Migration Regulations 1994 - Specification of Skilled Occupations Relevant Assessing Authorities, Countries and Points for General Skilled Migration Visas and Certain Other Visas - IMMI 11/068

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Legislation au F2011L02011 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Migration Regulations 1994

 

SKILLED OCCUPATIONS, RELEVANT ASSESSING AUTHORITIES, COUNTRIES AND POINTS FOR GENERAL SKILLED MIGRATION VISAS AND CERTAIN OTHER VISAS

 

(REGULATION 1.15I, SUBREGULATIONS 2.26AA, 2.26AB AND 2.26B(1), SUBPARAGRAPHS 1128BA(3)(j)(ii), 1136(3)(bb)(ii), 1136(4)(b)(ii), 1136(5)(b)(ii), 1136(6)(b)(iii), 1218A(5)(g)(ii), 1218A(5)(g)(iii), 1229(3)(ab)(ii), 1229(4)(b)(ii), 1229(5)(b)(ii), 1229(6)(b)(iii) AND 1229(7)(b)(ii) AND ITEMS 6A11, 6A12, 6A13)

 

  1. This Instrument is made under regulation 1.15I of Division 1.2 of Part 1 of the Migration Regulations 1994 (‘the Regulations’), subregulations 2.26AA, 2.26AB and 2.26B(1) of Division 2.6 of Part 2 of the Regulations, subparagraphs 1128BA(3)(j)(ii), 1136(3)(bb)(ii), 1136(4)(b)(ii), 1136(5)(b)(ii), 1136(6)(b)(iii), 1218A(5)(g)(ii), 1218A(5)(g)(iii), 1229(4)(b)(ii), 1229(5)(b)(ii), 1229(6)(b)(iii), and 1229(7)(b)(ii) of Schedule 1 to the Regulations and Items 6A11, 6A12 and 6A13 of Schedule 6A to the Regulations.

2. This Instrument revokes Instrument IMMI 11/034 signed on 16 June 2011.

3. Regulation 1.03 of the Regulations provides that the term skilled occupation has the meaning given in regulation 1.15I.  Subregulation 1.15I(1) provides that the Minister may, by instrument in writing, specify an occupation to be a skilled occupation for which a specified number of points are available and which is applicable to a person in accordance with the specification. 

4.                   Subregulation 1.15I(2) provides that, without limiting subregulation 1.15I(1), the Minister may specify in the instrument any matter in relation to an occupation, or to a class of persons to which the instrument relates, including that an occupation is a skilled occupation for a class of persons, and that an occupation is a skilled occupation for a person or the spouse or de-facto partner of a person who is nominated by a State or Territory government agency.

5.                   Subregulation 2.26AA(2)(a) provides that prescribed qualifications and number of points applies to an applicant for a points-tested General Skilled Migration visa if the applicant is a person, or a person in a class of persons, specified in an instrument in writing made by the Minister.

6.                   Subregulation 2.26AA(2)(b) provides that the application is made on or after 1 July 2011 but before 1 January 2013.

7.                   Subregulation 2.26AB(2)(a) provides that prescribed qualifications and number of points for other applications for General Skilled Migration visas applies to an applicant for a points-tested General Skilled Migration visa if the applicant is a person, or a person in a class of persons, specified by the Minister in an instrument in writing.

8.                   Subregulation 2.26B(1) of the Regulations provides that the Minister may, in an instrument in writing, specify a person or body as the relevant assessing authority for a skilled occupation, for the assessment of the skills of residents of one or more countries.

9. Subparagraphs 1128BA(3)(j)(ii), 1136(3)(bb)(ii), 1136(4)(b)(ii), 1136(5)(b)(ii), 1136(6)(b)(iii), 1218A(5)(g)(ii), 1218A(5)(g)(iii), 1229(3)(ab)(ii), 1229(4)(b)(ii), 1229(5)(b)(ii), 1229(6)(b)(iii) and 1229(7)(b)(ii) of the Regulations specifies the skilled occupations, assessing authorities and countries that are required to make a valid application or satisfy the criteria for the grant of a General Skilled Migration Visa.

10. All applicants seeking to satisfy the primary criteria for a Skilled visa must nominate a skilled occupation and have their skills assessed as suitable for that occupation by the relevant assessing authority. 

