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MIGRATION AMENDMENT REGULATIONS 2007 (NO. 9) (SLI NO 273 OF 2007)
EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 273
Issued by the Minister for Immigration and Citizenship
Subject - Migration Act 1958
Migration Amendment Regulations 2007 (No. 9)
Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
In addition, subsection 31(3) of the Act provides that the regulations may prescribe criteria for a visa or visas of a specified class. Subsection 31(3) applies to all visa classes other than those provided by sections 33 (Special purpose visas, 34 (Absorbed person visas), 35 (Ex-citizen visas) or 38 (Criminal justice visas) of the Act. Further, paragraph 45C(2)(b) of the Act provides that the regulations may make provision for the remission, refund or waiver of visa application charge or an amount of visa application charge, and paragraph 504(1)(b) of the Act provides that the regulations may make provision for the refund of fees prescribed under the regulations.
The Regulations amend the Migration Regulations 1994 (‘the Principal Regulations’) to clarify the operation of certain provisions relating to nomination of positions and the grant of Subclass 457 (Business (Long Stay)) visas, which provides for the temporary entry of workers to help meet the skill needs of employers operating in Australia.
In particular, the Regulations amend the Principal Regulations to:
Details of the Regulations are set out in the Attachment.
The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
The Regulations commence on 10 September 2007.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Office of Best Practice Regulation’s Business Compliance Cost and Competition Assessment was used to determine that there is no compliance cost to business.
The Department of Employment and Workplace Relations was consulted in relation to these Regulations. No other consultations were conducted in relation to the Regulations as the amendments were considered not to have relevant implications for any other external agencies or bodies.
ATTACHMENT
Details of the proposed Migration Amendment Regulations 2007 (No. 9)
Regulation 1 – Name of Regulations
This regulation provides that these Regulations are the Migration Amendment Regulations 2007 (No. 9).
Regulation 2 – Commencement
This regulation provides that these Regulations commence on 10 September 2007.
Regulation 3 – Amendment of Migration Regulations 1994
This regulation provides for the Migration Regulations 1994 (‘the Principal Regulations’) to be amended as set out in Schedule 1 to these Regulations.
Regulation 4 - Transitional
Subregulation 4(1) provides that the amendments made by items [3] to [8] of Schedule 1 apply in relation to a nomination of an activity made but not finally determined (within the meaning of subsection (5)(9) of the Migration Act 1958 (‘the Act’) before 10 September 2007, or which is made on or after 10 September 2007. The effect of this subregulation is that the amendments relating to considering an occupation specified in the relevant Gazette Notice at the time of decision and not at the time of nomination, apply in relation to a nomination of an activity on hand at 10 September 2007 and nominations made after 10 September 2007.
Subregulation 4(2) provides that the amendments made by items [10] to [14] of Schedule 1 apply to an application for a visa that was made but not finally determined (within the meaning of subsection (5)(9) of the Act) before 10 September 2007, and to applications made on or after 10 September 2007. The effect of this subregulation is that the amendments relating to considering an occupation specified in the relevant Gazette Notice at the time of decision and not at the time of nomination, apply in relation to a nomination of an activity on hand at 10 September 2007 and nominations made after 10 September 2007.
Schedule 1 – Amendments
Item [1] – After subregulation 1.20D(2B)
This item inserts a note after subregulation 1.20D(2B) in regulation 1.20D (Approval as standard business sponsor) in Division 1.4A of Part 1 of the Principal Regulations.
Regulation 1.20D provides when the Minister must or must not approve an application for approval as a standard business sponsor. Relevantly, subregulation 1.20D(2A) provides the circumstances in which the Minister must not approve an application for approval as a business sponsor, including the circumstances of the Minister being aware of the existence of adverse information about the business background of the sponsor or where the sponsor is under investigation for breach of an undertaking or non-compliance with Australian law. Subregulation 1.20D(2B) provides that the Minister may approve an application for approval, even where the circumstances in subregulation 1.20D(2A) exist, if he or she considers it reasonably appropriate to do so.
The new note provides an example of the circumstances in which it may be reasonably appropriate for the Minister to approve the application, despite the existence of adverse information about the business background of the sponsor or where the sponsor is under investigation for breach of an undertaking or non-compliance with Australian law. These circumstances include where the adverse information or the potential outcome of the investigation would not in the Minister’s opinion, result in the sponsorship applicant being deemed unfit to be a sponsor.
This note seeks to address a concern of the Senate Standing Committee on Regulations and Ordinances over the apparent breadth of subregulation 1.20D(2B) in giving the Minister the discretion to approve an application for approval as a business sponsor if he or she considers it reasonably appropriate to do so, and is inserted as suggested by the Committee.
