EXPLANATORY STATEMENT
Migration Regulations 1994
SPECIFICATION OF THE TEMPORARY SKILLED MIGRATION INCOME THRESHOLD AND THE SALARY ABOVE WHICH PARAGRAPHS 2.72(10)(c) AND 2.72(10)(cc) AND REGULATION 2.79 DO NOT APPLY
(PARAGRAPH 2.72(10)(cc), SUBREGULATION 2.72(10AB) and PARAGRAPH 2.79(1A)(b))
- This Instrument is made under paragraph 2.72(10)(cc), subregulation 2.72(10AB) and paragraph 2.79(1A)(b) of Part 2A to the Migration Regulations 1994 (‘the Regulations’).
2. Paragraph 2.72(10)(cc) of the Regulations provides that the Minister must be satisfied that the base rate of pay (under the terms and conditions of employment mentioned in paragraph 2.72(10)(c)) that is provided, or would be provided, to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph.
3. The purpose of the instrument is therefore to set the temporary skilled migration income threshold at $45,220.
4. Subregulation 2.72(10AB) provides that paragraphs 2.72(10)(c) and 2.72(10)(cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
5. This instrument operates to specify annual earnings of $180,000 for the purposes of subregulation 2.72(10AB) of the Regulations.
6. Paragraph 2.79(1A)(b) of the Regulations provides that regulation 2.79 does not apply to a standard business sponsor of a primary sponsored person if:
- the primary sponsored person holds a Subclass 457 (Business (Long Stay)) visa or the last substantive visa held by the primary person was a Subclass 457 (Business (Long Stay)) visa; and
- the annual earnings of the primary sponsored person are equal to or greater than the amount specified by the Minister in an instrument in writing.
7. The effect of this paragraph of the Regulations is that a sponsor does not need to satisfy the obligation in respect of a primary sponsored person whose annual earnings are equal to or greater than an amount specified in an instrument in writing.
8. This instrument operates to specify annual earnings of $180,000 for the purposes of paragraph 2.79(1A)(b) Regulations.
9. The Regulations under which this instrument is made were developed in consultation with:
- a selection of industry peak bodies, unions, and State Governments through the Skilled Migration Consultative Panel;
- Department of Foreign Affairs and Trade;
- Department of Education, Employment and Workplace Relations;
- the Treasury;
- Attorney General’s Department;
- Australian Taxation Office;
- Migration Review Tribunal;
- the Office of the Privacy Commissioner; and
- the Attorney General’s Department.
The temporary skilled migration income threshold, and the salary above which paragraphs 2.72(10)(c) and 2.72(10)(cc) and regulation 2.79 do not apply, were developed in consultation with the Deputy Prime Minister, and the Prime Minister.
10. The Instrument, IMMI 09/112, commences on 14 September 2009.
Overview
The Migration Regulations 1994, as amended by the instrument IMMI 09/112, were enacted in 2009 to address specific economic and policy objectives related to temporary skilled migration in Australia. The primary purpose of this instrument is to set the temporary skilled migration income threshold at $45,220, ensuring that the base rate of pay for Australian citizens or permanent residents is greater than this threshold. Furthermore, it specifies that annual earnings of $180,000 exempt individuals from certain provisions under paragraphs 2.72(10)(c) and 2.72(10)(cc), subregulation 2.72(10AB), and paragraph 2.79(1A)(b) of the Regulations. This was developed to streamline the sponsorship process for high-earning temporary skilled migrants. The enactment was overseen by the Australian Government, with consultations involving multiple departments and industry stakeholders to ensure a balanced approach to skilled migration policy.
Scope and Application
The Migration Regulations 1994, as specified by the instrument IMMI 09/112, pertain to the temporary skilled migration income threshold and the salary above which certain provisions do not apply. The threshold is set at $45,220, meaning that the base rate of pay for an Australian citizen or permanent resident must exceed this amount for certain conditions to be satisfied. Moreover, the regulations exempt individuals with annual earnings of $180,000 or more from specific obligations, including those outlined in paragraphs 2.72(10)(c) and 2.72(10)(cc), and regulation 2.79. This threshold also applies to primary sponsored persons under a Subclass 457 visa, where the sponsor is relieved from certain obligations if the sponsored person's annual earnings meet or exceed $180,000. These regulations apply nationally across Australia and are developed in consultation with various governmental bodies and industry stakeholders to ensure balanced and informed policy-making.
Key Provisions
The main provisions of this instrument involve setting specific thresholds related to the temporary skilled migration income threshold and the salary level above which certain provisions of the Migration Regulations 1994 do not apply. According to paragraph 2.72(10)(cc) of the Regulations, the Minister is required to ensure that the base rate of pay for an Australian citizen or permanent resident is greater than the specified temporary skilled migration income threshold. This instrument sets this threshold at $45,220. Moreover, subregulation 2.72(10AB) and paragraph 2.79(1A)(b) of the Regulations specify that certain provisions do not apply if the annual earnings of the nominated person are equal to or greater than the specified amount. This instrument sets this higher earnings threshold at $180,000.
This instrument imposes specific obligations on the parties it governs. Firstly, employers must ensure that the base rate of pay for an Australian citizen or permanent resident exceeds the temporary skilled migration income threshold of $45,220. Secondly, the nominated person’s annual earnings must be equal to or greater than $180,000 for certain provisions to not apply. These obligations are crucial for compliance with the regulations and for avoiding penalties for non-compliance. Additionally, sponsors of primary sponsored persons under certain visa conditions must ensure that the primary sponsored person’s annual earnings are equal to or greater than $180,000 to avoid specific obligations under the regulations.
Failure to comply with the provisions of this instrument can result in various legal consequences. While the explanatory statement does not explicitly detail the penalties or consequences, breaches of the Migration Regulations 1994 generally can lead to administrative penalties, revocation of visas, or legal action under Australian migration law. For instance, non-compliance with income threshold requirements could potentially result in the sponsor facing fines or other administrative penalties. Additionally, individuals or entities that fail to meet the specified earnings thresholds may face visa cancellations or be subject to legal proceedings, which could have significant implications for their immigration status in Australia. The exact penalties would depend on the specific breach and the discretion of the relevant authorities in enforcing the regulations.