3.2 Subclass 189 (Skilled Independent) and Subclass 190 (Skilled Nominated) Visas

Subclass 189 (Skilled Independent) and Subclass 190 (Skilled Nominated) Visas

Points-tested permanent residence in Australia is primarily accessed through two distinct visa subclasses: the Subclass 189 (Skilled Independent) visa and the Subclass 190 (Skilled Nominated) visa. While both grant permanent residence from the date of grant under Item 1230 of Schedule 1, their legislative criteria, occupational lists, and jurisdictional prerequisites diverge significantly under Schedule 2 of the Migration Regulations 1994.

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1. Subclass 189 (Skilled Independent) Visa

Nature and Freedom of Movement

The Subclass 189 (Points-tested stream) visa is a direct permanent residence visa. It does not require sponsorship by an employer, nomination by a State or Territory government, or sponsorship by an eligible family member. Consequently, upon grant, the visa holder possesses unrestricted freedom to reside, work, and study in any location throughout the Commonwealth of Australia.

No conditions from Schedule 8 restricting residence or employment (such as Condition 8579) can be attached to a Subclass 189 visa. The holder is treated from day one as an Australian permanent resident for healthcare (Medicare), work rights, and pathway to Australian citizenship under the Australian Citizenship Act 2007 (Cth).

Occupational List Restriction: The MLTSSL

Under regulation 1.15I and the relevant legislative instrument, an applicant for a Subclass 189 visa must nominate an occupation listed on the Medium and Long-term Strategic Skills List (MLTSSL):

• Intending migrants whose occupations appear exclusively on the Short-term Skilled Occupation List (STSOL) or the Regional Occupation List (ROL) are statutorily excluded from applying for the Subclass 189 visa.
• Invitation settings and occupation-based controls can affect selection. Check the current invitation-round material rather than attributing every occupation control to the section 85 visa-capping power.

Invitation Dynamics

Invitations for the Subclass 189 visa are managed via centralized national invitation rounds run by the Department of Home Affairs. Selection uses the applicable invitation settings, points rank and tie-break rules; occupation and program priorities can also affect a round. In competitive fields such as accounting, engineering, and software development, the practical cut-off for receiving an invitation often substantially exceeds the 65-point baseline.

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2. Subclass 190 (Skilled Nominated) Visa

The State Nomination Framework

The Subclass 190 visa is a permanent residence visa that requires the applicant to be nominated by a State or Territory government agency. Under Part 6D.12 of Schedule 6D, state nomination provides an automatic award of 5 points towards the applicant's points score.

Key structural features include:

• Access to Broader Occupation Lists: Subclass 190 applicants can nominate occupations on either the MLTSSL or the STSOL, depending on the specific skills list published by the nominating State or Territory.
• Jurisdictional Quota Allocations: Each program year, the Commonwealth Minister allocates a fixed number of nomination quota places to each State and Territory (New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, Australian Capital Territory, and Northern Territory). Once a jurisdiction exhausts its annual allocation, it cannot nominate further candidates until the subsequent program year.
• State-Specific Nomination Criteria: In addition to meeting Commonwealth criteria under Schedule 2, applicants must satisfy state-specific criteria, which may include minimum onshore employment durations, minimum local salary levels, long-term regional residency, or graduation from a local university.

The 2-Year Residency Commitment: Legal Character and Integrity Risks

State and Territory nomination programs commonly require a settlement commitment, often expressed as at least two years, but the wording and duration must be checked for the nominating jurisdiction and program year.

Legal Reality: Moral and Contractual, Not Statutory

It is vital for registered migration agents to understand the precise legal status of this 2-year commitment:

1. No Schedule 8 Condition: Unlike the Subclass 491 regional visa, the Subclass 190 visa does not contain Condition 8579. No statutory visa condition is attached to the visa that compels the holder to remain within the nominating jurisdiction.
2. No Automatic Ground of Cancellation: Breaching the 2-year commitment is not, in and of itself, a breach of a visa condition under section 116(1)(a) of the Migration Act 1958.

Departmental Integrity Oversight under Section 109

However, migrating to another state immediately after visa grant is not without legal jeopardy:

• If an applicant executes a declaration to reside in South Australia while already holding a signed long-term lease and employment contract in Sydney, the Department may investigate whether the declaration made to obtain state nomination constituted a false or misleading statement under section 101 or section 103 of the Act.
• If false or misleading information about settlement intention was supplied in the visa process, the Department may examine the information duties and section 109 framework. Do not assume that breach of a separate State undertaking, without a relevant false visa-process statement, itself enlivens section 109.

