EXPLANATORY STATEMENT
Migration Regulations 1994
English Language Requirements for Subclass 457 visas
(paragraph 457.223(4)(eb), paragraph 457.223(6)(a), subclause 457.223(11))
- This Instrument, Migration (IMMI 17/057: English Language Requirements for Subclass 457) Instrument 2017, is made under paragraphs 457.223(4)(eb) and 457.223(6)(a), and subclause 457.223(11) of Schedule 2 to the Regulations.
- This instrument replaces Tests, Scores, Period, Level of Salary and Exemptions to the English Language Requirement for Subclass 457 (Temporary Work (Skilled)) Visas 2015 (IMMI 15/028). In addition, one matter previously dealt with in IMMI 15/028 is now dealt with in the Migration (IMMI 17/078: Time period for English language requirements for Subclass 457 nominations) Instrument 2017.
- IMMI 15/028 is repealed on 1 July 2017 by Migration (IMMI 17/079: Repeal of Tests, Scores, Period, Level of Salary and Exemptions to the English Language Requirement for Subclass 457 (Temporary Work (Skilled)) Visas 2015 (IMMI 15/028)) Instrument 2017.
- The Instrument specifies:
- the English language tests which are acceptable for demonstrating English language ability for the purpose of the Subclass 457 Temporary Work (Skilled) visa (Subclass 457);
- the scores which must be achieved in the specified tests;
- the period of time within which the specified scores must be obtained; and
- Subclass 457 applicants who are exempt from the requirement to undertake English language tests.
5. The substantive difference between this instrument and IMMI 15/028 is that the salary based exemption from English language testing has been removed for Subclass 457 applications made on or after 1 July 2017. This change has been made to strengthen the integrity of the Subclass 457 programme and ensure that applicants have the required English language ability. Item 4 of this instrument preserves the salary based exemption for Subclass 457 applications made before 1 July 2017 (previously located in item 6 of IMMI 15/028).
6. The removal of the general salary based exemption from English language requirements is partially offset by an additional exemption from English language requirements, which is applicable to persons who will be working in Australia on transfer between associated entities, and who will be paid a base salary of at least $96,400.
7. Subject to a qualification noted below, the new instrument applies to all Subclass 457 visa applications made on and after 1 July 2017, or made before 1 July 2017 and not finally determined before 1 July 2017. There is no disadvantage to applicants who applied before 1 July 2017, and the only changed arrangement for applicants who apply on or after 1 July 2017 is the removal of the salary based exemption from English language testing.
8. The qualification to the previous paragraph is that IMMI 15/028 continues to apply to visa applications made before 1 July 2013, as set out in paragraph 7(d) and 7(e) of IMMI 15/028. Those paragraphs are likely to be redundant on the basis that there are no remaining applications made prior to 1 July 2013. The paragraphs were therefore not carried forward into the new instrument.
9. The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 21681).
10. No consultation was considered necessary or appropriate because the amendments do not substantially alter existing arrangements. This accords with subsection 17(1) of the Legislation Act 2003, which envisages consultations where appropriate and reasonably practicable.
11. Under section 10 of the Legislation (Exemptions and Other Matters) Regulations 2015 and pursuant to item 20 of the table in section 10 of the Legislations (Exemption and Other Matters) Regulation 2015, the instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
12. The Instrument commences on 1 July 2017.
Overview
The Migration (IMMI 17/057: English Language Requirements for Subclass 457) Instrument 2017 was enacted in 2017 to address the need for more stringent English language proficiency requirements for applicants of Subclass 457 Temporary Work (Skilled) visas. This instrument, made under the Migration Regulations 1994, replaces the previous Tests, Scores, Period, Level of Salary and Exemptions to the English Language Requirement for Subclass 457 (Temporary Work (Skilled)) Visas 2015 (IMMI 15/028). The primary policy objective behind this legislation was to strengthen the integrity of the Subclass 457 program by ensuring that all applicants possess the requisite English language skills. This was achieved by specifying the acceptable English language tests, the required scores, the timeframe within which these scores must be obtained, and the exemptions applicable to certain subclasses of applicants.
Scope and Application
This Instrument, titled Migration (IMMI 17/057: English Language Requirements for Subclass 457) Instrument 2017, applies to applicants for Subclass 457 Temporary Work (Skilled) visas made on or after 1 July 2017, or those made before 1 July 2017 but not finally determined before that date. The instrument establishes the acceptable English language tests, requisite scores, and the period within which these scores must be obtained, as well as specifying those applicants exempt from the English language requirements. Notably, the instrument removes the salary-based exemption from English language testing for applications made on or after 1 July 2017, aiming to strengthen the integrity of the visa program and ensure applicants have the necessary English proficiency. However, it introduces an exemption for applicants working in Australia on transfer between associated entities and earning a base salary of at least $96,400. This instrument is exempt from disallowance under certain regulations, and a Regulatory Impact Statement was deemed unnecessary due to the minor changes it introduces.
Key Provisions
The Migration (IMMI 17/057: English Language Requirements for Subclass 457) Instrument 2017 establishes specific criteria for English language proficiency necessary for applicants seeking a Subclass 457 Temporary Work (Skilled) visa. The instrument identifies acceptable English language tests (paragraph 457.223(4)(eb)) and sets out the scores required from these tests (paragraph 457.223(6)(a)). Furthermore, it specifies the timeframe within which these test scores must be obtained (subclause 457.223(11)). It also outlines the exemptions from these English language requirements, such as for applicants working in Australia on transfer between associated entities and earning a base salary of at least $96,400 (paragraph 457.223(11)). The instrument aims to ensure that applicants possess the requisite English language skills necessary for their roles.
Under the new instrument, applicants for a Subclass 457 visa must meet specific English language requirements. They must undertake and pass an approved English language test and achieve the specified scores within a stipulated timeframe. Employers who wish to sponsor a Subclass 457 visa applicant must ensure that the applicant meets these language requirements before lodging the visa application. In addition, applicants who are exempt from the English language requirement must still provide evidence that they meet the exemption criteria, such as being transferred between associated entities and earning the specified salary.
There are no direct offences or penalties outlined in the instrument itself. However, failure to comply with the English language requirements may result in the visa application being refused under the Migration Act 1958. If a visa is granted under false or misleading information regarding English language proficiency, this could lead to the visa being cancelled under section 122A of the Migration Act 1958, which imposes penalties such as fines and imprisonment. Additionally, employers who sponsor applicants without ensuring compliance with the English language requirements may face sanctions under the Migration Act 1958, including fines and potential disqualification from sponsoring future visa applicants.