Overview

The Migration (IMMI 18/042: Designated Migration Law - SUBDIVISION B OF DIVISION 3A of PART 2) Instrument 2018 is an addition to the Migration Act 1958, designed to streamline the process for the automated approval of certain business sponsor applications. This instrument was enacted to address the need for efficient and timely processing of skilled visa programs, particularly in response to the recommendations from the 2014 Independent Review into the Integrity of the Subclass 457 programme. The instrument specifies that Subdivision B of Division 3A of Part 2 of the Act, which pertains to the approval of sponsors and nominations, is considered part of the designated migration law to facilitate automated decision-making. This initiative was part of a broader package of reforms introduced by the Australian Government, aimed at enhancing the integrity and efficiency of the employer-sponsored skilled visa programs. The instrument was developed following extensive consultation with external stakeholders and in accordance with regulatory best practices, ensuring that it aligns with the objectives of the broader legislative reforms.

Scope and Application

The instrument IMMI 18/042 specifies that Subdivision B of Division 3A of Part 2 of the Migration Act 1958 is part of the designated migration law, enabling automated approval of certain applications for standard business sponsors. This subdivision, titled 'Approving sponsors and nominations', pertains to the Minister's approval of sponsorships and nominations, with a particular focus on labour market testing conditions. The instrument applies to entities and individuals involved in the employer sponsored skilled visa programs, streamlining the sponsorship renewal process. It is designed to facilitate automated decision-making under the Act, allowing for the use of computer programs by the Minister to make decisions and comply with obligations. The instrument is part of a broader reform package for employer-sponsored skilled visa programs, aiming to simplify the sponsorship renewal process in line with the 2014 Independent Review into the Integrity of the Subclass 457 programme. It commenced on 18 March 2018 and is not subject to disallowance, hence does not require a Statement of Compatibility with Human Rights.

Key Provisions

The main operative sections of the instrument, IMMI 18/042, pertain to the determination of Subdivision B of Division 3A of Part 2 of the Migration Act 1958 as part of the designated migration law (section 495A(3)(b)). This section allows for the automated approval of certain applications as a standard business sponsor. The purpose of this determination is to facilitate the automatic processing of applications through the use of computer programs under the Minister's control (section 495A(1)). This includes the use of automated decision-making tools for approving nominations under section 140GB and ensuring that the associated labour market testing condition under section 140GBA has been met. This legislative change is designed to streamline and expedite the processing of applications related to employer sponsored skilled visas. The Act imposes several obligations on parties and entities it governs, particularly on those seeking to sponsor skilled migrants. These obligations include ensuring that all necessary conditions are satisfied before a nomination is made, such as completing the required labour market testing as stipulated in section 140GBA. Sponsors must also comply with any additional requirements set out in the Act and any related regulations. Additionally, the Department of Home Affairs is obligated to engage with external stakeholders and consider feedback in developing policy settings. The Act mandates that these processes be transparent, fair, and consistent with the broader objectives of the migration program. Failure to comply with the provisions of the Migration Act, including those related to sponsor obligations and automated decision-making, can lead to various consequences. While the explanatory statement does not specify particular offences, penalties, or civil/criminal consequences for breaches, it is clear that non-compliance could result in the rejection of an application or revocation of a sponsor's approval. Such outcomes could have significant implications for both the sponsor and the applicants involved. The instrument is designed to ensure that the processes are efficient and effective, while maintaining the integrity of the migration program.