MIGRATION AMENDMENT REGULATION 2012 (NO. 3) (SLI NO 105 OF 2012) EXPLANATORY STATEMENT

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 Regulation is to amend the Migration Regulations 1994 (the Principal Regulations) to ensure that provisions relating to evidence of functional English, and visa applications by members of the family unit of certain visa holders, operate as intended when the Migration Amendment Regulation 2012 (No. 2) (the Amending Regulation) commences on 1 July 2012.

A Statement of Compatibility with Human Rights has been completed for the Regulation, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement's assessment is that the measures in the Regulation are compatible with human rights because they do not raise any human right issues. A copy of the Statement is at Attachment B.

The Office of Best Practice Regulation (the OBPR) has been consulted in accordance with Section 17 of the Legislative Instruments Act 2003 and advises that the amendments in this Regulation are machinery-of-government or minor in nature and no Regulation Impact Statement is required. The OBPR consultation reference is 2011/13150.

No further consultations were undertaken in relation to the Regulation because the amendments do not have any potential implications relating to other government departments or agencies, non-government organisations, or any other organisation or interested party.

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

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 that 'prescribed' means prescribed by the regulations.

In addition, regulations may be made in accordance with the following provisions:

* Subsection 5(2) of the Act, which provides that the regulations may prescribe evidence of English language proficiency that a person may provide to establish that the person has functional English at a particular time;

* Subsection 46(1) of the Act, which provides that the regulations may prescribe the criteria and requirements to be satisfied for a visa application to be valid;

* Subsection 46(3) of the Act, which provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application;

* Paragraph 46(4)(a) of the Act, which provides that, without limiting subsection 46(3), the regulations may prescribe the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

* Subsection 504(2) of the Act, which provides that section 14 of the Legislative Instruments Act 2003 does not prevent, and has not prevented regulations whose operation depends on a country or other matter being specified or certified by the Minister in an instrument in writing made under the regulations after the regulations have taken effect.

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Amendments to Migration Regulations 1994 to ensure that provisions relating to evidence of functional English operate as intended when the Migration Amendment Regulation 2012 (No. 2) (the Amending Regulation) commences on 1 July 2012.

This Regulation Amendment is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Schedule 6 to the current Migration Regulations 1994 refers to a number of English language tests, with scores that must be obtained and periods of time for completion, that may be used as evidence of English language proficiency. Schedule 6 to the Principal Regulations is repealed by Schedule 1 of the Amending Regulation, which commences on 1 July 2012.

The purpose of the amendment is to prescribe types of evidence that an applicant may present to the Department to establish that he or she has functional English. Paragraph 5.17(a) is amended to prescribe as evidence of a person's English language proficiency for the purposes of paragraph 5(2)(b) of the Act, the evidence specified by the Minister in an instrument in writing. The instrument in writing will commence when the proposed regulation amendment commences on 1 July 2012.

The regulation amendment ensures that relevant evidence of English language proficiency currently in Schedule 6 will continue to be available to members of the family unit (dependants) of holders of certain visas after the repeal of Schedule 6.

The amendment does not engage any of the rights enunciated in the seven core international human rights treaties.

This regulation amendment is compatible with human rights. The amendment simply preserves the current administrative arrangements after the introduction of the Amending Regulation.

ATTACHMENT C

Details of the Migration Amendment Regulation 2012 (No. 3)

Section 1 - Name of Regulation

This section provides that the title of the Regulation is the Migration Amendment Regulation 2012 (No. 3).

Section 2 - Commencement

This section provides for the Regulation to commence on 1 July 2012.

Section 3 - Amendment of Migration Regulations 1994

This section provides that Section 1 amends the Migration Regulations 1994 (the Principal Regulations).

Schedule 1 - Amendments

Item [1] - Paragraphs 5.17(a) and (b)

This item substitutes new paragraph 5.17(a) for the current paragraphs 5.17(a) and (b) in Division 5.3 of Part 5 of the Principal Regulations.

Paragraph 5.17 prescribes evidence of a person's English language proficiency for the purposes of paragraph 5(2)(b) of the Migration Act 1958 (the Act), which deals with whether a person has "functional English". The definition of "functional English" is relevant to whether an applicant is liable to pay the second instalment of the Visa Application Charge in order to be granted a visa in a number of classes.

Current paragraphs 5.17(a) and (b) prescribe two types of evidence of a person's English language proficiency. The two types of prescribed evidence are, broadly, that a person has qualifications or experience, or has attained test results, in relation to which 10 points or more is specified in Part 3 of Schedule 6 to the Principal Regulations, or evidence that a person has been awarded 10 or more points under Part 3 of Schedule 6 to the Principal Regulations.

Part 3 of Schedule 6 to the Regulations refers to a number of English language tests, with scores that must be obtained and periods of time for completion, that may be used as evidence of English language proficiency. Schedule 6 to the Principal Regulations is now redundant and is repealed by Schedule 1 of the Amending Regulation, which commences on 1 July 2012.

New paragraph 5.17(a) prescribes as evidence of a person's English language proficiency for the purposes of paragraph 5(2)(b) of the Act, the evidence specified by the Minister in an instrument in writing.

The purpose of this amendment is to provide that, in spite of the repeal of Schedule 6 to the Principal Regulations, the relevant tests prescribed in Part 3 of Schedule 6 continue to be available to applicants as evidence that they have "functional English", by allowing these tests to be specified by the Minister in an instrument in writing. The introduction of a provision for the Minister to specify types of prescribed evidence of English language proficiency in an instrument in writing increases flexibility to allow the types of evidence to be reviewed and updated in the future, if it becomes appropriate to do so.

