Technical amendments to Migration Regulations 1994 following implementation of the worker protection reforms

Commencement: 27 March 2010

Client summary

On 14 September 2009, the Migration Regulations 1994 ('the Regulations') were amended by the Migration Amendment Regulations 2009 (No.5) ('Worker Protection regulations') to give effect to worker protection reforms, including reforms under the Subclass 457 Business (Long Stay) visa program.

From 27 March 2010, a number of consequential regulation amendments are being made to correct minor grammatical or typographical errors, and to make other clarifying technical amendments detailed below.

Affected legislation

The following provisions of the Regulations are amended:

Subparagraph 2.43(1)(l)(ii) – substituted
Subregulation 2.57(1), definition of secondary sponsored person – amended
Paragraph 2.59(b)(ii) – amended
Paragraph 2.59(e) – amended
Paragraph 2.68(h) – amended
Paragraph 2.69(1)(c) – substituted
Sub-subparagraphs 2.72(10)(d)(ii)(B) and 2.72(10)(d)(iii)(B) – amended
Subregulation 2.72A(3) – amended
Paragraph 2.72G(7)(a) – amended
Subparagraph 2.73(6)(c)(ii) – amended
Subregulation 2.80(1) – amended
Paragraph 2.80(3)(b) – amended
Paragraph 2.84(8)(a) – amended
Subregulation 2.86(2) – substituted
Subregulation 2.86(2A) – amended
Subparagraph 5.19(1C)(a)(iii) – amended
Sub-sub-subparagraphs 1205(3)(cb)(ii)(D)(I) and (II) – amended
Subparagraph 1207(3)(ba)(i) – amended
Subparagraphs 1208(3)(bb)(i) and 1208(3)(bc)(i) – amended
Subparagraph 1223A(1)(bb)(ii) – substituted
Clause 411.322A – amended
Clause 411.322AB – inserted
Clause 415.322 – substituted
Clause 416.311A – amended
Clause 416.311B – inserted
Clause 419.321A – amended
Clause 419.321B – inserted
Clause 420.322 – substituted
Clause 421.322 – substituted
Clause 423.322 – substituted
Clause 427.322 – substituted
Clause 428.229 – omitted
Clause 428.322 – substituted
Clause 442.321A – relocated and amended
Clause 442.321B – inserted
Clause 457.223B – amended
Clause 457.324D – amended
Subclause 457.611(3) – amended
Subclause 8107(3) – substituted.

Additional information

The amendments to the Regulations are made to:

ensure that discretionary cancellation of a Subclass 457 Business (Long Stay) visa is possible where the visa holder's sponsor has provided false or misleading information to Immigration or the Migration Review Tribunal, regardless of the circumstances or the reasons for which that false or misleading information was provided;
clarify an approved sponsor's obligation in relation to the employment of a Subclass 457 Business (Long Stay) visa holder, by specifying that the sponsor must ensure the Subclass 457 Business (Long Stay) visa holder in their employ:
- only works in the occupation or the activity nominated by the sponsor and approved by the Minister, irrespective of whether the occupation or activity was nominated under the Regulations as in force before or after commencement of the Worker Protection regulations, and irrespective of whether the occupation or activity was approved by the Minister under the Regulations as in force before or after commencement of the Worker Protection regulations; and
- only works as an employee of the sponsor, or if the sponsor is a standard business sponsor or a former standard business sponsor who lawfully operates a business in Australia – as an employee of an associated entity of the sponsor;
clarify that an application for a Subclass 457 Business (Long Stay) visa may only be lodged online by a secondary applicant who is in Australia (and who is not making a combined application with the primary applicant) if they hold a substantive visa at the time of application;
clarify that instead of requiring an applicant for a Subclass 457 Business (Long Stay) visa to provide evidence of adequate arrangements in Australia for health insurance, all that is required is that the Minister is satisfied the applicant has adequate arrangements in Australia for health insurance;
ensure that employer nominated positions for permanent visas cannot be approved if the employer is the subject of administrative sanctions, irrespective of whether the sanctions were imposed under the Regulations as in force before or after commencement of the Worker Protection regulations;
clarify the work limitations imposed by condition 8107 in relation to a holder of a Subclass 457 Business (Long Stay) visa, by specifying that:
- if the visa was granted to the visa holder under any one of the service sellers, privileges and immunities, or Invest Australia Supported Skills (IASS) agreement streams, then the visa holder must only work in the occupation or position in relation to which the visa was granted; and
- if the visa was granted to the visa holder under standard business sponsorship or labour agreement streams, then unless the visa holder's occupation is an 'exempt occupation' listed in a legislative instrument, the visa holder must work only for the sponsor who nominated them in the most recently approved nomination, or if the sponsor is a standard business sponsor or a former standard business sponsor who lawfully operates a business in Australia, an associated entity of the sponsor; and
- if the visa holder's occupation is an 'exempt occupation' listed in a legislative instrument, the visa holder must still work only in the occupation which was approved in relation to them, even though the visa holder is not restricted to working for their sponsor (or an associated entity of their sponsor if their sponsor is a standard business sponsor or a former standard business sponsor who lawfully operates a business in Australia);
remove condition 8403 from the list of discretionary visa conditions which may be imposed on a Subclass 457 Business (Long Stay) visa, because the condition (which requires the visa holder to visit an office of DIAC within a specified time to have evidence of the visa placed in their passport) is redundant;
clarify the transitional arrangements for the sponsorship requirements that must be met by secondary applicants for specialist entry visas, namely:
- Subclass 411 (Exchange)
- Subclass 415 (Foreign Government Agency)
- Subclass 416 (Special Program)
- Subclass 419 (Visiting Academic)
- Subclass 420 (Entertainment)
- Subclass 421 (Sport)
- Subclass 423 (Media and Film Staff)
- Subclass 427 (Domestic Worker (Temporary) – Executive)
- Subclass 428 (Domestic Worker (Temporary) – Diplomatic or Consular)
- Subclass 442 (Occupational Trainee); and
make various technical amendments in relation to the Subclass 457 Business (Long Stay) visa and specialist entry visas, particularly to correct minor grammatical and stylistic errors in the Regulations.

Transitional provisions

Amendment to subparagraph 2.43(1)(l)(ii) applies to Subclass 457 (Business (Long Stay)) visas where a decision in respect of which a notice of proposed cancellation under section 119 of the Migration Act 1958 was issued on or after 27 March 2010.

Amendment to subregulation 2.86(2) applies to all existing sponsors as well as sponsors who are approved on or after 27 March 2010.

Amendment to subregulation 2.86(2A) applies to all sponsors approved on or after 14 September 2009.

Amendment to subparagraph 5.19(1C)(a)(iii) applies to an application for approval of a nominated position:

made, but not finally determined, before 27 March 2010; and
made on or after 27 March 2010.

Amendment to subparagraph 1223A(1)(bb)(ii) applies to an application for a visa made on or after 27 March 2010.

Amendments relating to Schedule 2 to the Regulations apply to an application for a visa:

made, but not finally determined, before 27 March 2010; and
made on or after 27 March 2010.

Amendment to subclause 8107(3) applies to an application for a visa:

made, but not finally determined, before 27 March 2010; and
made on or after 27 March 2010.

No specific transitional provisions exist for the other amendments.

Forms

Forms 1099 and 1111 will be amended.

Instructions

PAM3 will be amended to reflect these changes as soon as possible.

Departmental Information