EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 275
Issued by the Minister for Immigration
and Citizenship
Subject - Migration Act 1958
Migration Amendment Regulations 2007 (No. 11)
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 under the following provisions:
- subsection 31(3) of the Act provides that the regulations may prescribe criteria for a visa or visas of a specified class. Subsection 31(3) applies to all visa classes without limiting the generality of this subsection, other than those provided by sections 33 (Special purpose visas, 34 (Absorbed person visas), 35 (Ex-citizen visas) or 38 (Criminal justice visas) of the Act; and
- section 140F of the Act provides that the regulations may establish a process for the Minister to approve a person as a sponsor, and that different processes may be prescribed for different kinds of visas (however described).
The purpose of the Regulations is to amend the Migration Regulations 1994 (‘the Principal Regulations’) to make provisions in relation to on-hire firms seeking approval as standard business sponsors and approval of nominations of business activities in relation to which a person may be sponsored as an applicant for a Subclass 457 (Business (Long Stay)) visa.
For these purposes, an ‘on-hire firm’ is a business whose activities include the recruitment and/or hire of labour for supply to other unrelated businesses. This type of activity is not in keeping with the tenet of standard business sponsorship, which is based on skilled overseas workers being used to fill vacant skilled roles within the standard business sponsor’s own organisation or a related organisation. A labour agreement has been established for the on-hire industry that provides access to skilled workers where the services of those workers would be supplied to other unrelated businesses.
In particular, the Regulations amend the Principal Regulations to:
- prevent on-hire firms from applying for approval as a standard business sponsor after 1 October 2007 if the firm proposes to supply sponsored workers to other businesses. On-hire firms proposing to sponsor workers to be employed directly in their own businesses may still apply for sponsorship approval;
- prevent standard business sponsors who are on-hire firms from nominating any further positions after 1 October 2007, unless the position is one in the firm’s own business to be filled by a sponsored visa holder to be directly employed by the firm; and
- prevent the grant of any further Subclass 457 visa on the basis of sponsorship by an on-hire firm in respect of a position that is the subject of a nomination made by the firm on or after 1 October 2007, unless the position is one in the firm’s own business to be filled by a sponsored visa holder to be directly employed by the firm or the on-hire firm has nominated the position as a party to a labour agreement.
Details of the Regulations are set out in the Attachment.
The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
The Regulations commence on 1 October 2007.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Office of Best Practice Regulation’s Business Compliance Cost and Competition Assessment was used to determine that there is no compliance cost to business.
The Department of Employment and Workplace Relations was consulted in relation to these Regulations. No other consultations were conducted in relation to the Regulations as the amendments were considered not to have relevant implications for any other external agencies or bodies.
ATTACHMENT
Details of the Migration Amendment Regulations 2007 (No. 11 )
Regulation 1 – Name of Regulations
This regulation provides that these Regulations are the Migration Amendment Regulations 2007 (No. 11 ).
Regulation 2 – Commencement
This regulation provides that these Regulations commence on 1 October 2007.
Regulation 3 – Amendment of Migration Regulations 1994
This regulation provides for the Migration Regulations 1994 (‘the Principal Regulations’) to be amended as set out in Schedule 1 to these Regulations.
Regulation 4 – Transitional
Subregulation 4(1) provides that the amendments made by items [1] and [2] of Schedule 1 providing the requirements for making an application for approval as a sponsor, apply in relation to an application for approval as a sponsor made on or after 1 October 2007.
Subregulation 4(2) provides that the amendments made by items [3], [4] and [5] of Schedule 1 providing the requirements for an application for nomination of business activities, apply in relation to a nomination of an activity made on and after 1 October 2007.
Subregulation 4(3) provides that the amendments made by items [6] and [7] of Schedule 1 providing new time of decision criteria for applicants seeking to satisfy the primary criteria for grant of a Subclass 457 Business (Long Stay) visa, apply in relation to applications for visas made but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958) before 1 October 2007, and all visa applications made on and or after 1 October 2007.
Schedule 1 – Amendments
Item [1] – Subregulation 1.20C(1)
This item inserts the words “(other than a person to which subregulation (1A) applies) after the word “person” in subregulation 1.20C(1) in regulation 1.20C (Application for approval as standard business sponsor) in Division 1.4A of Part 1 of the Principal Regulations.
Subregulation 1.20C(1) provides that for subsection 140F(1) of the Migration Act 1958 (‘the Act’), which provides that the regulations may establish a process for the Minister to approve a person as a sponsor, certain persons may apply to the Minister for approval as a standard business sponsor.
The effect of this amendment is that a person to whom new subregulation 1.20C(1A) applies is not eligible to apply for approval as a business sponsor under regulation 1.20C. New subregulation 1.20C(1A) is inserted in the Principal Regulations by item [2] of this Schedule. For further details, please see the notes on that item below.
Item [2] – After subregulation 1.20C(1)
This item inserts new subregulation 1.20C(1A) in regulation 1.20C (Application for approval as standard business sponsor) in Division 1.4A of Part 1 of the Principal Regulations.
New subregulation 1.20C(1A) applies to persons whose business activities relate to either or both the recruitment of labour for supply to other unrelated businesses and/or the hiring of labour to other unrelated businesses. The effect of new subregulation 1.20C(1A), in conjunction with the amendment made by item [1], above, is that such persons may not apply to the Minister for approval as a standard business sponsor if the person proposes to act as a standard business sponsor for the purpose of supplying to another unrelated business the services of an applicant for a visa in relation to a nominated activity.
