EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (IMMI 17/074: Specification of Training Requirements) Instrument 2017
(Sub-sub-subparagraph 5.19(4)(h)(i)(B)(I))
- Instrument IMMI 17/074 is made under sub-sub-subparagraph 5.19(4)(h)(i)(B)(I) of the Migration Regulations 1994 (the Regulations).
- The instrument operates to specify Training Benchmarks A and B which set out the training benchmarks and training requirements for the purposes of the provisions listed above. The instrument specifically provides:
- for the purposes of Training Benchmark A, the requirements a training fund must meet, in particular excluding funds that offer commissions or refunds for failed visa applications;
- the types of expenditure on training that are acceptable for the purposes of Training Benchmark B; and
- the types of expenditure that are to be included when calculating payroll, including where contractors are used and where salaries are not paid to business owners.
- The purpose of the instrument is to clarify policy settings for the training benchmarks and training requirements so that a nominator or sponsor has a clear understanding of those training requirements. The purpose is also to address integrity concerns with the training benchmarks and training requirements by amending the types of applicable expenditure. Those integrity changes include:
- specifying in the instrument the types of expenditure that are to be included when calculating payroll;
- for the purposes of Training Benchmark A:
- incorporating the types of training funds that may be used to meet the training benchmark requirement; and
- specifying that funds that offer commissions or refunds for failed immigration applications do not meet the requirements; and
- for the purposes of Training Benchmark B:
- clarifying that the payments for scholarships for non-employees is not acceptable expenditure; and
- providing that a trainer’s salary is acceptable expenditure only when the person is engaged solely as a trainer and clarifying what type of on-the-job training is acceptable expenditure.
- This instrument is prospective so it will only apply to nominations or standard business approvals lodged on or after commencement.
- The instrument specifies matters previously addressed in Migration (Specification of Training Benchmarks and Training Requirements) Instrument 2013 (IMMI 13/030) (F2013L01236). IMMI 13/030 is repealed by Migration (IMMI 17/075: Repeal of Training Benchmarks and Training Requirements) Instrument 2017 which commences on 1 July 2017. The matters in regard to paragraphs 2.59(d), 2.68(e), and subregulations 2.87B(2) and 2.87B(3) that were previously included in IMMI 13/030 are now provided for in Migration (IMMI 17/045: Specification of Training Benchmarks and Training Requirements) Instrument 2017.
- No consultation was undertaken as the instrument incorporates existing policy guidance related to the previous instrument and addresses integrity concerns with the types of allowable expenditure. It is anticipated that this reform will be addressed in the future as part of stakeholder engagement about strengthening the integrity and quality of Australia’s temporary and permanent employer sponsored skilled migration programmes.
- The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 21946).
- Under section 10 of the Legislation (Exemptions 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 were amended in 2017 to address issues concerning the integrity of training benchmarks and training requirements for temporary and permanent employer-sponsored skilled migration programmes in Australia. This was achieved through the Migration (IMMI 17/074: Specification of Training Requirements) Instrument 2017, which was enacted under the authority of the Migration Act 1958. The primary objective of this instrument was to clarify the policy settings related to training benchmarks and to address integrity concerns by modifying the types of allowable expenditure. The instrument specifies the requirements for training funds and the types of acceptable expenditure for training, such as excluding funds that offer commissions or refunds for failed visa applications and clarifying the types of on-the-job training that are acceptable. It also repeals the previous Migration (Specification of Training Benchmarks and Training Requirements) Instrument 2013 and incorporates its matters into the new instrument. This reform was implemented prospectively, applying to nominations or standard business approvals lodged on or after 1 July 2017, and was exempt from disallowance under the Legislation (Exemptions and Other Matters) Regulation 2015.
Scope and Application
The Migration (Specification of Training Requirements) Instrument 2017 (IMMI 17/074) operates under sub-sub-subparagraph 5.19(4)(h)(i)(B)(I) of the Migration Regulations 1994, establishing the training benchmarks and requirements for temporary and permanent employer-sponsored skilled migration programs. This instrument applies to nominators and sponsors who must adhere to specified training benchmarks and expenditure criteria to ensure compliance with the training requirements outlined in the Migration Regulations. The instrument outlines the types of training funds that can be used to meet Training Benchmark A, excluding those that offer commissions or refunds for failed visa applications, and specifies the acceptable types of expenditure on training under Training Benchmark B. Additionally, it clarifies the inclusion of certain expenditures when calculating payroll and stipulates the types of on-the-job training that are acceptable. The instrument is prospective, applying only to nominations or standard business approvals lodged on or after its commencement on 1 July 2017, and it supersedes the Migration (Specification of Training Benchmarks and Training Requirements) Instrument 2013. The instrument is exempt from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, thereby not requiring a Statement of Compatibility with Human Rights.
Key Provisions
The key provisions of the Migration (IMMI 17/074: Specification of Training Requirements) Instrument 2017 (paragraph 5.19(4)(h)(i)(B)(I)) detail the training benchmarks and training requirements for nominating or sponsoring skilled migrants. Section 1 specifies the requirements a training fund must meet for Training Benchmark A, such as excluding funds that offer commissions or refunds for failed visa applications (sub-sub-subparagraph 5.19(4)(h)(i)(B)(I)). Section 2 lists the acceptable types of expenditure for Training Benchmark B, including the inclusion of certain payroll calculations and the exclusion of payments for scholarships for non-employees. The instrument also clarifies what types of on-the-job training are acceptable, ensuring that a trainer’s salary is only considered when the person is engaged solely as a trainer.
The obligations imposed on parties governed by this Act include ensuring that any training funds used meet the specified requirements of Training Benchmark A. Nominators and sponsors must also ensure that their expenditure on training aligns with the acceptable types outlined in Training Benchmark B. This involves careful documentation and verification that all training-related expenditures are correctly classified and included in the appropriate calculations. Additionally, parties must avoid using training funds that offer commissions or refunds for failed visa applications, as these are explicitly excluded.
Breaches of the specified training requirements can result in serious consequences. While the exact penalties are not detailed in the instrument, violations of the Migration Regulations 1994 generally carry potential criminal and civil penalties. These may include fines, imprisonment, or the revocation of nomination or sponsorship rights. The seriousness of these penalties underscores the importance of compliance with the training benchmarks and requirements outlined in the instrument.