Issued by the Minister for Immigration And

1

EXPLANATORY STATEMENT

Select Legislative Instrument 2005 No. 54

Issued by the Minister for Immigration and

Multicultural and Indigenous Affairs

Migration Act 1958

Migration Amendment Regulations 2005 (No. 1)

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 listed in Attachment A.

The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to: make various amendments to Employer Nomination Scheme (ENS), Regional Sponsored Migration Scheme (RSMS) and Labour Agreement (LA) visas; amend the definition of “skilled occupation”; amend the definition of “Internet application”; allow applicants for certain Partner visas to use electronic application forms; and add an additional study related condition to Sponsored Family Visitor visas.

In particular, the Regulations amend the Principal Regulations to:

• implement changes to the ENS visas to streamline and improve the effectiveness of skill level requirements, in particular by:

-removing labour market testing requirements and introducing lists, to be specified by Gazette Notice, of skilled occupations and minimum salary levels with which a proposed nominated position must comply; and

-requiring visa applicants either to have worked full-time in the nominated occupation in Australia while holding a specified temporary visa for at least 2 years immediately before making their application, or to be nominated to fill a highly paid senior executive position with a salary of at least a specified minimum level, or to have their skills assessed as suitable by an independent assessing authority and have 3 years experience in the nominated occupation; and

-requiring that visa applicants must have been working full-time in Australia in the applicable occupation for at least 2 yearsimmediately before making the application, and working full-time directly for the nominating employer in that occupation for at least 1 year immediately before making the application;

• enhance the integrity of ENS and RSMS visas, in particular by:

-requiring employers to be actively and lawfully operating in Australia; and

-requiring employers to have a satisfactory record of compliance with immigration law and relevant workplace relations law;

• restructure the regulations to make clearer the respective requirements to be met by employer nominations under the ENS, RSMS and LA arrangements and those to be met by the related visa applicants, and to achieve greater consistency in the requirements to be met by visa applicants who are offshore and those to be met by applicants who are in Australia;
• clarify the operation and validity of the “Sydney and Selected Areas Skilled Shortage List”, which sets out the occupations that are “skilled occupations” for certain skilled visa applicants, whose sponsor resides in Sydney or a selected area of NSW;
• enable applicants for certain classes of Partner visa to complete a new interactive electronic form using the Internet; and
• preclude holders of Sponsored Family Visitor visas from engaging in any study or training for more than 3 months while they are in Australia.

Details of the Regulations are set out in Attachment B.

The Regulations reflect regular changes that are made to the Principal Regulations. These are changes that give effect to the ongoing update of immigration policy and regulations.

The Regulations commence on 2 April 2005. This commencement date coincides with the initiationof systems requirements necessary to allow the implementation of these Regulations.

The Office of Regulation Review in the Productivity Commission has been consulted and advises that the regulations are not likely to have a direct effect, or substantial indirect effect, on business and are not likely to restrict competition.

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

0501986A-050223ZNT

ATTACHMENT A

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the GovernorGeneral 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:

