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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (VISA CAPPING) BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration and Citizenship,
Senator the Hon. Chris Evans)
MIGRATION AMENDMENT (VISA CAPPING) BILL 2010
OUTLINE
The Migration Amendment (Visa Capping) Bill 2010 (the "Bill") amends the
Migration Act 1958 (the "Act") to enable the Minister for Immigration and
Citizenship (the "Minister") to cap visa grants and terminate visa
applications based on the class or classes of applicant applying for the
visa.
In particular, the Bill will enable the Minister to make a legislative
instrument to determine the maximum number of visas of a specified class or
classes that may be granted in a financial year to visa applicants with
specified characteristics, and treat outstanding applications for the
capped visa as never having been made.
The proposed amendments are intended to address issues relating to the
General Skilled Migration (GSM) visa program. A shift in Australia's
skilled migration program from demand-driven to supply-driven has created a
situation where there is greater demand for GSM visas than there are places
available in the program. There has also been a noticeable skew of GSM
applicants who nominate certain occupations, making it increasingly
difficult for the GSM program to deliver the broad range of skills the
Australian economy requires. The proposed amendments will address these
issues by allowing for effective and targeted management of the GSM
program.
In addition, a large number of GSM visa applications (approximately 146
000), including applications made by both primary and secondary applicants,
remain unfinalised. In some cases, the number of applicants for a GSM visa
significantly exceeds the number of places available in the migration
program each financial year. The number of places available in the
migration program are set by government. To ensure that applicants are not
waiting for long periods of time for their application to be finalised, the
proposed amendments will allow visa applications to be terminated and the
relevant visa application charge to be refunded to the applicant.
While the proposed amendments will address issues that have arisen in
relation to the GSM visa program, the mechanism for capping and terminating
visa applications and ceasing visas that is introduced by the proposed
amendments could apply to all visa classes, subclasses or streams within a
subclass. The purpose of providing a mechanism which is not limited to GSM
is to provide the government with a tool for the targeted management of all
aspects of the migration program which will be available as the need
arises.
The Bill also includes consequential amendments to ensure that, where a
bridging visa or a temporary visa would have ceased when a related
substantive visa application has been either granted or refused, a bridging
visa or temporary visa will also cease to be in effect if a substantive
visa application is taken not to have been made due to a cap on visas.
FINANCIAL IMPACT STATEMENT
The financial impact of these amendments is low. Costs of implementation
will be met from within existing resources. Should the Minister decide to
use these powers additional costs may be incurred on consolidated revenue
where visa application charges for certain visa applications need to be
refunded.
MIGRATION AMENDMENT (VISA CAPPING) BILL 2010
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short title
Clause 1 provides that the short title by which this Act may be cited is
the Migration Amendment (Visa Capping) Act 2010.
Clause 2 Commencement
Subclause 2(1) provides that each provision of this Act 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.
Table item 1 provides that sections 1 to 3 and anything in this Act not
elsewhere covered by this table will commence on the day this Act receives
the Royal Assent.
Table item 2 provides that Schedule 1 to this Act commences on a single day
to be fixed by Proclamation. However, if any of the provision(s) do not
commence within the period of 6 months beginning on the day this Act
receives the Royal Assent, they commence on the day after the end of that
period.
An explanatory note is included at the end of this table to assist the
reader. It advises that the table relates only to the provisions of this
Act as originally passed by both Houses of the Parliament and assented to.
It advises that the table will not be expanded to deal with provisions
inserted in this Act after assent.
Subclause 2(2) provides that column 3 of the table contains additional
information that is not part of this Act. It also specifies that
information in this column may be added to or edited in any published
version of this Act.
Clause 3 Schedule(s)
Clause 3 provides each Act that is specified in a Schedule to this Act is
amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect
according to its terms.
SCHEDULE 1 - Amendments
Migration Act 1958
Item 1 Section 39
This item repeals section 39 of Division 3 of Part 2 of the Act.
