EXPLANATORY STATEMENT

 

 

Select Legislative Instrument 2007 No. 272

 

 

Issued by the Minister for Immigration and Citizenship

 

Migration Act 1958

 

Migration Amendment Regulations 2007 (No. 8)

 

 

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the
Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the 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 Act.

Paragraph 504(1)(b) of the Act provides that the regulations may make provision for the remission, refund or waiver of fees, which may be prescribed by the regulations or for exempting persons from payment of such fees.

 

The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to repeal the Subclass 471 (Trade Skills Training) visa and associated trade skills training sponsorships so that from the day these amendments commence:

·        persons will no longer be able to apply for or be granted a Subclass 471 (Trade Skills Training) visa; and

·        persons will no longer be able to apply to become or be approved as an approved trade skills training sponsor.

 

Subclass 471 (Trade Skills Training) visas granted and approved trade skills training sponsorships approved before the day these amendments commence will continue in effect.

The Subclass 471 (Trade Skills Training) visa was introduced in November 2005 as a pilot programme to help address trade skills shortages in regional Australia. The trial has performed well below expectations with only seven visas granted by 24 August 2007, which was far below the prediction of 750 visas in the first year. The Subclass 471 (Trade Skills Training) visa and sponsorships have therefore been terminated.

The Regulations also require the refund of the first instalment of the visa application charge paid in relation to Subclass 471 (Trade Skills Training) visa applications made but not finally determined before day these amendments commence.

The Regulations also include amendments that were sought to be made by the Migration Amendment Regulations 2007 (No. 7), but because of minor technical errors are inoperative.

Details of the Regulations are set out in the Attachment.

The Regulations commenced on 10 September 2007.

The Department of Education, Science and Training was consulted in relation to the Regulations.

 

The Office of Best Practice Regulation’s Business Compliance Cost and Competition Assessment Checklists were used to determine that there was no compliance cost to business or impact on competition.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

 

ATTACHMENT

 

 

Details of the Migration Amendment Regulations 2007 (No. 8)

Regulation 1 - Name of Regulations

 

This regulation provides that these Regulations are the Migration Amendment Regulations 2007 (No. 8).

Regulation 2 - Commencement

This regulation provides that these Regulations commence on 10 September 2007.

Regulation 3 – Amendment of Migration Regulations 1994

This regulation provides that Schedule 1 amends the Migration Regulations 1994.

Regulation 4 - Transitional

Subregulations 4(1) and 4(2) contain transitional provisions for the amendments in these Regulations that relate to trade skills training sponsors and sponsorship applications.

 

Subregulation 4(1) provides, in effect, that the amendments in these Regulations that relate to trade skills training sponsorships apply to all such sponsorship applications made on or after the regulations commence on 10 September 2007 and also to any sponsorship applications made but not finally determined before that date. This means that a person would not be able to apply for or be approved as a trade skills training sponsor from and including 10 September 2007.

 

Subregulation 4(2) provides, in effect, that the provisions omitted by these Regulations, which relate to trade skills training sponsorships, would continue to apply to existing and former trade skills training sponsors to the extent that they are applicable. This means that sponsors are obliged to continue to comply with their sponsorship undertakings and that their approval can be cancelled. However, to ensure there is no doubt, the provision specifies that existing regulations 1.20UK, 1.20UL and 1.20UM of the Principal Regulations will not continue to apply. This is because those regulations concern sponsorship applications, which will no longer be approved after 10 September 2007.

 

Subregulations 4(3) and 4(4) contain transitional provisions for the amendments in these Regulations that relate to trade skills training visa holders and visa applications.

 

Subregulation 4(3) provides, in effect, that the provisions omitted by these Regulations, which relate to trade skills training visas and visa applications, apply to all such applications made on or after the regulations commence on 10 September 2007 and also to any applications made but not finally determined before that date. This means that a person would not be able to apply for or be granted a trade skills training visa from 10 September 2007.

 

 

Subregulation 4(4) provides, in effect, that provisions omitted by these Regulations, which relate to trade skills training visa holders, would continue to apply to the extent that they are applicable. This means that the conditions, visa period and evidence requirements would continue to apply to trade skills training visa holders. However, to ensure there is no doubt, the provision specifies that Divisions 471.2, 471.3 and 471.4 of the Principal Regulations will not continue to apply. This is because these Divisions contain visa criteria and circumstances applicable to grant, which will no longer be applicable because trade skills training visas will not be granted from 10 September 2007.

