Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2009 (NO. 5) AMENDMENT REGULATIONS 2009 (NO. 2) (SLI NO 230 OF 2009)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 230

 

Issued by the Minister for Immigration and Citizenship

 

Migration Act 1958

 

Migration Amendment Regulations 2009 (No. 5) Amendment Regulations 2009 (No. 2)

 

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, regulations may be made pursuant to the provisions of the Act in Attachment A.

The purpose of the proposed Regulations is to amend the Migration Amendment Regulations 2009 (No. 5) (the Amendment Regulations), which were made on 18 June 2009, which have already been amended once by the Migration Amendment Regulations 2009 (No. 5) Amendment Regulations 2009 (No. 1) on 12 August 2009.

 

The Amendment Regulations are due to commence on 14 September 2009 and would be amended at this time to ensure that all the regulations supporting the Migration Legislation Amendment (Worker Protection) Act 2008 including transitional arrangements commence on the same date and as one coherent sponsorship regime.

 

The proposed Regulations would make changes to the:

 

Details of the proposed Regulations are set out in the Attachment B.

 

The Regulations commence on the day after registration.

 

The Office of Best Practice Regulation’s Best Practice Regulation Preliminary Assessment was used to determine that the Regulations will not significantly increase costs for business. In the main, the changes are preserving current responsibilities, with a removal of unnecessary ones, so there will be a net reduction in overall compliance costs.

 

The Regulations were developed in consultation with:

·        a selection of industry peak bodies, unions, and State Governments through the Skilled Migration Consultative Panel;

·        Department of Foreign Affairs and Trade;

·        Department of Education, Employment and Workplace Relations;

·        the Treasury;

·        Attorney General’s Department;

·        Australian Taxation Office; and

·        Migration Review Tribunal.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

 


ATTACHMENT A

 

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.

Subsection 5(1) of the Act provides, amongst other things, that “prescribed” means prescribed by the regulations.

 

In addition to subsection 504(1), the following provisions may apply:

 

 

 

 

 

·        section 140H of the Act which deals with sponsorship obligations, in particular:

 

o       subsection 140H(1) of the Act provides that a person who is or was an approved sponsor must satisfy the sponsorship obligations prescribed by the regulations;

 

o       subsection 140H(4) of the Act provides that the regulations may require a person to satisfy sponsorship obligations in respect of each visa holder sponsored by the person or generally;

 

o       subsection 140H(5) of the Act provides that the sponsorship obligations must be satisfied in the manner (if any) and with the period (if any) prescribed by the regulations; and

 

o       subsection 140H(6) of the Act provides that there may be different sponsorship obligations prescribed for different kinds of visa and different classes of sponsor;

 

·        section 140L of the Act which deals with the circumstances in which a person approved under section 140E of the Act as a sponsor may be barred as a sponsor or have their approval as a sponsor cancelled, in particular:

 

o       subsection 140L(1) of the Act provides that the regulations may prescribe the circumstances in which the Minister may take one or more of the actions in section 140M;

 

o       subsection 140L(2) of the Act provides that the regulations may prescribe the circumstances in which the Minister must take one or more of the actions in section 140M; and

 

o       subsection 140L(3) of the Act provides that different circumstances and different criteria may be prescribed for different kinds of visa and different classes of sponsor.


 

ATTACHMENT B

 

Details of the Migration Amendment Regulations 2009 (No. 5) Amendment Regulations 2009 (No. 2)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2009 (No. 5) Amendment Regulations 2009 (No. 2).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on the day after registration.

 

The effect of this is that the Migration Amendment Regulations 2009 (No. 5) (the Amendment Regulations), as amended by these Regulations and the Migration Amendment Regulations 2009 (No. 5) Amendment Regulations 2009 (No. 1) (which commenced on the day after registration), will commence on 14 September 2009 in accordance with regulation 2 of the Amendment Regulations.

 

Regulation 3 – Amendment of Migration Amendment Regulations 2009 (No. 5)

 

This regulation provides that Schedule 1 amends the Amendment Regulations as amended by the Migration Amendment Regulations 2009 (No. 5) Amendment Regulations 2009 (No. 1).

