Migration Regulations 1994 - Specification under regulation 1.15H - Migration Occupation in Demand - June 2010

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Legislation au F2010L01308 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Migration Regulations 1994

 

MIGRATION OCCUPATION IN DEMAND

 

(REGULATION 1.15H)

 

  1. This Instrument is made under regulation 1.15H of Division 1.2 of Part 1 of the Migration Regulations 1994 (‘the Regulations’), and specifies each skilled occupation applicable to a person for the purposes of the definition of migration occupation in demand.

 

2.                  Regulation 1.03 of the Regulations provides that migration occupation in demand has the meaning given by regulation 1.15H.  Regulation 1.03 of the Regulations also provides that skilled occupation has the meaning given by regulation 1.15I.

 

3.                  Subregulation 1.15H(1) of the Regulations provides that migration occupation in demand, in relation to a person, means a skilled occupation of a kind that is specified by the Minister in an instrument in writing to be a migration occupation in demand and is applicable to the person in accordance with the specification. Subregulation 1.15H(2) provides that the Minister may specify in an instrument that a skilled occupation is a migration occupation in demand for a class of persons.

 

4.                  Subregulation 1.15I(1) of the Regulations provides that skilled occupation, in relation to a person, means an occupation of a kind is specified by the Minister in an instrument in writing to be a skilled occupation, for which a number of points specified in the instrument are available, and is applicable to the person in accordance with the specification.  Subregulation 1.15I(2) of the Regulations 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 who is nominated by a State or Territory government agency.

 

5.                  Item (1) of the Instrument revokes the previous Instrument number IMMI 10/001 signed by the Minister on 4 February 2010.

 

6.                  Item (2) of the Instrument specifies each skilled occupation listed in the Schedule to the Instrument as a migration occupation in demand as applicable to a person specified in the Instrument.   The occupations listed in the Schedule are unchanged from those specified in the previous Instrument, however they are now described with reference to the ANZSCO (Australian and New Zealand Standard Classification of Occupations) occupation codes, as well as to the ASCO (Australian Standard Classification of Occupations) codes as in the previous Instrument.  This reflects the changed operational requirements of the Department of Immigration and Citizenship from 1 July 2010 when ANZSCO will become the accepted descriptor of occupations. 

 

7.                  Item (2) of the Instrument also specifies the classes of persons to which the migration occupations in demand are applicable. 

 

8.                  Paragraph (2)(a) specifies the first class of persons to include a person who:

  • applied before 8 February 2010 for the grant of any of the following visas: Subclass 861 (Skilled – Onshore Independent New Zealand Citizen), Subclass 862 (Skilled – Onshore Australian-sponsored New Zealand Citizen), Subclass 880 (Skilled – Independent Overseas Student), Subclass 881 (Skilled – Australian-sponsored Overseas Student), Subclass 495 (Skilled – Independent Regional) (Provisional), Subclass 175 (Skilled – Independent), Subclass 176 (Skilled – Sponsored), Subclass 475 (Skilled – Regional Sponsored), Subclass 487 (Skilled – Regional Sponsored); Subclass 885 (Skilled – Independent), or Subclass 886 (Skilled – Sponsored); and
  • that application had not been finally determined, within the meaning of subsection 5(9) of the Migration Act 1958, on 8 February 2010.  

 

9.                  Paragraph (2)(b) specifies the second class of persons to include a person who:

  • held a Subclass 485 (Skilled – Graduate) visa on 8 February 2010, or had applied before 8 February 2010 for the grant of a Subclass 485 (Skilled – Graduate) visa and that application had not been finally determined, within the meaning of subsection 5(9) of the Migration Act 1958, on 8 February 2010; and
  • before 1 January 2013 makes an application for a Subclass 885 (Skilled – Independent) visa, a Subclass 886 (Skilled – Sponsored) visa or a Subclass 487 (Skilled – Regional Sponsored) visa.

 

10.              Points for having a migration occupation in demand will be available under Part 7 of Schedule 6A and Part 6B.7 of Schedule 6B to the Regulations only to applicants in the specified classes who have nominated one of the skilled occupations specified as a migration occupation in demand.   The migration occupations in demand will not apply to any other applicants. 

 

11.              Applicants in the specified classes who applied prior to 1 July 2010 nominating an occupation with reference to an ASCO code, and whose application was not finally determined, within the meaning of subsection 5(9) of the Migration Act 1958, before 1 July 2010, will continue to be eligible for points on and after 1 July 2010 as the Instrument will continue to specify occupations with reference to ASCO codes.  Applicants applying on and after 1 July 2010 will need to nominate an occupation with reference to the relevant ANZSCO code.

 

12.              The following documents are incorporated in the Instrument by reference:

  • ANZSCO means, under regulation 1.03 of the Regulations, the Australian and New Zealand Standard Classification of Occupations published by the Australian Bureau of Statistics as current on 1 July 2010.  This is the ANZSCO - First Edition, Revision 1 (ABS Catalogue No. 1220.0) and is available online at http://www.abs.gov.au.
  • ASCO means, under regulation 1.03 of the Regulations, the Australian Standard Classification of Occupations, published by the Australian Bureau of Statistics on 31 July 1997.  The ASCO - Second Edition (ABS Catalogue No. 1220.0) is available online http://www.abs.gov.au.

