EXPLANATORY STATEMENT
Select Legislative Instrument No. 145, 2014
Issued by the Minister for Immigration and Border Protection
Migration Act 1958
Migration Amendment (Temporary Graduate Visas) Regulation 2014
Subsection 504(1) of the Migration Act 1958 (the Act) relevantly provides 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 of the Act listed in Attachment A.
The purpose of the Migration Amendment (Temporary Graduate Visas) Regulation 2014 (the Regulation) is to amend the Migration Regulations 1994 (the Principal Regulations) to make technical amendments to correct unintended consequences made by Schedule 3 of the Migration Legislation Amendment (2014 Measures No. 1) Regulation 2014 and Schedule 2 of the Migration Amendment Regulation 2012 (No. 2).
In particular, the Regulation amends the Principal Regulations to:
- ensure that the requirement to obtain a favourable skills assessment by an applicant for the Subclass 485 (Temporary Graduate) visa (Subclass 485 visa) is a time of decision criterion; and
- refer to the correct title of the Subclass 485 visa in item 1229 of Schedule 1 to the Regulations.
Details of the Regulation are set out in Attachment C.
The Act specifies no conditions that need to be satisfied before the power to make the Regulation may be exercised.
The Office of Best Practice Regulation (OBPR) has been consulted in relation to the amendments made by the Regulation. OBPR advises that, while the proposal is likely to have a minor regulatory impact on individuals, the proposal will not be considered by Cabinet and therefore a Regulation Impact Statement is not required. The OBPR consultation reference is 17305.
No other consultation had been undertaken for this Regulation because the amendments are minor and are to correct unintended consequences made by amendment regulations mentioned above. In addition, the amendments do not substantially alter existing arrangements. This accord with a circumstance where consultation may not be necessary under section 18 of the Legislative Instrument Act 2003 (Instruments Act).
The Statement of Compatibility with Human Rights (Statement) has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement’s overall assessment is that the Regulation is compatible with human rights as it does not raise any human rights issues. A copy of the Statement is at Attachment B.
The Regulation is a legislative instrument for the purposes of the Instruments Act.
The Regulation commences on 6 October 2014.
ATTACHMENT A
AUTHORISING PROVISIONS
Subsection 504(1) of the Migration Act 1958 (the Act) relevantly provides 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, the following provisions may apply:
- subsection 31(1) of the Act, which provides that there are to be prescribed classes of visas;
- subsection 31(3)of the Act, which provides that the Migration Regulations 1994 (the Principal Regulations) may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A).
- subsection 31(5) of the Act, which provides that a visa is a visa of a particular class if the Act or the Principal Regulations specify that it is a visa of that class; and
- subsection 40(1) of the Act, which provides that the Principal Regulations may provide that visas or visas or a specified class may only be granted in specified circumstances.
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
MIGRATION AMENDMENT (TEMPORARY GRADUATE VISA) REGULATION 2014
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
We propose to amend the Migration Regulations 1994 (the Principal Regulations) to make technical amendments to correct unintended consequences made by Schedule 3 of the Migration Legislation Amendment (2014 Measures No. 1) Regulation 2014 and Schedule 2 of the Migration Amendment Regulation 2012 (No. 2).
On 1 July 2014, the Principal Regulations were amended to ensure that skills assessments issued by assessing authorities for the purpose of visa applications are valid for a period of three years, or if a shorter validity period is specified in the assessment, for that shorter period. The intention was to require the skills assessment to not have expired at time of application, but, as an unintended consequence of the wording adopted, this clause also required the skills assessment to be completed at time of application for the Subclass 485 visa.
Prior to 1 July 2014, the Principal Regulations allowed for a favourable skills assessment to be obtained up until a decision was made on the application. Applicants for the Subclass 485 visa are recent graduates and are unlikely to have the outcome of their skills assessment before they lodge their visa application so a significant proportion of Subclass 485 visa applications would be unable to meet the legal requirements for visa grant.
The amendments made by this Legislative Instrument ensure that the relevant requirement for a favourable skills assessment is a 'time of decision' requirement. The amendments also correct an incorrect reference to the title of the Subclass 485 visa in the Principal Regulations.
