ATTACHMENT A

 

AUTHORISING PROVISIONS

Subsection 504(1) of the Migration Act 1958 (the Migration Act) relevantly provides that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing all matters which by the Migration Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Migration Act.

 

In addition, the following provisions of the Migration Act may apply:

*         subsection 31(3), which provides that the Migration Regulations 1994 (the Migration Regulations) may prescribe criteria for a visa or visas of a specified class;

 

*         subsection 40(1), which provides that the Migration Regulations may provide that visas or visas of a specified class may only be granted in specified circumstances;

 

*         subsection 41(1), which provides that the Migration Regulations may provide that visas, or visas of a specified class, are subject to specified conditions;

 

*         subsection 46(3), which provides that the Migration Regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application;

 

*         subsection 140GB(1), which provides that an approved sponsor may nominate:

o   an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:

§  the applicant or proposed applicant's proposed occupation; or

§  the program to be undertaken by the applicant or proposed applicant; or

§  the activity to be carried out by the applicant or proposed applicant; or

o   a proposed occupation, program or activity;

 

*         subsection 140GB(2), which provides that the Minister must approve an approved sponsor's nomination if prescribed criteria are satisfied; 

 

*         subsection 140GB(3), which provides that the regulations may establish a process for the Minister to approve an approved sponsor's nomination;

 

*         subsection 140GB(4), which provides that different criteria and different processes may be prescribed for:

o   different kinds of visa (however described); and

o   different classes in relation to which a person may be approved as a sponsor.

 

*         section 254AQ, which provides the Migration Regulations may prescribe a class of sponsor for the purposes of the definition of sponsor class;

 

*         section 245AQ, which provides that the Migration Regulations may prescribe a visa (however described) for the purposes of the definition of sponsored visa;

 

*         section 245Q, which provides that the Migration Regulations may prescribe an event for the purposes of paragraph (l) of the definition of sponsorship-related event; and

 

*         subsection 506A(1), which provides that the Migration Regulations may provide for a person who is alleged to have contravened a civil penalty provision to pay a penalty to the Commonwealth as an alternative to proceedings for a civil penalty order against the person.

 

ATTACHMENT B

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Amendment (Charging for a Migration Outcome and Other Measures) Regulation 2015

This Regulation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Regulation

The Regulation amends the Migration Regulations 1994 (the Regulations) to support changes made to the Migration Act 1958 (the Migration Act) by the Migration Amendment (Charging for a Migration Outcome) Act 2015 (the Charging for a Migration Outcome Act) that make it unlawful for a person to ask for, receive, offer or provide a benefit in return for a migration outcome in relation to certain skilled visa programmes (otherwise referred to as 'payment for visas'). 

The Regulation specifically relates to provisions within the Migration Act that introduce new powers, criminal and civil penalties, and definitions related to 'payment for visas' that are applicable to both nomination and visa applications.

These amendments support the Australian Government's position that 'payment for visas' is unacceptable because it undermines the integrity of Australia's skilled work visa programmes. The amendments are designed to address genuine skill shortages in the Australian labour market by making employees available from overseas.  It is not acceptable for sponsors, employers or other third parties to make a personal gain from their position by a 'payment for visas' arrangement.   

Human rights implications

The Charging for a Migration Outcome Act was assessed against the seven core international human rights treaties. That assessment appears in the Statement of Compatibility in the Explanatory Memorandum to the Migration Amendment (Charging for a Migration Outcome) Bill 2015.

The assessment completed against those seven core treaties, and the Government's claims supporting compatibility with those treaties, extends to the Regulation.

Therefore, the Statement of Compatibility with Human Rights made in relation to the Charging for a Migration Outcome Act addresses the human rights implications of these proposed amendments to the Regulations. 

Conclusion

As the Charging for a Migration Outcome Act and the Regulation are complementary with each other (because the Charging for a Migration Outcome Act enlivens the Regulation), the finding that that Act is compatible with human rights because it protects the rights of non-citizen workers also applies to the Regulation.

 

The Hon. Peter Dutton MP, Minister for Immigration and Border Protection

 

ATTACHMENT C

 

Section 1 - Name

This section provides that the title of the Regulation is the Migration Amendment (Charging for a Migration Outcome and Other Measures) Regulation 2015 (the Regulation).

Section 2 - Commencement

Subsection 2(1) provides that each provision of the Regulation specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

The table states that the whole of the Regulation commences at the later of:

*         the start of the day after this instrument is registered; and

*         immediately after the commencement of Schedule 1 to the Migration Amendment (Charging for a Migration Outcome) Act 2015 (the Charging for a Migration Outcome Act).

However, the provisions do not commence at all if Schedule 1 to the Charging for a Migration Outcome Act does not commence.

A note clarifies that this table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

 

Subsection 2(2) provides that any information in column 3 of the table is not part of the Regulation. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument. Column 3 of the table provides the date/details of the commencement date.

 

The purpose of this section is to provide for when the amendments made by the Regulation commence.

Section 3 - Authority

This section provides that the Regulation is made under the Migration Act 1958 (the Migration Act).

The purpose of this section is to set out the Acts under which the Regulation is made.

Section 4 - Schedule(s)

 

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

 

The effect of this section is that the Migration Regulations 1994 (the Regulations) are amended as set out in the applicable items in Schedule 1 to the Regulation.

The purpose of this section is to provide for how the amendments in this Regulation operate.

Schedule 1 - Amendments

Item 1 - Regulation 1.03

This item inserts definitions of adverse information, associated entity and associated with into regulation 1.03 of the Regulations.

Previously, these terms were located and defined in regulation 2.57 of Division 2.11 of Part 2A of the Regulations. 