 

Schedule 1 - Amendments relating to the Subclass 471 (Trade Skills Training) visa and trade skills training sponsorships

The effect of the amendments made by this Schedule is that on and from the day these amendments commence:

·        persons will no longer be able to apply for or be granted a Subclass 471 (Trade Skills Training) visa; and

·        persons will no longer be able to apply or be approved as an approved trade skills training sponsor.

 

The following commentary to the amendments in this Schedule should be read in conjunction with the commentary in regulation 4, which explains that, with some exceptions, the provisions repealed by these amendments continue to apply to Subclass 471 (Trade Skills Training) visa holders and approved sponsors or former sponsors of Subclass 471 (Trade Skills Training) visa holders.

 

Item [1] – Regulation 1.03, definition of approved trade skills training sponsor

 

This item omits the definition of approved trade skills training sponsor from regulation 1.03 of Part 1 to the Principal Regulations. However, the definition continues to apply to approved sponsors and former sponsors of Subclass 471 (Trade Skills Training) visa holders (see regulation 4 above).

 

Item [2] – Part 1, Division 1.4E

 

This item omits Division 1.4E of Part 1 to the Principal Regulations. Division 1.4E prescribed matters in relation to approved trade skills training sponsors, including the requirements for applying for approval; the criteria for approval; the terms of approval; sponsorship undertakings; and cancelling or barring approval.

 

However, Division 1.4E, except for regulations 1.20UK, 1.20UL and 1.20UM, continues to apply to existing sponsors and former sponsors of Subclass 471 (Trade Skills Training) visa holders (see regulation 4 above). This means that a sponsor is obliged to comply with their sponsorship undertakings and that their approval can be barred or cancelled.

 

 

 

 

Item [3] – Paragraph 2.07AO(3)(ma)

 

This item omits paragraph 2.07AO(3)(ma) from the Principal Regulations. Paragraph 2.07AO(3)(ma) provided that, by operation of subsection 46(2) of the Act, certain non-citizens in the circumstances set out in subregulation 2.07AO(2), could make a valid application for a Subclass 471 (Trade Skills Training) visa.

 

Item [4] – Subparagraph 2.12F(2)(d)(ii)

 

This item inserts a semi-colon at the end of subparagraph 2.12F(2)(d)(ii) in Part 2 of the Principal Regulations, consequential upon the insertion of new paragraph 2.12F(2)(e) by item [5] of this Schedule (below).

 

Item [5] – After paragraph 2.12F(2)(d)

 

This item inserts new paragraph 2.12F(2)(e) after paragraph 2.12F(2)(d). The effect of new paragraph 2.12F(2)(e) is that, subject to the requirements of subregulation 2.12F(1)(b), the Minister must refund the first instalment of the visa application charge in relation to a Subclass 471 (Trade Skills Training) visa application made but not finally determined before 10 September 2007.

 

A similar provision is not being inserted into the Principal Regulations in respect of sponsorship fees for an application for approval as an approved trade skills training sponsor. However these fees will be refunded in accordance with the law of restitution to the following people:

·        persons whose application for approval as an approved trade skills training sponsor is not finally determined when these amendments commence on 10 September 2007; and

·        approved sponsors who are not the sponsor of a Subclass 471 (Trade Skills Training) visa holder.

 

Item [6] – Paragraph 2.43(1)(lb)

This item omits paragraph 2.43(1)(lb) in Part 2 of the Principal Regulations. Paragraph 2.43(1)(lb) was a prescribed ground under paragraph 116(1)(g) of the Act, under which the Minister had the discretion to cancel a Subclass 471 (Trade Skills Training) visa.

However, paragraph 2.43(1)(lb) continues to operate in respect of Subclass 471 (Trade Skills Training) visas granted before the day these amendments commence (see subitem 4(4) above).

Item [7] – Subregulation 4.02 (1B)

This item omits subregulation 4.02(1B) in Part 4 of the Principal Regulations.

Subregulation 4.02(1B) prescribed certain decisions to refuse to grant a Subclass 471 (Trade Skills Training) visa as decisions reviewable by the Migration Review Tribunal (MRT) for the purposes of paragraph 338(2)(d) of the Act.