• subsection 31(3) of the Act, which provides that the regulations may prescribe criteria for a visa or visas of a specified class;
• subsection 41(1) of the Act, which provides that the regulations may provide that visas or visas of a specified class are subject to specified conditions;
• 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;
• subsection 46(4) of the Act, which provides that, without limiting subsection 46(3), the regulations may also prescribe the circumstances that must exist for an application for a visa of a specified class to be a valid application, how and where an application for a visa of a specified class must be made, and where an applicant must be when an application for a visa of a specified class is made;
• subsection 52(1) of the Act, which provides that a visa applicant or interested person must communicate with the Minister in a prescribed way;
• subsection 52(2) of the Act, which provides that the regulations may prescribe different ways of communicating and specify the circumstances when communication is to be in a particular way;
• subsection 93(1) of the Act, which provides that the Minister shall make an assessment of an applicant’s points score by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant;
• section 140B of the Act, which provides that the regulations may provide that sponsorship by an approved sponsor is a criterion for a visa of a prescribed kind (however described), and that this criterion is in addition to any other criteria for the visa that may be prescribed or set out under any other provision of the Act, or of any other Act;
• subsection 140C(1) of the Act, which provides that the regulations may provide that sponsorship by an approved sponsor is a criterion for a valid application for a visa of a prescribed kind (however described);
• subsection 140C(2) of the Act, which provides that the regulations may provide that it is a criterion for a valid application for a prescribed kind of visa that the visa applicant’s proposed sponsor has applied to be an approved sponsor at, or before, the time the visa application is made;
• paragraph 504(1)(e) of the Act, which provides that the regulations may be made in relation to the giving of documents to, the lodging of documents with, or the service of documents on the Minister, the Secretary or any other person or body, for the purposes of the Act;
• section 505 of the Act, which provides that, to avoid doubt, regulations for the purpose of prescribing a criterion for visas of a class may provide that the Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion:

is to get a specified person or organisation, or a person or organisation in a specified class, to give an opinion on, or make an assessment of, or make a finding or decision about a specified matter; and

is to have regard to that opinion, assessment, finding or decision, or take that opinion, assessment, finding or decision to be correct;

for the purposes of deciding whether the applicant satisfies the criterion; and

• section 495 of the Act, which provides that the Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression "approved form" is used.

ATTACHMENT B

Details of theMigration Amendment Regulations 2005 (No.1)

Regulation 1 – Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2005 (No. 1).

Regulation 2 – Commencement

These Regulations commence on 2 April 2005. This commencement date coincides with the initiation of systems requirements necessary to allow the implementation of these Regulations.

Regulation 3 – Amendment of Migration Regulations 1994

This regulation provides that Schedules 1, 2, 3 and 4 amend the Migration Regulations 1994 (the Principal Regulations).

Regulation 4 – Transitional

Subregulation 4(1) provides that the amendments made by Schedule 1 apply in relation to:

• an application made on or after 2 April 2005 for approval of a nominated position; and
• an application for a visa made on or after 2 April 2005.

Subregulations 4(2), (3) and (4) provide that the amendments made by Schedules 2, 3 and 4 apply to an application for a visa made on or after 2 April 2005.

Schedule 1 – Amendments relating to approval of nominated positions and related visas

Item [1] – Subregulation 5.19(1B)

This item substitutes subregulation 5.19(1B) of Part 5 of the Principal Regulations with new subregulation 5.19(1B). New subregulation 5.19(1B) provides that the Minister may, in writing, approve or reject an application for approval of a nominated position. This amendment removes the requirement for the Minister to approve or reject an application ‘by signed instrument’. It is sufficient for approval or rejection to be ‘in writing’.

Item [2] – Subregulation 5.19(1C)

This item substitutes subregulation 5.19(1C) of Part 5 of the Principal Regulations with new subregulation 5.19(1C). The purpose of this amendment is to clarify the circumstances in which the Minister must approve or reject an application for approval of a nominated position as an approved appointment, made in accordance with subregulation 5.19(1A).

New paragraph 5.19(1C)(a) provides that the Minister must approve an application for approval of a nominated position if the requirements of the paragraph are met.

New subparagraph 5.19(1C)(a)(i) requires that the application must be made in accordance with subregulation 5.19(1A).

New subparagraph 5.19(1C)(a)(ii) provides that if an application is made using form 785 (relating to the Employer Nomination Scheme), the requirements of subregulation 5.19(2) must be met. If the application is made using approved form 1054 (relating to the Regional Sponsored Migration Scheme), the requirements of subregulation 5.19(4) must be met.

New subparagraph 5.19(1C)(a)(iii) requires that the employer must not be the subject of an action that is described in section 140L of the Act. Section 140L relates to the cancellation or barring of sponsorship for certain visas where sponsors have breached their sponsorship undertakings.