Item 1 amends regulation 1.03 to provide that adverse information has the meaning given by regulation 1.13A, and that associated with has the meaning given by regulation 1.13B. As a result of the relocation into regulation 1.03, the meaning of adverse information and associated with (as provided for in regulation 1.13A and regulation 1.13B, respectively) will be the same across the Regulations, unless a contrary intention appears.

This item also amends regulation 1.03 to provide that associated entity has the same meaning as in section 50AAA of the Corporations Act 2001. This amendment replicates the meaning of associated entity currently in subregulation 2.57(1).

As these terms are used throughout the Regulations, they are relocated and consolidated into regulation 1.03 as it is a centralised location for the definition of terms used throughout the Regulations.  

Item 2 - After regulation 1.13

This item inserts new regulations 1.13A and 1.13B after regulation 1.13 in Division 1.2 of Part 1 of the Regulations.

Regulation 1.13A - Meaning of adverse information

New regulation 1.13A provides for the meaning of the term adverse information.

Previously, subregulation 2.57(3) provided for adverse information to mean any adverse information relevant to a person's suitability as an approved sponsor. It also provided for a range of information that is considered to be within the meaning of adverse information.

New regulation 1.13A substantially replicates the meaning of adverse information in previous subregulation 2.57(3) but expands upon the persons to whom the information is relevant. New regulation 1.13A provides that it is any adverse information relevant to a person's suitability as:

*         an approved sponsor;

*         a nominator (within the meaning of regulation 5.19); or

*         a maker of a nomination accordance with a labour agreement.

An approved sponsor is defined in regulation 2.58 of Division 2.12 of Part 2A of the Regulations.

A person who is a nominator within the meaning of regulation 5.19 means a person (including a partnership or unincorporated association) who may apply to the Minister for approval of the nomination of a position in Australia.

The range of information that is considered to be within the meaning of adverse information under previous subregulation 2.57(3) has not changed under new regulation 1.13A. In addition, previous subregulation 2.57(3) required the matters which constitute adverse information to have occurred within the previous 3 years from the date that the relevant information is being considered. This requirement is replicated in new regulation 1.13A, which requires the information to have occurred within 3 years of the date when the information is being considered.

The effect of this amendment is to expand the scope of adverse information to be beyond information relevant to a person's suitability as an approved sponsor, and include information relevant to a person's suitability as a nominator (within the meaning of regulation 5.19) or a maker of a nomination in accordance with a labour agreement.

It is necessary to expand the scope of adverse information because this term will be introduced by  Items 29, 31, 32, 35, 37 and 38 of this Regulation (below) into all streams of the Subclass 186 (Employer Nomination Scheme) visa (subclass 186 visa) and the Subclass 187 (Regional Sponsored Migration Scheme) visa (subclass 187 visa).

Subclasses 186 and 187 each contain three streams: the Temporary Residence Transition stream, the Direct Entry stream and the Agreement stream.

Only the Temporary Residence Transition stream of those visas require the person who is applying to the Minister for approval of nomination to have previously been approved as a sponsor. This requirement does not exist for the Direct Entry stream and the Agreement stream.

As the term adverse information is being introduced into all streams of the subclass186 visa and the subclass 187 visa, it is necessary to expand the scope of the term beyond a person's suitability as an approved sponsor, and include information about a person's suitability as a nominator, or a maker of a nomination in accordance with a labour agreement.

This term is located after regulation 1.13, which provides for the meaning of nominator, in the Migration Regulations, because nominator and adverse information are both used in the Migration Regulations in relation to sponsored visas.

Regulation 1.13B - Meaning of associated with

New regulation 1.13B relocates the terms: associated with, entity, officer and related body corporate from regulation 2.57 of the Regulations.

Previously, subregulation 2.57(1) provided for the meaning of entity, officer and related body corporate. Subregulation 2.57(2) provided for the meaning of associated with. 

New regulation 1.13B replicates the meaning of the terms entity, officer and related body corporate in previous subregulation 2.57(1) and consolidates those terms in this regulation. New regulation 1.13B also relocates associated with from subregulation 2.57(2) into new regulation 1.13B, and replicates its meaning

These terms are consolidated into regulation 1.13B because they were previously used in the context of subregulation 2.57(2), which is incorporated into the new regulation 1.13B.

The purpose and effect of this amendment is to relocate and consolidate the terms associated with, entity, officer and related body corporate into regulation 1.13B.  

Item 3 - Subregulation 2.57(1)

This item repeals the definitions of associated entity, entity, officer and related body corporate from subregulation 2.57(1) of the Regulations.

This amendment is consequential to the changes made by Items 1 and 2 of the Regulation, which relocates those terms into regulation 1.03 and regulation 1.13A.

Item 4 - Subregulations 2.57(2) and (3)

This item repeals subregulations 2.57(2) and (3).

This amendment is consequential to the changes made by Item 1 of the Regulation, which relocates the definitions of adverse information and associated with from subregulation 2.57(2) and (3) into regulation 1.03 of the Regulations.

Item 5 - Subregulation 2.59 (note 1)

This item omits 'Note 1' at the end of regulation 2.59, and substitutes it with 'Note'.

This amendment renumbers the note at the end of regulation 2.59 and is consequential to the changes made by Item 6 of the Regulation.

Item 6 - Subregulation 2.59 (note 2)

This item repeals note 2 at the end of subregulation 2.59 of the Regulations.

Previously, note 2 at the end of subregulation 2.59 relevantly provided the terms associated with and adverse information were defined in subregulations 2.57(2) and (3), respectively.

This amendment is consequential to the changes made by Item 1 of the Regulation, which relocates definitions of the terms adverse information and associated with into regulation 1.03 of the Regulations.

Item 7 - Subregulation 2.60(1) (note)

This item repeals the note at the end of subregulation 2.60(1) of the Regulations.

