Migration Regulations 1994 - Specification of Classes of Persons (Exempt from the English Language Criteria) - IMMI 12/059

Overview

The Migration Regulations 1994, enacted by the Parliament of Australia, serves to regulate and administer the migration system in Australia. This legislative framework aims to manage the flow of migrants into the country, ensuring that immigration processes are orderly and efficient. One of the gaps addressed by these regulations is the need to exempt certain classes of applicants from the English language criteria for specific visa categories. The F2012L01292 Explanatory Statement outlines the exemptions for certain classes of persons from the English language requirements for Subclass 186 (Employer Nomination Scheme) and Subclass 187 (Regional Sponsored Migration Scheme) visas under the Temporary Residence Transition stream and the Direct Entry stream. This regulation was introduced to facilitate the transition to permanent residency for skilled migrants and to retain valuable skills and expertise within Australia, thereby aligning with the policy objective of leveraging the skills of migrants to benefit the national economy.

Scope and Application

The Migration Regulations 1994, as amended by the Instrument IMMI 12/059, specify certain classes of persons who are exempt from satisfying the primary English language criteria for a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream or Direct Entry stream, or a Subclass 187 (Regional Sponsored Migration Scheme) visa in the same streams. Specifically, Ministers of Religion nominated for a position by a religious institution are exempt from the English language requirements for all four visa streams. Additionally, applicants nominated for positions with earnings equivalent to the top individual income tax rate set by the Australian Tax Office are exempt from the English language requirements for the Direct Entry stream visas. For the Temporary Residence Transition stream visas, applicants who have completed at least five years of full-time study in English in a secondary or higher education institution are also exempt from the English language requirements. This regulatory approach aims to facilitate the retention of skilled personnel and the timely processing of skilled migration applications while ensuring the necessary language proficiency for effective integration into the Australian workforce where appropriate.

Key Provisions

The primary operative sections of this Instrument are sections 4, 5, and 6, which identify specific classes of persons exempt from the English language criteria for certain visa subclasses. Section 4 specifies that Ministers of Religion nominated by a religious institution are exempt from the English language criteria for Subclass 186 (ENS) and Subclass 187 (RSMS) visas in both the Temporary Residence Transition and Direct Entry streams. Section 5 further clarifies that for the Direct Entry stream, applicants nominated for positions where their earnings will be at least equivalent to the current Australian Tax Office top individual income tax rate are also exempt from the English language criteria. Section 6 specifies that for the Temporary Residence Transition stream, applicants who have completed at least five years of full-time study in English-speaking secondary and/or higher education institutions are exempt from the English language criteria for Subclass 186 (ENS) and Subclass 187 (RSMS) visas. The Act imposes specific obligations on the parties it governs, primarily those seeking to sponsor applicants for the aforementioned visa subclasses. Sponsors must ensure that the applicants they nominate fall within the specified exempt classes. For Ministers of Religion, sponsors must verify that the nominee is indeed a Minister of Religion and that the nomination comes from a religious institution. For applicants nominated for positions with earnings equivalent to the top individual income tax rate, sponsors must substantiate this claim. For applicants with five years of full-time English study, sponsors must provide evidence of this educational background. Failure to comply with these obligations may result in the application being rejected. Breach of the provisions in this Act can lead to various civil and criminal consequences. While the specific penalties are not detailed in the explanatory statement, breaches of migration regulations generally can result in civil penalties such as fines and criminal penalties including imprisonment. For instance, under the Migration Act 1958, a person who knowingly makes a false or misleading statement in a migration document can be subject to a civil penalty of up to 10,000 penalty units or a criminal penalty of up to two years imprisonment, or both. Additionally, any person who aids or abets in the commission of such an offence can also face similar penalties. The exact penalties for specific breaches under this Instrument would be found in the relevant sections of the Migration Act 1958 and the Migration Regulations 1994.