 

 

 

Item [8] – Paragraph 4.02(4)(ga)

 

This item omits paragraph 4.02(4)(ga) in Part 4 of the Principal Regulations. Paragraph 4.02(4)(ga) prescribed a decision to refuse an application for approval as an approved trade skills training sponsor as an MRT-reviewable decision, in accordance with subsection 338(9) of the Act.

 

Item [9] – Paragraph 4.02(4)(ha)

 

This item omits paragraph 4.02(4)(ha) in Part 4 of the Principal Regulations.

Paragraph 4.02(4)(ha) prescribed a decision to cancel or bar approval as an approved trade skills sponsor as an MRT-reviewable decision, in accordance with subsection 338(9) of the Act.

 

However, paragraph 4.02(4)(ha) continues to apply in respect of the sponsor or former sponsor of a Subclass 471(Trade Skills Training) visa holder (see regulation 4(2)).

 

Item [10] – Sub-subparagraph 4.02(4)(l)(ii)(E)

 

This item inserts a full stop at the end of sub-subparagraph 4.02(4)(l)(ii)(E) in Part 4 of the Principal Regulations, consequential upon the omission of paragraph 4.02(4)(m) by item [11] of this Schedule (below).

 

Item [11] – Paragraph 4.02(4)(m)

This item omits paragraph 4.02(4)(m) in Part 4 of the Principal Regulations. Paragraph 4.02(4)(m) prescribed a decision to refuse the grant of a Subclass 471 (Trade Skills Training) visa as a MRT-reviewable decision, in accordance with subsection 338(9) of the Act.

Item [12] – Paragraph 4.02(5)(fa)

This item omits paragraph 4.02(5)(fa) in Part 4 of the Principal Regulations. Paragraph 4.02(5)(fa) prescribed, for the purposes of paragraph 347(2)(d) of the Act, that an application for review of a decision prescribed in paragraph 4.02(4)(ga) (omitted from the Principal Regulations by item [8] of this Schedule (above)) may be made only by the applicant for approval as an approved trades skills training sponsor.

Item [13] – Paragraph 4.02(5)(ga)

 

This item omits paragraph 4.02(5)(ga) in Part 4 of the Principal Regulations. Paragraph 4.02(5)(ga) prescribed, for the purposes of paragraph 347(2)(d) of the Act, that an application for review of a decision prescribed in paragraph 4.02(4)(ha) (omitted from the Principal Regulations by item [9] of this Schedule (above)) may be made only by the sponsor or former sponsor.

 

However, paragraph 4.02(5)(ga) continues to apply in relation to the sponsor or former sponsor of a Subclass 471 (Trade Skills Training) visa holder (see regulation 4 above).

 

 

 

Item [14] – Paragraph 4.02(5)(k)

This item inserts a full stop at the end of paragraph 4.02(5)(k) in Part 4 of the Principal Regulations, consequential to the omission of paragraph 4.02(5)(l) by item [15] of this Schedule (below).

 

Item [15] – Paragraph 4.02(5)(l)

This item omits paragraph 4.02(5)(l) in Part 4 of the Principal Regulations. Paragraph 4.02(5)(l) prescribed, for the purposes of paragraph 347(2)(d) of the Act, that an application for review of a decision prescribed in paragraph 4.02(4)(m) (omitted from the Principal Regulations by item [11] of this Schedule (above)) must be made by the sponsor.

Item [16] Schedule 1, subitems 1220B(1), (2) and (2A)

 

This item substitutes subitems 1220B(1) and (2) and (2A) in Part 2 of Schedule 1 to the Principal Regulations with new subitems 1220B(1) and (2).

 

The effect of this amendment is to retain the existing requirements for a Subclass 470 (Professional Development) visa application and remove the requirements for a Subclass 471 (Trade Skills Training) visa application, which are no longer necessary.

 

Item [17] – Schedule 1, paragraphs 1220B(3)(d) to (h)

This item omits paragraphs 1220B(3)(d), (e), (f), (g) and (h) in subitem 1220B(3) of Part 2 of Schedule 1 to the Principal Regulations.

The removed paragraphs in subitem 1220(3) prescribed requirements for making a valid application for a Subclass 471 (Trade Skills Training) visa, which are no longer necessary.