Subsection 39(1) of the Act currently provides broadly that a prescribed
criterion for visas of a class, other than protection visas, may be the
criterion that the grant of the visa would not cause the number of visas of
that class granted in a particular financial year to exceed the maximum
number of such visas fixed by the Minister in a legislative instrument.
Subsection 39(2) provides broadly that where the grant of a visa is
prevented by such a prescribed criterion, any outstanding applications in
that year for visas of that class are taken not to have been made.
Section 39 of the Act is repealed because it is replaced by new section
91AA and new section 91AB inserted by item 8 of this Schedule.
Item 2 Paragraph 46(1)(d)
This item inserts "91AB (effect of visa cap)," after "protection visa),"
in paragraph 46(1)(d) of Division 3 of Part 2 of the Act.
Subsection 46(1) provides for the circumstances in which an application for
a visa will be valid. Paragraph 46(1)(d) provides that an application for
a visa will be valid only if it is not prevented by various provisions of
the Act listed in that paragraph. The effect of this amendment is to
provide that an application for a visa will be valid only if it is not
prevented by new section 91AB (effect of visa cap), which is inserted by
item 8 of this Schedule.
This item makes it clear that the effect of new subsection 91AB(4), which
prevents applications for a visa where the maximum number of those visas
that can be granted in a financial year has been reached, is that an
application that is prevented by that subsection is invalid.
Item 3 Paragraph 47(2)(c)
This item omits "section 39 (limiting number of visas) or 84 (suspension of
consideration)" from paragraph 47(2)(c) of Division 3 of Part 2 of the Act
and substitutes "section 84 (suspension of consideration) or 91AB (effect
of visa cap)".
Subsection 47(2) currently provides that the requirement to consider a
valid application for a visa at subsection 47(1) of the Act continues until
the application is withdrawn, or the Minister grants or refuses to grant
the visa, or the further consideration is prevented by section 39 (limiting
number of visas) or 84 (suspension of consideration).
This item removes the reference to section 39 of the Act because this
section is repealed by item 1 of this Schedule.
This item also inserts a reference to new section 91AB (effect of visa cap)
which is inserted by item 8 of this Schedule and, together with new section
91AA inserted by the same item, replaces section 39 of the Act. The effect
of this item is that the requirement to consider a valid application for a
visa continues until the further consideration is prevented by new section
91AB.
Item 4 Subsection 63(1)
This item omits "39 (criterion limiting number of visas)," from subsection
63(1) of Division 3 of Part 2 of the Act.
Subsection 63(1) currently provides that subject to a number of provisions,
including section 39 (criterion limiting number of visas), the Minister may
grant or refuse to grant a visa at any time after the application has been
made.
The purpose of this item is to remove the reference to section 39 of the
Act because this section is repealed by item 1 of this Schedule.
Item 5 Subsection 63(1)
This item inserts ", 91AB (effect of visa cap)" after "on visas)" in
subsection 63(1) of Division 3 of Part 2 of the Act.
Subsection 63(1) currently provides that subject to a number of provisions,
including section 39 (criterion limiting number of visas), the Minister may
grant or refuse to grant a visa at any time after the application has been
made.
The purpose of this item is to insert a reference to new section 91AB
(effect of visa cap) which is inserted by item 8 of this Schedule and,
together with new section 91AA inserted by the same item, replaces section
39 of the Act. The effect of this item is that new section 91AB of the Act
limits the ability of the Minister to grant or refuse to grant a visa at
any time after the application has been made.
Item 6 Subsection 82(9)
This item inserts "91AC," after "sections" in subsection 82(9) of Division
3 of Part 2 of the Act.
Section 82 provides the circumstances in which visas cease to be in effect.
Subsection 82(9) currently provides that section 82 does not affect the
operation of other provisions of the Act under which a visa ceases to be in
effect.
The purpose of this item is to add new section 91AC, which is inserted by
item 8 of this Schedule, as an example of a section which is not affected
by section 82. New section 91AC provides broadly for the ceasing of a
bridging visa or a temporary visa where the person's application for a visa
is taken not to have been made because they had applied for a visa of a
class that has been capped.
Item 7 Paragraph 86(a)
This item inserts "under section 85" after "determination" in paragraph
86(a) of Division 3 of Part 2 of the Act.