New paragraph 5.19(1C)(b) provides that the Minister must reject an application if any of the requirements of paragraph 5.19(1C)(a) is not met.

Item [3] – Paragraph 5.19(1D)(a)

This item substitutes paragraph 5.19(1D)(a) of Part 5 of the Principal Regulations with new paragraph 5.19(1D)(a). The new paragraph 5.19(1D)(a) requires the Minister to give an applicant for approval of a nominated position a copy of the written approval or rejection of the application. Previously paragraph 5.19(1D)(a) required the applicant to be given a copy of the ‘instrument’ approving or rejecting the application. This amendment is consequential upon the amendment made to subregulation 5.19(1B) by these Regulations, requiring approval or rejection of the application to be ‘in writing’ rather than ‘by signed instrument’.

Item [4] – Subregulations 5.19(2), (3) and (3A)

This item substitutes subregulations 5.19(2), (3) and (3A) of Part 5 of the Principal Regulations with new subregulation 5.19(2).

This amendment has two effects:

• New subregulation 5.19(2) makes changes to the requirements to be met by an application for approval of a nominated position made on form 785 under the Employment Nomination Scheme (‘the ENS’). These changes are intended to enhance the integrity of the ENS.
• Subregulations 5.19(3) and 5.19(3A) and related paragraph 5.19(2)(b) are omitted from regulation 5.19. The omitted subregulations related to requirements regarding skill levels to be met by visa applicants seeking to fill a nominated position, rather than to requirements to be met for approval of the nominated position itself. The intention is to leave in regulation 5.19 only the requirements to be satisfied for approval of a nominated position. The criteria to be satisfied by an applicant for a visa on the basis of filling the nominated position, formerly in subregulations 5.19(3) and 5.19(3A), are relocated (with certain amendments) by these Regulations to the relevant subclasses of Schedule 2 to the Principal Regulations. If the applicant is outside Australia, the relevant subclasses are:

Subclass 119 (Regional Sponsored Migration Scheme);

Subclass 120 (Labour Agreement); and

Subclass 121 (Employer Nomination).

If the applicant is in Australia, the relevant subclasses are:

Subclass 855 (Labour Agreement); and

Subclass 856 (Employer Nomination Scheme); and

Subclass 857 (Regional Sponsored Migration Scheme).

See the notes on the amendments to the relevant provisions, below.

Details of new subregulation 5.19(2) are as follows:

New paragraph 5.19(2)(a) requires the employer’s business to be ‘actively and lawfully operating’ in Australia, and the business to be operated by the employer. Previously, the business was required only to be ‘located’ in Australia. The effect of this amendment is that the business must have an active and lawful presence in Australia.

New paragraph 5.19(2)(b) inserts a requirement that the Minister must be satisfied that nothing adverse is known to the Department about the business background of the employer or officers of other entities connected with the employer. Adverse information could relate to the employer’s business history in relation to, for example, corporations law, trade practices law, taxation law or criminal law.

New paragraph 5.19(2)(c) inserts a requirement that the Minister must be satisfied that the employer has a satisfactory record of compliance with Australian immigration laws. This could relate to, for example, any previous sponsorship by the employer of overseas workers or any employment of non-citizens in breach of their visa conditions.

New paragraph 5.19(2)(d) inserts a requirement that the Minister must be satisfied that the employer has a satisfactory record of compliance with the workplace relations laws of the Commonwealth and any relevant State or Territory.

New paragraph 5.19(2)(e) retains an existing requirement that the Minister must be satisfied that the employer has made, and will continue to make, adequate provision for training of employees within the business; or, if the business is newly established, that adequate provision is being made for future training of employees.