11. The purpose of the Instrument is to:

  • provide access to the skilled occupations lists in effect prior to 1 July 2011 for applications lodged prior to 1 July 2011; and
  • ensure that the transitional arrangements announced by the Government on 8 February 2010 continue to have effect; and
  • ensure that applicants who are eligible for transitional arrangements and who lodged an application on or after 1 July 2011 retain access to the skilled occupation list in effect on 8 February 2011;
  • address the validity of certain General Skilled Migration (GSM) skills assessments made after an amendment to the Regulations came into effect on 1 July 2007 (such amendment stated that the Minister for Immigration must not make an instrument that specifies a relevant assessing authority for an occupation unless the body was approved in writing by the Education Minister or Employment Minister);
  • subsequently, specify assessing authorities for an occupation that have been approved in writing by the Education Minister or Employment Minister.

12. Consultations with the Department of Education, Employment and Workplace Relations were undertaken, as necessary.

13. The Office of Best Practice Regulation was consulted in relation to the new points test and has advised that a Regulatory Impact Statement is not required (OBPR Reference 13063).

14. The Instrument, IMMI 11/068, commences on 1 October 2011

.

Overview

The Migration Regulations 1994, amended by F2011L02011, were enacted to address the transitional arrangements for skilled occupations, relevant assessing authorities, and points for general skilled migration visas and certain other visas. This legislative instrument, issued under the authority of the Minister for Immigration, was introduced to ensure that the transitional arrangements announced by the Government on 8 February 2010 continued to have effect. Additionally, it aimed to provide access to the skilled occupations lists in effect prior to 1 July 2011 for applications lodged before this date, while ensuring that applicants who were eligible for these transitional arrangements and who lodged an application on or after 1 July 2011 retained access to the skilled occupation list as it stood on 8 February 2011. The policy objective was to address the validity of certain General Skilled Migration (GSM) skills assessments made after an amendment to the Regulations came into effect on 1 July 2007, and to subsequently specify assessing authorities for occupations that had been approved in writing by the Education Minister or Employment Minister.

Scope and Application

The Migration Regulations 1994, as amended by the Instrument F2011L02011, apply to individuals and entities seeking to apply for a skilled occupation visa under the General Skilled Migration (GSM) program or other specified visas within Australia. This legislation governs the criteria for determining which occupations are considered skilled, the assessing authorities that can evaluate the qualifications of applicants, and the countries whose residents are eligible to apply under these provisions. The Instrument applies across the Commonwealth of Australia and impacts both Australian residents and non-residents who seek to migrate under the GSM program. It extends to all relevant assessing authorities and skilled occupations specified within the instrument, with particular focus on ensuring the continuity of transitional arrangements that were in effect prior to 1 July 2011. The instrument specifies that applicants must nominate a skilled occupation and have their skills assessed by the relevant authority as per the transitional arrangements and the lists in effect prior to 1 July 2011. The scope of the instrument includes revocation of previous instruments and specifies that the Minister for Immigration has the authority to designate skilled occupations and relevant assessing authorities through written instruments. Subordinate instruments may further extend or specify the application of this regulation, thereby allowing for adjustments to the skilled occupation lists and assessing authorities as necessary.

Key Provisions

The main operative sections of the Migration Regulations 1994 (as amended by F2011L02011) pertain to skilled occupations, relevant assessing authorities, and points for general skilled migration visas. Regulation 1.15I(1) empowers the Minister to specify an occupation as skilled for which a certain number of points are available. Subregulations 2.26AA(2) and 2.26AB(2) dictate the prescribed qualifications and points for applicants based on the date of their visa application. Subregulation 2.26B(1) allows the Minister to specify a person or body as the relevant assessing authority for a skilled occupation. Various subparagraphs (e.g., 1128BA(3)(j)(ii), 1136(3)(bb)(ii)) detail the occupations, assessing authorities, and countries that need to meet specific criteria for the grant of a General Skilled Migration Visa. The Act imposes several obligations on the parties it governs. Firstly, applicants for a General Skilled Migration visa must nominate a skilled occupation and have their skills assessed by the relevant assessing authority. Secondly, the relevant assessing authority must be specified in an instrument by the Minister, who must ensure that these authorities are approved in writing by the Education Minister or Employment Minister. Thirdly, applicants who lodged their application before 1 July 2011 must access the skilled occupations list in effect prior to that date, while those who lodged on or after 1 July 2011 must access the list in effect on 8 February 2011. The Act also stipulates various offences, penalties, or consequences for breach. While the specific penalties are not detailed in the text, non-compliance with the regulations could result in refusal of the visa application, revocation of an already granted visa, or other administrative actions as deemed necessary by the Minister. Additionally, the Act ensures the validity of certain General Skilled Migration skills assessments that were made after an amendment to the Regulations came into effect on 1 July 2007.

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