EXPLANATORY STATEMENT
Migration Regulations 1994
DETERMINATION OF THE MAXIMUM NUMBER OF CERTAIN SKILLED VISAS THAT MAY BE GRANTED IN THE 2009-10 FINANCIAL YEAR
1. This Instrument is made under paragraphs 134.228(b), 136.231(b), 137.230(b), 138.233(b), and 139.234(b) of Schedule 2 to the Migration Regulations 1994 (the Regulations).
2. Subsection 39(1) of the Migration Act 1958 provides that, in spite of section 14 of the Legislative Instruments Act 2003, a prescribed criterion for visas of a class, other than protection visas, may be the criterion that the grant of the visa would not cause the number of visas of that class granted in a particular financial year to exceed whatever number is fixed by the Minister, by legislative instrument, as the maximum number of such visas that may be granted in that year (however the criterion is expressed).
3. Subsection 39(2) provides that, for the purposes of the Act, when a criterion allowed by subsection (1) prevents the grant in a financial year of any more visas of a particular class, any outstanding applications for the grant in that year of visas of that class are taken not to have been made.
4. The prescribed criteria in paragraphs 134.228(b), 136.231(b), 137.230(b), 138.233(b) and 139.234(b) of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) respectively provide that the approval of the application must not result in the number of visas of particular classes (including the relevant subclass) granted in a financial year exceeding the maximum number of visas of those classes, as determined by an instrument in writing for the relevant paragraph, that may be granted in that financial year.
5. The purpose of this Instrument is to determine the maximum number of visas that may be granted in the financial year 1 July 2009 to 30 June 2010 for Skill Matching (Migrant) (Class BR), including Subclass 134 (Skill Matching) visas; Skilled – Independent (Migrant) (Class BN), including Subclass 136 (Skilled – Independent) and Subclass 137 (Skilled – State/Territory-nominated Independent) visas; and Skilled – Australian-sponsored (Migrant) (Class BQ), including Subclass 138 (Skilled – Australian-sponsored) and Subclass 139 (Skilled – Designated Area-sponsored) visas. The Instrument determines that:
- for the Skill Matching (Migrant) (Class BR) visa the maximum number of visas that may be granted is 245;
- for the Skilled – Independent (Migrant) (Class BN) visa the maximum number of visas that may be granted is 2,506; and
- for the Skilled – Australian-sponsored (Migrant) (Class BQ) visa the maximum number of visas that may be granted is 546.
6. Under subsection 39(2) of the Act, any outstanding Skill Matching (Migrant) (Class BR) visa, Skilled – Independent (Migrant) (Class BN), and Skilled – Australian-sponsored (Migrant) (Class BQ) visa applications are taken not to have been made. The Visa Application Charge paid by applicants in relation to any visa applications affected by this Instrument will be refunded.
7. The Migration Review Tribunal and Refugee Review Tribunal were consulted in relation to this Instrument.
8. The Office of Best Practice Regulation’s Business Cost Calculator and Assessment Checklists were used to determine that there was no compliance cost on business or impact on competition in relation to this instrument.
9. The Instrument, number IMMI 10/023, commences on the day after registration on the Federal Register of Legislative Instruments.
Overview
The "Migration Regulations 1994 Determination of the Maximum Number of Certain Skilled Visas That May Be Granted in the 2009-10 Financial Year" was introduced to address the issue of setting a cap on the number of skilled visas that could be granted during the specified financial year. Enacted under the authority of the Migration Act 1958, this legislation was formulated by the Minister to ensure that the number of visas granted in a given financial year does not exceed the predetermined maximum set by the Minister through a legislative instrument. This measure serves to manage and control the influx of skilled migrants, aligning with broader immigration policy objectives of the Australian government. The policy objective as outlined in the explanatory statement is to prevent the number of approved visas from surpassing the specified limits for Skill Matching, Skilled – Independent, and Skilled – Australian-sponsored visas, effectively ensuring that any outstanding applications for these visas are considered null and void if the cap is reached.
Scope and Application
The Instrument, made under specific provisions of the Migration Regulations 1994, sets out the maximum number of certain skilled visas that may be granted in the 2009-10 financial year. This includes the Skill Matching (Migrant) (Class BR) visa with a limit of 245, the Skilled – Independent (Migrant) (Class BN) visa with a limit of 2,506, and the Skilled – Australian-sponsored (Migrant) (Class BQ) visa with a limit of 546. This legislation applies to all applicants for these specified visas and is designed to ensure that the number of visas granted does not exceed the prescribed limits for the financial year. Any applications that exceed these limits will not be processed, and applicants will be refunded the Visa Application Charge. The scope of this regulation is limited to the prescribed classes of visas within the Commonwealth of Australia, and it does not apply to other types of visas or to state or territory-specific migration policies. The regulations are made under the authority of the Migration Act 1958 and are subject to consultation with relevant tribunals and assessments to ensure there is no undue compliance cost or impact on competition.
Key Provisions
The key provisions of this Instrument, made under the Migration Regulations 1994, establish specific limits on the number of certain skilled visas that can be granted in the 2009-10 financial year. Specifically, the Instrument sets the maximum number of visas that can be granted for three distinct classes of skilled migrant visas: Skill Matching (Migrant) (Class BR), Skilled – Independent (Migrant) (Class BN), and Skilled – Australian-sponsored (Migrant) (Class BQ). According to the Instrument, the maximum number of Skill Matching (Migrant) (Class BR) visas is 245; for Skilled – Independent (Migrant) (Class BN) visas, it is 2,506; and for Skilled – Australian-sponsored (Migrant) (Class BQ) visas, it is 546. These caps are established under paragraphs 134.228(b), 136.231(b), 137.230(b), 138.233(b), and 139.234(b) of Schedule 2 to the Regulations, which allow for a prescribed criterion that the approval of an application must not result in the number of visas granted in a financial year exceeding the maximum number determined by an instrument in writing.
The obligations imposed by this Instrument primarily concern the administration and enforcement of the visa caps set forth. The Minister is responsible for ensuring that the number of visas granted does not exceed the limits specified in the Instrument. Any applications for visas that would result in the caps being exceeded are not to be considered, as stipulated in subsection 39(2) of the Migration Act 1958. Furthermore, any outstanding applications for the affected visas will not be processed, and the Visa Application Charge paid by applicants in relation to these applications will be refunded.
In terms of the consequences for breach, the Instrument itself does not explicitly detail offences or penalties. However, the overarching legislative framework, particularly the Migration Act 1958, provides that any individual or entity found to be in breach of the prescribed criteria or any regulations made under the Act could face civil or criminal penalties. These may include fines and imprisonment, the specifics of which are governed by the relevant sections of the Act and other applicable laws. The precise penalties would depend on the nature and severity of the breach, but the overarching intent is to enforce compliance with the established visa caps to manage the number of skilled migrant visas granted in the specified financial year.