The example at the end of subregulation 1.20C(1A) clarifies that this subregulation covers persons who propose to sponsor a person to come to Australia for the purpose of hiring out the visa holder’s services to another unrelated business.
As clarified by the example, a person whose business activities included the recruitment and hiring of labour would still be able to apply for approval as a standard business sponsor if the person proposed to sponsor visa holders for direct employment in the person’s own business rather than for the purpose of supplying the visa holder’s services to another unrelated business.
Item [3] – Paragraph 1.20G(1)(c)
This item inserts the words “(other than a person to which subregulation (3A) applies) after the word “person” in paragraph 1.20G(1)(c) in regulation 1.20G (Nomination of business activities) in Division 1.4A of Part 1 of the Principal Regulations.
Paragraph 1.20G(1)(c) provides that a person who is a standard business sponsor may nominate to the Minister an activity in which an individual is proposed to be employed by the person in Australia.
The effect of this amendment is that paragraph 1.20G(1)(c) does not apply to a standard business sponsor who is a person to which new subregulation 1.20G(3A) applies. The relevant standard business sponsors are therefore not eligible to nominate a business activity under regulation 1.20G. New subregulation 1.20G(3A) is inserted in the Principal Regulations by item [4] of this Schedule. For further details, please see the notes on that item below.
Item [4] – After subregulation 1.20G(3)
This item inserts new subregulation 1.20G(3A) in regulation 1.20G (Nomination of business activities) in Division 1.4A of Part 1 of the Principal Regulations.
New subregulation 1.20G(3A) applies to standard business sponsors where the sponsor’s activities relate to either or both of the recruitment of labour for supply to other unrelated businesses and/or the hiring of labour to other unrelated businesses. The effect of new subregulation 1.20G(3A), in conjunction with the amendment made by item [3] of this Schedule, is that such sponsors may not nominate to the Minister an activity in which an individual is proposed to be employed by the person in Australia if the activity involves supplying to another unrelated business, the services of a sponsored visa holder.
The example at the end of subregulation 1.20G(3A) clarifies that this subregulation covers persons who propose to nominate an activity in relation to which sponsored visa holders would come to Australia for their services to be hired out to another business, rather than to work directly for the standard business sponsor.
As clarified by the example, a standard business sponsor whose business activities includes the recruitment and hiring of labour would still be able to nominate a business activity, if the activity relates to a position in which a sponsored visa holder would be directly employed in the sponsor’s own business rather than for the purpose of supplying the visa holder’s services to another unrelated business.
Item [5] – Subregulation 1.20GA(2)
This item amends subregulation 1.20GA(2) in regulation 1.20GA (Nomination of business activities – certified regional employment) in Division 1.4A of Part 1 of the Principal Regulations, by omitting the words “other than a sponsor whose business activities include recruitment or labour hire activities” and inserting the words “other than a sponsor in relation to which”, followed by new paragraphs 1.20GA(2)(c) and (d).
The effect of this amendment is that a sponsor whose business activities include activities relating to either or both the recruitment of labour for supply to other unrelated businesses and/or the hiring of labour to other unrelated businesses, cannot nominate a business activity under regulation 1.20GA if the sponsor proposes supplying the services of a sponsored visa holder in relation to the activity to another unrelated business.
The example at the end of paragraph 1.20GA(2)(d) clarifies that this subregulation covers persons who propose to nominate an activity whereby a sponsored person would come to Australia and be hired out to another unrelated business, rather than work directly for the standard business sponsor.
As clarified by the example, a standard business sponsor whose business activities includes the recruitment and hiring of labour would still be able to nominate a business activity, if the activity relates to a position in which a sponsored visa holder would be directly employed in the sponsor’s own business rather than for the purpose of supplying the visa holder’s services to another unrelated business.
Item [6] – Schedule 2, after paragraph 457.223(4)(b)
This item inserts new paragraph 457.223(4)(ba) in Part 457 (Subclass 457 – Business (Long Stay)) of Schedule 2 to the Principal Regulations.
The effect of this amendment is to insert a new time of decision criterion for applicants seeking to satisfy the primary criteria for grant of a Subclass 457 (Business (Long Stay)) visa on the basis of an Australia business sponsorship. This criterion applies where the applicant’s employer is a standard business sponsor and the employer’s business activities include activities relating to either or both the recruitment of labour for supply to other unrelated businesses and/or the hiring of labour to other unrelated businesses.
The criterion is that the activity must be an activity in the sponsor’s business and not an activity that involves a position that would be supplied to another unrelated business. This criterion does not apply where the nomination that was approved in relation to the activity was made before 1 October 2007.
Item [7] – Schedule 2, after paragraph 457.223(5)(c)
This item inserts new paragraph 457.223(5)(ca) in Part 457 (Subclass 457 – Business (Long Stay)) of Schedule 2 to the Principal Regulations.
The effect of this amendment is to insert a new time of decision criterion for applicants seeking to satisfy the primary criteria for grant of a Subclass 457 Business Skills (Long Stay) visa on the basis of an overseas business sponsorship. This criterion applies where the applicant’s employer is a standard business sponsor and the employer’s business activities include activities relating to either or both the recruitment of labour for supply to other unrelated businesses and/or the hiring of labour to other unrelated businesses.
The criterion is that the activity must be an activity in the sponsor’s business and not an activity that involves a position that would be supplied to another unrelated business. This criterion does not apply where the nomination that was approved in relation to the activity was made before 1 October 2007.