Previously, the note at the end of subregulation 2.60(1) provided the terms associated with and adverse information were defined in subregulations 2.57(2) and (3) of the Regulations.

This amendment is consequential to the changes made by Item 1 of the Regulation, which relocates the definitions of the terms adverse information and associated with into regulation 1.03 of the Regulations.

Item 8 - Regulation 2.68 (note)

This item repeals the note at the end of regulation 2.68 of the Regulations.

Previously, the note at the end of regulation 2.68 relevantly provided the terms associated with and adverse information were defined in subregulations 2.57(2) and (3).

This amendment is consequential to the changes made by Item 1 of the Regulation, which relocates the definitions of the terms adverse information and associated with into regulation 1.03.

Item 9 - After subregulation 2.72(8A)

This item inserts new subregulation 2.72(8B) after subregulation 2.72(8A) in Division 2.17 of Part 2A of the Regulations.

New subregulation 2.72(8B) provides that, as a criterion for approval of a nomination in relation to a Subclass 457 (Temporary Work (Skilled)) visa, the Minister is satisfied that the person who made the nomination has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Migration Act.

Subsection 245AR(1) of the Act provides that a person (the "first person") contravenes this subsection if:

*         the first person asks for, or receives, a benefit from another person; and

*         the first person asks for, or receives, the benefit in return for the occurrence of a sponsorship-related event.

 

The meaning of benefit and sponsorship-related event are provided in section 245AQ of the Migration Act. In particular, section 245AQ provides that a sponsorship-related event means the events listed in paragraphs (a) to (l) of the definition, which include:

*         a person making a nomination under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination; and

*         a person not withdrawing a nomination made under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa.

Section 140GB of the Migration Act provides for, amongst other things, an approved sponsor to nominate a person or a proposed occupation, program or activity for the Minister's approval. In particular, paragraph 140GB(2)(b) relevantly provides that the Minister must approve the nomination if the prescribed criteria are satisfied. Regulation 2.72 of the Regulations contains the criteria for approval of a nomination where the nomination is in relation to a Subclass 457 (Temporary Work (Skilled)) visa (Subclass 457 visa).

The effect of this amendment is that the Minister cannot approve the nomination unless, amongst other things, the person making the nomination has provided a written certification to the Minister regarding whether or not the person has engaged in conduct that constitutes a contravention of subsection 245AR(1) of the Act, in relation to the nomination for which they are seeking approval. The events that are relevant in determining whether or not the conduct constitutes a contravention of subsection 245AR(1) of the Migration Act for the purposes of the certification are paragraphs (e) and (f) under sponsorship-related events in section 245AQ of the Act.

In effect, the person making the nomination will be required to certify, in writing, whether or not they have asked for, or received, a benefit (within the meaning of section 245AQ of the Act) from another person in return for the making of the nomination currently being progressed, or not withdrawing the nomination currently being progressed, under section 140GB of the Migration Act.  

The purpose of this amendment is to ensure that the person making the nomination provides the certification before a nomination is approved. Depending on the information provided on the certification, further action may be taken to investigate the person making the nomination in relation to a possible contravention of subsection 245AR(1) of the Migration Act, and, if appropriate, the nominee for a possible contravention of subsection 245AS(1) of the Migration Act. This requirement also makes a person making a nomination aware that the Migration Act prohibits a person from engaging in the conduct that contravenes subsection 245AR(1) of the Migration Act.

Item 10 - Subregulation 2.72(9) (note)

This item repeals the note under subregulation 2.72(9) of the Regulations.

Previously, the note under subregulation 2.72(9) provided that the meanings of the terms adverse information and associated with were explained in subregulations 2.57(2) and (3).

This note is no longer necessary as the definitions of these terms have been relocated into regulation 1.03. This amendment is a consequential amendment to the changes made by Item 1.

Item 11 - After subregulation 2.72A(8)

This item inserts new subregulation 2.72A(8A) after subregulation 2.72A(8) in Division 2.17 of Part 2A of the Regulations.

New subregulation 2.72A(8A) provides that, as a criterion for approval of a nomination, if the person made the nomination in relation to a Subclass 401 (Temporary Work (Long Stay Activity)) visa (Subclass 401 visa), or a Subclass 420 (Temporary Work (Entertainment)) visa (Subclass 420 visa),  the Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Migration Act.

Subsection 245AR(1) of the Migration Act provides that a person (the "first person") contravenes this subsection if:

*         the first person asks for, or receives, a benefit from another person; and

*         the first person asks for, or receives, the benefit in return for the occurrence of a sponsorship-related event.

 

The meanings of the terms benefit and sponsorship-related event are provided in section 245AQ of the Migration Act. In particular, section 245AQ provides that a sponsorship-related event means the events listed in paragraphs (a) to (l) of the definition, which includes:

*         a person making a nomination under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination; and

*         a person not withdrawing a nomination made under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa.

Section 140GB of the Act provides for, amongst other things, an approved sponsor to nominate a person or a proposed occupation, program or activity for the Minister's approval. In particular, paragraph 140GB(2)(b) relevantly provides that the Minister must approve the nomination if the prescribed criteria are satisfied. Regulation 2.72A contains the criteria for approval of nomination where the nomination is in relation to a Subclass 401 visa or a Subclass 420 visa.

The effect of this amendment is that the Minister cannot approve the nomination unless, amongst other things, the person making the nomination has provided a written certification to the Minister regarding whether or not the person has engaged in conduct that constitutes a contravention of subsection 245AR(1) of the Migration Act, in relation to the nomination to which they are seeking approval. The events that are relevant in determining whether or not the conduct constitutes a contravention of subsection 245AR(1) of the Migration Act for the purposes of this certification are paragraphs (e) and (f) under sponsorship-related events in section 245AQ of the Migration Act.

