EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 237
Minister for Immigration and Citizenship
Subject - Migration Act 1958
Migration Amendment Regulations 2009 (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 subsection 31(3) provides that the Regulations may prescribe criteria for a visa of a specified class.
The purpose of the Regulations is to amend the Principal Regulations to amend the definition of ‘migration occupation in demand’ to allow a migration occupation in demand to be described in the migration occupation in demand list (the MODL) for a particular Class or Subclass of visa and by reference to specified characteristics to enable a more targeted approach to the awarding of MODL points to visa applicants.
Details of the Regulations are set out in the Attachment.
The Act specifies no conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
The Office of Best Practice Regulation’s Best Practice Regulation Preliminary Assessment was used to determine that there would be no compliance cost to business for the proposed amendments.
Authority: Subsection 504(1) of the
Migration Act 1958
ATTACHMENT
Details of the proposed Migration Amendment Regulations 2009 (No. 11)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2009 (No. 11)
Regulation 2 – Commencement
This regulation provides for the Regulations to commence on the day after registration.
Regulation 3 – Amendment of Migration Regulations 1994
Subregulation 3(1) provides that the Migration Regulations 1994 (the Principal Regulations) are amended as set out in Schedule 1.
Subregulation 3(2) provides that the amendments made by Schedule 1 apply in relation to a visa application made on or after the day the Regulations commence.
Schedule 1 – Amendments
Item [1] substitutes the definition of migration occupation in demand in regulation 1.03 of Part 1 to the Principal Regulations.
The substituted definition provides that a migration occupation in demand in relation to one or more Classes or Subclasses of visa means a skilled occupation that is specified by the Minister in an instrument in writing for this definition as a migration occupation in demand, including an occupation that may be described by reference to specified characteristics in the instrument.
The purpose of this amendment is to specify that a migration occupation in demand may be specified in relation to a particular Class or Subclass of visa. The instrument may specify that a skilled occupation is a migration occupation in demand for one Subclass or Class of visa but not specify that same skilled occupation as a migration occupation in demand for a different Subclass or Class of visa.
The amendment allows a migration occupation in demand to be described by reference to specified characteristics, such as an occupation with a certain level of English language proficiency. This would enable a more targeted approach to the awarding of MODL points to visa applicants.
Overview
The Migration Amendment Regulations 2009 (No. 11) were enacted to refine the framework within the Migration Act 1958 for identifying and managing migration occupations in demand. This legislative instrument was introduced to address the need for a more nuanced and targeted approach in the allocation of points for visa applicants under the Migration Occupations in Demand List (MODL). These regulations were made under the authority of Subsection 504(1) of the Migration Act 1958, enabling the Minister for Immigration and Citizenship to specify migration occupations in demand for particular Classes or Subclasses of visas based on certain characteristics. The policy objective of these amendments is to ensure that the allocation of MODL points is more precisely aligned with the specific demands and requirements of different visa categories, thereby enhancing the relevance and effectiveness of the visa system.
Scope and Application
The Migration Amendment Regulations 2009 (No. 11) amends the Migration Regulations 1994 under the authority of the Migration Act 1958 to refine the definition of 'migration occupation in demand'. This alteration is specifically designed to allow for a more targeted approach to awarding points to visa applicants based on the occupation they intend to pursue in Australia. The amendment enables the specification of a migration occupation in demand in relation to particular classes or subclasses of visas, and it permits the description of such occupations by reference to specified characteristics, such as a required level of English language proficiency. This allows for a nuanced application of the migration occupation in demand list (MODL) points system, catering to the specific needs of different visa categories and enhancing the precision with which the system can address labour market demands. The Regulations apply to any visa application made on or after the day the Regulations commence, ensuring that the changes are implemented in a timely manner for prospective applicants.
Key Provisions
The Migration Amendment Regulations 2009 (No. 11) under the Migration Act 1958 introduce significant amendments primarily targeting the definition of 'migration occupation in demand'. Regulation 3(1) amends the definition in regulation 1.03 of Part 1 of the Principal Regulations, allowing a migration occupation in demand to be specified in relation to particular Classes or Subclasses of visas. This means that an occupation can be designated as a migration occupation in demand for one visa category but not for another. Furthermore, Regulation 3(2) ensures that these amendments apply to visa applications made on or after the Regulations commence.
These amendments impose specific obligations on the Minister for Immigration and Citizenship, who now has the authority to specify skilled occupations as migration occupations in demand, either generally or with reference to particular characteristics such as English language proficiency. This specification must be done in writing and will be used to determine eligibility for migration occupation in demand list (MODL) points, which are awarded to visa applicants based on their occupation and its demand status. The Regulations also require that the amendments apply to visa applications submitted on or after the Regulations' commencement date.
The Regulations do not explicitly outline specific offences, penalties, or consequences for non-compliance. However, any breaches of the Act's provisions or subsequent regulations would likely result in penalties as prescribed under the Migration Act 1958. For instance, failure to comply with visa application requirements can result in visa cancellation, exclusion from Australia, or a ban on future visa applications. The maximum penalties can vary, with criminal penalties including fines of up to $222,200 and/or imprisonment for up to 10 years for serious breaches, while administrative penalties can include financial penalties and visa cancellations.
Given the amendments' focus on the targeted allocation of MODL points, it is crucial for applicants to ensure their occupations are correctly identified as migration occupations in demand for the specific visa category they are applying for. Non-compliance or incorrect self-identification could result in the loss of valuable points, potentially affecting the outcome of their visa application.