 

These Regulations amend the Amendment Regulations rather than the Migration Regulations 1994 (the Principal Regulations) because the Amendment Regulations insert a new Part 2A into the Principal Regulations to introduce the new enforceable sponsorship framework, to commence on 14 September 2009. The Regulations relate to Part 2A and therefore should amend the Amendment Regulations which inserts Part 2A. These Regulations also ensure that new Part 2A on commencement operates as one coherent sponsorship regime, including the proposed transitional arrangements.

 

Schedule 1 – Amendments

Item [1] – Schedule 1, item [9], proposed subregulation 2.57(1), after definition of Australian organisation

This item inserts a new definition in item [9] of Schedule 1 to the Amendment Regulations.

This item inserts “base rate of pay” and defines this as the rate of pay payable to an employee for his or her ordinary hours of work, but not including incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts.

This definition is based on the definition of base rate of pay in section 16 of the Fair Work Act 2009. The definition is based on section 16 of the Fair Work Act 2009 as it is intended that interpretations of section 16 of the Fair Work Act 2009 will apply to this definition.

Item [2] – Schedule 1, item [9] after proposed subregulation 2.57 (3)

This item inserts an explanation of when a set of terms and conditions of employment are less favourable than another set of terms and conditions of employment in item [9] of Schedule 1 to the Amendment Regulations.

This item explains that a set of terms and conditions of employment for a person (the first set) is less favourable than another set of terms and conditions of employment for a person if the earnings provided for in the first set are less than the earnings provided for in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set.

The effect of this amendment is to allow earnings to be compared when comparing two sets of terms and conditions of employment in the first instance to determine whether one set of terms and conditions of employment are less favourable than another set. The amendment also allows for substantial evidence to be provided to illustrate that aspects of terms and conditions of employment other than earnings should be considered in comparing two sets of terms and conditions of employment.

For example, if the earnings under one set of terms and conditions of employment for ordinary hours of work of 50 hours per week, are greater than another set of terms and conditions of employment for ordinary hours of work for 38 hours per week, then depending on the relevant earnings, it may be entirely appropriate to regard the latter set of terms and condition as no less favourable than the former.

Item [3] – Schedule 1, item [9], after proposed regulation 2.57

This item inserts a new regulation 2.57A which defines earnings in item [9] of Schedule 1 to the Amendment Regulations. This item inserts the meaning of “earnings” for the purposes of Part 2A of Schedule 1 to the Amendment Regulations.

New subregulation 2.57A(1) defines earnings as the person’s wages, and amounts applied or dealt with in any way on the person’s behalf or as the person directs and the agreed money value of non-monetary benefits.

New subregulation 2.57A(2) provides that earnings do not include payments the amount of which cannot be determined in advance, reimbursements, contributions to a superannuation fund to the extent that they are contributions to which new subregulation 2.57A(4) applies.

New subregulation 2.57A(3) provides that non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer.

New subregulation 2.57A(4) provides that the definition of earnings applies to contributions that the employer makes to a superannuation fund to the extent that 1 or more of the following applies:

·        the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;

·        the employer is required to contribute to the fund for the employee’s benefit in relation to a defined benefit interest (within the meaning of section 292-175 of the Income Tax Assessment Act 1997) of the employee;

·        the employer is required to contribute to the fund for the employee’s benefit under a law of the Commonwealth, a State or a Territory.

This definition is based on the definition of earnings in section 332 of the Fair Work Act 2009. The definition is based on section 332 of the Fair Work Act 2009 as it is intended that interpretations of section 332 of the Fair Work Act 2009 will apply to this definition.

Item [4] – Schedule 1, item [9], proposed paragraph 2.72 (10) (c)

This item substitutes paragraph 2.72(10)(c) in item [9] of Schedule 1 to the Amendment Regulations and inserts new paragraphs 2.72(10)(c) and 2.72(10)(cc) in item [9] of Schedule 1 to the Amendment Regulations.

New paragraph 2.72(10)(c) provides that the Minister must be satisfied that the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work in the person’s workplace at the same location.

 

New paragraph 2.72(10)(c) is similar to current paragraph 2.72(10)(c) in item [9] of Schedule 1 to the amendment regulations. The difference is the inclusion of ‘at the same location’. The purpose of this change is to clarify that the equivalent Australian citizen or permanent resident needs to be in the same workplace location as the occupation associated with the nominated position.

New paragraph 2.72(10)(cc) provides that the Minister must be satisfied that the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c) that are provided or would be provided to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph.

