EXPLANATORY STATEMENT
Migration Regulations 1994
REGIONAL CERTIFYING BODIES AND REGIONAL POSTCODES
(PARAGRAPH 5.19(4)(e), SUBREGULATION 5.19(5), PARAGRAPH 2.43(1)(la))
- This Instrument is made under subregulation 5.19(5) and paragraphs 5.19(4)(e) and 2.43(1)(la) of the Migration Regulations 1994 (‘the Regulations’).
2. This Instrument revokes Instrument number IMMI 09/120, signed by the previous Minister on 22 October 2009.
3. Paragraph 5.19(4)(e) of the Regulations provides that only a body that has been specified for the purposes of that paragraph may certify that an employer nomination meets the requirements of paragraphs 5.19(4)(a), (b) and (c).
4. Subregulation 5.19(5) of the Regulations provides that regional Australia means a part of Australia specified by an instrument in writing.
5. Paragraph 2.43(1)(la) sets out the prescribed ground for cancelling a visa under section 116 of the Migration Act 1958 and provides that in the case of the holder of a subclass 457 Business (Long Stay) visa who was granted the visa on the basis of a nomination of an activity under regulation 1.20GA as in force immediately before 14 September 2009, that the visa holder is living or working within an area specified in an instrument in writing for that paragraph.
6. The purpose of this Instrument is to specify the Regional Certifying Bodies that are approved to certify certain nominations made under the Regional Sponsored Migration Scheme.
7. This Instrument also specifies the postcodes which define regional Australia for the purpose of subregulation 5.19(5) for the Regional Sponsored Migration Scheme.
8. This Instrument also specifies the postcodes of specified areas for the purpose of paragraph 2.43(1)(la) for the subclass 457 Business (Long Stay) visa. Under concession arrangements in effect prior to 14 September 2009, approved sponsors seeking to nominate positions in specified areas of Australia were eligible for concessions in meeting the minimum salary level or skill level requirements for the nominated positions. Subclass 457 Business (Long Stay) visas granted with these concessions were approved on the basis the visa holder would work in the specified area in the approved occupation in accordance with the terms of their most recently approved nomination. While these concession arrangements are no longer available, there remain subclass 457 Business (Long Stay) visa holders whose most recently approved nomination was approved prior to 14 September 2009 under these concession arrangements. These visa holders must still work in accordance with their most recently approved nomination, which requires the visa holder to only work in an area that is specified for the purpose of paragraph 2.43(1)(la).
9. The Instrument has been updated to:
- include Regional Development Australia, Mid North Coast Inc; and
- remove Wheatbelt Development Commission; and
- rename the Small Business Development Corporation to Skilled Migration Western Australia.
10. Consultation was undertaken before the Instrument was made as follows:
- Industry & Investment NSW;
- Wheatbelt Development Commission; and
- Skilled Migration Western Australia (formerly Small Business Development Corporation).
11. The Office of Best Practice was consulted and has advised that there was no compliance cost on business or impact on competition in relation to this instrument.
12. The Instrument, IMMI 10/051, commences on 19 November 2010.
Overview
The Migration Regulations 1994, enacted by the Australian Parliament, are administered by the Minister for Immigration and Border Protection, and address issues related to the certification of employer nominations under the Regional Sponsored Migration Scheme. The policy objective of the regulations is to ensure that only specified bodies can certify that an employer nomination meets the necessary requirements, thus maintaining the integrity of the migration process. This specific legislative instrument, made under the authority of the Migration Act 1958, aims to specify the Regional Certifying Bodies that are approved to validate certain nominations and to delineate the postcodes that define regional Australia for the purposes of the Regional Sponsored Migration Scheme. This update also includes the specification of postcodes for areas relevant to the subclass 457 Business (Long Stay) visa, ensuring that visa holders adhere to the areas specified in their most recently approved nomination.
Scope and Application
The Migration Regulations 1994, as modified by this Instrument, apply to Regional Certifying Bodies (RCBs) that are responsible for certifying certain nominations made under the Regional Sponsored Migration Scheme (RSMS). The RCBs play a crucial role in verifying that employer nominations meet the specified criteria, as outlined in paragraphs 5.19(4)(a), (b), and (c) of the Regulations. The Instrument specifies which RCBs are approved for this purpose and revises the list by including Regional Development Australia, Mid North Coast Inc, and renaming the Small Business Development Corporation to Skilled Migration Western Australia, while removing Wheatbelt Development Commission. Additionally, the Instrument defines the regional postcodes for the purposes of subregulation 5.19(5) and paragraph 2.43(1)(la) of the Regulations, delineating areas that qualify as regional Australia and areas relevant to the 457 Business (Long Stay) visa. These postcodes are critical in ensuring that visa holders, particularly those granted under the subclass 457 visa prior to 14 September 2009, comply with the conditions of their nomination, including the requirement to work within specified areas. The Instrument's provisions apply nationally across Australia, as it operates under the framework of the Commonwealth’s Migration Regulations.
Key Provisions
The Migration Regulations 1994, under section 5.19(4)(e), require that only specified Regional Certifying Bodies can certify that an employer nomination complies with the stipulated criteria outlined in paragraphs 5.19(4)(a), (b), and (c). This ensures that only approved entities can validate the eligibility of employer nominations, thereby maintaining the integrity of the Regional Sponsored Migration Scheme. Additionally, subregulation 5.19(5) mandates that regional Australia, for the purposes of these regulations, is defined by the areas specified in a written instrument. This delineation is crucial for the proper implementation of the Regional Sponsored Migration Scheme.
The obligations imposed by the Act on the parties involved include the necessity for Regional Certifying Bodies to be specified and approved for the purpose of certifying nominations. These bodies are responsible for ensuring that employer nominations meet the requisite standards. Employers, in turn, must adhere to the conditions stipulated by the Regional Certifying Bodies to ensure compliance with the scheme. Furthermore, visa holders, particularly those holding a subclass 457 Business (Long Stay) visa, must comply with the conditions of their nomination, which include working within the specified regional areas as outlined in paragraph 2.43(1)(la).
Failure to comply with the provisions of the Migration Regulations 1994 can result in significant consequences. For instance, non-compliance by Regional Certifying Bodies in certifying nominations can lead to invalid nominations, which may result in the employer not being eligible to sponsor a visa applicant. For employers, failure to comply with the certification requirements can lead to the cancellation of their nomination and potential penalties. Visa holders, particularly those holding a subclass 457 Business (Long Stay) visa, must reside and work within the specified regional areas as per their nomination. A breach of this condition can result in the cancellation of their visa under section 116 of the Migration Act 1958. The penalties for such breaches can be severe, including the potential for visa cancellation and removal from Australia.