Migration Regulations (Amendment)

Overview

The Migration Regulations (Amendment) 1991 No. 481 was enacted to address the need for temporary residence visa reciprocity for business people between the Australian Government and the United States Government. This amendment to the Migration Act 1958 was issued under the authority of the Minister for Immigration, Local Government and Ethnic Affairs. The primary policy objective was to streamline the visa application process for executives and independent business individuals by modifying the criteria for executive (overseas) visas and independent executive visas. These changes aimed to reduce bureaucratic hurdles and enhance the ease with which qualified business individuals could temporarily reside in Australia. The regulations specifically altered the criteria in regulations 65 and 69 to focus on the economic benefits to Australia rather than specific approval processes and financial requirements previously stipulated.

Scope and Application

The Migration Regulations (Amendment) 1991 No. 481, issued under the authority of the Minister for Immigration, Local Government and Ethnic Affairs, amends the criteria for specific temporary visas under the Migration Act 1958. This amendment responds to discussions between the Australian and United States governments to facilitate temporary residence visa reciprocity for business people, aiming to encourage international trade and economic benefits for Australia. The regulations apply to individuals or entities seeking to establish a business in Australia or to executives of companies looking to establish a branch in Australia, thereby impacting the business community and foreign investors. The scope of these amendments is national, affecting all entities within Australia’s jurisdiction seeking to benefit from these specific temporary visas. The exclusions and thresholds are tailored to remove certain administrative burdens, such as specific approvals by the Foreign Investment Review Board and certain financial requirements, while maintaining a general criterion that the establishment must provide substantial economic benefits to Australia. These regulations extend and restrict the application of the Act through subordinate instruments, aligning visa provisions with the reciprocity agreement and economic objectives.

Key Provisions

The key provisions of the Migration Regulations (Amendment) 1991 No. 481 (the Amendment) pertain to the modifications made to the criteria for the executive (overseas) visa and the independent executive visa. These changes were made to facilitate temporary residence visa reciprocity for business people in line with discussions between the United States Government and the Australian Government. Specifically, the Amendment modifies regulation 65 (subsection 4) by eliminating the necessity for explicit approval from the Foreign Investment Review Board for the establishment of a branch in Australia, and instead, substituting it with a broader criterion that the establishment will yield substantial international trade or other economic benefits for Australia. Similarly, the Amendment modifies regulation 69 (subsection 4) by deleting subregulations (b) and (c), which required the business to create employment, introduce new or improved technology, stimulate exports, or replace imports, and substituting it with a more general criterion that the establishment will provide Australia with substantial international trade or other economic benefits. Additionally, the Amendment modifies subregulation (d) to eliminate the age requirement and to enable greater flexibility in the funds an applicant must transfer to Australia to establish a business. Furthermore, the Amendment omits subregulation (e) to remove the requirement that the applicant possess funds additional to those transferred to Australia in accordance with subregulation (d). The Amendment imposes several obligations and requirements on the parties or entities it governs. Firstly, the Amendment requires that the establishment of a branch in Australia will provide Australia with substantial international trade or other economic benefits. Secondly, the Amendment eliminates the necessity for explicit approval from the Foreign Investment Review Board for the establishment of a branch in Australia. Thirdly, the Amendment modifies subregulation (d) to eliminate the age requirement and to enable greater flexibility in the funds an applicant must transfer to Australia to establish a business. Finally, the Amendment omits subregulation (e) to remove the requirement that the applicant possess funds additional to those transferred to Australia in accordance with subregulation (d). The Amendment does not explicitly state any offences, penalties, or civil/criminal consequences for breach. However, it is important to note that failure to comply with the requirements of the Amendment may result in the refusal of a visa application or the cancellation of a visa already granted. Additionally, any person who makes a false or misleading statement in connection with a visa application may be subject to criminal prosecution under section 231 of the Migration Act 1958, which carries a maximum penalty of two years' imprisonment or a fine of up to 120 penalty units, or both. It is also important to note that any person who engages in conduct that constitutes a breach of the Migration Act 1958 or the Migration Regulations may be subject to administrative action, such as the imposition of a pecuniary penalty or the cancellation of their visa.