Item [2] – After subregulation 1.20DA(2B)
This item inserts a note after subregulation 1.20DA(2B) in regulation 1.20DA (Approval as standard business sponsor – overseas business) in Division 1.4A of
Part 1 of the Principal Regulations.
Regulation 1.20DA provides when the Minister must or must not approve an application for approval as a business sponsor for an overseas business. Relevantly, subregulation 1.20DA(2A) provides the circumstances in which the Minister must not approve an application for approval as a business sponsor, including the circumstances of the Minister being aware of the existence of adverse information about the business background of the sponsor or where the sponsor is under investigation for breach of an undertaking or non-compliance with Australian law. Subregulation 1.20DA(2B) provides that the Minister may approve an application for approval, even where the circumstances in subregulation 1.20DA(2A) exist, if he or she considers it reasonably appropriate to do so.
The new note provides an example of the circumstances in which it may be reasonably appropriate for the Minister to approve the application, despite the existence of adverse information about the business background of the sponsor or where the sponsor is under investigation for breach of an undertaking or non-compliance with Australian law. These circumstances include where the adverse information or the potential outcome of the investigation would not in the Minister’s opinion, result in the sponsorship applicant being deemed unfit to be a sponsor. This note seeks to address a concern of the Senate Standing Committee on Regulations and Ordinances over the apparent breadth of subregulation 1.20DA(2B) in giving the Minister the discretion to approve an application for approval as a business sponsor if he or she considers it reasonably appropriate to do so, and is inserted as suggested by the Committee.
Item [3] – Subregulation 1.20G(2)
This item omits the words “If the person” in subregulation 1.20G(2) in Division 1.4A of Part 1 of the Principal Regulations, and replaces them with the words “Subject to subregulation (2A), if the person”.
Subregulation 1.20G(2) provides that where an eligible person nominates to the Minister an activity in which an individual is proposed to be employed in Australia, the tasks of the nominated activity must correspond to the tasks of an occupation specified in the relevant Gazette Notice. This amendment makes subregulation 1.20G(2) subject to new subregulation 1.20G(2A), inserted by item [4] of this Schedule. For further details of the effect of this amendment, please see the notes on item [4], below.
Item [4] – After subregulation 1.20G(2)
This item inserts new subregulation 1.20G(2A) in regulation 1.20G (Nomination of business activities) in Part 1 of Division 1.4A of the Principal Regulations.
The effect of new paragraphs 1.20G(2A)(a) and (b) is that new subregulation 1.20G(2A) applies where a person who is a standard business sponsor has nominated a business activity under regulation 1.20G or regulation 1.20GA and at the time the Minister considers the nomination under regulation 1.20H, the tasks of the nominated activity no longer correspond to the tasks of an occupation described in the relevant Gazette Notice under subregulation 1.20G(2) or subparagraph 1.20GA(1)(a)(i). A nomination by a standard business sponsor could not be approved under regulation 1.20H in those circumstances.
New subregulation 1.20G(2A) provides that if these circumstances apply but the sponsor has become a party to a labour agreement at that time, the nomination is taken to have been made by the person as a party to a labour agreement and the requirement that the nominated activity must correspond to the tasks of an occupation in the relevant Gazette Notice when the Minister considers the nomination (which would apply to a nomination by a standard business sponsor), is taken not to apply.
The amendments made to regulation 1.20H by item [8] of this Schedule, below, clarify that the Minister must not approve a nomination made by a business sponsor if at the time the Minister considers the nomination, the tasks of the nominated activity no longer correspond to the tasks of an occupation specified in the relevant Gazette Notice. A labour agreement is a formal agreement entered into between the Minister for Immigration and Citizenship or the Minister for Employment and Workplace Relations and a person or organisation under which that person or organisation is authorised to recruit persons to be employed by that person or organisation in Australia. A business may become a party to a labour agreement if it is considered that there are circumstances in Australia’s interests that warrant authorising the business to recruit overseas workers to work in Australia under conditions defined within a formal agreement. This agreement may provide for work in an occupation that is not specified in the relevant Gazette Notice.
The effect of these amendments is that a nomination under regulation 1.20G or regulation 1.20GA may still proceed on the basis of being made by a party to a labour agreement even though the same nomination was originally made by the person as a standard business sponsor.
Item [5] – After subregulation 1.20G(6)
This item inserts new subregulation 1.20G(7) in regulation 1.20G (Nomination of business activities) in Division 1.4A of Part 1of the Principal Regulations.