In effect, the person making the nomination will be required to certify, in writing, whether or not they have asked for, or received, a benefit (within the meaning of section 245AQ of the Migration Act) from another person in return for the making of the nomination currently being progressed, or not withdrawing the nomination currently being progressed, under section 140GB of the Migration Act. 

The purpose of this amendment is to ensure that the person making the nomination provides the certification before a nomination is approved. Depending on the information provided on the certification, further action may be taken to investigate the person making the nomination in relation to a possible breach of subsection 245AR(1) of the Migration Act, and, if appropriate, the nominee for a possible contravention of subsection 245AS(1) of the Migration Act. This requirement also makes a person making a nomination aware that the  Migration Act prohibits a person from engaging in the conduct that contravenes subsection 245AR(1) of the Migration Act.

Item 12 - After subregulation 2.73(4A)

This item inserts new subregulation 2.73(4B) after subregulation 2.73(4A) in Division 2.17 of Part 2A of the Regulations.

Subsection 140GB(3) of the Migration Act provides that the Regulations may establish a process for the Minister to approve an approved sponsor's nomination. Regulation 2.73 provides for the process of nomination where the nomination is in relation to a Subclass 457 visa.

New subregulation 2.73(4B) provides that the person must provide, as part of the nomination, the certification mentioned in subregulation 2.72(8B).

The effect of this amendment is that the person making the nomination must provide, as part of the nomination process, the certification mentioned in subregulation 2.72(8B) (inserted by Item 9 of this Regulation, above).

This amendment is a consequential amendment to the changes made by Item 9 because, previously, regulation 2.73 did not require the person making the nomination to provide a certification as part of the nomination process.

Item 13 - After subregulation 2.73A(3B)

This item inserts new subregulation 2.73(3C) after subregulation 2.73A(3B) in Division 2.17 of Part 2A of the Regulations.

Regulation 2.73A provides for the process of nomination where the nomination is in relation to, amongst other visas, a Subclass 401 visa.

New subregulation 2.73A(3C) provides that if the person identifies in the nomination the holder of, or an applicant or proposed applicant for, a Subclass 401 visa, the person must provide, as part of the nomination, the certification mentioned in subregulation 2.72A(8A).

The effect of this amendment is that the person making the nomination must provide, as part of the nomination process, the certification mentioned in subregulation 2.72A(8A) (inserted by Item 11 of this Regulation, above).

This amendment is a consequential amendment to the changes made by Item 11 because, previously, regulation 2.73A did not require the person making the nomination to provide a certification as part of the nomination process.

Item 14 - After subregulation 2.73B(3)

This item inserts new subregulation 2.73B(3A) after subregulation 2.73B(3) in Division 2.17 of Part 2A of the Regulations.

Regulation 2.73B provides for the process of nomination where the nomination is in relation to a Subclass 420 visa.

New subregulation 2.73B(3) provides that the person must provide, as part of the nomination, the certification mentioned in subregulation 2.72A(8A).

The effect of this amendment is that the person making the nomination must provide, as part of the nomination process, the certification mentioned in subregulation 2.72A(8A) (inserted by Item 11 of this Regulation, above).

This amendment is a consequential amendment to the changes made by Item 11 because, previously, regulation 2.73B did not require the person making the nomination to provide a certification as part of the nomination process.

Item 15 - After paragraph 5.19(2)(a)

This item inserts new paragraph 5.19(2)(aa) after paragraph 5.19(2)(a) in Division 5.3 of Part 5 of the Regulations.

Regulation 5.19 provides for the process of applying to the Minister for approval of the nomination of a position in Australia, and the requirements that must be met for the Minister to approve such a nomination. Regulation 5.19 is relevant to nominations for the Temporary Residence Transition Stream and the Direct Entry Stream of the Subclass 186 visa and Subclass 187 visa.

New paragraph 5.19(2)(aa) provides that the application must include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Migration Act.

The effect of this amendment is that the Minister cannot approve the nomination unless, amongst other things, the person applying for approval of nomination has provided a written certification to the Ministerregarding whether or not the person has engaged in conduct that constitutes a contravention of subsection 245AR(1) of the Migration Act, in relation to the nomination to which they are seeking approval. The events that are relevant to determining whether or not the conduct constitutes a contravention of subsection 245AR(1) of the Migration Act for the purposes of the certification are paragraphs (g) and (h) of the definition of sponsorship-related events in section 245AQ of the Migration Act.

The particular events relevant for the purposes of a certification under regulation 5.19 are different from a certification under regulation 2.72 and regulation 2.72A because a nomination under regulation 5.19 is not made under section 140GB of the Migration Act.

In effect, the person applying for nomination approval will be required to certify, in writing, whether or not they have asked for, or received, a benefit (within the meaning of section 245AQ of the Migration Act) from another person in return for applying for approval of the nomination currently being progressed, or not withdrawing the nomination currently being progressed.  The requirement to provide a certification is applicable to nominations in relation to the Temporary Residence Transition stream and the Direct Entry stream of Subclasses 186 187.

The purpose of this amendment is to ensure that the person applying for nomination approval provides the certification before a nomination is approved. Depending on the information provided on the certification, further action may be taken to investigate the person making the nomination in relation to a possible breach of subsection 245AR(1) of the Migration Act. This requirement also makes a person making a nomination aware that the Migration Act prohibits a person from engaging in the conduct that contravenes subsection 245AR(1) of the Migration Act.

Item 16 - Subregulation 5.19(7) (definitions of adverse information and associated with)

This item repeals the definitions of adverse information and associated with from subregulation 5.19(7).

This amendment is consequential to the changes made by Item 1 of this Regulation, above.

