EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 67
Issued by the Minister for Immigration and Citizenship
Migration Act 1958
Migration Amendment Regulations 2009 (No. 3)
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 31(3) of the Act also provides that the regulations may prescribe criteria for a visa of a specified class.
The purpose of the Regulations is to amend the Migration Regulations 1994 to increase the minimum International English Language Testing System (IELTS) score required to be met by certain persons, who are proposing to work in certain occupations (including tradespersons, clerical and service workers, production and transport workers, and the occupations of Head Chef and Chef), to satisfy the criteria for grant of a Subclass 457 (Business (Long Stay)) visa.
Specifically, the Regulations increase the “average band score” where an International English Language Testing System (IELTS) test is required for grant of a Subclass 457 (Business (Long Stay)) visa from a score of 4.5 to 5 or a score of more than 4.5 to more than 5. This increase improves consistency between the English language requirements for work-related temporary visas and permanent visas, many of which require an IELTS score of 5 or more. The IELTS test scores range from 0 (did not attempt the test) to 9 (“expert user”). A score of 4 is considered a “limited user”, while a score of 5 is considered a “modest user”.
The Regulations commence on 14 April 2009 and apply to applications made on or after this date.
The Office of Best Practice Regulation’s Business Cost Calculator and Assessment Checklists were used to determine that there was no compliance cost on business or impact on competition in relation to these amendments.
The Department of Foreign Affairs and Trade (“DFAT”) has been consulted in relation to these amendments.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Migration Amendment Regulations 2009 (No. 3) were enacted under the authority of the Migration Act 1958 and came into effect on 14 April 2009. These regulations were introduced to address the need for increased consistency in English language requirements across different visa categories within the Australian migration framework. The regulations aim to align the English language proficiency standards for temporary work-related visas, specifically the Subclass 457 (Business (Long Stay)) visa, with those required for permanent visas, thereby ensuring a more uniform and stringent language assessment process across various visa classes.
The enacting body for these regulations is the Minister for Immigration and Citizenship, who was acting within the legislative powers granted under the Migration Act 1958. The policy objective articulated within the explanatory statement is to enhance the English language requirements for certain occupations, ensuring that prospective temporary workers meet a minimum standard that is consistent with the requirements for permanent residency. By raising the minimum International English Language Testing System (IELTS) score from 4.5 to 5, the regulations seek to better prepare temporary workers for integration into the Australian workforce and society.
Scope and Application
The Migration Amendment Regulations 2009 (No. 3) pertain to the Migration Act 1958 and specifically amend the Migration Regulations 1994 to enhance the minimum International English Language Testing System (IELTS) scores required for certain applicants seeking a Subclass 457 (Business (Long Stay)) visa. These applicants must demonstrate proficiency in English, particularly if they intend to work in occupations such as tradespersons, clerical and service workers, production and transport workers, and culinary roles such as Head Chef and Chef. The Regulations increase the average band score required for the IELTS test from 4.5 to 5 or from more than 4.5 to more than 5. This adjustment aims to ensure a consistent standard of English language competency across both temporary and permanent work-related visas, many of which already require an IELTS score of 5 or higher. The regulations apply to applications made on or after 14 April 2009, and they are designed to align the English language requirements for temporary work visas with those of permanent visas.
Key Provisions
The Migration Amendment Regulations 2009 (No. 3) (the "Regulations") amend the Migration Regulations 1994 to alter the English language requirements for certain work-related temporary visas. Specifically, section 2 of the Regulations increases the minimum International English Language Testing System (IELTS) score required for applicants for a Subclass 457 (Business (Long Stay)) visa. This increase affects individuals proposing to work in certain occupations including tradespersons, clerical and service workers, production and transport workers, and the occupations of Head Chef and Chef. The average band score required for these applicants has been raised from a score of 4.5 to 5, or from more than 4.5 to more than 5. This change aims to align the English language proficiency requirements for temporary work-related visas with those of permanent visas, which often mandate an IELTS score of 5 or higher.
The Regulations impose obligations on applicants for a Subclass 457 visa who fall within the specified occupational categories. They must now meet a higher English language proficiency standard by achieving an IELTS score of 5 or more than 5, depending on their previous score. This requirement ensures that visa applicants possess the necessary language skills to effectively perform their intended work roles in Australia. Additionally, the Regulations necessitate that employers nominating these applicants for a visa ensure that their prospective employees meet the updated IELTS criteria before submitting their applications.
Failure to comply with the new IELTS requirements outlined in the Regulations can lead to serious consequences for both applicants and employers. For applicants, not meeting the revised IELTS score can result in the refusal of their Subclass 457 visa application. Employers who nominate applicants who do not meet the English language requirements may face penalties under the Migration Act 1958. These penalties can include fines and potential disqualification from the employer sponsorship program. The Regulations do not specify maximum penalties for breaches; however, the Migration Act provides for various sanctions, including financial penalties and the potential exclusion of employers from the sponsorship pathway.
In summary, the Migration Amendment Regulations 2009 (No. 3) have introduced stricter English language requirements for certain temporary work-related visa applicants, aiming to ensure they possess the necessary language skills to perform their roles effectively in Australia. These changes impose additional obligations on applicants and their employers, with potential consequences for non-compliance including the refusal of visa applications and penalties for employers under the Migration Act 1958.