Section 86 currently provides that if there is a determination of the
maximum number of visas of a class or classes that may be granted in a
financial year, and the number of visas of the class or classes granted in
the year reaches that maximum number, no more visas of the class or classes
may be granted in the year. Section 86, together with section 85 of the
Act, provides for the number of visas of a specified class or classes that
may be granted in a financial year to be capped, with outstanding
applications queued until the next financial year.
The purpose of this amendment is to clarify that section 86 relates only to
a determination made under section 85 of the Act. It does not apply to a
determination made under new section 91AA of the Act, which is inserted by
item 8 of this Schedule.
Item 8 After Subdivision AH of Division 3 of Part 2
This item inserts new Subdivision AHA "Visa capping" after Subdivision AH
of Division 3 of Part 2 of the Act.
The purpose of new Subdivision AHA is to allow for the Minister to cap the
number of visas of a specified class or specified classes that may be
granted in a financial year to a specified class or specified classes of
applicants, with the consequence that outstanding applications made by
applicants who are affected by the cap are taken not to have been made. In
addition, certain bridging visas and temporary visas held by those
applicants would cease to be in effect.
New Subdivision AHA includes new sections 91AA, 91AB and 91AC.
Section 91AA - Capping the number of visas that may be granted in a
financial year
New section 91AA introduces the power for the Minister to cap the number of
visas that may be granted in a financial year.
New subsection 91AA(1) provides that the Minister may, by legislative
instrument, determine the maximum number of visas of a specified class or
specified classes that may be granted in a specified financial year to
applicants who are included in a specified class, or specified classes, of
applicants.
New subsection 91AA(2) provides that new subsection 91AA(1) does not apply
to protection visas.
New section 91AA, together with new section 91AB, replaces subsection 39(1)
of the Act, which is repealed by item 1 of this Schedule. New section 91AA
differs from current subsection 39(1) of the Act in that it allows the
Minister to cap the number of visas that may be granted in a financial year
by reference both to the class or classes of visas and the class or classes
of applicants. Current subsection 39(1) of the Act only allows the
Minister to cap the number of visas that may be granted in a financial year
by reference to the class of visa.
The intention of new section 91AA is that the Minister may cap the number
of visas of a particular visa class, a visa subclass, or a stream within a
visa subclass, that may be granted in a financial year. The Minister may,
by legislative instrument, determine that the cap applies only to
applicants with certain characteristics, or whose application has certain
characteristics. These characteristics may include, but are not limited
to, the occupation nominated by the applicant who seeks to satisfy the
primary criteria for the grant of the visa, or the date of the application
(which may include a date in the past). The characteristics will be
objective and will relate to information that is provided to the Department
when an application for a visa is made.
It is intended that the Minister may use a combination of characteristics
when setting the maximum number of visas that may be granted in a financial
year. For example, the Minister may determine the maximum number of visas
of a certain class that may be granted in a financial year on the basis of
the skilled occupation nominated by the applicant, the period during which
the applicant made the application, and the subclass for which the
applicant is seeking to satisfy the primary criteria.
The purpose of this provision, together with new section 91AB, is to
provide maximum flexibility to enable the government to effectively target
and manage the migration program.
Both current subsection 39(1) and new subsection 91AA(2) provide that the
Minister cannot cap the number of protection visas that may be granted in a
financial year.
Section 91AB - Effect of visa cap
New section 91AB provides for the effect of a visa cap where a
determination has been made under new section 91AA.
New section 91AB, together with new section 91AA, replaces subsection 39(1)
of the Act, which is repealed by item 1 of this Schedule. New section 91AB
differs from current subsection 39(1) of the Act in that it prevents the
grant of a visa if the Minister determines, by legislative instrument, the
maximum number of visas of a specified class or classes that may be granted
in a financial year to particular applicants. By contrast, current
subsection 39(1) of the Act does not prevent the grant of a visa unless a
criterion relating to the maximum number of visas that may be granted is
prescribed in the regulations for that visa.