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3. Schedule 2 Criteria: Time of Invitation vs Time of Decision

Schedule 2 of the Migration Regulations 1994 governs the substantive criteria for visa grant. In both Subclass 189 and Subclass 190, the law establishes a bifurcated assessment structure separating requirements that must be met at the date of invitation from those assessed at the date of decision.

Time of Invitation Criteria

At the time the invitation was given by the Minister, the applicant must satisfy the following thresholds:

1. Invitation Requirement (cl 189.211 / 190.211): The applicant must have been formally invited to apply for the visa by the Minister.
2. Age Criterion (cl 189.212 / 190.212): The applicant must not have turned 45 years of age on the day the invitation was given. If an applicant turns 45 on the day after the invitation, they remain eligible; if they turned 45 the day before the invitation was issued, the invitation is defective and the application must be refused.
3. Skills Assessment Criterion (cl 189.213 / 190.213): The applicant must have held a suitable skills assessment for their nominated occupation from the relevant assessing authority that was valid on the day the invitation was given.
4. English Language: Must have held at least Competent English on the date the invitation was given.

Time of Decision Criteria

At the time the delegate makes a final decision on the visa application, the applicant must satisfy:

1. Points Substantiation (cl 189.214 / 190.214): The applicant's assessed score on the points test must be at least 65 points AND must not be less than the score stated in the invitation.
2. State Nomination Integrity (cl 190.215 - Subclass 190 only): The nomination of the applicant by the State or Territory government agency must not have been withdrawn. If a State government agency uncovers fraud or an applicant requests revocation of nomination prior to visa grant, clause 190.215 fails, compelling mandatory refusal.
3. Public Interest Criteria (PIC):
   • PIC 4020: The applicant must not have submitted bogus documents or false or misleading information in relation to the application or any visa held in the previous 12 months.
   • PIC 4005 / 4007: Apply the subclass criteria to determine which applicants and non-applying family members must meet which health criterion.
   • PIC 4001: Standard character requirements under section 501 of the Act.
4. Special Return Criteria (SRC): Freedom from outstanding re-entry bans (such as SRC 5001 or 5002).

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4. Practical Comparative Summary

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5. Worked Practical Case Study

Scenario: Marcus's Subclass 190 Dilemma

Marcus is an Advertising Specialist (ANZSCO 225111), an occupation on the STSOL and therefore completely ineligible for the Subclass 189 visa. He registers an EOI indicating an interest in Victorian nomination for a Subclass 190 visa.

• Claimed Points: Age 30 (30 pts) + Superior English (20 pts) + Bachelor Degree (15 pts) + Victoria Nomination (5 pts) + Single (10 pts) = 80 points.
• Victoria selects his EOI and approves his nomination, prompting SkillSelect to issue an invitation to apply on 10 August 2025.
• Marcus lodges his Subclass 190 visa application on 25 August 2025.

Issue 1: Points Drop

During application processing in December 2025, the delegate reviews Marcus's English test results. It is discovered that his PTE Academic test was taken on 8 August 2022. Because English tests are valid for exactly 3 years prior to invitation, the test expired on 7 August 2025—three days before the invitation was issued on 10 August. While Marcus retook the test in September 2025 and achieved Superior English again, the delegate cannot consider the post-invitation test.

• Result: Marcus had only Competent English (0 points) on the invitation date. His points drop by 20 points, from 80 to 60.
• Under clause 190.214, the visa must be refused because his assessed score (60) is both below the 65-point pass mark and below the invitation score of 80.

Issue 2: Interstate Relocation

Assume instead that Marcus's points were intact and his visa was granted. Two months after visa grant, Marcus receives a job offer in Sydney and approaches his migration agent asking if his Subclass 190 visa will be automatically cancelled if he leaves Melbourne.

• Advice: The agent must explain that Subclass 190 carries no Condition 8579. His permanent resident visa cannot be cancelled simply for moving to Sydney under visa condition breach grounds. However, if Victoria complains to the Department and evidence suggests he had arranged the Sydney job before the visa grant, the Department could investigate whether he made fraudulent representations regarding his settlement intention under section 101/109.