New subregulation 1.20G(7) provides for circumstances in which a fee paid for a nomination of business activities by a business sponsor under regulation 1.20G may be refunded by the Minister. This item is consequential on the amendments made by items [4] and [8] of this Schedule. The amendments made by item [8], described below, clarify that the Minister must not approve a nomination if at the time the Minister considers the nomination, the tasks of the nominated activity do not correspond to the tasks of an occupation specified in the relevant Gazette Notice. The amendments made by item [4], described above, allow a nomination by a business sponsor to proceed despite the activity not being specified in the relevant Gazette Notice, if the business sponsor has become a party to a labour agreement.
New paragraph 1.20G(7)(a) prescribes circumstances in which the Minister may refund the fee for a nomination if the nomination is withdrawn before it is considered because the nominated activity no longer corresponds to the tasks of an occupation specified in the relevant Gazette Notice. It would be open to the Minister to exercise the discretion to refund the fee, for example, in circumstances where the Minister is satisfied that a sponsor withdrawing a nomination does not wish to become a party to a labour agreement and therefore will be unable to proceed with the nomination.
New paragraph 1.20G(7)(b) provides the circumstances in which the Minister may refund the fee for nomination if the nomination is approved. These circumstances are that after approval of the nomination but before a visa is granted, the nominated activity no longer corresponds to the tasks of an occupation specified in the relevant Gazette Notice. In these circumstance the effect of new time of decision criteria inserted in Subclass 457 (Business (Long Stay)) by items [13] and [14] of this Schedule, described in further detail below, will be that despite approval of the nomination, a Subclass 457 visa cannot be granted unless the sponsor has become a party to a labour agreement. The effect of this amendment is that it would be open to the Minister to exercise the discretion to refund the nomination fee, for example, if the Minister was satisfied that the sponsor did not wish to enter into a labour agreement and therefore that no visa could be granted on the basis of the approved nomination.
Item [6] – After subregulation 1.20GA(6)
This item inserts a new subregulation 1.20GA(7) in regulation 1.20GA (Nomination of business activities – certified regional employment) in Division 1.4A of Part 1 of the Principal Regulations.
New subregulation 1.20GA(7) provides for circumstances in which a fee paid for a nomination of business activities by a business sponsor under regulation 1.20GA may be refunded by the Minister. This item is consequential on the amendments made by items [4] and [8] of this Schedule. The amendments made by item [8], described below, clarify that the Minister must not approve a nomination if at the time the Minister considers the nomination, the tasks of the nominated activity do not correspond to the tasks of an occupation specified in the relevant Gazette Notice. The amendments made by item [4], described above, allow a nomination by a business sponsor to proceed despite the activity not being specified in the relevant Gazette Notice, if the business sponsor has become a party to a labour agreement.
New paragraph 1.20GA(7)(a) prescribes circumstances in which the Minister may refund the fee for a nomination if the nomination is withdrawn before it is considered because the nominated activity no longer corresponds to the tasks of an occupation specified in the relevant Gazette Notice. It would be open to the Minister to exercise the discretion to refund the fee, for example, in circumstances where the Minister is satisfied that the sponsor withdrawing the nomination does not wish to become a party to a labour agreement and therefore will be unable to proceed with the nomination.
New paragraph 1.20GA(7)(b) provides the circumstances in which the Minister may refund the fee for nomination if the nomination is approved. These circumstances are that after approval of the nomination but before a visa is granted, the nominated activity no longer corresponds to the tasks of an occupation specified in the relevant Gazette Notice. In these circumstance the effect of new time of decision criteria inserted in Subclass 457 (Business (Long Stay)) by items [13] and [14] of this Schedule, described in further detail below, will be that despite approval of the nomination, a Subclass 457 visa cannot be granted unless the sponsor has become a party to a labour agreement. The effect of this amendment is that it would be open to the Minister to exercise the discretion to refund the nomination fee, for example, if the Minister was satisfied that the sponsor did not wish to enter into a labour agreement and therefore that no visa could be granted on the basis of the approved nomination.
Item [7] – Sub-subparagraph 1.20H(1A)(b)(iii)(B)
This item inserts the word “or” after the word “Territory;” at the end of sub-subparagraph 1.20H(1A)(b)(iii)(B) in Division 1.4A of Part 1 of the Principal Regulations.
This is a technical amendment to facilitate the insertion of new paragraphs 1.20H(1A)(c) and (d) by item [8] of this Schedule, below.
Item [8] – After paragraph 1.20H(1A)(b)
This item inserts new paragraphs 1.20H(1A)(c) and (d) in regulation 1.20H (Approval of nomination of business activities) in Division 1.4A of Part 1 of the Principal Regulations.