New subsection 91AB(1) provides that section 91AB applies if:
. a determination has been made under new section 91AA of the
maximum number of visas of a particular class (the "capped
visa") that may be granted in a financial year to applicants
(the "affected applicants") who are included in a specified
class, or specified classes, of applicants; and
. the number of capped visas that have been granted in the
financial year to affected applicants reaches that maximum
number.
New subsection 91AB(2) provides that no more capped visas may be granted in
the financial year to an "affected applicant" or to any person who applied
for the capped visa on the ground that the person is a member of the family
unit of an "affected applicant".
New subsection 91AB(2) also ensures that applications for a class of visa
that have been capped are only prevented if they are made by an "affected
applicant", or a person who applies for the visa on the ground that they
are the member of the family unit of an "affected applicant".
The intention is that new subsection 91AB(2) will prevent the grant of a
visa to an applicant only if:
. the applicant is an "affected applicant" or a person who has
applied for the visa on the ground that they are the member of
the family unit of an "affected applicant"; and
. the applicant can satisfy the criteria for the visa only on the
basis of the capped visa class, subclass, or stream within that
subclass (where the cap is imposed in relation to a visa
subclass or stream rather than the visa class).
New subsection 91AB(3) provides that any outstanding applications for a
capped visa made by an "affected applicant", or any person who applied for
the capped visa on the ground that the person is a member of the family
unit of an "affected applicant", are taken not to have been made.
New subsection 91AB(3) replaces part of current subsection 39(2) of the
Act, which is repealed by item 1 of this Schedule. New subsection 91AB(3)
is substantially the same as current subsection 39(2), except that it
ensures that outstanding applications for a class of visa that has been
capped are taken not to have been made only if made by an "affected
applicant", or a person who applies for a visa on the ground that they are
the member of the family unit of an "affected applicant".
A person who applies for a visa on the ground that they are the member of
the family unit of a person seeking to satisfy the primary criteria for a
visa (the "primary applicant") cannot be granted a visa unless the primary
applicant is granted the visa. Therefore, the intention is that where an
application made by an "affected applicant" is taken not to have been made,
any application made by a person who applied for the same visa on the
ground that they are the member of the family unit of the "affected
applicant" is also taken not to have been made. This is the case
regardless of whether the application is made by the member of the family
unit at the same time as the "affected applicant", or at a later point in
time. This avoids the need to refuse the application made by the member of
the family unit, which would not be appropriate.
New subsection 91AB(4) provides that no more applications for a capped visa
may be made in the financial year by:
. a person who would be included in the specified class, or
specified classes, of applicants if the person were an applicant
for the capped visa; or
. a person who applies for the capped visa on the ground that the
person is a member of the family unit of such a person.
The purpose of this provision is to prevent applications that would be
futile because the maximum number of visas of a certain class granted to
applicants with certain characteristics has already been reached in the
financial year. It would be illogical to allow a person to make a valid
application for a visa (including paying the relevant visa application
charge) in that financial year in those circumstances.
New subsection 91AB(5) provides that new section 91AB does not prevent the
grant of a capped visa to a person who applies for the visa on the ground
that the person is a member of the family unit of the holder of a capped
visa.
The purpose of this provision is to ensure that, if the primary applicant
has been granted a capped visa, any person who applies for the same visa on
the ground that they are the member of the family unit of the primary
applicant may also be granted the visa, regardless of the cap. This will
ensure that families are not split in situations where a primary applicant
has been granted a visa before the cap is reached, but all members of the
family unit of that primary applicant are not granted a visa before the cap
is reached.
Section 91AC - Consequences if a person's visa application is taken not to
have been made
New section 91AC provides for the consequences if a person's visa
application is taken not to have been made under new subsection 91AB(3) of
the Act.
New subsection 91AC(1) provides that section 91AC applies if a person's
application for a visa (the "capped visa") is taken not to have been made
under new subsection 91AB(3).
New subsection 91AC(2) provides that if the person holds a bridging visa
because the person had applied for the capped visa, the bridging visa
ceases to be in effect 28 days, or such longer period prescribed by the
regulations, after:
. if the regulations prescribe an event for the purposes of paragraph
91AC(2)(a) - the day on which the event occurs; or
. otherwise - the day on which the person is notified that the person's
application is taken not to have been made.
