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1998 – 1999
– 2000
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
MIGRATION LEGISLATION AMENDMENT
(INTEGRITY OF REGIONAL MIGRATION SCHEMES) BILL 2000
EXPLANATORY
MEMORANDUM
(Circulated by authority
of the
Minister for Immigration and Multicultural Affairs,
The Hon. Philip
Ruddock MP)
ISBN: 0642 454418
MIGRATION LEGISLATION AMENDMENT (INTEGRITY OF REGIONAL MIGRATION SCHEMES)
BILL 2000
OUTLINE
1 This Bill amends the Migration
Act 1958 (“the Act”) to introduce a new visa cancellation scheme
for regional sponsored migration scheme visas.
2 The regional
sponsored migration scheme encourages the migration of skilled persons
particularly for the benefit of regional and rural Australia. The Migration
Regulations 1994 (“the Regulations”) provide that a criterion
for the grant of a regional sponsored migration scheme visa is that the visa
applicant has been nominated by an employer in respect of an approved
appointment that will provide full-time employment for at least 2 years.
3 The purpose of the amendments is to safeguard against any potential
misuse of the regional sponsored migration scheme and discourage persons who do
not have any genuine intention of settling in regional or rural
Australia.
4 The proposed new visa cancellation scheme will, subject to
certain requirements, enable the Minister to cancel a person’s regional
sponsored migration scheme visa if:
• the Minister is satisfied
that either:
- the person has not commenced the employment referred to in
the relevant employer nomination within a period prescribed in the Regulations;
or
- the person commenced the employment referred to in the relevant
employer nomination (whether or not within the prescribed period) and the
employment terminated within the required employment period of 2 years; and
• the person does not satisfy the Minister that either:
- he or
she made a genuine effort to commence that employment within that period;
or
- he or she has made a genuine effort to be engaged in that employment
for the required employment period.
5 The scheme will not affect
existing regional sponsored migration scheme visa holders or a person who is
granted a regional sponsored migration scheme visa as result of a visa
application made before the amendments to the Act commence. Rather, it will
only apply to regional sponsored migration scheme visas granted after the
amendments to the Act commence as a result of applications made after the
commencement of the amendments to the Act.
FINANCIAL IMPACT
STATEMENT
6 The amendments contained in the Bill will have no direct
financial impact.
MIGRATION LEGISLATION AMENDMENT (INTEGRITY OF REGIONAL MIGRATION SCHEMES)
BILL 2000
NOTES ON INDIVIDUAL CLAUSES
Clause
1 Short title
1 The short title by which this Act may be cited
is the Migration Legislation Amendment (Integrity of Regional Migration
Schemes) Act 2000.
Clause
2 Commencement
2 Subclause 2(1) provides that, subject to
section 2, this Act (other than item 4 of Schedule 1) commences on a day to be
fixed by Proclamation.
3 Subclause 2(2) provides that if this Act (other
than item 4 of Schedule 1) does not commence under subsection 2(1) within 6
months of this Act receiving the Royal Assent, then it will commence on the
first day after the end of that period.
4 Subclause 2(3) provides that
item 4 of Schedule 1 commences at the later of the following
times:
• immediately after the commencement of item 3 of Schedule
1; or
• the commencement of Parts 4 to 10 of the Act that
establishes the Administrative Review Tribunal.
5 The short title of the
Act that establishes the Administrative Review Tribunal is either the
Administrative Review Tribunal Act 2000 or the Administrative Review
Tribunal Act 2001.
Clause 3 Schedule(s)
6 This clause
provides that, subject to section 2, each Act specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned. In addition, any other item in a Schedule to this Act has effect
according to its terms.
7 This clause provides that the amendment made by item 3 of Schedule 1
only applies to regional sponsored employment visas granted after the
commencement of this section, as a result of applications made after the
commencement of this section.
1 This item makes a technical amendment to subparagraph 48(1)(b)(ii) of
the Act as a consequence of the insertion of new section 137Q into the Act.
2 Section 48 places a bar on the class of visa for which a non-citizen
in the migration zone may apply where certain circumstances apply. The effect
of the technical amendment to subparagraph 48(1)(b)(ii) is that a non-citizen in
the migration zone who does not hold a substantive visa and whose visa was
cancelled under new section 137Q will, subject to the Regulations, only be able
to apply for a prescribed class of visa. Regulation 2.12 in the Regulations
sets out the classes of visas that are prescribed for the purposes of section
48.
Item 2 After paragraph 118(d)
3 This item makes a
technical amendment to section 118 of the Act as a consequence of the insertion
of new section 137Q into the Act.
4 Section 118 provides that certain
specified visa cancellation powers in the Act are not limited, or otherwise
affected, by each other. The effect of the technical amendment to section 118
is that the power to cancel a visa under new section 137Q will not be limited,
or otherwise affected, by the other visa cancellation powers currently listed in
section 118.
5 This item inserts new Subdivision GC into Division 3 of Part 2 of the
Act. The new Subdivision comprises sections 137Q to 137T and establishes a new
visa cancellation scheme for regional sponsored employment visas (as defined in
new subsection 137Q(3)).
6 New section 137Q provides the Minister with a power to cancel regional
sponsored employment visas in certain circumstances.
7 “Regional
sponsored employment visa” is defined in new subsection 137Q(3) to mean a
visa of a kind that:
• is included in a class of visas that has the
words “Employer Nomination” in its title; and
• is
prescribed by the Regulations for the purposes of the definition of regional
sponsored employment visa in new subsection 137Q(3).
