Overview

The Migration Regulations 1994 were enacted to regulate the administration of the Migration Act 1958 and provide a framework for the administration of Australia's migration program. The instrument IMMI 17/035, introduced to address the specific requirements for the subclass 189 Skilled – Independent visa under the New Zealand stream, was made under the authority of the Migration Regulations 1994. This instrument specifies the income threshold and exemptions necessary for applicants in the New Zealand stream to meet the primary criteria for the grant of a subclass 189 visa. The policy objective of this instrument is to provide an additional pathway for New Zealand citizens to apply for permanent residence in Australia, facilitating their application for Australian citizenship after one year of permanent residence. This additional stream within the Skilled Independent category is designed to recognise and reward the economic contributions of New Zealand citizens who hold a Subclass 444 Special Category visa.

Scope and Application

The Migration Regulations 1994, as specified by the instrument IMMI 17/035, set out the criteria for applicants seeking to meet the primary requirements of a subclass 189 Skilled – Independent visa in the New Zealand stream, effective from 1 July 2017. This regulation applies to New Zealand citizens who hold a Subclass 444 Special Category visa and are seeking to transition to permanent residency in Australia. The primary condition for eligibility is meeting a specified minimum income requirement over the four years preceding the application. For each of these years, the applicant must either demonstrate a taxable income equal to or above the prescribed threshold or fall within a specific category of exemptions, supported by relevant evidence. This instrument supports the new pathway to permanent residence for New Zealand citizens, enabling them to apply for Australian citizenship after one year of permanent residency. The exemptions are limited to a select group of applicants to ensure the visa applies only to those who have made a demonstrated economic contribution to Australia. This regulatory framework was developed through extensive consultation, including the Government of New Zealand, and does not require a Regulatory Impact Statement or a Statement of Compatibility with Human Rights under the Legislation (Exemptions and Other Matters) Regulation 2015.

Key Provisions

The Migration Regulations 1994 specify that applicants for a subclass 189 (Skilled – Independent) visa in the New Zealand stream must meet certain income thresholds or fall into designated exempt categories (sections 189.233(2)(a) and 189.233(2)(b)). To meet the income requirement, applicants need to demonstrate that they have earned a specified minimum level of taxable income for each of the four income years preceding the application date. Alternatively, applicants can qualify if they belong to a class of exempt applicants as specified in the regulations. These exemptions are intended for a limited group of applicants, aligning with the policy goal of ensuring that only those making a demonstrated economic contribution to Australia can benefit from this visa stream. The obligations imposed by the Migration Regulations 1994 on applicants for the subclass 189 visa in the New Zealand stream include providing detailed evidence of their income or classification as an exempt applicant. For those who meet the income threshold, this involves submitting documentation that clearly shows their taxable income for the required four-year period. For those qualifying under an exemption, specific evidence must be provided to substantiate their eligibility, such as proof of their employment status or other relevant circumstances. Additionally, applicants must ensure their applications are made in accordance with the regulatory framework and any additional requirements specified in the Instrument. Non-compliance with the income requirements or failure to provide the necessary evidence can result in serious consequences for applicants. The regulations do not explicitly state civil or criminal penalties for breaches of the income threshold or exemption provisions. However, failure to meet the requirements can lead to the refusal of the visa application. Such refusals are significant because they can bar applicants from the pathway to permanent residence and subsequent eligibility for Australian citizenship. The implications of a refusal include potential delays, additional costs for reapplication, and the inability to access the benefits of permanent residency. The introduction of this pathway to permanent residence for New Zealand citizens via the subclass 189 visa stream reflects a broader policy objective to facilitate the transition to Australian citizenship for those who have made a significant economic contribution. By specifying the income thresholds and exemptions, the regulations aim to ensure that the visa pathway remains selective and targeted towards individuals who can meet the economic contribution criteria. This approach aligns with the strategic intent of the visa program and supports the Government's broader immigration policies.