The purpose of this provision is to ensure that a bridging visa that has
been granted to provide lawful status to a person who has applied for a
substantive visa, will cease to be in effect if the person's substantive
visa application is taken not to have been made because a cap has been
imposed. This provision is necessary because there is currently no
provision in the Act or the Migration Regulations 1994 (the Regulations)
which provides for a bridging visa to cease to be in effect when an
application is taken not to have been made. It is not possible to amend
the Regulations to include a further ceasing event for a bridging visa that
has already been granted.
The 28 day period for ceasing a bridging visa is consistent with the
timeframe in relation to existing bridging visa ceasing events (the
majority of which are set out in the Regulations). However, flexibility is
retained to prescribe a longer period of time, or different ceasing event,
in the Regulations if appropriate in the future, for example, to maintain
consistency across the bridging visa regime if the Regulations are amended
to provide for a different timeframe for existing bridging visa ceasing
events.
New subsection 91AC(3) provides that if:
. the person holds a temporary visa; and
. assuming that the application for the capped visa had been
decided, the temporary visa would, apart from this subsection,
have ceased to be in effect when the person was notified of that
decision;
the temporary visa ceases to be in effect 28 days, or such longer
period prescribed by the regulations, after:
. if the regulations prescribe an event for the purposes of
paragraph 91AC(3)(c) - the day on which the event occurs; or
. otherwise - the day on which the person is notified that the
person's application is taken not to have been made.
The purpose of this provision is to ensure that a temporary visa that has
been granted to the applicant while their permanent visa application is
being processed, will cease to be in effect if the person's permanent visa
application is taken not to have been made because a cap has been imposed.
This will only apply in relation to a temporary visa that has a ceasing
event linked to the grant or refusal of the permanent visa application.
This provision is necessary because there is currently no provision in the
Act or the Regulations which provides for such a temporary visa to cease to
be in effect when an application for the linked permanent visa is taken not
to have been made. It is not possible to amend the Regulations to include
a further ceasing event for a temporary visa that has already been granted.
The 28 day period for ceasing such a temporary visa is consistent with the
timeframe for similar situations such as the ceasing of bridging visas.
However, flexibility is retained to prescribe a longer period of time, or
different ceasing event, in the Regulations if appropriate in the future.
Item 9 Application - subsections 91AC(2) and (3) of the Migration
Act 1958
This item provides for the application of subsections 91AC(2) and 91AC(3)
of the Act as inserted by this Schedule.
Subitem 9(1) provides that subsection 91AC(2) of the Act, as inserted by
this Schedule, applies in relation to a bridging visa that was granted
before or after the commencement of this item.
This application provision ensures that new subsection 91AC(2), which
provides for a bridging visa to cease to be in effect a certain period of
time after an application for a substantive visa is taken not to have been
made, applies to bridging visas granted before or after the commencement of
this item. The reason for applying the provision to bridging visas granted
before commencement is to avoid a situation where a bridging visa granted
in relation to a substantive visa application that is taken not to have
been made, never ceases to be in effect. This is contrary to the purpose
of a bridging visa, which is to provide lawful status to a person while
they await the outcome of a substantive visa application.
Subitem 9(2) provides that subsection 91AC(3) of the Act, as inserted by
this Schedule, applies in relation to a temporary visa that was granted
before or after the commencement of this item.
This application provision ensures that new subsection 91AC(3), which
provides for certain temporary visas to cease to be in effect a certain
period of time after an application for a linked permanent visa is taken
not to have been made, applies to temporary visas granted before or after
the commencement of this item. The reason for applying the provision to
temporary visas granted before commencement is to avoid a situation where a
temporary visa granted in relation to a permanent visa application that is
taken not to have been made, never ceases to be in effect. This is
contrary to the purpose of such a temporary visa, which is to provide a
basis for the person to stay in Australia on that visa only while they
await the outcome of a substantive visa application.