Migration Amendment (Specification of Occupations) Regulations 2017 [F2017L00818] and Migration (IMMI 17/060: Specification of Occupations-Subclass 457 Visa) Instrument 2017 [F2017L00848]-Concluded matters [2017] AUSStaCSDLM 346 (13 September 2017)

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Instrument	Migration Amendment (Specification of Occupations) Regulations 2017 [F2017L00818] Migration (IMMI 17/060: Specification of Occupations—Subclass 457 Visa) Instrument 2017 [F2017L00848]
Purpose	Clarifies the power of the Minister for Immigration and Border Protection to specify, in a legislative instrument, the occupations which may be nominated, and the applicability of those occupations to identified persons, in relation to four visas; and provides that such an instrument may apply to nominations made before or after the commencement date of the instrument Specifies occupations for nominations that relate to a Subclass 457 – Temporary Work (Skilled) Visa
Authorising legislation	Migration Act 1958; Migration Regulations 1994
Department	Immigration and Border Protection
Disallowance	15 sitting days after tabling (tabled Senate 8 August 2017) Notice of motion to disallow currently must be given by 16 October 2017
Scrutiny principle	Standing Order 23(3)(b)
Previously reported in	Delegated legislation monitor 10 of 2017

Retrospective effect

The committee previously commented as follows:

Item 8 of the schedule to the Migration Amendment (Specification of Occupations) Regulations 2017 [F2017L00818] (specification regulations) amends the Migration Regulations 1994 (Migration Regulations) to provide that, in relation to a legislative instrument made for the purpose of paragraph 2.72(10)(aa) of the Migration Regulations, an instrument may specify that it applies to nominations made on or after the day the instrument commences, or made and not finally determined before the day the instrument commences, regardless of whether the application was made before, on or after that day.^[1]

The Migration (IMMI 17/060: Specification of Occupations—Subclass 457 Visa) Instrument 2017 [F2017L00848] (IMMI 17/060) is made under para. 2.72(10)(aa) of the Migration Regulations, and commenced on 1 July 2017. Section 9 of IMMI 17/060 provides that the instrument will apply in relation to nominations of occupations made and not finalised before 1 July 2017. The ES states, in relation to section 9:

This is regardless of whether, for a nomination in relation to an application for a 457 visa, the application was made before, on or after 1 July 2017. This provision is expressly provided for in Migration Amendment (Specification of Occupations) Regulations 2017 and inserts regulation 6601 to the Regulations. It is noted that the Regulations provide for the refund of a fee in regard to a nomination in 2.73 and an application in 2.12F.

The committee notes that, although IMMI 17/060 is not strictly retrospective,

it prescribes rules for the future based on antecedent facts (that is, the existence of an earlier visa application). As a consequence, it appears that a person whose application for a visa was made on or before 1 July 2017 may now be subject to criteria for the grant of the visa that did not apply at the time of their application.

The committee's usual approach in cases such as this is to regard the instrument as being retrospective in effect and to assess such cases against the requirement to ensure that instruments of delegated legislation do not unduly trespass on personal rights and liberties (scrutiny principle 23(3)(b)). The ESs to the specification regulations and IMMI 17/060 do not address this issue.

The committee requested the advice of the minister in relation to the above.

Minister's response

The Minister for Immigration and Border Protection advised:

The Migration Amendment (Specification of Occupations) Regulations 2017 and the Migration (IMMI 17/060: Specification of Occupations-Subclass 457 visa) Instrument 2017 do not unduly trespass on personal rights and liberties.
The Temporary Work (Skilled) (subclass 457) visa addresses critical skills shortages that cannot be met by Australian workers. As an uncapped, demand-driven programme, it is designed for approved employers to sponsor temporary skilled workers to meet short-term skills needs.
As a result, the size and composition of the programme fluctuates according to changes in the Australian economy and labour market.
Specifying a list of eligible occupations for the subclass 457 visa is one mechanism to ensure that foreign workers are being sponsored for jobs experiencing genuine shortages. Regular recalibration of the list maintains public confidence in skilled migration while continuing to support Australian businesses. The Government announced on 18 April 2017 that eligible occupations would be reviewed every six months, based on labour market analysis and informed by stakeholder consultation. The 1 July 2017 amendment is the first of these regular reviews, to be led by the Department of Employment in future.
A legislative instrument made for the purpose of paragraph 2.72(10)(aa) of the Migration Regulations 1994 may specify that the new occupations list applies to nominations made on or after the day the instrument commences, or made and not finally determined before the day the instrument commences, regardless of whether the nomination, if it relates to an applicant for a visa, was made before, on or after that day (Part 66 of Schedule 13 of the Migration Regulations 1994).
Applying the updated occupation list to unfinalised nominations ('the pipeline') aims to strike a balance between the public interest in maintaining control over access to the Australian labour market and the interests of sponsoring businesses and individual visa applicants.
The changes were applied in this manner to ensure that access to Australia's labour market over the next four years (the maximum period for which a Subclass 457 visa can be granted) is afforded only where there is a genuine skills need. To ensure businesses and applicants were not unduly disadvantaged by these changes, refunds of nomination fees and visa application charges were made available where the applications could not proceed because an occupation had been removed from eligibility.
Applying the changes to unfinalised applications also prevents significant spikes in visa lodgements prior to changes taking effect, which would distort the programme's intent. Visa applicants who are seeking to enter or remain in Australia on a temporary basis would be aware that Australia's temporary skilled migration programme reflects labour market needs which will fluctuate over time and there is no guarantee that a visa will be granted. In some cases, non-citizens may have to leave Australia, but this is inherent in any temporary visa programme and does not amount to an undue interference with the rights or liberties of those non-citizens.
Committee's response

The committee thanks the minister for his response and has concluded its examination of the above.

The committee notes the minister's advice that applying the changes to un-finalised applications is intended to preserve the intent of the government's skilled migration program, and also prevents significant spikes in visa lodgements prior to changes taking effect. The committee further notes the minister's advice that refunds of nomination fees and visa application charges were made available where the applications could not proceed because an occupation had been removed from eligibility.

The committee considers that this information would have been useful in the ES.

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^[1] Paragraph 2.72(10)(aa) of the Migration Regulations relates to nominations by standard business sponsors for the purpose of the Subclass 457 (Temporary Work) (Skilled) visa (457 visa).