The effect of this amendment is to provide that the provision of some terms and conditions of employment, while meeting the requirements set out in paragraph (c), will not be sufficient for a nomination by a standard business sponsor to be approved. In other words, a nomination may not be approved if the base rate of pay is below the temporary skilled migration income threshold despite the fact that the terms and conditions are no less favourable than the terms and conditions that are provided or would be provided to an Australian citizen or an Australian permanent resident.

The purpose of the requirement that the base rate of pay is above the temporary skilled migration income threshold is to maximise the likelihood that Subclass 457 (Business (Long Stay)) visa holders can independently provide for themselves in Australia, acknowledging that temporary residents may not have access to the same level of government and social support as Australian citizens and permanent residents. The setting of the temporary skilled migration income threshold is intended to limit the extent to which Subclass 457 (Business (Long Stay)) visa holders may impose a burden on the broader Australian community or come under pressure to breach their visa conditions.

Item [5] – Schedule 1, item [9], after proposed subregulation 2.72 (10)

This item insets new subregulations 2.72(10AA), 2.72(10AB) and 2.72(10A) after subregulation 2.72(10) in item [9] of Schedule 1 to the Amendment Regulations.

New subregulation 2.72(10AA) provides that for paragraphs 2.72(10)(c) and 2.72(10)(cc), if there is no Australian citizen or Australian permanent resident who performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing, the terms and conditions of employment and the base rate of pay under the terms and conditions of employment that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

The amendment provides the methodology for a standard business sponsor to use in demonstrating what the market salary rate is, where they do not employ an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location. The methodology set out in an instrument in writing is designed for the standard business sponsor to determine what they would pay to an Australian citizen or Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

New subregulation 2.72(10AB) provides that paragraphs 2.72(10)(c) and 2.72(10)(cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

The effect of this amendment is to provide that where the annual earnings of the person identified in the nomination are equal to or greater than the amount specified in an instrument in writing, the Minister does not have to be satisfied that:

The purpose of this amendment is to reduce the administrative burden for the sponsor and the Department of Immigration and Citizenship where the annual earnings are relatively high and the risks in terms of compliance and the integrity of the overall skilled temporary entry visa program are relatively low.

New subregulation 2.72(10A) provides that the Minister may disregard the criterion in paragraph 2.72(10)(cc) if:

·        the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

·        the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

·        the Minister considers it reasonable to do so.

The effect of this amendment is to allow the Minister, for the purposes of considering whether to approve a nomination, to disregard the fact that the base rate of pay is less than the temporary skilled migration income threshold. To do so, the proposed annual earnings must be greater than the temporary skilled migration income threshold and the Minister must consider it reasonable in the circumstances to approve the nomination.

Given the purpose of paragraph 2.72(10)(cc), which is outlined in item [4] above, it may not be reasonable to consider additional earnings to the extent to which those earnings are not directed toward the cost of living expenses.

Conversely, it may be reasonable to consider the annual earnings where the disposable income of the person is greater than it would otherwise be if their remuneration was structured in such a way that the base rate of pay would greater than the temporary skilled migration income threshold.

Item [6] – Schedule 1, item [9], proposed subregulation 2.73 (1A)

This item omits “This regulation applies to a person:” and inserts “Subregulations (1) to (6) apply to a person:” in subregulation 2.73(1A) in item [9] of Schedule 1 to the Amendment Regulations.

The effect of this amendment is to clarify that regulation 2.73(1A) of the Regulations will apply to a person nominating a proposed occupation in accordance with the process set out in subregulations (1) to (6).

Item [7] – Schedule 1, item [9], after proposed subregulation 2.73 (6)

This item inserts new subregulations 2.73(7) and 2.73(8) after subregulation 2.73(6) in item [9] of Schedule 1 to the Amendment Regulations.

The amendment provides that where a person:

then the Minister may refund the nomination fee paid by the person for the approved nomination if the person makes a written request for the refund before the approval of the nomination ceases to have effect under subregulation 1.20H(5) (as in force immediately before 14 September 2009).

The effect of this amendment is to provide the ability to refund the nomination fee for those nominations approved prior to 14 September 2009 which do not identify an individual in the nomination application. Regulation 1.20G (as in force immediately prior to 14 September 2009) only requires a standard business sponsor to nominate an activity and does not require a standard business sponsor to identify a prospective Subclass 457 (Business (Long Stay)) visa holder in the nomination application.