 

Item [18] – Schedule 1, subitem 1220B(4)

This item substitutes subitem 1220B(4) in Part 2 of Schedule 1 to the Principal Regulations with new subitem 1220B(4).

 

New subitem 1220B(4) provides that the only subclass in the Sponsored Training (Temporary)(Class UV) visa class is the Subclass 470 (Professional Development). The amendment removes the Subclass 471 (Trade Skills Training) visa from the Class UV visa class.

 

Item [19] – Schedule 1, subitem 1301(1)

 

This item substitutes existing subitem 1301(1) of item 1301 (Bridging A (Class WA)) of Part 3 (Bridging Visas) of Schedule 1 to the Principal Regulations, with new subitem 1301(1).

 

The effect of this amendment is to omit form 1261 (application for a Trade Skills Training visa (subclass 471)) from the subitem so that it can no longer be used to make an application for a Bridging A (Class WA) visa.

 

The amendment also makes application forms 1276 and 1276 (Internet), used to make an application for a General Skilled Migration visa, application forms for a Bridging A (Class WA) visa. The Migration Amendment Regulations 2007 (No. 7), made on 22 August 2007, sought to insert forms 1276 and 1276 (Internet) in the subitem but because the amendment was misstated it does not have effect. This amendment corrects the error.

 

Item [20] – Schedule 1, subitem 1303(1)

 

This item substitutes existing subitem 1303(1) of item 1303 (Bridging C (Class WC)) of Part 3 (Bridging Visas) of Schedule 1 to the Principal Regulations with new subitem 1303(1).

 

The effect of this amendment is to omit form 1261 (application for a Trade Skills Training visa (subclass 471)) from the subitem so that it can no longer be used to make an application for a Bridging C (Class WC) visa.

 

The amendment also makes application forms 1276 and 1276 (Internet), used to make an application for a General Skilled Migration visa, application forms for a Bridging C (Class WC) visa. The Migration Amendment Regulations 2007 (No. 7), made on 22 August 2007, sought to insert forms 1276 and 1276 (Internet) in the subitem but because the amendment was misstated it does not have effect. This amendment corrects the error.

 

Item [21] – Schedule 1, subitem 1305(1)

 

This item substitutes existing subitem 1305(1) of item 1305 (Bridging E (Class WE)) of Part 3 (Bridging Visas) of Schedule 1 to the Principal Regulations with new subitem 1305(1).

 

The effect of this amendment is to omit form 1261 (application for a Trade Skills Training visa (subclass 471)) from the subitem so that it can longer be used to make an application for a Bridging E (Class WE) visa.

 

The amendment also makes application forms 1276 and 1276 (Internet), used to make an application for a General Skilled Migration visa, application forms for a Bridging E (Class WE) visa. The Migration Amendment Regulations 2007 (No. 7 ), made on 22 August 2007, sought to insert forms 1276 and 1276 (Internet) (Internet) in the subitem but because the amendment was misstated it does not have effect. This amendment corrects the error.

 

Item [22] – Schedule 2, Part 471

 

This item omits Part 471 from Schedule 2 to the Principal Regulations.

 

Part 471 set out the criteria that an applicant for a Subclass 471 (Trade Skills Training) visa was required to meet in order to be granted a Subclass 471 (Trade Skills Training) visa. Part 471 also set out the conditions, visa period and requirements for evidencing a Subclass 471(Trade Skills Training) visa.

 

However, Divisions 471.1, 471.5, 471.6 and 471.7 of Part 471 continue to apply to a Subclass 471 (Trade Skills Training) visa holder (see regulation 4 above). The effect of this includes that the conditions, visa period and evidence requirements continue to apply to a Subclass 471 (Trade Skills Training) visa holder.

 

 

 

Item [23] – Schedule 8, clauses 8544, 8545 and 8546

 

This item omits the visa conditions in clauses 8544, 8545 and 8546 from Schedule 8 to the Principal Regulations. Conditions 8455, 8545 and 8546 were mandatory conditions imposed on a Subclass 471 (Trade Skills Training) visa granted to an applicant who satisfied primary criteria.

 

However, conditions 8544, 8545 and 8546 continue to apply to a Subclass 471 (Trade Skills Training) visa granted before the commencement of these amendments, where applicable (see regulation 4 above).