New paragraph 1.20H(1A)(c) prescribes additional circumstances in which the Minister must not approve a nomination of business activities made by a business sponsor under regulation 1.20G. The Minister must not approve the nomination if the tasks of the nominated activity do not correspond to the tasks of an occupation specified in the relevant Gazette Notice made under subregulation 1.20G(2) that is in effect at the time the Minister considers the nomination, if the nomination is not taken to have been made by the person as a party to a labour agreement under new subregulation 1.20G(2A) (inserted by item [4] of this Schedule, described above).
New paragraph 1.20H(1A)(d) inserts additional circumstances for when the Minister must not approve a nomination of business activities made by a business sponsor under regulation 1.20GA for certified regional employment. The Minister must not approve the nomination if the tasks of the nominated activity do not correspond to the tasks of the occupation specified in the relevant Gazette Notice made under paragraph 1.20GA(1)(a) as in effect at the time the Minister considers the nomination, if the nomination is not taken to have been made by a person as a party to a labour agreement under new subregulation 1.20G(2A) (inserted by item [4] of this Schedule, described above).
This amendment clarifies that when the Minister is considering a nomination for approval of business activities, the Minister is to have regard to the relevant Gazette Notice that is in force when the Minister considers the nomination, and not the Gazette Notice that was force at the time the nomination was made. There may be a lapse of time between the making of the nomination and the Minister’s consideration of the nomination, and during that time the Gazette Notice may have been changed. This amendment is intended to maintain the integrity of the standard business sponsorship arrangements, and in particular, ensures that only occupations considered to be appropriate under the arrangement can be accepted.
Item [9] – After subregulation 1.20H(1B)
This item inserts a note after subregulation 1.20H(1B) in regulation 1.20H (Approval of nominations of business activities) in Division 1.4A of Part 1 of the Principal Regulations.
Regulation 1.20H deals with when the Minister must or must not approve a nomination of business activities. Relevantly, subregulation 1.20H(1A) provides the circumstances in which the Minister must not approve a nomination, including the circumstances of the Minister being aware of the existence of adverse information about the business background of the sponsor or where the sponsor is under investigation for breach of an undertaking or non-compliance with Australian law. Subregulation 1.20H(1B) provides that the Minister may approve a nomination for approval, even where the circumstances in subregulation 1.20H(1A) exist, if he or she considers it reasonably appropriate to do so.
The new note provides an example of the circumstances in which it may be reasonably appropriate for the Minister to approve the nomination, despite the existence of adverse information about the business background of the sponsor or where the sponsor is under investigation for breach of an undertaking or non-compliance with Australian law. These circumstances include where the adverse information or the potential outcome of the investigation would not in the Minister’s opinion, result in the sponsors being deemed unfit to be a sponsor. This note seeks to address a concern of the Senate Standing Committee on Regulations and Ordinances over the apparent breadth of subregulation 1.20H(1B) in giving the Minister the discretion to approve a nomination if he or she considers it reasonably appropriate to do so and is inserted as suggested by the Committee.
Item [10] – Subparagraph 2.12F(3)(c)(iii)
This item replaces a full stop with “; and” at the end of subparagraph 2.12F(3)(c)(iii) in Division 2.2A of Part 2 of the Principal Regulations.
This is a technical amendment which facilitates the insertion of new paragraph 2.12F(3)(d) by item [11] of this Schedule, below.
Item [11] – After paragraph 2.12F(3)(c)
This item inserts new paragraph 2.12F(3)(d) in regulation 2.12F (Refund of first instalment of visa application charge) in Division 2.2A of Part 2 of the Principal Regulations.
Regulation 2.12F deals with refunds of the first instalment of visa application charge (VAC). Relevantly, subregulation 2.12F(3) provides the circumstances in which the Minister may refund the amount paid by way of the first instalment of the VAC in relation to an application for a visa.
New paragraph 2.12F(3)(d) prescribes additional circumstances in which the Minister has a discretion to refund the first instalment of the VAC. The additional circumstances apply to applicants for a Temporary Business Entry (Class UC) visa. The Minister may refund the VAC for an application for this visa made on the basis of an Australian business sponsorship or overseas business sponsorship, if the applicant withdraws the application because the applicant cannot satisfy the time of decision criteria, due to the application being based on an approved nomination of an activity in which the applicant is to work which, at the time of decision, no longer corresponds to the tasks of an occupation specified in a relevant Gazette Notice.
