EXPLANATORY STATEMENT
Migration Regulations 1994
STUDENT VISA ASSESSMENT LEVELS
(Subregulation 1.41)
- This Legislative Instrument is made under subregulation 1.41(1) in Part 1 of the Migration Regulations 1994 (‘the Regulations’).
2. Regulation 1.41 of the Regulations provides that the Assessment Levels be specified by the Minister. Relevantly, subregulation 1.41(1) provides that the Minister must specify by instrument in writing, an assessment level for a kind of eligible passport, in relation to each subclass of student visa, to which an applicant for a student visa who seeks to satisfy the primary criteria will be subject. Subregulation 1.41(4) provides that the assessment level specified for a kind of eligible passport must be a number from 1 to 3, with assessment level 1 specified for passport holders who pose a low risk, assessment level 2 specified for passport holders who pose a medium risk and assessment level 3 specified for passport holders who pose a high risk. Assessment levels are not required to be the same for each of the countries specified as issuing eligible passports, nor must they be the same for each subclass of Student visa.
3. The purpose of the Legislative Instrument is to update assessment levels for eligible passports and student visa subclasses. The Instrument is updated to reflect the removal of assessment levels 4 and 5 from the Regulations as part of the simplification of the Student visa Assessment Level Framework (recommendation 3 of the Review of the Student Visa Assessment Level Framework 2013). Those currently specified as assessment level 4 will be reduced to assessment level 3. Through this change, the applicants will benefit from a reduction in the level of evidence of English language proficiency, financial capacity and previous study that they would need to provide, for the purpose of the grant of their visa. Currently, assessment level 5 has not been specified for any passports or student visa subclasses.
4. The Legislative Instrument operates to specify the assessment levels applicable to applicants for student visas from different countries in relation to each subclass of student visa (education sector).
5. Consultation was conducted with relevant external stakeholders from the international education sector and other Commonwealth government agencies as part of the broader consultation during the Review of the Student Visa Assessment Level Framework 2013. These include education peak bodies, State/Territory and Commonwealth Departments of Education, Austrade and an External Reference Group comprising members with expertise in international education and immigration risk.
6. Under subsection 44 of the Legislative Instruments Act 2003 the Instrument is exempt from disallowance and therefore a Human Rights Statement of Compatibility is not required.
7. The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required (OBPR Reference 16151).
8. The Legislative Instrument, IMMI 14/003, commences on 22 March 2014, immediately after the commencement of Migration Amendment (Redundant and Other Provisions) Regulation 2014.
Overview
The Migration Regulations 1994, as amended by the Legislative Instrument IMMI 14/003, was enacted to refine the assessment levels for student visa applicants from various countries and address the gaps identified in the previous Student Visa Assessment Level Framework. This update was introduced to simplify the assessment process and align with the recommendations of the 2013 Review of the Student Visa Assessment Level Framework, particularly recommendation 3, which called for the removal of assessment levels 4 and 5. By reducing assessment levels, the legislation aims to ease the burden on applicants by requiring less evidence of English language proficiency, financial capacity, and previous study. This change benefits applicants by streamlining the visa application process, making it more efficient and less stringent for those deemed to pose a lower risk. The Legislative Instrument was developed following consultations with key stakeholders from the international education sector and other government agencies, ensuring a comprehensive approach to the reform.
Scope and Application
The Migration Regulations 1994, specifically through subregulation 1.41, delineate assessment levels for student visa applicants based on their country of passport issuance and the subclass of student visa sought. These assessment levels, ranging from 1 to 3, determine the risk level of the applicant, with level 1 being low risk, level 2 medium risk, and level 3 high risk. The assessment levels are not uniform across all eligible passports or student visa subclasses, allowing for tailored evaluation criteria. The purpose of the Legislative Instrument, IMMI 14/003, is to update these assessment levels to reflect the removal of levels 4 and 5, thereby simplifying the assessment process and reducing the burden on applicants in terms of the evidence required for English language proficiency, financial capacity, and previous study. This change is a result of the Review of the Student Visa Assessment Level Framework 2013, which aimed at enhancing the efficiency and effectiveness of the student visa assessment process. The Legislative Instrument operates nationally, affecting all applicants for student visas across Australia and is effective from 22 March 2014.
Key Provisions
The key operative sections of the legislation pertain to the specification of assessment levels for eligible passports in relation to each subclass of student visa, as outlined in subregulation 1.41(1) of the Migration Regulations 1994. Subregulation 1.41(4) stipulates that these assessment levels must be a number from 1 to 3, with level 1 indicating a low risk, level 2 indicating a medium risk, and level 3 indicating a high risk. The regulation also allows for these levels to differ based on the country of the passport and the subclass of the student visa. This legislative instrument is intended to update the assessment levels, reflecting changes in the Student Visa Assessment Level Framework.
The obligations imposed by the Act on the parties it governs are primarily concerned with the application process for student visas. Applicants for student visas must satisfy the primary criteria, which include providing evidence of English language proficiency, financial capacity, and previous study, among other requirements. The assessment levels specified in the instrument determine the level of evidence required from different applicants based on their country of origin and the subclass of visa they are applying for. The instrument aims to streamline the process by reducing the burden of evidence for some applicants.
In terms of offences, penalties, or civil/criminal consequences, the explanatory statement does not explicitly detail specific offences or penalties related to the assessment levels themselves. However, it is implied that failure to meet the requirements set by the assessment levels could result in the denial of a visa application. The Migration Regulations 1994 and related provisions of the Migration Act 1958 would govern any subsequent penalties or consequences for non-compliance with the visa application process. These could include fines, deportation, or bans on future visa applications. The maximum penalties would depend on the specific breaches of the broader migration legislation.