 

13.              Affected government departments and agencies were consulted on the proposal to introduce the ANZSCO standard into the Department's skilled migration programs.  These included the Australian Bureau of Statistics, the Department of Education, Employment and Workplace Relations, and the Department of Infrastructure, Transport, Regional Development and Local Government.

 

14.              State and Territory Governments were consulted via the Commonwealth State Working Party on Skilled Migration (CSWPSM).  This included the ACT Chief Minister’s Department, the NSW Department of State and Regional Development, the NT Department of Business and Employment, the Queensland Department of Employment, Economic Development and Innovation, the Tasmanian Department of Economic Development, Tourism and the Arts, and the SA Department of Trade and Economic Development.

 

15.              The Office of Best Practice Regulation was consulted and advised that because changes from ASCO to ANZSCO are a consequence of the new approach adopted by the Australian Bureau of Statistics for classifying occupations, no regulation impact statement or business cost calculator report was required.

 

16.              This Instrument number IMMI 10/025 commences on 1 July 2010, immediately after the commencement of Migration Amendment Regulations 2010 (No. 6).

Overview

The Migration Regulations 1994 were enacted to provide the legislative framework for the administration of Australia's migration laws. This particular explanatory statement outlines an instrument made under regulation 1.15H of the Migration Regulations 1994, which specifies skilled occupations that are considered migration occupations in demand. The purpose of this instrument is to ensure that the occupations listed are those for which there is a demand in the Australian job market, and thus, are eligible for additional points in the skilled migration program. This regulation was created by the Minister for Immigration and Citizenship and is intended to address the need for a clear and updated list of occupations in demand, reflecting the operational requirements of the Department of Immigration and Citizenship. The instrument revokes the previous one and updates the list of occupations in demand, now described using the Australian and New Zealand Standard Classification of Occupations (ANZSCO) codes, effective from 1 July 2010. The occupations remain unchanged from the previous list but are now referenced with ANZSCO and Australian Standard Classification of Occupations (ASCO) codes. This change aims to align with the Australian Bureau of Statistics' updated classification system. Eligibility for points under the skilled migration program is restricted to applicants in specified classes who have nominated one of the skilled occupations listed as in demand. This regulation ensures that only those who meet the criteria will be eligible for additional points based on the occupation they have nominated.

Scope and Application

The Migration Regulations 1994 specify skilled occupations that are in demand for the purposes of determining eligibility for certain migration visas, with the details provided in the Instrument (IMMI 10/025) under regulation 1.15H. This Act applies to specific classes of persons, such as those who applied for certain skilled visas before 8 February 2010 and had their applications not finally determined by that date, as well as those who held or applied for a Subclass 485 (Skilled – Graduate) visa on or before 8 February 2010 and subsequently applied for a Subclass 885 (Skilled – Independent), Subclass 886 (Skilled – Sponsored), or Subclass 487 (Skilled – Regional Sponsored) visa before 1 January 2013. The occupations are defined using both ANZSCO and ASCO codes, reflecting the transition to ANZSCO as the accepted descriptor of occupations from 1 July 2010. The Instrument incorporates ANZSCO and ASCO standards by reference, ensuring alignment with the Australian Bureau of Statistics’ classifications. The Instrument also provides for the continuation of eligibility for points for those who applied prior to 1 July 2010, while new applicants must reference ANZSCO codes. The regulation does not apply to applicants outside the specified classes and does not require a regulation impact statement or business cost calculator report as advised by the Office of Best Practice Regulation.

Key Provisions

The key operative sections of the Migration Regulations 1994 (Regulation 1.15H) specify skilled occupations that qualify as migration occupations in demand. Regulation 1.15H(1) defines a migration occupation in demand as a skilled occupation that the Minister has specified in writing as such, applicable to a person as per the specification. Regulation 1.15H(2) allows the Minister to specify these occupations for a class of persons. Similarly, Regulation 1.15I(1) defines a skilled occupation as one specified by the Minister, with points available for the occupation and applicable to a person as per the specification. Regulation 1.15I(2) permits the Minister to specify any related matters in the instrument, including that an occupation is a skilled occupation for a class of persons or a person nominated by a State or Territory government agency. The Act imposes specific obligations on the Minister and applicants. The Minister is responsible for specifying which skilled occupations qualify as migration occupations in demand and which classes of persons they apply to. For applicants, the Act mandates that only those in the specified classes who nominate an occupation listed as a migration occupation in demand are eligible for additional points. Applicants who applied before certain dates and whose applications were not finally determined by those dates can continue to use ASCO codes to nominate their occupations, while new applicants must use ANZSCO codes. Offences and penalties are not explicitly detailed in the text provided, but breaches of the Regulations could lead to various civil or administrative consequences, such as refusal or cancellation of visa applications, as per the general provisions of the Migration Act 1958. The precise penalties would depend on the nature and severity of the breach, but they could include fines or other administrative sanctions. The Instrument also specifies that the ANZSCO standard will replace the ASCO standard for classifying occupations, effective from 1 July 2010. Applicants who applied before this date and had not had their applications finally determined can still use ASCO codes, while new applicants must use ANZSCO codes. This change reflects the operational requirements of the Department of Immigration and Citizenship. The Minister has consulted with relevant government departments and agencies, as well as State and Territory Governments, to implement this change.

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