EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 90

 

Issued by the Minister for Immigration and Citizenship

 

Migration Act 1958

 

Migration Amendment Regulations 2010 (No. 5)

 

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 and subsection 504(2) of the Act provides that
section 14 of the Legislative Instruments Act 2003 does not prevent, and has not prevented, regulations whose operations depends on a country or other matter being specified or certified by the Minister for Immigration and Citizenship (the Minister) in an instrument in writing made under the regulations after the taking effect of the regulations.

An applicant for certain General Skilled Migration (GSM) visas must nominate a skilled occupation on the Skilled Occupation List (SOL) in order to make a valid application for a visa. The SOL is provided for in a legislative instrument made by the Minister under the definition of “Skilled Occupation” in regulation 1.03 of Division 1.2 of Part 1 of the Migration Regulations 1994 (the Principal Regulations).

 

The purpose of the Regulations is to amend the Principal Regulations to prevent certain applications for GSM visas being made on or after 8 May 2010 until after a specified date as a result of anticipated changes to the SOL. The changes to the SOL are designed to better target Australia’s skilled migration program.

 

An announcement of the proposed future changes to the SOL is required to address current uncertainty in the community in relation to which occupations will be on the new list. In the meantime, the Regulations will prevent an anticipated surge in certain GSM visa applications that require an occupation on the SOL to be nominated, and allow visas to be granted to persons outside of Australia. This will prevent applicants whose skills may not meet Australia’s skills shortages from making certain GSM applications.

 

In particular, the Regulations amend the Principal Regulations to:

 

• prevent applicants seeking to satisfy the primary criteria for a Subclass 175 (Skilled – Independent), Subclass 176 (Skilled – Sponsored) or Subclass 475 (Skilled – Regional Sponsored) visa, that allow for the grant of a visa outside of Australia, from being able to make a valid visa application on or after 8 May 2010 and until after a date specified by the Minister in an instrument in writing; and

 

• ensure that notes in Schedule 2 to the Principal Regulations correctly explain the effect of the new criteria to prevent certain applicants from making a valid visa application during that time.

 

Details of the Regulations are set out in the Attachment.

 

The Regulations commence on 8 May 2010.

 

The Office of Best Practice Regulation’s Preliminary Assessment Checklist was used to determine that there will be no compliance cost on business and no other impact on business and individuals or the economy in relation to these amendments.

No consultations were conducted because there are no implications for any external agencies or other bodies in relation to these amendments.

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

 

 

ATTACHMENT

 

Details of the Migration Amendment Regulations 2010 (No. 5)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2010 (No. 5).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on 8 May 2010.

 

Regulation 3 – Amendment of Migration Regulations 1994

 

Subregulation 3(1) provides that Schedule 1 amends the Migration Regulations 1994 (the Principal Regulations).

 

Subregulation 3(2) provides that the amendments made by items [1] and [2] of Schedule 1 to the Regulations apply in relation to a purported application made by a person seeking to satisfy the primary criteria for the grant of a:

 

• Subclass 175 (Skilled – Independent) visa;
• Subclass 176 (Skilled – Sponsored) visa; or
• Subclass 475 (Skilled – Regional Sponsored) visa

 

during the period, commencing on 8 May 2010, and ending on the date specified by the Minister in an instrument in writing mentioned in item [1] or [2], as relevant.

 

Schedule 1 – Amendments

Item [1] – Schedule 1, after paragraph 1135(3)(d)

This item inserts new paragraph 1135(3)(e) after paragraph 1135(3)(d) in Part 1 of Schedule 1 to the Principal Regulations.

New paragraph 1135(3)(e) provides that an application by a person seeking to satisfy the primary criteria for the grant of the visa must be made before 8 May 2010, or after a date specified by the Minister in an instrument in writing for new subparagraph 1135(3)(e)(ii).