After 14 September 2009 it will not be possible for a nomination approved prior to 14 September 2009 which does not specify the name of a person to be used for the grant of a Subclass 457 (Business (Long Stay)) visa. This is because the Schedule 2 criteria (as in force from 14 September 2009) for the grant of a Subclass 457 (Business (Long Stay)) visa under the standard business sponsor stream requires an approved nomination by a standard business sponsor to identify the visa applicant.

Item [8] – Schedule 1, item [9], proposed regulation 2.79

This item substitutes regulation 2.79 in item [9] of Schedule 1 to the Amendment Regulations and inserts new subregulation 2.79 in item [9] of Schedule 1 to the Amendment Regulations.

New subregulation 2.79(1) applies to a person who is or was a standard business sponsor, or a party to a work agreement who is or was an approved sponsor, of a primary sponsored person, if the primary sponsored person holds a Subclass 457 (Business (Long Stay)) visa or the last substantive visa held by the primary sponsored person was a Subclass 457 (Business (Long Stay)) visa.

New subregulation 2.79(1) is subject to new subregulation 2.79(1A). Subregulation 2.79(1A) provides that regulation 2.79 does not apply to a standard business sponsor of a primary sponsored person if:

The effect of this amendment is that a sponsor does not need to satisfy the obligation in respect of a primary sponsored person whose annual earnings are equal to or greater than an amount specified in an instrument in writing.

New subregulation 2.79(2) provides that a person to whom the obligation applies must ensure that the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment that the person provides, or would provide, to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

New subregulation 2.79(2A) provides that:

·        if the person is or was a standard business sponsor of a primary sponsored person;

·        whose nomination of an activity, in relation to which the primary sponsored person was granted the Subclass 457 (Business (Long Stay)) visa was approved under regulation 1.20H (as in force immediately prior to 14 September 2009);

then from 14 September 2009 until immediately prior to 1 January 2010, subregulations 2.79(2) and 2.79(3) do not apply and the person must ensure that the primary sponsored person’s salary is not less than the minimum salary level worked out and paid in the way specified by the Minister in an instrument in writing.

It is intended that new subregulation 2.79(2A) in combination with the proposed instrument operates so as to extend the arrangements in respect of terms and conditions of employment as they applied to the affected visa holders immediately prior to commencement. On and after 1 January 2010, subregulations 2.79(2) and 2.79(3) will apply.

The effect of this amendment is that a person to whom 2.79(2) applies will not have to ensure that the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment that the person provides, or would provide, to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location until 1 January 2010.

This amendment provides for a short transitional period in respect of visa holders who were nominated prior to commencement. This transitional provision is intended to allow existing sponsors of Subclass 457 (Business (Long Stay)) visa holders time to adjust to the new sponsorship obligation to ensure equivalent terms and conditions of employment.

New paragraph 2.79(3)(a) provides that:

then the person must ensure that the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment that the Minister was satisfied, under paragraph 2.72(10)(c), were no less favourable than the terms and conditions of employment that are provided, or would be provided, to an Australian citizen or an Australian permanent resident.

The effect of this amendment is to ensure that a person who is or was a standard business sponsor of a primary sponsored person, must vary the terms and conditions of employment of the primary sponsored person are always no less favourable then the terms and conditions they provide or would provide to an Australian citizen or Australian permanent resident. However, not in such a way as to make the terms and conditions less favourable than what was approved by the Minister in the nomination.

The purpose of this amendment is to ensure that the terms and conditions of employment of a primary sponsored person do not fall below what was approved at the nomination stage.

New subparagraphs 2.79(3)(b) to (e) set out the base rates of pay of a primary sponsored person who was granted a Subclass 457 (Business (Long Stay)) visa prior to 14 September 2009.

New paragraph 2.79(3)(b) provides that:

·        if the person is or was a standard business sponsor of a primary sponsored person; and

·        the nomination by the person of an activity under regulation 1.20GA (relating to regionally certified nominations as in force immediately prior to 14 September 2009), in relation to which the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa, was approved under regulation 1.20H (as in force immediately prior to 14 September 2009); and

·        paragraph 2.79(3)(d) does not apply,

the primary sponsored person’s base rate of pay is not less than $40,705.

This provision operates in addition to subregulation 2.79(2). For a person who is or was a standard business sponsor of a primary sponsored person, the terms and conditions of employment must provide for a base rate of pay not less than $40 705.