Item 17 - After Division 5.3A of Part 5

This item inserts a new Division 5.3B - Offences and civil penalties in relation to sponsored visas - after Division 5.3A of Part 5 of the Regulations.

New Division 5.3B provides for certain matters  to be prescribed for the purposes of definitions in section 245AQ in Subdivision D of Division 12 of Part 2 of the Migration Act. New Division 5.3B contains three new regulations: regulation 5.19L, regulation 5.19M, and regulation 5.19N.

New regulation 5.19L (Classes of sponsor) and regulation 5.19M (Kinds of sponsored visa)

Section 245AQ of the Migration Act provides that sponsor class means a prescribed class of sponsor.

New regulation 5.19L prescribes the classes of sponsors for the purposes of the definition of sponsor class.  The prescribed classes of sponsor are:

*         a standard business sponsor;

*         an entertainment sponsor;

*         a superyacht crew sponsor;

*         a long stay activity sponsor;

*         a training and research sponsor;\

*         an exchange sponsor;

*         a religious worker sponsor; and

*         a sport sponsor.

Section 245AQ of the Migration Act provides that sponsored visa means a visa of a prescribed kind (however described).

New regulation 5.19M prescribes the visas for the purposes of the definition of sponsored visa.   The prescribed visas are:

*         a Subclass 186 (Employer Nomination Scheme) visa;

*         a Subclass 187 (Regional Sponsored Migration Scheme) visa;

*         a Subclass 401 (Temporary Work (Long Stay Activity)) visa;

*         a Subclass 402 (Training and Research) visa in the Research stream;

*         a Subclass 420 (Temporary Work (Entertainment)) visa;

*         a Subclass 457 (Temporary Work (Skilled)) visa; and

*         a Subclass 488 (Superyacht Crew) visa.

The effect of this amendment is that, the provisions of Subdivision D of Division 12 of Part 2 of the Act, in particular, the offences and civil penalty provisions under Subdivision D, are only applicable in relation to the sponsors prescribed under regulation 5.19L, and the visas prescribed under regulation 5.19M.

For example, one of the sponsorship-related events under section 245AQ is the grant of a sponsored visa. Regulation 5.19M prescribes a Subclass 186 visa as a sponsored visa. Accordingly, a person who asks for a benefit from another person in return for the grant of a Subclass 186 visa would contravene subsection 245AR(1) of the Migration Act.

New regulation 5.19N (Sponsorship-related events)

Paragraph (l) of the definition of sponsorship-related event in section 245AQ of the Migration Act provides that such an event includes a prescribed event.

New regulation 5.19N prescribes events for paragraph (l) of the definition of sponsorship-related event. The events prescribed under regulation 5.19N are:

*         a person becoming, or not ceasing to be, a party to a labour agreement that is not a work agreement;

*         a person nominating a position in accordance with such a labour agreement in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination; and

*         a person not withdrawing a nomination of a position made in accordance with such a labour agreement in relation to a holder of, or an application or proposed applicant for, a sponsored visa.

Regulation 1.03 provides that a labour agreement means a formal agreement entered into between:

*         the Minister, or the Employment Minister; and

*         a person or organisation in Australia;

under which an employer is authorised to recruit persons to be employed by that employer in Australia.

The effect of new regulation 5.19N is to add additional events into the definition of sponsorship-related event. As a result of this amendment, if a person was to engage in a conduct prohibited by sections 245AR and section 245AS of the Act in relation to an event prescribed in regulation 5.19N, the person would act in contravention of those provisions.

It is necessary for additional events to be prescribed because the current range of events under the definition of sponsorship-related event in section 245AQ does not relate to labour agreements. As a person could be nominated in accordance with a labour agreement, this amendment was made to ensure that any prohibited conducts engaged in relation to a labour agreement would be subject to the offences and civil penalties in Subdivision D of Division 12 of Part 2 of the Migration Act.

For example, subsection 245AR(1) prohibits a person from asking for, or receiving, a benefit from another person in return for the occurrence of a sponsorship-related event. New paragraph 5.19N(a) prescribes a person becoming, or not ceasing to be, a party to a labour agreement that is not a work agreement. Accordingly, if a person (the first person) asks for a benefit from another person in return for the first person becoming a party to a labour agreement, and that labour agreement is not a work agreement, then the first person had breached subsection 245AR(1) of the Migration Act.

 

Subsection 5(1) of the Migration Act provides that a work agreement means an agreement that satisfies the requirements prescribed by the Regulations for the purposes of the definition. Section 140GC of the Act provides that, for the purposes of the definition of work agreement, the Regulations may prescribe requirements that an agreement must satisfy.

 

Regulation 2.76 prescribes the requirements for a work agreement. Paragraph 2.76(2)(b) relevantly provides that a work agreement must be a labour agreement that authorises the recruitment, employment, or engagement of services of a person who is intended to be employed or engaged as a holder of a Subclass 457 visa. Accordingly, work agreements are a subset of labour agreements.

Paragraph 5.19N(a) excludes labour agreements that are work agreements because paragraph (c) of the definition of sponsorship-related event in section 245AQ of the Migration Act already provides for a person becoming, or not ceasing to be, a party to a work agreement. Accordingly, paragraph 5.19N(a) is not intended to overlap with the scope of paragraph (c) of the definition of sponsorship-related event and, as such, is only intended to relate to a labour agreement that is not a work agreement.

Item 18 - After subregulation 5.20A(3)

This item inserts new subregulations 5.20A(3A), 5.20A(3B) and 5.20A(3C) after subregulation 5.20A(3) in the Regulations.

Subsection 506A(1) of the Act provides that the Regulations may provide for a person who is alleged to have contravened a civil penalty provision to pay a penalty to the Commonwealth as an alternative to proceedings for a civil penalty order against the person.

