EXPLANATORY STATEMENT
Migration Regulations 1994
Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas
(sub-subparagraph 5.19(4)(h)(ii)(D), subclause 186.234(3), paragraphs 186.221(b), 186.222(b), 186.231(b), 186.232(b), 187.221(b), 187.222(b), 187.231(b), 187.232(b), and 187.234(a))
- This Instrument, Migration (IMMI 17/058: Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas) Instrument 2017, is made under sub-subparagraph 5.19(4)(h)(ii)(D) of the Migration Regulations 1994 (the Regulations), and under subclause 186.234(3) and paragraphs 186.221(b), 186.222(b), 186.231(b), 186.232(b), 187.221(b), 187.222(b), 187.231(b), 187.232(b), and 187.234(a) of Schedule 2 to the Regulations.
- The Instrument repeals Specification of Class of Persons 2015 (IMMI 15/083). Subsection 33(3) of the Acts Interpretation Act 1901, states that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
- This instrument specifies occupations which may be nominated by employers in relation to applicants for Subclass 187 (Regional Sponsored Migration Scheme) visas. The instrument also specifies classes of persons who are exempt from certain criteria relating to skills, age and English language, for the purposes of Subclass 186 (Employer Nomination Scheme) and Subclass 187 visas. The instrument replaces instrument IMMI 15/083. The substantive difference between the instruments is that this instrument does not include income exemptions from criteria relating to skills and English language, which were specified in item 2 of IMMI 15/083. That item exempted applicants for Subclass 186 and Subclass 187 visas from various skill and English language criteria if the visa applicant’s earnings were to be at least equivalent to the Australian Tax Office’s top individual income tax rate.
- The removal of the salary based exemption is intended to strenghten the integrity of the Subclass 186 and Subclass 187 visas by ensuring that applicants have the required skills and English language requirements.
- Apart from the omission of the income exemption, the instrument is substantively the same as IMMI 15/083 which commenced on 1 July 2015. The instrument also omits redundant references to the Subclass 422 Medical Practitioner visa, which was repealed on 24 November 2012.
- The new instrument applies to all nominations and visa applications made from 1 July 2017, and also to nominations and visa applications made before that date and not finally determined by that date. This change does not disadvantage any applicants except applicants who were seeking to rely on the income exemption mentioned in paragraph 3 above. To ensure the integrity of the Subclass 186 and Subclass 187 visas, it is considered appropriate to apply the new instrument to those applicants.
- The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 21681).
- 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.
- Under section 10 of the Legislation (Exemptions and Other Matter) 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.
- The Instrument commences on 1 July 2017.
Overview
The Migration Regulations 1994, enacted by the Australian Parliament, serve as the legislative framework governing the entry and stay of non-citizens in Australia. This regulation was introduced to address the need for a structured and controlled approach to migration that aligns with national economic and social objectives. The specific instrument, titled "Migration (IMMI 17/058: Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas) Instrument 2017", was designed to refine the existing framework by specifying occupations eligible for nomination under the Regional Sponsored Migration Scheme (Subclass 187 visa) and setting the criteria for skills, age, and English language for the Employer Nomination Scheme (Subclass 186 visa) and the Regional Sponsored Migration Scheme (Subclass 187 visa). This amendment particularly aims to strengthen the integrity of the visa programs by ensuring that applicants meet the required skill and English language standards, thereby excluding income-based exemptions previously available. The policy objective is to maintain the quality and standards of the skilled migration programs, ensuring that only suitably qualified individuals are granted visas.
Scope and Application
The Migration (IMMI 17/058: Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas) Instrument 2017 applies to the nomination of occupations by employers for applicants of Subclass 187 (Regional Sponsored Migration Scheme) visas and to the exemptions from certain skill, age, and English language criteria for applicants of Subclass 186 (Employer Nomination Scheme) and Subclass 187 visas. The instrument specifies which occupations can be nominated by employers and the classes of persons exempt from specific criteria, ensuring that applicants meet the necessary skill and language requirements. It applies nationally and comes into effect on 1 July 2017, affecting all nominations and visa applications made from that date, as well as those made before that date but not finally determined by that date. Notably, this instrument removes the income-based exemptions that were previously specified in the repealed Specification of Class of Persons 2015 (IMMI 15/083), aiming to strengthen the integrity of the visa schemes by enforcing skill and language requirements more rigorously.
Key Provisions
The Migration (IMMI 17/058: Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas) Instrument 2017 (the Instrument) specifies occupations that can be nominated by employers for applicants of Subclass 187 (Regional Sponsored Migration Scheme) visas (paragraph 187.231(b)). It also specifies classes of persons who are exempt from certain skill, age, and English language criteria for Subclass 186 (Employer Nomination Scheme) and Subclass 187 visas (paragraphs 186.221(b), 186.222(b), 186.231(b), 186.232(b), 187.221(b), 187.222(b), 187.231(b), 187.232(b), and 187.234(a)). This Instrument, effective from 1 July 2017, replaces the Specification of Class of Persons 2015 (IMMI 15/083), with the notable exception that it removes the income-based exemption from skill and English language requirements previously available under the repealed instrument.
The Instrument imposes several obligations on employers and applicants under the Migration Regulations 1994. Employers must ensure that the occupations they nominate for Subclass 187 visa applicants are listed in the Instrument (paragraph 187.231(b)). For Subclass 186 and Subclass 187 visa applicants, the Instrument delineates specific classes of persons who are exempt from certain skill, age, and English language criteria (paragraphs 186.221(b), 186.222(b), 186.231(b), 186.232(b), 187.221(b), 187.222(b), 187.231(b), 187.232(b), and 187.234(a)). Applicants must meet the specified skill, age, and English language requirements unless they fall within an exempted class. Failure to comply with these requirements can result in the rejection of a visa application.
The Instrument does not introduce new offences, penalties, or consequences for breach. However, non-compliance with the specified skill, age, and English language requirements can lead to the refusal of a visa application under the Migration Regulations 1994. The primary consequence is the inability to obtain a Subclass 186 or Subclass 187 visa, which could affect the applicant's ability to reside and work in Australia under these visa categories. The Instrument ensures the integrity of the visa scheme by removing the previously available income-based exemption, thereby reinforcing the need for applicants to meet the requisite skill, age, and English language standards.