Migration Act 1958 - Determination under section 85 - Granting of Business Skills Visas in 2008/2009 Financial Year

Overview

The Migration Act 1958 was enacted to provide a legal framework for the regulation of migration into Australia. One of its purposes is to facilitate the skilled migration that can contribute to the economic growth and development of the nation. In 2009, the Australian Government introduced F2009L01206 to address the problem of exceeding the planning level for the number of Business Skills visas (classes EA and UR) that could be granted in the 2008/2009 financial year. This Instrument, made under section 85 of the Act, was designed to impose a cap of 6,650 on these visas, reflecting the need to manage demand and ensure the program’s sustainability. The policy objective was to maintain control over the number of business migrants entering Australia, thereby preventing the current demand from surpassing the government’s set limits for that financial year.

Scope and Application

The explanatory statement outlines the scope and application of an instrument made under the Migration Act 1958, which establishes a cap on the number of Business Skills visas (classes EA and UR) that can be granted in the 2008/2009 financial year. This instrument applies to applicants for the Business Skills – Business Talent (Migrant) class EA and the Business Skills – Business Skills (Provisional) class UR, who must be offshore at the time of application and have no existing business activity in Australia. The visa capping aims to manage the demand for these visas, which exceeds the government's planning level for that financial year. Once the cap of 6650 is reached, no further visas will be granted for the 2008/2009 financial year, and affected applicants will have their applications carried over to the 2009/2010 financial year. The instrument, IMMI 09/030, does not affect existing Australian businesses or competition, as it pertains only to offshore applicants and does not have a direct or substantial indirect effect on domestic business activities.

Key Provisions

The key operative sections of this legislative instrument, made under section 85 of the Migration Act 1958, pertain to the maximum number of Business Skills visas that can be granted in the 2008/2009 financial year. Specifically, section 85 of the Act allows the Minister to determine this cap via a Gazette Notice. The current Instrument imposes a cap of 6650 on Business Skills visas for the specified financial year (Section 5). This applies to two classes of visas: Business Skills – Business Talent (Migrant) (Class EA) and Business Skills - Business Skills (Provisional) (Class UR) (Section 5). These are offshore visa classes, meaning they apply to applicants who are not yet in Australia and have no business activity in the country (Section 6). This Act imposes specific obligations and requirements on applicants for the Business Skills visas. Firstly, applicants must meet the criteria for either the Business Talent (Migrant) (Class EA) or the Business Skills (Provisional) (Class UR) visa. These criteria include having relevant business skills, experience, and assets, as well as a desire to migrate to Australia to engage in business or investment activities. Secondly, applicants must submit their visa applications before the cap of 6650 is reached. If the cap is exceeded, no further visas can be granted for the remainder of the financial year, and the applications will be carried over to the next financial year (Section 5). There are no direct offences or penalties stipulated within this Instrument. However, failure to adhere to the cap and the visa requirements may result in an application not being processed. The Instrument does not have a direct or substantial indirect effect on existing Australian businesses or restrict competition, as it applies only to offshore visa classes (Section 6). The Instrument, IMMI 09/030, commences on 28 March 2009 (Section 7). In summary, this legislative instrument imposes a cap of 6650 on the number of Business Skills visas that can be granted in the 2008/2009 financial year. It applies to two classes of offshore visas and impacts applicants who are not yet in Australia and have no business activity in the country. The Act imposes obligations on applicants to meet the visa criteria and submit their applications before the cap is reached. While there are no direct penalties, failure to comply with the cap may result in an application not being processed. The Instrument does not directly affect existing Australian businesses or restrict competition.