Human rights implications
This Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
The Hon. Scott Morrison MP, Minister for Immigration and Border Protection
ATTACHMENT C
Details of the Migration Amendment (Temporary Graduate Visas) Regulation 2014
Section 1 – Name of Regulation
This section provides that the title of the Regulation is the Migration Amendment (Temporary Graduate Visas) Regulation 2014 (the Regulation).
Section 2 – Commencement
This section provides that this regulation commences on 6 October 2014.
The purpose of this section is to provide for when the amendments made by the Regulation commence.
Section 3 – Authority
This section provides that the Regulation is made under the Migration Act 1958 (the Act).
The purpose of this section is to set out the Act under which the Regulation is made.
Section 4 – Schedules
This section provides that each instrument that is specified in a Schedule to the Regulation is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Regulation has effect according to its terms.
The purpose of this section is to provide for how the amendments in the Regulation operate.
Schedule 1 – Amendments
Item 1 – Subclause 1229(10) of Schedule 1
This item omits the reference to “(Skilled—Graduate)” in subclause 1229(10) of Schedule 1 to the Principal Regulations and in its place substitute with “(Temporary Graduate)”.
The correct title of the Subclass 485 visa is the “Subclass 485 (Temporary Graduate) visa” (Subclass 485 visa).
An unintended consequence of the multiple amendments made by item 5 of Schedule 2 to the Migration Legislation Amendment Regulation 2013 (No. 1) and item 23 of Schedule 2 to Migration Amendment Regulation 2012 (No. 2) is that the reference to the title of the Subclass 485 visa in subitem 1229(10) of Schedule 1 incorrectly reverted back to “Subclass 485 (Skilled - Graduate) visa”.
The purpose of this amendment is to ensure that the correct name of the Subclass 485 visa is specified throughout the Principal Regulations.
The effect of this amendment is that the correct name of the Subclass 485 visa is clear to the reader.
Item 2 – Subclause 485.224(1) of Schedule 2
This item repeals and substitutes subclause 485.224(1) in Part 485 of Schedule 2 to the Principal Regulations and inserts new subclauses 485.224(1A) and (1B) into the same Part.
The intention of the requirement for skills assessment under the Subclass 485 visa programme is that the skills of the applicant must be assessed by a relevant assessing authority by the time that his or her application is decided to satisfy a criterion for the grant of the Subclass 485 visa.
An unintended consequence of the amendment made by item 5 of Schedule 3 to the Migration Legislation Amendment (2014 Measures No. 1) Regulation 2014 is that the relevant criterion for skills assessment was incorrectly amended from being a time of decision criterion to a time of application criterion.
Former subclause 485.224(1) provided that at the time of application:
(a) the skills of the applicant for the applicant’s nominated skilled occupation had been assessed by a relevant assessing authority as suitable for that occupation; and
(b) if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment — the period had not ended; and
(c) if paragraph (b) did not apply — not more than 3 years had passed since the date of the assessment.
New subclause 485.224(1) provides that the skills of the applicant for the applicant’s nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation during the last 3 years.
New subclause 485.224(1A) provides that if the assessment is expressed to be valid for a particular period, that period has not ended.
The purpose of this amendment is to ensure that an applicant for a Subclass 485 visa can be assessed by the relevant assessing authority as having suitable skills for the applicant’s nominated skilled occupation at the time of decision.
The effect of this amendment is that for an applicant for a Subclass 485 visa to satisfy clause 485.224:
- where a skills assessment does not express a particular validity period, the assessment must have been made during the last three years;
- where an assessment is valid for a particular period, the assessment must have been made during the last three years AND the validity period of the assessment must not have ended.
Item 3 – At the end of Schedule 13
This item amends Schedule 13 to the Regulations to insert new Part 33, entitled “Amendments made by the Migration Amendment (Temporary Graduate Visas) Regulation 2014”, which contains new clause 3301.
New clause 3301 provides that the amendments of these Regulations made by Schedule 1 to the Migration Amendment (Temporary Graduate Visas) Regulation 2014 apply in relation to the following applications for a visa:
- an application made on or after 1 July 2014, but not finally determined before 6 October 2014;
- an application made on or after 6 October 2014.
The purpose of these amendments is to clarify to whom the amendments in the Regulation applies.