This amendment is intended to ensure that the base rate of pay under the terms and conditions of employment required by subregulation 2.79(2) do not fall below the minimum salary level which a standard business sponsor of a primary sponsored person would have had to pay under the undertaking at paragraph 1.20CB(1)(i) as in force immediately prior to 14 September 2009.

New paragraph 2.79(3)(c) provides that:

·        if the person is or was a standard business sponsor of a primary sponsored person; and

·        the nomination by the person of an activity under regulation 1.20G (as in force immediately prior to 14 September 2009), in relation to which the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa, was approved under regulation 1.20H (as in force immediately prior to 14 September 2009): and

·        paragraph 2.79(3)(d) does not apply,

the primary sponsored person’s base rate of pay is not less than $45,220.

This provision operates in addition to subregulation 2.79(2). For a person to whom paragraph 2.79(3)(c) applies, the terms and conditions of employment must also provide for a base rate of pay not less than $45,220.

This amendment is intended to ensure that the base rate of pay under the terms and conditions of employment required by 2.79(2) does not fall below the minimum salary level which a person to whom paragraph 2.79(3)(c) applies would have had to pay to a primary sponsored person under the undertaking at paragraph 1.20CB(1)(i) as in force immediately prior to 14 September 2009.

New paragraph 2.79(3)(d) provides that:

·        if the person is or was a standard business sponsor of a primary sponsored person; and

·        the nomination by the person of an activity, in relation to which the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa, was approved under regulation 1.20H (as in force immediately prior to 14 September 2009); and

·        the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa on the basis that subclause 457.223(6) of Schedule 2 applied to the primary sponsored person,

the primary sponsored person’s base rate of pay is not less than $81,040.

This provision operates in addition to subregulation 2.79(2). For a person to whom paragraph 2.79(3)(d) applies, the terms and conditions of employment must also provide for a base rate of pay not less than $81,040.

This amendment is intended to ensure that the base rate of pay under the terms and conditions of employment required by subregulation 2.79(2) does not fall below the minimum salary level which a person to whom paragraph 2.79(3)(d) applies would have had to pay to a primary sponsored person under the undertaking at paragraph 1.20CB(1)(i) as in force immediately prior to 14 September 2009.

New paragraph 2.79(3)(e) provides that if the person is mentioned in paragraph 2.79(1)(b) the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment set out in the work agreement.

The effect of this amendment is to ensure the terms and conditions of employment of a primary sponsored person do not fall below the level set out in the relevant work agreement.

New subregulation 2.79(3A) provides that for the purposes of the terms and conditions set out in a work agreement, the Minister may specify that a minimum salary level is to be worked out in the way specified in an instrument in writing for this subregulation. The note explains that the terms and conditions of a work agreement may refer to a minimum salary level specified in an instrument in writing.

The purpose of this amendment is to provide the ability to create an instrument in writing which specifies how minimum salary level is worked out for the purposes of a work agreement. This is to ensure that where an existing work agreement provides that the terms and conditions of employment are the minimum salary level as set out in an instrument in writing, such an instrument can be created.

New subregulation 2.79(4) of the Regulations provides when the obligation will start and end.

New paragraph 2.79(4)(a) provides that the obligation commences on:

New paragraph 2.79(4)(b) provides that the obligation ends on the earlier of:

Item [9] – Schedule 1, item [9], proposed subparagraph 2.80 (5) (a) (ii)

This item omits “person; and” and inserts “person; or” in subparagraph 2.80(5)(a)(ii) item [9] of Schedule 1 to the Amendment Regulations.

This amendment is consequential to the amendment in item [10].

Item [10] – Schedule 1, item [9], after proposed subparagraph 2.80 (5) (a) (ii)

This item inserts new subparagraph 2.80(5)(a)(iii) after subparagraph 2.80(5)(a)(ii) in item [9] of Schedule 1 to the Amendment Regulations.

The purpose of this amendment is to insert another alternative as to when the obligation to pay travel costs to enable sponsored persons to leave Australia, may commence.

Prior to commencement, nominations may have been approved without specifying a nominee. However, an associated visa application was only approved once the sponsor (the nominator) consented in writing to sponsor the visa applicant(s). This written consent establishes the relationship between the sponsor and the visa holders. The amendment is intended to capture sponsors and visa holders whose relationship was established in this way, rather than through the specification of a nominee prior to the approval of the nomination. From commencement, nominations must specify a nominee.