The insertion of new paragraph 2.12F(3)(d) reflects the amendments made by items [13] and [14] of this Schedule, below, which insert additional criteria to be satisfied at the time of decision on an application for a Subclass 457 (Business (Long Stay)) visa to the effect that the tasks of the approved nomination on which the application is based must continue to correspond to those of an application specified in a relevant Gazette Notice. Where this criterion cannot be satisfied, a Subclass 457 visa may only be granted if the sponsor has now become a party to a labour agreement which includes the nominated activity.
The effect of this amendment is that it would be open to the Minister to exercise the discretion to refund the first instalment of the VAC, for example, if the Minister was satisfied that the sponsor does not wish to become a party to a labour agreement and the visa applicant withdraws their application because the activity in which it is proposed they would work is no longer specified in a relevant gazette notice and therefore their application can no longer lead to the grant of a visa.
Item [12] – Schedule 2, paragraph 457.223(2)(b)
This item substitutes paragraph 457.223(2)(b) in Part 457 (Subclass 457 (Business (Long Stay)) of Schedule 2 to the Principal Regulations.
New paragraph 457.223(2)(b) provides that a criterion to be satisfied at the time of decision on an application for the grant of a Subclass 457 visa on the basis of a labour agreement is that the activity in which the applicant is proposed to be employed in Australia under the labour agreement is the subject of an approved business nomination by a person who is a party to the labour agreement, or who was at the time of nomination a standard business sponsor and has since become a party to the relevant labour agreement.
The effect of this amendment is to allow the grant of a Subclass 457 visa on the basis of a labour agreement and an approved business nomination, even though the nomination may have been made by a standard business sponsor, rather than a person who was a party to the labour agreement at the time of nomination.
This amendment reflects the amendments made by item [4] of this Schedule, described above, which make provisions relating to circumstances where at the time the Minister considers a nomination of a business activity under regulation 1.20H the tasks of a nominated activity no longer correspond to the tasks of an occupation described in the relevant Gazette Notice and therefore the nomination cannot be approved on the basis of having been made by a business sponsor, but at that time, the business sponsor has become a party to a labour agreement. In such circumstances the nomination will be taken to have been made by the person as a party to a labour agreement and the requirement when the Minister considers the nomination that the nominated activity must correspond to the tasks of an occupation in a Gazette Notice is taken not to apply.
New paragraph 457.223(2)(b) facilitates the grant of a Subclass 457 visa on the basis of the relevant labour agreement under these circumstances.
Item [13] – Schedule 2, after paragraph 457.223(4)(ec)
This item inserts new paragraphs 457.223(4)(ed) and (ee) in Part 457 (Subclass 457 (Business (Long Stay)) of Schedule 2 to the Principal Regulations.
New paragraphs 457.223(4)(ed) and (ee) insert additional time of decision criteria to be satisfied by primary applicants for a Subclass 457 (Business (Long Stay)) visa on the basis of an Australian business sponsorship. The criterion in new paragraph 457.223(2)(ed) applies where the application is based on an approved nomination of a business activity under regulation 1.20G. The criterion in new paragraph 457.223(2)(ee) applies where the application is based on an approved nomination of a business activity under regulation 1.20GA for certified regional employment. The criteria require that at the time of decision, the tasks of the activity must continue to correspond to the tasks of an occupation that is specified in the Gazette Notice relevant to the regulation under which the nomination was approved, as in effect at the time at which the application is decided.
There may be a lapse in time between the making of the nomination and the making of an application for a Subclass 457 Business (Long Stay) visa. This amendment is intended to maintain the integrity of the standard business sponsorship arrangements, and in particular, ensures that only occupations considered to be appropriate under the arrangement can be accepted.
Item [14] – Schedule 2, after paragraph 457.223(5)(b)
This item inserts new paragraph 457.223(5)(ba) in Part 457 (Subclass 457 (Business (long Stay)) of Schedule 2 to the Principal Regulations.
New paragraph 457.223(5)(ba) provides an additional time of decision criterion to be satisfied by primary applicants for a Subclass 457 Business (Long Stay) visa on the basis of a standard business sponsorship (overseas business). These criteria apply where the application is based on an approved nomination of a business activity under regulation 1.20G (standard business sponsors where they are an overseas business with no operating base in Australia are not eligible to make nominations of business activities under regulation 1.20GA.). The criterion in new paragraph 457.223(5)(ba) requires that at the time of decision, the tasks of the activity of the approved nominated activity in relation to the application must continue to correspond to the tasks of an occupation that is specified in the relevant Gazette Notice, as in effect at the time at which the application is decided.
There may be a lapse in time between the making of the nomination and the making of an application for a Subclass 457 Business (Long Stay) visa. This amendment is intended to maintain the integrity of the standard business sponsorship arrangements, and in particular, ensures that only occupations considered to be appropriate under the arrangement can be accepted.