EXPLANATORY STATEMENT
Migration Regulations 1994
EMPLOYER NOMINATION SCHEME - OCCUPATIONS, LOCATIONS, SALARIES, AND RELEVANT ASSESSING AUTHORITIES
(SUBPARAGRAPH 5.19(2)(h)(i), SUBPARAGRAPH 5.19(2)(h)(ii), PARAGRAPH 5.19(2)(i), SUB-SUBPARAGRAPH 121.211(b)(i)(A), SUBPARAGRAPH 121.211(b)(ii),
SUB-SUBPARAGRAPH 856.213(b)(i)(A) AND SUBPARAGRAPH 856.213(b)(ii))
- This Instrument is made under paragraph 5.19(2)(i) and subparagraph 5.19(2)(h)(i), subparagraph 5.19(2)(h)(ii) of the Migration Regulations 1994 (‘the Regulations’), and
sub-subparagraph 121.211(b)(i)(A), subparagraph 121.211(b)(ii), sub-subparagraph 856.213(b)(i)(A), and subparagraph 856.213(b)(ii) of Schedule 2 to the Regulations.
2. Item (1) of the Instrument revokes the previous Instrument number IMMI 10/028 which commenced on 1 July 2010. Instrument IMMI 10/028 revoked the Instrument number IMMI 09/066. Paragraph 5.19(2)(h) and paragraph 5.19(2)(i) of the Regulations provide that the criteria must be assessed by reference to the Gazette Notice in force for the paragraph at the time at which the application for approval of the nominated position is made. Sub-subparagraph 121.211(b)(i)(A), subparagraph 121.211(b)(ii), sub-subparagraph 856.213(b)(i)(A) and subparagraph 856.213(b)(ii) of Schedule 2 of the Regulations provide that the criteria must be assessed by reference to the Gazette Notice in force for the subparagraph at the time at which the visa application was made. Instrument number IMMI 09/066 and Instrument number IMMI 10/028 will continue to apply in certain circumstances under paragraphs 5.19(2)(h) and 5.19(2)(i), as well as sub-subparagraph 121.211(b)(i)(A), subparagraph 121.211(b)(ii), sub-subparagraph 856.213(b)(i)(A) and subparagraph 856.213(b)(ii). This instrument, IMMI 10/089 will be applicable to applications for nominations and visas made on or after 5 December 2010.
3. Regulation 5.19 provides for the process and criteria for an employer to apply to the Minister for a nominated position to be approved as an approved appointment. Subparagraph 5.19(2)(h)(i) provides that an employer nomination meets a requirement of subregulation 5.19(2) if the tasks to be performed in the nominated position correspond to the tasks of an occupation specified in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made. Subparagraph 5.19(2)(h)(ii) provides that an employer nomination meet a requirement of subregulation 5.19(2) if the tasks to be performed in the nominated position will be carried out in a location specified, for the relevant occupation, in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made.
4. Sub-subparagraphs 121.211(b)(i)(A) and 856.213(b)(i)(A) provide that applicants for the grant of a Subclass 121 (Employer Nomination) or a Subclass 856 (Employer Nomination Scheme) visa respectively must have had their skills assessed as suitable by an assessing authority specified by the Minister for the relevant occupation in a Gazette Notice for the relevant sub-subparagraphs.
5. However, this requirement does not have to be met by applicants coming within subparagraphs 121.211(b)(ii) and 856.213(b)(ii) that provides for certain applicants for the grant of a Subclass 121 (Employer Nomination) or Subclass 856 (Employer Nomination Scheme) visa respectively, the Minister must be satisfied that the applicant will be paid a salary in the nominated position that is at least the amount of salary specified in a Gazette Notice for these subparagraphs.
6. The salary threshold is increased by this Instrument from $165 000 to $250 000. The threshold was set in 2005 and has not been updated since then. This increase is now required to reflect increases in executive-level salaries.
7. The Instrument operates to specify the occupations that tasks of a nominated position may correspond to, where those tasks may be carried out, which skills assessing authorities are responsible for determining whether an applicant has skills that are satisfactory for specified skilled occupations, and the minimum salary levels that must be paid to an employee in a nominated position.
8. Subsection 56(1) of the Legislative Instruments Act 2003 provides that if the enabling legislation in relation to a legislative instrument as in force at any time before the commencing day required the text of the instrument, or particulars of its making, to be published in the Gazette, the requirement for publication in the Gazette is taken, in relation to any such instrument made on or after that day, to be satisfied if the instrument is registered.
9. The following document is incorporated in the Instrument by reference:
- ANZSCO means, under regulation 1.03 of the Regulations, the Australian and New Zealand Standard Classification of Occupations published by the Australian Bureau of Statistics as current on 1 July 2010. This is the ANZSCO - First Edition, Revision 1 (ABS Catalogue No. 1220.0) and is available online at http://www.abs.gov.au.
10. There were consultations on these changes with stakeholders, such as the Australian Bureau of Statistics and relevant Assessing Authorities.
11. A Preliminary Assessment for this proposed change has been sent to the Office of Best Practice Regulation, and they have advised that a Regulatory Impact Statement is not required because there is little or no compliance cost on business and no other impacts on business and individuals or on the economy or on competition. (Reference Number: 12020).
12. The instrument, number IMMI 10/089, commences on 5 December 2010.