Overview

The Migration Regulations 1994 were amended by the instrument IMMI 09/118, which was enacted in 2009. This legislation was introduced to address specific exemptions to the English language requirement for the Temporary Business (Long Stay) Visa, particularly under the Subclass 457 visa category. The enacting body was the Australian Parliament, and the policy objective was to streamline the visa application process for certain categories of applicants by exempting them from the English language proficiency requirements. This amendment was intended to facilitate the movement of skilled workers between sponsors without the need for additional English language testing, while still maintaining the overall integrity of the visa requirements. The instrument specifies the salary thresholds and categories of applicants who qualify for the exemption, ensuring that the regulations remain current with changes to the sponsorship framework. Notably, it updates references to reflect the replacement of regulations 1.20D and 1.20DA with regulation 2.59, effective from 14 September 2009. Additionally, it removes the exemption for applicants who either held a visa on or before 14 April 2009, aligning with the updated visa movement provisions that allow Subclass 457 visa holders to switch sponsors without the need for a new visa application. The instrument was deemed minor and of a machinery nature, thus consultation was not required under the Legislative Instruments Act 2003.

Scope and Application

The instrument IMMI 09/118 amends the Migration Regulations 1994 to refine the exemption criteria for English language proficiency requirements for applicants seeking a Subclass 457 visa, which is a temporary business (long stay) visa. Specifically, it targets applicants who will be engaged in activities at diplomatic or consular missions of other countries or offices of Taiwanese authorities in Australia, provided they are nominated by a standard business sponsor approved under regulation 2.59. This exemption applies to those who meet the specified salary threshold as determined by the Minister. The instrument also removes the exemption for applicants who held or were granted a visa before or on 14 April 2009, as the ability to move between sponsors without needing to satisfy English language requirements is now covered under different provisions. The instrument ensures that the specified exemptions continue to apply by updating references to reflect the current regulations, thereby maintaining the intended framework for these visa exemptions.

Key Provisions

The key provisions of the Migration Regulations 1994, as amended by the Instrument IMMI 09/118, pertain specifically to the Temporary Business (Long Stay) Visa, particularly under subclass 457. Paragraph 457.223(6)(a) of the Regulations now specifies the level of salary that an applicant must meet to qualify for an exemption from the English language proficiency requirements (paragraph 457.223(6)(a)). This salary threshold is determined by the Minister and is detailed in the written instrument. Additionally, subclause 457.223(11) of the Regulations identifies the categories of applicants who are exempt from these requirements, as determined by the Minister (subclause 457.223(11)). The Regulations impose certain obligations on applicants and sponsors under the Temporary Business (Long Stay) Visa subclass 457. Firstly, applicants must meet the specified salary level to qualify for the English language exemption. Secondly, they must be nominated by a standard business sponsor who has been approved under the relevant regulations. Importantly, these sponsors must be approved under regulation 2.59, as the previous regulations 1.20D and 1.20DA have been repealed. The activity for which the applicant is nominated must be performed at a diplomatic or consular mission of another country or an office of the authorities of Taiwan located in Australia. It is also crucial that the exemption no longer applies to applicants who held a visa on or were granted a visa on or before 14 April 2009, as the exemption has been removed for these individuals. The Regulations outline specific consequences for breaches of these provisions. However, the explanatory statement does not detail specific offences, penalties, or civil/criminal consequences for non-compliance. It is understood that the nature of the instrument, being of a minor or machinery nature, means that consultation was not necessary under section 18 of the Legislative Instruments Act 2003. The instrument came into effect on 9 November 2009, updating the existing framework to reflect current regulatory requirements and ensuring the continued application of the English language exemption under the specified conditions.