EXPLANATORY STATEMENT
Migration Regulations 1994
- This Instrument is made under regulation 1.17 and subregulation 1.41(1) of Part 1 of the Migration Regulations 1994 (‘the Regulations’).
2. Regulation 1.17 of the Regulations provides that the Minister may, by notice published in the Gazette, specify matters required by individual provisions of the Regulations to be specified for the purpose of those provisions.
3. Regulation 1.41 of the Regulations allows the Minister to specify the assessment level for a kind of eligible passport. Relevantly, subregulation 1.41(1) permits the Minister to specify by Gazette Notice the assessment level for a kind of eligible passport, in relation to each subclass of student visa, to which an applicant for a student who seeks to satisfy the primary criteria will be subject. Subregulation 1.41(4) provides that the assessment level specified for a kind of eligible passport must be a number from 1 to 5, with assessment level 1 specified for passport holders who pose a very low immigration risk and assessment level 5 specified for passport holders who pose an extremely high immigration risk. The assessment level is not required to be the same for each subclass of student visa.
4. The assessment levels are a key tool in managing risk in the student visa program. In specifying an assessment level, objective indicators of risk presented by students are considered. The calculated risk reflects non-compliance factors such as fraud, visa non-compliance, refusals, applications for residence (other than skilled), applications for protection visas and overstay rates. Assessment levels are prescribed according to the calculated risk presented by students from different countries and education sectors.
5. For each student visa subclass there are criteria to be satisfied in respect of financial capacity, English language proficiency, potential to breach visa conditions and other relevant matters. The evidentiary standards for these criteria differ according to the assessment level assigned to each education sector and country. The higher the assessment level, the greater the minimum evidentiary standards a student visa applicant has to satisfy.
6. The purpose of the Instrument is to amend the assessment levels for several countries in relation to each subclass of student visa. The amendments will move 18 countries across 63 education sectors to a lower assessment level rating. This will lower the minimum evidentiary requirements needed for the grant of a student visa for these selected countries and education sectors due to improving non-compliance levels from these countries.
2. The Instrument operates to specify the assessment level for different countries in relation to applications for student visas.
5. As the proposed Instrument is likely to have a direct, or substantial indirect, effect on business, consultation was undertaken with:
- Affiliation of International Education Peak Bodies;
- Department of Education, Science and Training;
- Department of Foreign Affairs and Trade;
- Department of Immigration and Multicultural and Indigenous Affairs representatives at relevant overseas posts;
- Department of Immigration and Multicultural and Indigenous Affairs airline liaison officers; and
- Department of Immigration and Multicultural and Indigenous Affairs Legislation Section.
6. The Instrument commences on 1 April 2005.
Overview
The Migration Regulations 1994 were enacted to provide a framework for the regulation of migration within Australia, ensuring that immigration processes are orderly, fair, and based on a structured risk assessment. This legislation allows the Minister to specify various matters through Gazette notices, including assessment levels for eligible passports in relation to student visas. The primary purpose of the Explanatory Statement for this particular instrument is to amend the assessment levels for several countries concerning each subclass of student visa, thereby adjusting the minimum evidentiary standards required for student visa grants based on the non-compliance levels observed from these countries. This adjustment aims to reflect improving non-compliance trends and to facilitate smoother processing for eligible applicants by lowering the associated evidentiary requirements. The instrument operates to modify the assessment levels for different countries in relation to student visa applications, thereby impacting the risk management framework within the student visa program.
Scope and Application
The Migration Regulations 1994, as amended by this Instrument, specify assessment levels for student visa applicants from different countries and education sectors, which determine the minimum evidentiary standards they must satisfy. The assessment levels range from 1 to 5, with level 1 representing a very low immigration risk and level 5 indicating an extremely high immigration risk. This Instrument reduces the assessment levels for 18 countries across 63 education sectors, reflecting improved non-compliance levels and consequently lowering the minimum evidentiary requirements for the grant of student visas for these countries and sectors. The assessment levels are calculated based on objective indicators of risk, such as fraud, visa non-compliance, and overstay rates. The changes apply to the assessment of applications for student visas and are intended to manage risk within the student visa program effectively. This Instrument is made under the authority of Regulation 1.17 and subregulation 1.41(1) of the Migration Regulations 1994 and came into effect on 1 April 2005.
Key Provisions
The main operative sections of the legislation, specifically the Migration Regulations 1994, involve Regulation 1.17 and subregulation 1.41(1), which empower the Minister to specify certain matters and assessment levels for eligible passports through a notice published in the Gazette (Regulations 1.17, 1.41(1)). These regulations are instrumental in defining the criteria and evidentiary standards for student visas, particularly by assigning assessment levels that range from 1 to 5, where level 1 indicates a very low immigration risk and level 5 indicates an extremely high risk (Regulation 1.41(4)).
These provisions impose specific obligations on the Minister and applicants for student visas. The Minister must consider objective indicators of risk, such as non-compliance factors, when determining the assessment levels for eligible passports (Explanatory Statement 4). For applicants, the assigned assessment level dictates the minimum evidentiary standards they must meet to satisfy the criteria for financial capacity, English language proficiency, and potential to breach visa conditions, among others (Explanatory Statement 5). Each subclass of student visa has its own set of criteria that vary based on the assessment level, which in turn is determined by the calculated risk associated with the applicant's country and education sector.
The legislation also outlines the consequences for non-compliance. While the explanatory statement does not specify particular offences or penalties, it is reasonable to infer that failure to meet the evidentiary standards as required by the assigned assessment level could result in visa application refusals or revocation of existing visas. Additionally, any fraudulent activities or significant non-compliance could lead to more severe consequences, such as exclusion from future visa applications or other legal repercussions as outlined in the broader Migration Act 1958. Given the critical nature of these regulations in managing the risk within the student visa program, adherence to the specified assessment levels is paramount.