EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (IMMI 18/055: Visas attracting a subsequent temporary application charge) Instrument 2018
(Paragraphs 2.12C(5)(a) and 2.12C(5)(c))
- Instrument IMMI 18/055 is made under paragraphs 2.12C(5)(a) and 2.12C(5)(c) of the Migration Regulations 1994 (the Regulations).
- The instrument repeals IMMI 16/098 (F2016C01021) under paragraphs 2.12C(5)(a) and 2.12C(5)(c) of the Regulations and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (Interpretation Act). Subsection 33(3) of the Interpretation Act 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.
- Subregulation 2.12C(5) of the Regulations provides that a subsequent temporary application charge (STAC) is payable by an applicant if:
- the applicant applies for a visa specified by the Minister in an instrument for the purposes of paragraph 2.12C(5)(a) of the Regulations, and the applicant is in Australia at the time of application; and
- the applicant holds, or the last substantive visa the applicant held was, a visa specified by the Minister in an instrument for the purposes of 2.12C(5)(c) of the Regulations, and the applicant was in Australia at the time of application for that visa; and
- the visa that the applicant holds, or the last substantive visa the applicant held, was not granted in circumstances prescribed in paragraph 2.12C(5)(e) of the Regulations.
- The amount of the STAC is prescribed in subregulation 2.12C(6) of the Regulations.
- The operation of the instrument is to specify visas for the purposes of paragraphs 2.12C(5)(a) and 2.12C(5)(c) of the Regulations.
- The purpose of the instrument is to address changes occurring as a result of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018. In particular, for the purposes of paragraphs 2.12C(5)(a) the Subclass 482 (Temporary Skill Shortage) visa is specified and Subclass 457 (Temporary Work (Skilled)) visa is no longer specified and for the purposes of 2.12C(5)(c) of the Regulations Subclass 482 (Temporary Skill Shortage) visa is specified.
- The instrument only applies to visa applications for the relevant visas lodged on or after the 18 March 2018.
- The subject of this instrument is part of a broad package of reforms for the employer sponsored skilled visa programs, announced by the Government on 18 April 2017. The reforms include replacing the Subclass 457 (Temporary Work (Skilled)) visa with the Subclass 482 (Temporary Skill Shortage) visa. The Department of Home Affairs has engaged with external stakeholders since the announcement in developing the policy settings and considered feedback received. Some settings of the existing framework have been carried over to the Subclass 482 visa without amendment, and have not been the subject of consultation.
- These reforms were also informed by earlier reviews including: the 2014 Independent Review into the Integrity of the Subclass 457 programme; the 2016 Productivity Commission Inquiry Report: Migrant Intake into Australia; the 2016 Review of the Temporary Skilled Migration Income Threshold; and the 2016 Senate Inquiry A National Disgrace: The Exploitation of Temporary Work Visa Holders. These reviews were subject to extensive consultation processes, including: individuals; academics; bodies and businesses who use the employer sponsored skilled visa programs; migration agents; representatives of foreign governments; the Ministerial Advisory Council on Skilled Migration; and government departments and agencies.
- A Regulation Impact Statement has been prepared in accordance with advice from the Office of Best Practice Regulation (OBPR). The OBPR Reference number is 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 18 March 2018.
Overview
The Migration (IMMI 18/055: Visas attracting a subsequent temporary application charge) Instrument 2018 was enacted under the authority of the Migration Regulations 1994. The primary objective of this instrument was to address the legislative changes resulting from the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, particularly the transition from the Subclass 457 (Temporary Work (Skilled)) visa to the Subclass 482 (Temporary Skill Shortage) visa. This reform aimed to streamline the visa application process for skilled workers, reflecting policy shifts and feedback from various stakeholders, including a review of the integrity of the previous visa program. The instrument was developed by the Department of Home Affairs in consultation with a wide range of stakeholders and is part of a broader set of reforms to the employer-sponsored skilled visa programs announced in April 2017. The instrument specifies which visas attract a subsequent temporary application charge and came into effect on 18 March 2018, applying to visa applications lodged on or after that date.
Scope and Application
Instrument IMMI 18/055 applies to individuals who are in Australia and are applying for a Subclass 482 (Temporary Skill Shortage) visa or have previously held this visa, as well as those applying for a subsequent temporary visa after holding a Subclass 482 visa. The instrument operates under the Migration Regulations 1994, specifically addressing the charges applicable to these visa categories, and it repeals a previous instrument (IMMI 16/098) to reflect recent legislative amendments. The instrument is applicable to visa applications lodged on or after 18 March 2018 and is part of broader reforms to the employer-sponsored skilled visa programs. It specifies the charges for subsequent temporary applications, ensuring alignment with the legislative changes introduced by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018. The instrument does not apply to visa applications made before 18 March 2018 and is exempt from disallowance under the Legislation (Exemptions and Other Matters) Regulation 2015.
Key Provisions
The main operative sections of the instrument (subregulations 2.12C(5)(a) and 2.12C(5)(c)) specify which visa applications attract a subsequent temporary application charge (STAC). Specifically, an applicant for a Subclass 482 (Temporary Skill Shortage) visa who is in Australia at the time of application, and who holds, or whose last substantive visa was, another specified visa, must pay the STAC. The instrument was made to address the legislative changes resulting from the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, and it specifies the Subclass 482 visa for the purposes of these subregulations, replacing the Subclass 457 visa which is no longer specified. This change applies to visa applications lodged on or after 18 March 2018.
The instrument imposes several obligations on applicants for the specified visas. First, applicants must ensure they are in Australia at the time of application if they are to be charged the STAC. Second, applicants must verify that they hold, or that their last substantive visa was, one of the specified visas. Finally, applicants must confirm that their current or last substantive visa was not granted under circumstances that exempt them from the STAC, as outlined in subregulation 2.12C(5)(e). These obligations ensure that the correct applicants are charged the STAC, and that those who meet certain criteria are exempt.
Failure to comply with the requirements of the instrument may result in legal consequences. Although the instrument itself does not specify particular offences, penalties, or civil or criminal consequences, breaches of the broader Migration Regulations 1994 can lead to fines and other penalties. For instance, section 231 of the Migration Act 1958 provides for penalties including fines of up to 300 penalty units (currently approximately AUD 56,000) for false statements or documents, which could be relevant if an applicant knowingly provides incorrect information to avoid the STAC. Additionally, non-compliance may affect an applicant's visa status and future migration applications.