EXPLANATORY STATEMENT
Migration Regulations 1994
SPECIFICATION OF INCOME THRESHOLD AND ANNUAL EARNINGS
(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) of Division 2.17 of Part 2A and paragraph 2.79(1A)(b) of Division 2.19 of Part 2A of the Migration Regulations 1994 (‘the Regulations’).
2. Item (1) of this Instrument revokes Instrument number IMMI 09/112 signed by the Minister on 10 September 2009 that specified the temporary skilled migration income threshold and annual earnings under the same provisions of the Regulations.
3. Item (2) of this Instrument specifies that for the purposes of paragraph 2.72(10)(cc) of the Regulations the temporary skilled migration income threshold is AUD 47,480. The purpose of this item is to provide for the annual indexation of the temporary skilled migration income threshold annually according to the Australian Bureau of Statistics Average Weekly Earnings data. This figure is currently 5% that is the annual seasonally adjusted wage change for all Australians. The temporary skilled migration income threshold will therefore be indexed upward from AUD 45,220 to AUD 47,480.
4. 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 are 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.
5. Item (3) continues to specify annual earnings of AUD 180,000 for the purposes of subregulation 2.72(10AB) of the Regulations and paragraph 2.79(1A)(b) of the Regulations. This figure remains at AUD180,000 as it continues to align with the ordinary taxable income of a taxpayer required to pay the highest rate of tax under Part I of Schedule 7 to the
Income Tax Rates Act 1986.
6. 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.
7. Paragraph 2.79(1A)(b) of the Regulations provides that regulation 2.79, that provides the obligation to ensure equivalent terms and conditions of employment, 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 sponsored 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 for this paragraph.
8. The effect of paragraph 2.79(1A)(b) of the Regulations where the primary sponsored person holds, or last held, Subclass 457 (Business (Long Stay)) 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.
9. Consultation was not necessary as the Instrument is of a minor or machinery nature and does not substantially alter existing arrangements.
10 The Office of Best Practice Regulation’s Business Cost Calculator and Assessment Checklists were used to determine that there was no compliance cost on business or impact on competition in relation to this instrument.
11. The Instrument, IMMI 10/037, commences on 1 July 2010.
Overview
The Migration Regulations 1994 were enacted to provide a comprehensive framework for the regulation of migration in Australia. The legislation was introduced to address the need for a systematic approach to the regulation of the entry, stay, and departure of people in Australia, ensuring that the migration system is fair, efficient, and responsive to the changing needs of the nation. The Regulations were made under the Migration Act 1958 and are administered by the Department of Home Affairs. The primary objective of the Regulations is to facilitate the orderly and efficient movement of people to, from, and within Australia while protecting the rights of migrants and ensuring that the migration system serves the national interest. The Explanatory Statement for the Migration Regulations 1994 specifies the income threshold and annual earnings for temporary skilled migration, ensuring that the income requirements for temporary skilled migration remain current and reflective of the Australian economy. This legislative instrument aims to maintain the integrity of the migration system by providing clear and updated guidelines for the income thresholds and annual earnings required for temporary skilled migration.
Scope and Application
The Migration Regulations 1994, as specified by Instrument number IMMI 10/037, apply to the temporary skilled migration income threshold and annual earnings of applicants for certain visa categories, particularly those under the temporary skilled migration stream. This legislation primarily impacts individuals seeking temporary skilled migration visas, ensuring their base rate of pay meets or exceeds specified thresholds to guarantee their remuneration is on par with that of Australian citizens or permanent residents. The specified income threshold for temporary skilled migration is set at AUD 47,480, subject to annual indexation according to the Australian Bureau of Statistics Average Weekly Earnings data. Meanwhile, the annual earnings threshold for certain visa exemptions is set at AUD 180,000. This threshold aligns with the highest ordinary taxable income bracket under the Income Tax Rates Act 1986, exempting individuals earning this amount or more from specific employment condition obligations. The application of these thresholds is national, applying uniformly across Australia under the Commonwealth jurisdiction.
Key Provisions
The primary operative sections of this legislation are concerned with the specification of income thresholds and annual earnings for temporary skilled migration under the Migration Regulations 1994. Section 2 revokes a previous instrument (IMMI 09/112) that specified these thresholds, while Section 3 introduces a new temporary skilled migration income threshold of AUD 47,480. This threshold is indexed annually according to the Australian Bureau of Statistics Average Weekly Earnings data and has increased from AUD 45,220. Section 4 provides that the Minister must be satisfied that the base rate of pay for an Australian citizen or permanent resident will exceed this threshold. Section 5 maintains the annual earnings requirement at AUD 180,000 for certain regulations, aligning with the highest taxable income bracket under the Income Tax Rates Act 1986.
The Act imposes specific obligations and requirements on parties involved in temporary skilled migration. For instance, it mandates that employers must ensure that the base rate of pay for Australian citizens or permanent residents exceeds the specified income threshold. Furthermore, the Act outlines specific conditions under which certain obligations do not apply to business sponsors of primary sponsored persons. If the primary sponsored person holds or last held a Subclass 457 (Business (Long Stay)) visa and their annual earnings meet or exceed the specified amount, the sponsor is exempt from certain obligations under the Regulations.
In terms of offences and penalties, the explanatory statement does not explicitly detail the specific civil or criminal consequences for breaching the specified income thresholds or annual earnings requirements. However, given the regulatory nature of the Migration Regulations 1994, non-compliance could potentially lead to administrative actions, fines, or other penalties as outlined in the broader regulatory framework. The precise consequences would depend on the specific breaches and the context in which they occur, but they could involve financial penalties, revocation of visas, or other administrative sanctions.