Item [11] – Schedule 1, item [9], proposed subparagraph 2.82(3)(e)(iv)

This item omits “most beneficial” in subparagraph 2.82(3)(e)(iv) in item [9] of Schedule 1 to the Amendment Regulations.

This amendment is technical amendment to remove “most beneficial” as these words are superfluous. This provision as amended clarifies the records a person mentioned in paragraph 2.82(3)(e) is required to keep.

Item [12] – Schedule 1, item [9], proposed subparagraph 2.86(3)(a)(ii)

This item omits “person; and” and inserts “person; or” in subparagraph 2.86(3)(a)(ii) in item [9] of Schedule 1 to the Amendment Regulations.

This amendment is consequential to the amendment in item [13].

Item [13] – Schedule 1, item [9], after proposed subparagraph 2.86(3)(a)(ii)

This item inserts new subparagraph 2.86(3)(a)(iii) after subparagraph 2.86(3)(a)(ii) in item [9] of Schedule 1 to the Amendment Regulations.

The purpose of this amendment is to insert another alternative as to when the obligation to ensure that the primary sponsored person does not work in an occupation other than an approved occupation, may commence.

Prior to commencement, nominations may have been approved without specifying a nominee. However, an associated visa application was only approved once the sponsor (the nominator) consented in writing to sponsor the visa applicant(s). This written consent establishes the relationship between the sponsor and the visa holders. The amendment is intended to capture sponsors and visa holders whose relationship was established in this way, rather than through the specification of a nominee prior to the approval of the nomination. From commencement, nominations must specify a nominee.

Item [14] – Schedule 1, item [9], after proposed regulation 2.94A

Subparagraph 140L(1)(a)(ii) of the Act provides that the regulations may prescribe circumstances (other than a failure to satisfy a sponsorship obligation) in which the Minister may take one or more of the actions mentioned in section 140M of the Act.

Section 140M of the Act sets out the barring and cancelling actions that may be taken in relation to an approved sponsor.

This item inserts new regulation 2.94B after regulation 2.94A in item [9] of Schedule 1 to the Amendment Regulations. This item provides an additional circumstance for the purposes of subparagraph 140L(1)(a)(ii) of the Act.

New subregulation 2.94B(1) provides that this circumstance only applies to a person who is or was a standard business sponsor in relation to a primary sponsored person or a secondary sponsored person (the sponsored person) whose Subclass 457 (Business (Long Stay)) visa was granted prior to 14 September 2009.

New subregulation 2.94B(2) provides that for subparagraph 140L(1)(a)(ii) of the Act an additional circumstance is that the Minister is satisfied that the person has not paid a medical or hospital expense incurred by the sponsored person arising from treatment in a public hospital.

New subregulation 2.94B(3) provides that the medical or hospital expense:

The purpose of this new circumstance is to provide some continuity for Subclass 457 (Business (Long Stay)) visa holders whose visas were granted prior to 14 September 2009 on the basis that the standard sponsor would be liable for public hospital expenses. From 14 September 2009, standard business sponsors will no longer be subject to the sponsorship undertaking which requires the sponsor to pay medical and hospital expenses incurred by Subclass 457 (Business (Long Stay)) visa holder.

Furthermore, where a Subclass 457 (Business (Long Stay)) visa is granted prior to 14 September 2009, there is no requirement for the visa applicant to have or to maintain adequate arrangements in Australia for health insurance during their intended stay in Australia. In practice, the new circumstance for subparagraph 140L(1)(a)(ii) of the Act ensures that standard business sponsors remain liable for public hospital expense incurred by visa holders whose Subclass 457 (Business (Long Stay)) visas were granted prior to 14 September 2009, reducing the risk of bad debts in the public health system..

New subregulation 2.94B(4) provides that for paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstances mentioned in subregulation 2.94B(2) are:

The criteria to be taken into account by the Minister in determining what action to take, (in particular the criterion relating to the number of occasions on which the person has not paid medical or hospital expenses by a sponsored person arising from treatment in a public hospital), allow the Minister to take into account all of the person’s previous failures to pay medical or hospital expenses, irrespective of whether the costs were incurred by the same or different sponsored persons. The criteria allow the Minister to take a more complete view of the sponsor’s behaviour in relation to payment of medical costs in determining the most appropriate action to take against the sponsor.


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