EXPLANATORY STATEMENT
Migration Regulations 1994
EXEMPTIONS TO THE ENGLISH LANGUAGE REQUIREMENT FOR THE TEMPORARY BUSINESS (LONG STAY) VISA
(SCHEDULE 2, PARAGRAPH 457.223(6)(a) AND SUBCLAUSE 457.223(11))
- This Instrument is made under clause 457.223 of Schedule 2 of the Migration Regulations 1994 (‘the Regulations’).
2. Clause 457.223 of Schedule 2 of the Regulations provides that where registration, licensing or professional membership requirements for a nominated occupation require a level of English that is higher than an average IELTS test band score of a level set out in the Regulations, the applicant must have that level of proficiency. In other cases, they must have proficiency at least equivalent to an average IELTS test band score of a level set out in the Regulations, unless: (i) they are an ‘exempt person’ defined in a Legislative Instrument; or (ii) the grant of the visa is in the interests of Australia and the applicant’s base level of salary is equal to or greater than a level of salary specified in a Legislative Instrument.
3. The Instrument operates to specify the categories of ‘exempted persons’ under 457.223(11) and to specify the level of salary, and method of calculating the level of salary, for the purposes of subclause 457.223(6).
4. There are two purposes of this Instrument:
(a) to remove the occupations Head Chef and Chef from the exempt persons category given the relatively high risk nature of their work and the observed potential to over classify Cooks as Chefs to avoid the requirement; and
(b) to ensure that existing visa holders can move between employers onshore without having the satisfy the amended English language requirement – preserving visa holder mobility in this way reduces the potential for exploitation.
5. On advice from my department I consider that, having regard to section 18 of the Legislative Instruments Act 2003, consultations were not necessary or were inappropriate as this instrument is minor or machinery in nature and does not substantially alter existing arrangements.
6. This Instrument, IMMI 09/033, commences on 14 April 2009.