New subregulation 5.20A(3A) provides that, for subsection 506A(1) of the Migration Act, a person who is alleged to have contravened subsection 245AR(1) or subsection 245AS(1) of the Act may pay a penalty to the Commonwealth as an alternative to proceedings for a civil penalty order against the person.

New subregulation 5.20A(3B) and 5.20A(3C) sets out the circumstances which determine the penalty that may be paid by a person on issue of an infringement notice.

This amendment allows a person who is alleged to have contravened subsection 245AR(1) or subsection 245AS(1) of the Migration Act  to pay a monetary fine to the Commonwealth, when issued with an infringement notice, as an alternative to the

Minister seeking a civil penalty order from a Court against the person. Subsection 506A(2) of the Migration Act provides that the penalty must not exceed one-fifth of the maximum penalty that a court could impose on the person for a contravention of the civil penalty provision. Subsection 245AR(5) and subsection 245AS(1) provides the maximum penalty to be 240 penalty units. However, for a body corporate, paragraph 486R(5)(a) of the Migration Act allows the penalty to be 5 times the amount of the pecuniary penalty specified for the civil penalty provision.

The penalty prescribed in subregulation 5.20A(3B) for a person who has previously been issued with an infringement notice under regulation 5.20A or has been ordered by a Court to pay a pecuniary penalty for a contravention of subsection 245AR(1) or 245AT(1) of the Migration Act is 48 penalty units for an individual, which is one-fifth of the penalty units for a civil penalty order for an individual under subsections 245AR(1) and 245AT(1). For body corporates, the penalty is set at 240 penalty units, which is exactly 5 times the amount for an individual. Currently, 48 penalty units equates to $8 640, and 240 penalty units equates to $43 200.

The penalty specified in subregulation 5.20A(3C), if subregulation 5.20A(3B) does not apply, is set at one-tenth of the penalty units for a civil penalty order under a relevant subsection, that is, 24 penalty units for an individual, and 120 penalty units for a body corporate. Currently, 24 penalty units equates to $4 320 and 120 penalty units equates to $21 600.

The penalty is set higher in the circumstances set out in subregulation 5.20A(3B) because that provision applies to persons who have previously been issued an infringement notice for an alleged contravention of subsect ion 245AR(1) or subsection 245AS(1), or has been ordered by a Court to pay a pecuniary penalty for a contravention of those subsections.

In contrast, subregulation 5.20A(3C) applies to persons who are being issued with an infringement notice for an alleged contravention of subsection 245AR(1) or subsection 245AS(1) for the first time, and have not been ordered by a Court to pay a pecuniary penalty for contravention of a relevant provision. As such, the penalties are set lower to take into account the fact that these persons have not previously been alleged to have, or found to, contravened those subsections.

Allowing a person to pay a penalty as an alternative to proceedings for a civil penalty order, when issued with an infringement notice, is an existing mechanism for contraventions of other sponsorship-related civil penalty provisions and work-related civil penalty provisions. As such, creating a similar mechanism for contraventions of subsection 245AR(1) and subsection 245AS(1) of the Migration Act ensures that alleged offenders are given the same opportunity to pay a comparatively smaller fine as an alternative to court proceedings.

 
Item 19 - Regulation 5.21 (at the end of the definition of civil penalty provision)

This item adds new paragraphs (i) and (j) at the end of the definition of civil penalty provision in regulation 5.21 in Division 5.5 of Part 5 of the Migration Regulations.  

New paragraph 5.21(i) refers to subsection 245AR(1), and new paragraph 5.21(j) refers to subsection 245AS(1).

Division 5.5 (Infringement notices) of Part 5 of the Regulations sets out the infringement notices regime, which allows an authorised officer who has reason to believe a person has committed an offence or contravened a civil penalty provision to cause a notice to be served on the person giving the person an option to pay the penalty in the notice as an alternative to court proceedings. The effect of regulation 5.25 is that if the person pays the relevant penalty in the infringement notice in the specified time or the notice is withdrawn, then any liability of the person in respect of the alleged offence or alleged contravention of the civil penalty provision is discharged.

Civil penalty provision is defined in regulation 5.21 for the purposes of Division 5.5 of Part 5 of the Migration Act to mean the list of provisions that are listed in the definition.

This amendment ensures that references to the term civil penalty provision include references to subsection 245AR(1) and subsection 245AS(1). As a result of this amendment, a person who is alleged to have contravened subsection 245AR(1) or subsection 245AS(1) of the Migration Act can be served with an infringement notice and given the option to pay the relevant penalty as an alternative to court proceedings.

Item 20 - Subregulations 5.23(3) and (4)

This item inserts the words ', or subsection 245AR(1) or 245AS(1) of the Act' after the words 'work-related civil penalty provision' in subregulation 5.23(3) and subregulation 5.23(4) of Division 5.4 of Part 5 of the Regulations.

Regulation 5.23 provides for what an infringement notice must contain.

Subregulation 5.23(3) and subregulation 5.23(4) provide that an infringement notice for a contravention of a work-related civil penalty provision must state the grounds on which the infringement notice may be withdrawn, and that those grounds are not exhaustive.  This amendment adds contraventions of subsections 245AR(1) and 245AS(1) to those provisions.

The effect of this amendment is that an infringement notice for an alleged contravention of subsection 245AR(1) or 245AS(1) of the Migration Act must state the grounds on which the infringement notice may be withdrawn, and that those grounds are not exhaustive. 

The intention is to align the requirements for an infringement notice served for alleged contravention of subsection 245AR(1) or 245AS(1) with the requirements for an infringement notice served for alleged contraventions of work-related civil penalty provision.

