EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (LIN 19/191: Specification of Income Threshold and Exemptions—Subclass 189 Visa (New Zealand Stream)) Instrument 2019
(Subclause 189.233(2))
- The instrument, LIN 19/191, is made under subclause 189.233(2) of the Migration Regulations 1994 (the Regulations).
- The instrument repeals LIN 18/138 (F2018L01738) made under subclause 189.233(2) of the Regulations, in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the AIA). Subsection 33(3) of the AIA 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.
- The instrument operates, for the purposes of clause 189.233, to specify the minimum amount of taxable income for the corresponding income years for an applicant in order to meet the primary criteria for a Subclass 189 (Skilled – Independent) visa in the New Zealand stream. A Subclass 189 visa applicant’s taxable income must be no less than the specified amount, unless they are a member of a class of exempt applicants. The instrument also specifies classes of applicants who are exempt from the requirement to meet the criteria of the minimum amount of taxable income for the relevant whole income year. The instrument specifies the evidence that a Subclass 189 visa applicant must provide to support their claim that they are a member of an exempt class of applicant.
- The purpose of the instrument is to specify the minimum amount of taxable income for the income year 2018-2019 by inserting item 8 into the table in section 6 of the instrument. The minimum amount of taxable income for income year 2018-2019 remains unchanged from the previous income year 2017-2018 at $53,900.
- The minimum amount of taxable income for income year 2018-2019 has not changed from income years 2013-2014, 2014-2015, 2015-2016, 2016-2017 and 2017-2018.
- Income years 2013-2014, 2014-2015, 2015-2016, 2016-2017 and 2017-2018 have also been included in the instrument. The minimum amount of taxable income for these income years remain unchanged from the revoked instrument LIN 18/138. Therefore the inclusion of past income years will not breach section 12 of the Legislation Act 2003 as the instrument does not affect an applicant’s rights and will not disadvantage an applicant.
- In accordance with paragraph 15J(2)(e) of the Legislation Act 2003 consultation was not necessary. The instrument is of a minor or machinery nature and does not substantially alter existing arrangements.
- The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 25208).
- 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 the day after registration on the Federal Register of Legislation.
Overview
The Migration (LIN 19/191: Specification of Income Threshold and Exemptions—Subclass 189 Visa (New Zealand Stream)) Instrument 2019 was enacted to specify the minimum taxable income required for applicants seeking a Subclass 189 (Skilled – Independent) visa in the New Zealand stream. The instrument, made under the Migration Regulations 1994, replaces LIN 18/138 and sets the minimum taxable income for the income year 2018-2019 at $53,900, unchanged from the previous year. It also maintains the same threshold for the preceding four income years. This instrument identifies certain classes of applicants exempt from the income requirement and specifies the evidence needed to support exemption claims. The instrument was issued by the Australian Government and does not require a Regulatory Impact Statement or a Statement of Compatibility with Human Rights as it does not substantially alter existing arrangements and is exempt from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015. The instrument will commence on the day following its registration on the Federal Register of Legislation.
Scope and Application
The Migration (LIN 19/191: Specification of Income Threshold and Exemptions—Subclass 189 Visa (New Zealand Stream)) Instrument 2019 applies to applicants for a Subclass 189 visa under the New Zealand stream, detailing the minimum taxable income requirements for the specified income years. The instrument operates under the Migration Regulations 1994 and is applicable to individuals seeking to meet the primary criteria for this particular visa subclass. It mandates that applicants must meet a minimum income threshold of $53,900 for the income year 2018-2019, consistent with previous years, unless they fall within a specified class of exempt applicants. This instrument also outlines the categories of exempt applicants and the requisite evidence to substantiate their exemption status. The scope of this instrument is confined to the regulation of income thresholds for visa applicants and does not extend to other types of visas or immigration-related matters. The instrument has a Commonwealth jurisdictional reach and applies across Australia, aligning with the overarching Migration Act 1958 and the Migration Regulations 1994. There are no exclusions or exemptions specified beyond those detailed in the instrument itself.
Key Provisions
The primary operative sections of the instrument LIN 19/191 pertain to the income threshold requirements for applicants seeking a Subclass 189 visa under the New Zealand stream (paragraph 1). This instrument specifies the minimum taxable income required for the income year 2018-2019, which remains unchanged at $53,900 (item 8, section 6). Furthermore, it retains the same income thresholds for the previous income years 2013-2014 to 2017-2018. Additionally, the instrument delineates classes of applicants who are exempt from these income requirements and specifies the evidence they must provide to substantiate their exemption (section 6, item 8).
The obligations imposed by this instrument are primarily on applicants seeking a Subclass 189 visa under the New Zealand stream. These applicants must ensure their taxable income meets or exceeds the specified threshold unless they belong to an exempt class (section 189.233). For those who are exempt, they must provide the necessary documentation to demonstrate their eligibility under the specified classes. The instrument also places a responsibility on applicants to accurately report their income and provide supporting evidence to substantiate their claims (section 6, item 8).
Breaches of the requirements set forth in the instrument may result in civil or criminal consequences, though the specific provisions for penalties are not detailed within the instrument itself. Typically, failure to meet the income threshold or providing false information could lead to the rejection of a visa application. In cases where the breach is deemed to be a more serious offence, such as fraudulent documentation, it may result in criminal charges. The exact penalties would be governed by the broader legislative framework of the Migration Act 1958 and the Migration Regulations 1994, which could include fines and potential imprisonment for serious offences.