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.
Overview
The Explanatory Statement outlines the legislative amendments introduced by the Migration Regulations 1994, specifically addressing exemptions to the English language requirement for the Temporary Business (Long Stay) Visa under Schedule 2, paragraphs 457.223(6)(a) and 457.223(11). This Instrument, crafted under clause 457.223 of the Migration Regulations, aims to refine the categories of exempt persons and specify the salary thresholds necessary for exemption from English language proficiency tests. The primary objectives of these amendments are to mitigate the risk of fraudulent classifications by removing certain high-risk occupations, such as Head Chef and Chef, from the exempt persons category and to maintain the mobility of existing visa holders by allowing them to change employers without additional English language requirements, thus reducing potential exploitation. Enacted by the relevant legislature, this legislative instrument commences on 14 April 2009.
Scope and Application
The Migration Regulations 1994, specifically as modified by the Explanatory Statement F2009L01243, address the exemptions to the English language requirement for applicants of the Temporary Business (Long Stay) Visa under certain conditions. The Regulations pertain to individuals who apply for this visa and who are either exempt persons as defined in a Legislative Instrument or those whose base salary meets a specified threshold. This applies to those seeking to enter Australia temporarily for business purposes, primarily under the subclass 457 visa. The instrument’s jurisdictional reach extends nationally as it is a Commonwealth regulation. The regulation excludes certain occupations such as Head Chef and Chef from the exemption list due to the high-risk nature of their work, which necessitates a higher level of English proficiency. Additionally, it ensures that existing visa holders can change employers without needing to meet the amended English language requirements, thereby maintaining visa holder mobility and reducing potential exploitation. The commencement date for these modifications is 14 April 2009.
Key Provisions
The main provisions of the legislative instrument, IMMI 09/033, pertain to the Temporary Business (Long Stay) Visa under the Migration Regulations 1994. Specifically, clause 457.223(11) of Schedule 2 of the Regulations outlines the English language proficiency requirements for visa applicants. Under this clause, applicants must meet a specified level of English proficiency unless they are classified as an 'exempt person' or the visa grant is deemed to be in the interests of Australia and the applicant meets a specified salary threshold (section 457.223(6)(a) and subclause 457.223(11)). The instrument specifies the categories of 'exempt persons' and details the salary level and calculation method for the visa exemption criteria.
The obligations imposed by the Act primarily concern the classification of occupations and the determination of salary levels for visa applicants. For instance, under the instrument, the occupations of Head Chef and Chef have been removed from the exempt persons category, reflecting the high-risk nature of these roles and the potential for misclassification. This ensures that individuals in these roles must meet the specified English language requirements unless they fall under another exemption. Additionally, the instrument ensures that existing visa holders can change employers without needing to satisfy the amended English language requirement, thereby maintaining their mobility and reducing the potential for exploitation.
Breaches of the requirements set out in the instrument may lead to various consequences. While the explanatory statement does not detail specific offences, the failure to comply with the English language proficiency requirements could result in visa refusal or cancellation. Similarly, incorrect classification of occupations or misreporting of salary levels could lead to administrative penalties. Although the explanatory statement does not provide specific penalties, breaches of the Migration Regulations 1994 can generally result in substantial fines and potential imprisonment for serious violations. However, as the instrument is described as minor or machinery in nature, it is likely that the primary consequences would be administrative in nature, such as visa refusals or revocations, rather than criminal penalties.