Items 21, 22, 23, 24, 25, 26 and 27

These items insert new paragraphs 1114B(3)(da), 1114C(3)(da), 1223A(3)(e), 1227A(3)(e), 1232(3)(da), and 1235(3)(ca), and a new item 5 in the table in subitem 1233(5), in the following items of Schedule l to the Regulations:

*      1114B (Employer Nomination (Permanent)(Class EN);

*      1114C (Regional Employer Nomination (Permanent)(Class RN);

*      1223A (Temporary Business Entry (Class UC));

*      1227A (Superyacht Crew (Temporary)(Class UW));

*      1232 (Temporary Work (Long Stay Activity)(Class GB);

*      1233 (Training and Research (Class GC)); and

*      1235 (Temporary Work (Entertainment)(Class GE).

 

Schedule 1 prescribes the criteria for making a valid application for a visa.  The new provisions require that an applicant seeking to satisfy the primary criteria for a relevant visa must declare in the application whether or not either the applicant, or any person who has made a combined application with the applicant, has engaged in conduct in relation to the application that constitutes a contravention of subsection 245AS(1) of the Migration Act.

The visas to which the new application requirements relate are:

*      a Subclass 186 (Employer Nomination Scheme) visa;

*      a Subclass 187 (Regional Sponsored Migration Scheme) visa;

*      a Subclass 401 (Temporary Work (Long Stay Activity)) visa;

*      a Subclass 402 (Training and Research) visa in the Research stream;

*      a Subclass 420 (Temporary Work (Entertainment)) visa;

*      a Subclass 457 (Temporary Work (Skilled)) visa; and

*      a Subclass 488 (Superyacht Crew) visa.

 

Subsection 245AS(1) was inserted in the Migration Act by the Charging for a Migration Outcome Act. It provides that a person (the 'first person") contravenes the subsection if the first person offers to provide, or provides, a benefit to another person (the "second person"); and the first person offers to provide, or provides, the benefit in return for the occurrence of a sponsorship-related event.

 

Section 245Q of the Act provides that benefit includes:

*      a payment or other valuable consideration; and

*      a deduction of an amount; and

*      any kind of real or personal property; and

*      an advantage; and

*      a service; and

*      a gift.

 

However, subsection 245AS(3) of the Migration Act provides that subsection 245AS(1) is not contravened if the benefit is a payment of a reasonable amount for a professional service that has been provided, or is to be provided, by the second person or a third person. This could include, but is not limited to, provision of professional services such as immigration assistance or recruitment services for which payment is made. 

 

Section 245Q  of the Migration Act also provides that sponsorship-related event means any event listed in paragraphs (a) to (l) of the definition, in relation to a sponsored visa.  These events are intended to capture all the events in relation to which 'payment for visas' conduct could occur in connection with a sponsored visa, which is defined in section 245Q to mean a visa of a prescribed kind.

 

The specified events cover a wide range of arrangements in return for which a benefit could be provided, including agreeing to sponsor or making a nomination in relation to a visa applicant or holder, applying for approval to become a sponsor, entering into a work agreement, employing a person to work in an occupation or position, or including a

family member in a nomination. The applicability of particular sponsorship-related events will depend on the criteria to be to be satisfied for grant of the specific sponsored visa.  Paragraph (l) of the definition of sponsorship-related events provides for further events to be prescribed if appropriate.

 

New regulation 5.19M, inserted in the Regulations by Item 17 of this Regulation, above, prescribes the relevant visas listed above for the purpose of the definition sponsored visa in section 245Q of the Migration Act.

 

The effect of these amendments is that to make a valid application for a relevant visa, an applicant seeking to satisfy the primary criteria is required to declare in the application whether or not conduct contravening subsection 245AS(1) of the Migration Act has occurred in respect of the applicant or an applicant included in the application (if any). . Depending on the information provided in the declaration, further action may be taken to investigate a visa applicant in relation to a possible breach of subsection 245AS(1) of the Migration Act. This requirement also makes a visa applicant aware that the Migration Act prohibits a person from engaging in the conduct that contravenes subsection 245AS(1) of the Act.

Items 28, 33, 34, 39, 41, 42, 44, 45, 46, 47, 49, 50 and 51

These items insert new clauses 186.212A, 186.312A, 187.212A, 187.312A, 401.212A, 401.312A, 402.231A, 402.312A, 420.212A, 420.312A, 457.223A, 457.324C and 488.222A in the relevant subclasses of Schedule 2 to the Regulations.

The new clauses insert an additional primary and, where relevant, secondary criterion to be satisfied for the grant of the following visas:

*      a Subclass 186 (Employer Nomination Scheme) visa;

*      a Subclass 187 (Regional Sponsored Migration Scheme) visa;

*      a Subclass 401 (Temporary Work (Long Stay Activity)) visa;

*      a Subclass 402 (Training and Research) visa in the Research stream;

*      a Subclass 420 (Temporary Work (Entertainment)) visa;

*      a Subclass 457 (Temporary Work (Skilled)) visa; and

*      a Subclass 488 (Superyacht Crew) visa.

 

The new criterion is that:

*      the Minister must be satisfied that the applicant has not, in the previous 3 years, engaged in conduct that constitutes a contravention of subsection 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Migration Act; or

*      if the Minister is satisfied that the applicant has engaged in such conduct in that period, the Minister considers it reasonable to disregard the conduct.