New paragraph 5.19(2)(f) requires the appointment to be for full-time employment for at least 3 years, with no express exclusion of renewal. This provision retains a requirement of previous subregulation 5.19(2), but omits a reference to the appointment being ‘for a fixed term’ of at least 3 years. It is not the intention that the appointment must necessarily be for a ‘fixed term’. For example, it can be open-ended, provided it is for at least 3 years and does not specifically preclude the employment continuing beyond that period.

New paragraph 5.19(2)(g) requires that the employee’s working conditions must be no less favourable than working conditions provided for under relevant Australian legislation and awards. New paragraph 5.19(2)(g) changes the previous requirement that the employment must be “in accordance with [Australian legislative and award] standards for wages and working conditions”. This amendment makes it clear that working conditions can equal or exceed those standards. The reference to wages is no longer necessary in this paragraph as payment levels required in the nominated position will now be set by levels specified for the relevant occupation and location in a Gazette Notice under new paragraph 5.19(2)(i), inserted in the Principal Regulations by these Regulations. See further notes on the new paragraph 5.19(2)(i), below.

New paragraph 5.19(2)(h) inserts a requirement that the tasks of the nominated position must correspond to an occupation specified in a Gazette Notice, and must be carried out in a location specified in the Gazette Notice for that occupation. In each case, the relevant Gazette Notice is that in force when the application for approval of the nominated position is made. The effect of this amendment is to remove the previous labour market testing requirement (formerly in the old paragraph 5.19(2)(e)) which was found to be ineffective and costly to prospective employers. The new provisions will allow the introduction of a list of acceptable skilled occupations and target locations where employees in those occupations are required.

New paragraph 5.19(2)(i) inserts a requirement that the employee must be paid a salary in the nominated position that is at least equal to the salary specified in a Gazette Notice for the occupation in the particular location. The relevant Gazette Notice is that in force at the time the application for approval of the nominated position is made. This provision allows the introduction of minimum salary levels which may vary according to location, rather than being tied to uniform award levels as under the previous arrangements. For instance, higher salary levels may be specified for certain occupations in particular locations such as Sydney.

Item [5] – Subparagraph 5.19(4)(a)(i)

This item substitutes subparagraph 5.19(4)(a)(i) of Part 5 of the Principal Regulations with new subparagraph 5.19(4)(a)(i), which requires a business seeking approval of a nominated position under the Regional Sponsored Migration Scheme (‘the RSMS’) to be actively and lawfully operating in regional Australia.

Previously, a business was required only to be located in Australia. The effect of this amendment is that the business must have an active and lawful presence in regional Australia. The term “regional Australia” is defined in the new subregulation 5.19(5), inserted in the Principal Regulations by these Regulations.

Item [6] – Sub-subparagraph 5.19(4)(b)(i)(B)

This item makes a technical amendment to sub-subparagraph 5.19(4)(b)(i)(B) of Part 5 of the Principal Regulations, consequential upon the insertion of new sub-subparagraph 5.19(4)(b)(i)(C) by these Regulations.

Item [7] – After sub-subparagraph 5.19(4)(b)(i)(B)

This item inserts new sub-subparagraph 5.19(4)(b)(i)(C) in Part 5 of the Principal Regulations.

New sub-subparagraph 5.19(4)(b)(i)(C) imposes a new requirement that an appointment to which an application for approval of a nominated position under the RSMS relates must be located in regional Australia. The term “regional Australia” is defined in the new subregulation 5.19(5), inserted in the Principal Regulations by these Regulations.

Item [8] – Sub-subparagraph 5.19(4)(b)(ii)(A)

This item substitutes sub-subparagraph 5.19(4)(b)(ii)(A) of Part 5 of the Principal Regulations with new sub-subparagraph 5.19(4)(b)(ii)(A).

The effect of new sub-subparagraph 5.19(4)(b)(ii)(A) is that an appointment under an employer nomination relating to a person designated under regulation 2.07AO may also provide continuing fulltime employment. This is an alternative to the existing requirement that the appointment provide seasonal employment that will continue.