EXPLANATORY STATEMENT
Migration Regulations 1994
MIGRATION (LIN 18/138: SPECIFICATION OF INCOME THRESHOLD AND EXEMPTIONS FOR SUBCLASS 189 (SKILLED – INDEPENDENT) VISA (NEW ZEALAND STREAM)) INSTRUMENT 2018
(Subclause 189.233(2))
- The instrument, LIN 18/138, is made under subclause 189.233(2) of the Migration Regulations 1994 (Regulations).
- The instrument repeals IMMI 17/035 (F2017L00723) in accordance with subsection 33(3) of the Acts Interpretation Act 1901, which states 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 operates to specify the minimum amount of taxable income for the corresponding income years for a Subclass 189 (Skilled – Independent) visa applicant in the New Zealand stream (the applicant). An applicant’s taxable income must be no less than the specified amount, unless they fall within a class of exempt applicants. This instrument also specifies the class of applicants who are exempt from the requirement to have earned at least the minimum amount of taxable income in each income year and the evidence they must provide supporting their claim that they are a member of the exempt class of applicant.
- The purpose of this instrument is to specify the minimum amount of taxable income for income year 2017-2018 by inserting item 7 into the table in section 6. The minimum amount of taxable income for income year 2017-2018 remains unchanged from the previous income year 2016-2017 at $53,900.
- The minimum amount of taxable income for income year 2017-2018 has not changed from income years 2013-2014, 2014-2015, 2015-2016 and 2016-2017. Applicants relying on the table in section 6 have continued to reference $53,900 as the minimum amount of income for applications made before the date of registration.
- Section 7 has been redrafted for the purpose of clarity of language. This change does not alter the prior intention of the instrument. Under section 15AC of the Acts Interpretation Act 1901, where an Act or instrument has expressed an idea in a particular form of words and a later Act or instrument appears to have expressed the same idea in a different form of words for the purpose of using a clearer style, the ideas shall not be taken to be different merely because different forms of words were used.
- The instrument therefore does not alter the existing operation of the Temporary Skilled Migration Income Threshold (TSMIT) regime. The instrument does not impact any rights, privileges, obligations or liabilities acquired, accrued or incurred under the previous instrument.
- In accordance with subsection 17(1) of the Legislation Act 2003, consultation was undertaken with the Australian Bureau of Statistics in reviewing the TSMIT.
- The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference: 23996).
- 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.
- This instrument commences on the day after registration on the Federal Register of Legislation.
Overview
The Migration Regulations 1994 (Regulations) were enacted to provide a comprehensive framework for the administration of the Migration Act 1958, encompassing various visa categories and related provisions. The instrument, LIN 18/138, was introduced to specify the minimum amount of taxable income required for applicants seeking a Subclass 189 (Skilled – Independent) visa under the New Zealand stream. This was necessitated to ensure that applicants meet specific financial criteria to qualify for this visa type. The instrument operates under subclause 189.233(2) of the Regulations, and repeals the previous instrument IMMI 17/035, aligning with the provisions of the Acts Interpretation Act 1901. The policy objective is to maintain the integrity of the Temporary Skilled Migration Income Threshold (TSMIT) regime by keeping the minimum income threshold at $53,900 for the income year 2017-2018, consistent with previous years, while ensuring clarity and continuity in the legislative language.
Scope and Application
The Migration (LIN 18/138: Specification of Income Threshold and Exemptions for Subclass 189 (Skilled – Independent) Visa (New Zealand Stream)) Instrument 2018 applies to applicants for a Subclass 189 visa under the New Zealand stream, requiring them to meet a specified minimum amount of taxable income unless they qualify for an exemption. This instrument, made under subclause 189.233(2) of the Migration Regulations 1994, repeals the previous instrument IMMI 17/035 and sets the minimum taxable income for the income year 2017-2018 at $53,900, unchanged from the previous years. The instrument also specifies the class of applicants exempt from this requirement and the evidence they must provide. It applies nationally across Australia and does not require a Regulatory Impact Statement or a Statement of Compatibility with Human Rights. The instrument is exempt from disallowance and its provisions are effective from the day after registration on the Federal Register of Legislation.
Key Provisions
The instrument LIN 18/138 pertains to the Migration Regulations 1994 and is focused on the Subclass 189 (Skilled – Independent) visa for applicants from New Zealand, specifically addressing the income threshold requirements for such applicants (subsection 189.233(2)). This regulation maintains the minimum taxable income requirement for the income year 2017-2018 at $53,900, a threshold unchanged since 2013-2014 (item 7 of section 6). The intent of this instrument is to ensure that applicants meet the specified income criteria unless they qualify for an exemption.
The obligations under this regulation are clear and straightforward for applicants. They must ensure that their taxable income meets or exceeds the specified threshold of $53,900 for the relevant income years. For those who qualify as exempt applicants, the regulation outlines the necessary evidence to support their exemption status. The regulation does not introduce any new obligations but rather reaffirms existing requirements to maintain clarity and consistency in the application process.
Failure to meet the income threshold or provide the necessary evidence for exemption could potentially result in the rejection of the visa application. However, the instrument does not explicitly outline specific offences, penalties, or civil/criminal consequences for breach. The primary consequence of non-compliance would be the denial of the visa application, which could indirectly lead to legal challenges or administrative reviews if an applicant believed there had been an error in the assessment of their application.
The instrument ensures that there are no new rights, privileges, obligations, or liabilities introduced by its provisions. It maintains the status quo in terms of the income threshold and exempt classes, while also clarifying the language used to express these requirements. This legislative update is intended to avoid any confusion and to ensure that the regulation operates smoothly within the existing legal framework.