulations provisions therefore remain those contained in the Migration Act 1958 and Migration Regulations 1994, not in this instrument.

Operational enforcement mechanism, as derivable from the instrument:

• Administrative refusal or non‑granting of the visa. Because the instrument defines what counts as the specified study and English language requirements for particular Migration Regulations paragraphs and subclauses (s 3; ss 6-11), failure to meet the instrument’s specifications will result in the applicant not meeting those eligibility predicates. The direct practical consequence is that the decision‑maker will not be able to record the applicant as meeting those elements when deciding whether to grant the Subclass 403 visa under the rules in Schedule 2 of the Migration Regulations. The instrument itself does not state the decision outcome language, but its cross‑references indicate its role in the grant/refusal calculus.

• Administrative scrutiny and document verification. Decision‑makers must verify that qualifications were conferred by a Schedule 1 institution (s 6-7), that the qualification type is in Schedule 2 (s 7 and Schedule 2), that AQF equivalence is satisfied (s 7(c)), and that English tests and scores meet the Schedule 3 requirements and timing rules (s 9-11). Enforcement thus occurs through document assessment and the exercise of decision‑maker discretion within the Migration Regulations framework.

• No separate sanction within the instrument. There is no provision in this instrument for penalties for false documents, fraudulent claims or forgery; those matters continue to be dealt with under the Migration Act 1958 and relevant criminal law. This instrument does not create or alter those enforcement pathways.

• Ministerial and departmental administration. The instrument was made by the Minister (instrument header), and the Department will operationalise it in processing. The instrument does not delegate new powers or create new discretionary exemptions; any exercise of discretion will be under the Migration Regulations themselves and the broader statutory scheme.

In short, non‑compliance with the specifications results in the ineligibility of the applicant under the relevant Migration Regulations predicates and an administrative refusal in practice; the instrument does not add separate penal consequences.

The instrument is expressly framed as a specification under the Migration Regulations 1994 and interacts by cross‑reference with at least two other legal instruments or statutory schemes set out in the text:

• Migration Regulations 1994. The instrument is made under specific provisions of the Migration Regulations (s 3). It fills in the content for item 4(a) of the table in paragraph 1234(3F)(c) of Schedule 1; paragraphs 403.261(1)(a) and (b) and subclause 403.261(2) of Schedule 2; and subclauses 403.262(1) and (2) of Schedule 2 (s 3). That is, it provides the lists and thresholds those regulatory paragraphs require to operate. The substantive effect of the instrument will therefore be mediated by how those Migration Regulations provisions are drafted (not reproduced here): the instrument gives the precise items decision‑makers must apply under those provisions.

• Higher Education Support Act 2003 (through the AQF). The instrument defines "AQF" by reference to the Australian Qualifications Framework "within the meaning of the Higher Education Support Act 2003" (s 4). Section 7 requires that the specified qualification be equivalent to an AQF level 7 degree or higher (s 7(c)). Thus the instrument imports the AQF structure by reference, meaning that AQF definitions, levels and the legal framing in the Higher Education Support Act are relevant to any equivalence assessment.

• Migration Amendment (Mobility Arrangements for Talented Early‑professionals Scheme) Regulations 2024. Commencement is tied to those Amendment Regulations (s 2). The instrument is therefore intended to operate concurrently with a regulatory package implementing the MATES scheme; the Migration Regulations amendments will define the procedural and substantive framework into which these specifications slot.

• Administrative law and visa decision frameworks. The instrument supplies content for evidence and eligibility assessments; the usual administrative law rights, including merits and judicial review avenues available under the Migration Act and administrative law, will apply to decisions that rely on these specifications. The instrument itself does not displace existing procedural rights but sets the factual thresholds that decision‑makers will apply.

• Test provider regimes. Because the instrument accepts specific tests (s 9) and component/overall minima (Schedule 3), it interacts with the contractual and regulatory arrangements between test providers and test‑takers, in the sense that only results from those tests will be accepted for the stated purposes. The instrument does not import or reference test authenticity processes, but decision‑makers will rely on test documentation and provider verification in the usual way.

The instrument itself records its making and commencement details but contains no prior amendment history within its text. The recorded facts in the instrument are:

• Made by Tony Burke, Minister for Immigration and Multicultural Affairs, and dated 8 November 2024 (instrument header).

• Commencement provision: it commences at the same time as the Migration Amendment (Mobility Arrangements for Talented Early‑professionals Scheme) Regulations 2024 (s 2). That ties the instrument’s operative date to those amending regulations.

• Authority clause: the instrument states the statutory provisions of the Migration Regulations 1994 under which it is made: item 4(a) of the table in paragraph 1234(3F)(c) of Schedule 1; paragraphs 403.261(1)(a) and (b) and subclause 403.261(2) of Schedule 2; and subclauses 403.262(1) and (2) of Schedule 2 (s 3).

• Schedules: Schedules 1-3 are appended to the instrument and contain the institution list (Schedule 1), the qualification categories (Schedule 2), and the required English language test scores (Schedule 3). Section 5 sets out that each instrument specified in a Schedule is amended or repealed as set out in the Schedule items; in this instrument the Schedules are lists rather than amendment clauses.

No further internal amendments are recorded. The instrument does not itself amend other legislation beyond supplying specified items for the Migration Regulations’ purposes. Any future change to the lists, the test thresholds, or the related industries will require a new instrument or amendment made under the same powers identified in s 3.