This amendment prevents applicants for a Skilled (Migrant) (Class VE) visa who are seeking to satisfy the primary criteria for the grant of a Subclass 175 (Skilled – Independent) visa or a Subclass 176 (Skilled – Sponsored) visa from being able to make valid visa applications during the period commencing on 8 May 2010 and ending on the date specified by the Minister in an instrument in writing.

The purpose of the amendment is to prevent applications by applicants seeking to satisfy the primary criteria for a Skilled (Migrant) (Class VE) visa being made on or after 8 May 2010 until after a specified date as a result of anticipated changes to the Skilled Occupation List (SOL) to better target Australia’s skilled migration program.

 

Item [2] – Schedule 1, after paragraph 1228(3)(d)

This item inserts new paragraph 1228(3)(e) after paragraph 1228(3)(d) in Part 2 of Schedule 1 to the Principal Regulations.

New paragraph 1228(3)(e) provides that an application by a person seeking to satisfy the primary criteria for the grant of a Subclass 475 (Skilled – Regional Sponsored) visa must be made before 8 May 2010, or after a date specified by the Minister in an instrument in writing for new subparagraph 1228(3)(e)(ii).

This amendment prevents applicants for a Skilled (Provisional) (Class VF) visa who are seeking to satisfy the primary criteria for a Subclass 475 (Skilled – Regional Sponsored) visa from being able to make a valid visa application during the period commencing on
8 May 2010 and ending on the date specified by the Minister in an instrument in writing.

The purpose of the amendment is to prevent applications by applicants seeking to satisfy the primary criteria for a Subclass 475 (Skilled – Regional Sponsored) visa being made on or after 8 May 2010 until after a specified date as a result of anticipated changes to the SOL to better target Australia’s skilled migration program.

Items [3], [5] and [7] – Schedule 2, Division 175.2, heading, note; Division 176.2, heading, note; Division 475.2, heading, note

These items substitute the notes under the headings of Divisions 175.2, 176.2 and 475.2 of Schedule 2 to the Principal Regulations with new notes.

Currently, the notes under the headings of Divisions 175.2, 176.2 and 475.2 of Schedule 2 to the Principal Regulations explain that the primary criteria set out in Divisions 175.2, 176.2 and 475.2 (as applicable) must be satisfied by at least 1 applicant. The notes further explain that other applicants who are members of the family unit of the applicant who satisfies the primary criteria need satisfy only the secondary criteria.

The new notes retain the current explanations, and also explain that the person seeking to satisfy the primary criteria must make an application for the visa before 8 May 2010 or after a date specified by the Minister in an instrument in writing.

The purpose of these amendments is to ensure that the notes under the headings of Divisions 175.2, 176.2 and 475.2 of Schedule 2 to the Principal Regulations correctly explain the effect of the amendment in item [1] or [2] (as applicable).

Items [4], [6] and [8] – Schedule 2, Division 175.3, heading, note; Division 176.3, heading, note; Division 475.3, heading, note

These items omit “satisfies the primary criteria” from the notes under the headings of Divisions 175.3, 176.3 and 475.3 of Schedule 2 to the Principal Regulations, and insert “satisfies the primary criteria in connection with an application made before 8 May 2010 or satisfies the primary criteria in connection with an application made after a date specified by the Minister in an instrument in writing.”

Currently, the notes under the headings of Divisions 175.3, 176.3 and 475.3 of Schedule 2 to the Principal Regulations explain that the secondary criteria set out in Divisions 175.3, 176.3 and 475.3 (as applicable) must be satisfied by applicants who are members of the family unit of an applicant who satisfies the primary criteria.

The amended notes explain that the criteria set out in Divisions 175.3, 176.3 and 475.3 must be satisfied by applicants who are members of the family unit of an applicant who satisfies the primary criteria in connection with an application made before 8 May 2010 or satisfies the primary criteria in connection with an application made after a date specified by the Minister in an instrument in writing.

The purpose of these amendments is to ensure that the notes under the headings of Divisions 175.3, 176.3 and 475.3 of Schedule 2 to the Principal Regulations contain an explanation of the effect of the amendment in item [1] or [2] (as applicable).