8 Currently, there
are two visa classes (one offshore and one onshore) that have the words
“Employer Nomination” in their title. Both these visa classes
contain two visa subclasses - the employer nomination visa subclass and the
regional sponsored migration scheme visa subclass. The cancellation power in
new section 137Q is only intended to apply to regional sponsored migration
scheme visas. Accordingly, it is intended to prescribe regional sponsored
migration scheme visas in the Regulations for the purposes of the definition of
regional sponsored employment visa in new subsection 137Q(3).
9 The
criteria for the grant of a regional sponsored migration scheme visa are set out
in the Regulations and include that:
• the visa applicant has been
nominated by an employer in respect of an approved appointment (as defined in
regulations 1.03 and 5.19) in the business of that employer;
and
• the Minister is satisfied that the approved appointment will
provide the visa applicant with full-time employment for at least two years.
10 The visa cancellation power in new section 137Q will be available
whether or not the visa holder commenced the employment referred to in the
relevant employer nomination within the prescribed period. It is intended to
amend the Regulations to provide that the prescribed period for the purposes of
new section 137Q is 6 months.
11 Where the visa holder has not
commenced the employment referred to in the relevant employer nomination
within the prescribed period, the person’s regional sponsored employment
visa may be cancelled under new subsection 137Q(1). The Minister may only
cancel the person’s visa under new subsection 137Q(1)
if:
• the Minister is satisfied that the person has not commenced
the employment referred to in the relevant employer nomination within the
prescribed period; and
• the person does not satisfy the Minister
that he or she has made a genuine effort to commence that employment within that
period.
12 Where the visa holder commenced the employment
referred to in the relevant employer nomination (whether or not within the
prescribed period), the person’s regional sponsored employment visa may be
cancelled under new subsection 137Q(2). The Minister may only cancel a
person’s visa under new subsection 137Q(2) if:
• the
Minister is satisfied that:
- the person commenced the employment
referred to in the relevant employer nomination; and
- the employment
terminated within the required employment period of 2 years starting on the day
the person commenced that employment; and
• the person does not
satisfy the Minister that he or she has made a genuine effort to be engaged in
that employment for the required employment period.
New
section 137R Representations concerning cancellation etc.
13 The
requirements of new section 137R must be satisfied before the Minister cancels a
person’s regional sponsored employment visa under new section 137Q. Under
new subsection 137R(1), the Minister must give the person a written
notice:
• stating that the Minister proposes to cancel his or her
visa; and
• inviting the person to make representations to the
Minister concerning the proposed cancellation.
14 Any such
representations have to be made within a certain period depending on where the
notice is given. If the notice is given in Australia, the representations must
be made within 28 days after the notice is given. However, if the notice is
given outside Australia, the person will have 70 days after the notice is given
within which to make any representations.
15 Subsection 137R(2) provides
that the Minister must consider any representations received within the relevant
period.
16 If the Minister decides not to proceed with
the cancellation of the person’s visa under new section 137Q, new
subsection 137R(3) requires the Minister to give the person written notice of
this decision. On the other hand, if the Minister decides to proceed
with the cancellation, the notice requirements in new section 137S must be
complied with.
New section 137S Notice of cancellation
17 New section 137S sets out the notification requirements where
the Minister decides to cancel a person’s regional sponsored employment
visa under new section 137Q.
18 New subsection 137S(1) provides that the
Minister must give a person written notice of the decision to cancel the visa
under new section 137Q. This notice must:
• specify the reasons
for the cancellation;
• state whether or not the decision to cancel
the visa is reviewable under Part 5 of the Act; and
• if the
decision to cancel the visa is reviewable under Part 5 –
state:
- the period within which an application for review can be made;
- who can apply for the review; and
- where the application for review
can be made.
19 New subsection 137S(2) provides that failure to give
notice of the decision to cancel the visa under new subsection 137Q does not
affect the validity of the decision.
New section 137T Cancellation
of other visas
20 New section 137T provides a mechanism for the
cancellation of other visas where a person’s regional sponsored employment
visa has been cancelled under new section 137Q.
21 A visa held by a
person because of being a member of the family unit (as defined in new
subsection 137T(3)) of the person whose visa has been cancelled under new
section 137Q, will be cancelled by operation of law under new subsection
137T(1).
22 Under new subsection 137T(2) a visa cancellation under new
subsection 137T(1) is set aside if the cancellation of the person’s visa
under new section 137Q is set aside under Part 5 of the Act. Part 5 of the Act
provides for merits review of certain decisions including a decision to cancel a
regional sponsored employment visa held by a person who was in the migration
zone at the time of cancellation.
23 New subsection 137T(3) provides
that “member of the family unit” has the meaning given by the
Regulations. Currently, “member of the family unit” is defined in
regulations 1.03 and 1.12.
24 This item repeals section 137S as inserted into the Act by item 3 of
this Schedule and substitutes a new section 137S to take account of the
amendments to the notification requirements in the Act made as result of the
establishment of the Administrative Review Tribunal.
25 New subsection 137S(1) provides that if the Minister decides to cancel
a person’s regional sponsored employment visa under new section 137Q, he
or she must give the person written notice of the decision. This notice must
specify the reasons for the cancellation.
26 If the decision to cancel a
person’s visa under new section 137Q is reviewable under Part 5 of the
Act, notification of the decision must also include information about review
rights as set out in section 340 of the Act.
27 New subsection 137S(2)
provides that failure to give notice of the decision to cancel under new
subsection 137Q does not affect the validity of the decision.