Because the instrument is made under delegated legislation powers in the Migration Regulations, its amendment history will be recorded by successive instruments published under the same statutory authority; none of those are reproduced within the text provided here.

The instrument text does not cite any case law, judicial decisions, tribunal determinations or prior litigation about its content. It names no cases and records no disputes. There is therefore no litigation history recorded in the instrument itself.

Consequently, any judicial or merits review of decisions applying this instrument would rely on the general administrative and migration law framework external to this instrument. The instrument neither records nor summarises any judicial interpretation of its lists, scores or timing rules. If a litigant wished to challenge a visa decision that relied on these specifications, the relevant court or tribunal arguments would need to engage (a) the Migration Regulations provisions that the instrument supplements (the paragraphs and subclauses cited in s 3) and (b) standard administrative law grounds. The instrument contains no material about prior litigation or precedential application.

Because this instrument provides content for decision‑makers, challenges would typically involve questions such as whether decision‑makers correctly applied the Schedule 1/2/3 specifications, whether AQF equivalence was correctly assessed under s 7(c), or whether the timing and single‑sitting rules in s 11 were properly interpreted. None of those interpretations appear in the text of the instrument.

The instrument contains several textual features and interactions that create practical traps or common misunderstandings. These are concrete mechanics, all grounded in the instrument’s text:

• Institution limitation: Schedule 1 is an explicit, closed list. Sections 6 and 7 require that the foreign education institution "from which an applicant must have graduated" be one specified in Schedule 1 (s 6), and that a qualification be conferred or awarded by a Schedule 1 institution (s 7(b)). If an applicant’s degree comes from an institution not on Schedule 1, the instrument’s specifications will not be met for the cited Migration Regulations paragraphs. The Schedule lists named Indian institutions (Schedule 1). Applicants should not assume broader regional coverage; the instrument is specific.

• Qualification type plus conferral plus AQF equivalence: Section 7 requires a three‑part test: the degree type must be listed in Schedule 2 (Schedule 2 lists Bachelor Degree, Bachelor Degree (Honours/Research), Postgraduate Diploma, Masters (all), Doctoral Degree (all)); it must have been conferred by a Schedule 1 institution; and it must be equivalent to an AQF level 7 degree or higher (s 7(a)-(c)). Meeting only one or two elements is insufficient. The instrument does not set out the mechanics for proving or assessing equivalence; applicants should expect an assessment or documentary proof requirement.

• Definition of "graduated": The instrument defines "graduated" as "having met the academic requirements for the award of that qualification" (s 4). That means applicants must show they satisfied the academic requirements, not merely that they attended classes. The text does not specify how conferral or completion evidence must be presented, leaving standard documentary proof (transcripts, conferred degree certificates) to the administrative practice.

• Related industries are listed but the instrument does not map qualifications to industries: s 8 lists seven related industries (renewable energy; mining; engineering; information communications technology; artificial intelligence; financial technology; agricultural technology). The instrument does not itself state how a given qualification is judged to be "in" one of those industries or how to demonstrate the relationship. Applicants and advisers must therefore anticipate that decision‑makers will require evidence of how the qualification or applicant’s background fits within one or more of those industries under the Migration Regulations paragraphs the instrument supports.

To meet the specifications set out in this instrument, applicants and advisers should follow these operational steps grounded in the instrument text. Each step cites the relevant instrument provision so compliance is objectively verifiable against the instrument’s content.

1. Confirm the awarding institution is in Schedule 1 (s 6; Schedule 1).

   • Action: Verify the conferring institution’s exact legal name as stated on the conferral/degree certificate matches an item in Schedule 1. The instrument requires the foreign education institution from which an applicant "must have graduated" to be an institution specified in Schedule 1 (s 6). The schedule lists 100 specific institutions. If the awarding body’s name differs (for example due to rebranding or subsidiary campus naming) obtain documentation that ties the conferral to the listed legal entity.

2. Confirm the qualification type is listed in Schedule 2 and was conferred by a Schedule 1 institution (s 7(a)-(b); Schedule 2).

   • Action: Check that the degree is one of the specified types in Schedule 2 (Bachelor Degree; Bachelor Degree (Honours/Research); Postgraduate Diploma; Masters (all); Doctoral Degree (all)). Ensure the degree certificate explicitly records conferral or award by a Schedule 1 institution as required by s 7(b).

3. Prepare to demonstrate AQF equivalence to level 7 or higher (s 7(c); s 4).

   • Action: Because s 7(c) conditions specification on AQF level 7 equivalence, determine whether the department expects a formal assessment (for example from an authorised assessing authority), or whether documentary evidence (transcript, course outlines, credit hours) will suffice. The instrument defines AQF by reference to the Higher Education Support Act 2003 (s 4). Where an equivalence assessment is required, obtain that assessment in time for sensitive timing windows described below.

4. Demonstrate the relevance to one or more "related industries" if required by the Migration Regulations elements the instrument supplies (s 8).

   • Action: Although the instrument simply lists the related industries (renewable energy; mining; engineering; information communications technology; artificial intelligence; financial technology; agricultural technology) (s 8), applicants should assemble evidence of how their qualification or work history fits within one or more of those named industries. Typical evidence might include course descriptions, majors, research focus, thesis title, project descriptions, or employer references that link the qualification to the listed industry. The instrument does not prescribe the evidence form; decision‑makers will determine relevance under the relevant Migration Regulations paragraphs (see s 3).