EXPLANATORY STATEMENT

Migration Regulations 1994

LEVEL OF SALARY AND EXEMPTIONS TO THE ENGLISH LANGUAGE REQUIREMENT FOR SUBCLASS 457 (TEMPORARY WORK (SKILLED)) VISAS

(Paragraph 457.223(6)(a) and subclause 457.223(11))

1. This Instrument is made under paragraph 457.223(6)(a) and subclause 457.223(11) of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’).

2.                  Paragraph 457.223(6)(a) of Schedule 2 to the Regulations applies to an applicant for a Subclass 457 (Temporary Work (Skilled)) visa if the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for the paragraph. 

3.                  Subclause 457.223(11) of Schedule 2 to the Regulations provides that in subclause 457.223(4), exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for subclause 457.223(11).

4.                  The purpose of the Instrument is to specify the level of salary an applicant for a Subclass 457 (Temporary Work (Skilled)) visa will be paid in order to be exempt from the English language proficiency requirement at paragraph 457.223(4)(eb) of Schedule 2 to the Regulations. The Instrument also specifies the classes of applicants who are exempt from the English language proficiency requirement.

5.                  The Instrument operates to specify an annual salary at a base rate of pay which is equal to, or greater than, the applicable base salary.  It also operates to specify the classes of applicants who are ‘exempt applicants’.

6.                  Certain classes of applicants have been removed from the Instrument:

• There are no longer any occupation based exemptions from the English language requirements; and
• The country based exemption has been removed from the Instrument because this class of applicants are considered to have vocational English in accordance with regulation 1.15B.

7.                  Item (3) of the Instrument specifies the classes of applicants who are an exempt applicant for the purposes of subclause 457.223(11) of Schedule 2 to the Regulations.  Paragraphs (a) and (b) specify the same classes of applicants that were specified in the previous instrument.  These are:

• applicants whose nominated occupation does not require a level of English language competency for registration or licensing purposes and who have completed at least five consecutive years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English; and
• certain sponsored applicants who will work at a diplomatic or consular mission of another country or an office of the authorities of Taiwan in Australia.

8.                  Consultation was undertaken with the Ministerial Advisory Council on Skilled Migration, Commonwealth agencies and internal stakeholders.

9.                   The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required (OBPR Ref 2012/14563).

10.              Under section 44 of the Legislative Instruments Act 2003 the Instrument is exempt from disallowance and therefore a Human Rights Statement of Compatibility is not required.

11.              Instrument number IMMI 13/029 commences on 1 July 2013, immediately after commencement of the Migration Legislation Amendment Regulation 2013 (No. 3).