 

Subsections 245AR(1), 245AS(1), 245AT(1) and 245AU(1) were inserted in the Migration Act by the Charging for a Migration Outcome Act.  A person contravenes the subsections in the following circumstances:

*      subsection 245AR(1) is contravened by a person who asks for, or receives, a benefit from another person in return for the occurrence of a sponsorship-related event;

*      subsection 245AS(1) is contravened by a person who offers, or provides, a benefit to another person in return for the occurrence of a sponsorship-related event;

*      subsection 245AT is contravened by a person who is an executive officer of a body corporate that commits an offence under section 245AR, and the officer knew that, or was reckless or negligent as to whether, the offence would be committed, was in a position to influence the conduct of the body corporate in relation to the offence, and failed to take all reasonable steps to prevent the offence being committed; and

*      subsection 245AU is contravened by a person who is an executive officer of a body corporate that contravenes a civil penalty provision in section 245AR or 245AS, and the officer knew that, or was reckless or negligent as to whether, the contravention would occur, was in a position to influence the conduct of the body corporate in relation to the contravention, and failed to take all reasonable steps to prevent the contravention.

The meanings of benefit  and sponsorship-related event, as defined in section 245Q of the Migration Act for the purposes of subsections 245AR(1) and 245AS(1), are explained in the notes on the preceding items, above.

The effect of the new criterion is to prevent the grant of a relevant visa to a person who has engaged in conduct in the previous 3 years that contravenes these subsections, unless the Minister is satisfied that it is reasonable to disregard the conduct.  Circumstances under which it would be considered reasonable to disregard the conduct will be detailed in policy guidance.

Items 29, 31, 32, 35, 37 and 38

These items insert new subclauses 186.233(3A), 186.233(4A), 186.242(4A), 187.223(3A), 187.233(4A) and 187.242(4A) in the relevant subclasses of Schedule 2 to the Regulations.

The new clauses insert an additional primary criterion to be satisfied for the grant of the following visas:

 

*      a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition, Direct Entry and Agreement streams; and

*      a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition, Direct Entry and Agreement streams.

 

The new primary criterion provides that either no adverse information is known to the Department of Immigration and Border Protection about the person or employer, as relevant, who made the nomination or a person associated with that person or employer; or it is reasonable to disregard any adverse information known to the Department of Immigration and Border Protection about the person or employer who made the nomination or a person associated with that person or employer.

 

For the purposes of the new criterion, adverse information is defined in new regulation 1.13A - Meaning of adverse information, inserted in the Migration Regulations by Item 2 of this Regulation.  For further explanation, see the notes on Item 2, above.

 

The effect of this amendment is that a Subclass 186 or Subclass 187 visa cannot be granted if adverse information is known about the person or employer (or a person associated with that person or employer) who made the nomination of the position to which the visa application relates unless it is reasonable to disregard the information.  Adverse information includes information that the nominator has been found guilty of an offence under, or has to the satisfaction of a competent authority contravened, a law relating to immigration (see new paragraph 1.13A(2)(b)).  This includes (among other matters) an offence or contravention under Subdivision D of Division 12 of Part 2 of the Migration Act (Offences and civil penalties in relation to sponsored visas) which was inserted in the Migration Act by the Charging for a Migration Outcome Act, and relates to 'payment for visas' conduct.  Circumstances under which it would be reasonable to disregard such information will be detailed in policy guidance.

 

Items 30 and 36 - Subclauses 186.233(2)  and 187.233(2) of Schedule 2

These items omit the words "was the nominator in the application for approval" and substitutes the words "made the nomination" in subclauses 186.233(2) and 187.233(2) of Schedule 2 to the Migration Regulations. 

These amendments clarify were made because the term "nominator" is defined in regulation 1.03 with a meaning that is not appropriate in the context of Subclauses 186 and 187.  It is substituted with a reference to the person who made the nomination.  This wording aligns with that of new subclause 186.233(4A) inserted by Item 31, above, and new subclause 187.233(4A) inserted by Item 37, above, so that the wordings of clauses 186.233 and 187.233 are internally consistent.

Items 40 and 43

These items repeal the definitions of the terms adverse information and associated with from clauses 401.111 and 402.111 of Schedule 2 to the Regulations, respectively.

These amendments are consequential upon the definitions of adverse information and associated with being moved by this Regulation from subregulations 2.57(2) and 2.57(3), where they applied only in Part 2A (Sponsorship applicable to Division 3A of Part 2 of the Act) of the Regulations and individual subclasses where they were made to apply, to regulation 1.03 where they are defined by reference to new regulations 1.13A (Meaning of adverse information) and regulation 1.13B (Meaning of associated with) for the purposes of the whole of the Regulations, where ever the terms occur.  See Items 1, 2, 3 and 4 of Schedule 1 to this Regulation, above. 

Item 48 - Division 457.1 of Schedule 2

This item repeals Division 457.1 of Subclass 457 of Schedule 2 to the Regulations, and substitutes a new Division 457.1.   The effect of this amendment is to repeal the previous subclass-specific definitions of adverse information (subclause 457.111(1)) and associated with (subclause 457.111(3)).  The reasons for this amendment are explained in the notes on items 40 and 43, above.

New Division 457.1 retains a Note 1 referring to certain terms that are defined in the regulation 1.03.   In addition, a new Note 2 states that there are no interpretation provisions specific to Subclass 457.  

Item 52 - Schedule 13

This item inserts a new Part 51 - Amendments made by the Migration Amendment (Charging for a Migration Outcome and Other Measures) Regulation 2015 - in Schedule 13 to the Regulations.  Item 5101 (Operation of Schedule 1) provides for the following transitional arrangements for the amendments made by Schedule 1 to the Regulation:

 

*           the amendments made by Items 9 and 11 to 14 apply in relation to a nomination made after the commencement of those items;

*           the amendment made by Item 15 applies in relation to an application for approval of a nomination made after the commencement of the item;

*           the amendments made by Items 21 to 27 apply in relation to a visa made after commencement of those items; and

*           the amendments made by Items 28 to 39, 41, 42, 44, 47 and 49 to 51 apply in relation to:

(a)    an application for a visa made, but not finally determined, before the commencement of those items; and

(b)   an application for a visa made after the commencement of those items.