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.                  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.
   

Paragraphs (c), (d) and (e) are amendments and specify new classes of applicants. These are:

• applicants who have undertaken a language test specified by the Minister in an instrument in writing for the purposes of paragraph 1.15B(1)(a) of the Regulations, who undertook the test after the day that the application that this instrument applies to was made and who achieved a score specified in an instrument in writing for paragraph 1.15B(1)(c) of the Regulations; and
• applicants who lodged a visa application to which this Instrument applies before 1 July 2013 who are the subject of an approved nomination made on or after 1 July 2010 in an occupation that does not require a level of English language competency for grant (however described) of registration, license or membership where the nominated occupation is in ANZSCO Major Groups 1, 2, 4, 5, and 6, Sub-Major Group 31 or Unit Group 3993; and
• applicants who lodged a visa application to which this Instrument applies before 1 July 2013 who are the subject of an approved nomination made before 1 July 2010 in an occupation that does not require a level of English language competency for grant (however described) of registration, license or membership, where the nominated occupation is in the ASCO Major Groups 1, 2 and 3, excluding Head Chef 3322-01 and Chef 3322-11, except where an applicant has been nominated for Head Chef or Chef and the visa application to which this Instrument applies was lodged before 14 April 2009. 

The exemption in paragraph (c) has been included to ensure that applicants can undertake an English language test after lodging their visa application to demonstrate their English language proficiency.

The exemptions in paragraphs (d) and (e) have been included to provide transitional arrangements for applicants who lodged their visa application prior to 1 July 2013, and who at the time of their application, would have been exempt from the requirement on the basis of their nominated occupation.

7.                  Consultation was not necessary as, under subsection 18(1) of the Legislative Instruments Act 2003, the instrument is of a minor or machinery nature and does not substantially alter existing arrangements.

8.                   The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required (OBPR Ref 15203).

9.                   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.

10.              Instrument number IMMI 13/099 commences on 1 August 2013.