Item [2] - Schedule 1, paragraph 1228(3)(aa)

This item omits the words "by a person seeking to satisfy the primary criteria" from paragraph 1228(3)(aa) of Schedule 1 to the Principal Regulations.

Paragraph 1228(3)(aa) 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 1 July 2012.

By removing the words "by a person seeking to satisfy the primary criteria", the amendment ensures that secondary applicants, as well as primary applicants, are prevented from applying for the grant of a Subclass 475 visa on or after 1 July 2012.

From 1 July 2012, special provision is made in the Subclass 489 (Skilled - Regional (Provisional)) visa, introduced by the Amending Regulation from 1 July 2012, to allow a member of the family unit of a primary Subclass 475 visa holder to satisfy the secondary criteria for the Subclass 489 visa (see clause 489.311 of Schedule 2 to the Regulations, inserted by item [91] of Schedule 1 to the Amending Regulation).

The purpose of this amendment is to ensure that members of the family unit of a primary Subclass 475 visa holder must apply for a Subclass 489 visa from 1 July 2012, which allows the Subclass 475 visa to be closed to all applicants from 1 July 2012.

Item [3] - Schedule 1, paragraph 1228(3)(aa)

This is a technical amendment to correct the punctuation in paragraph 1228(3)(aa) of Schedule 1 to the Principal Regulations.

Item [4] - Schedule 1, after paragraph 1229(3)(aaa)

This item inserts paragraph 1229(3)(aab) in Schedule 1 to the Principal Regulations.

New paragraph 1229(3)(aab) provides that an application by a person seeking to satisfy the secondary criteria for the grant of a Subclass 487 (Skilled - Regional Sponsored) visa must be made before 1 July 2012.

From 1 July 2012, special provision is made in the Subclass 489 (Skilled - Regional (Provisional)) visa, introduced by the Amending Regulation, to allow a member of the family unit of a primary Subclass 487 visa holder to satisfy the secondary criteria for the Subclass 489 visa (see clause 489.311 of Schedule 2 to the Regulations, inserted by item [91] of Schedule 1 to the Amending Regulation).

The purpose of this amendment is to ensure that members of the family unit of a primary Subclass 487 visa holder must apply for a Subclass 489 visa from 1 July 2012.

Item [5] - Schedule 1, paragraph 1229(3)(e)

This item omits "subitem (4), (5), (6) or (7)" and inserts "subitem (4), (5), (6), (7) or (9)" in paragraph 1229(3)(e) of Schedule 1 to the Principal Regulations.

Paragraph 1229(3)(e) of Schedule 1 to the Principal Regulations provides that, to make a valid application for a Skilled (Provisional) (Class VC) visa, the requirements of certain subitems must be satisfied.

Item [74] of Schedule 1 to the Amending Regulation amends paragraph 1229(3)(e) to remove the references to subitems 1229(8) and (9). Subitem 1229(8) is now redundant. The removal of subitem 1229(9) by the Amending Regulation was inadvertent and contrary to the intention that relevant members of the family unit of primary holders of Class VC visas are to continue to be able to make a valid application for a Class VC visa.

This amendment re-inserts the reference to subitem 1229(9) in paragraph 1229(3)(e) of Schedule 1 to the Principal Regulations. Subitem 1229(9) is

re-inserted by item [6] of this Schedule. The effect of this amendment is to allow relevant applicants to continue to make a valid application for a Class VC visa.

Item [6] - Schedule 1, after subitem 1229(7)

This item inserts subitem 1229(9) in Schedule 1 to the Principal Regulations.

Subitem 1229(9) provides that, as one of the requirements that may be met to make a valid application for a Skilled (Provisional) (Class VC) visa, the applicant must claim to be a member of the family unit of an applicant who holds a Class VC visa granted on the basis of satisfying the primary criteria for the grant of the visa.

Subitem 1229(9) is currently in Schedule 1 to the Principal Regulations but is removed by item [75] of Schedule 1 to the Amending Regulation, which commences on 1 July 2012. The removal of subitem 1229(9) by the Amending Regulation was inadvertent and contrary to the intention that relevant members of the family unit of primary holders of Class VC visas are to continue to be able to make a valid application for a Class VC visa.

The purpose of this item is to ensure that members of the family unit of a primary Class VC visa holder can continue to apply for a Class VC visa on and after 1 July 2012.

Item [7] - Schedule 13, paragraph 101(1)(b)

This is a technical amendment to correct the punctuation in paragraph 101(1)(b) of Schedule 13 to the Principal Regulations.

Item [8] - Schedule 13, after Part 2

This item inserts a new Part 3 in Schedule 13 to the Principal Regulations.

Part 3 (Amendments made by Migration Amendment Regulation 2012 (No. 3)) provides transitional arrangements in respect of amendments made to the Principal Regulations by this Regulation.

Subitem 301(1) provides that the amendments of the Principal Regulations made by this Schedule apply in relation to an application for a visa made on or after 1 July 2012.

Subitem 301(2) provides that the repeal or amendment of a provision of the Principal Regulations by this Schedule does not apply in relation to an application for a visa that is taken to have been made by a person before, on or after 1 July 2012 in accordance with regulation 2.08 (Application by newborn child) or 2.08B (Addition of certain dependent children to certain applications for temporary visas). This provision allows a newborn child or certain other dependants of a person applying before 1 July 2012 for a Subclass 475 (Skilled - Regional Sponsored) visa or Subclass 487 (Skilled - Regional Sponsored) visa to make a combined application with that person at any time before a decision is made on the application.

Commonwealth Numbered Regulations - Explanatory Statements

Select Legislative Instrument 2012 No. 105