Migration Regulations 1994 - Employer Nomination Scheme - Occupations, Locations, Salaries and Relevant Assessing Authorities - IMMI 10/089

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Legislation au F2010L03158 Not in force Legislative Instrument

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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))

 

  1. 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.

Overview

The Migration Regulations 1994, amended by Instrument F2010L03158, was enacted to address the need for updating the salary threshold within the Employer Nomination Scheme (ENS). The problem this legislation aimed to resolve was the outdated minimum salary requirement for certain skilled positions, which had not been revised since its establishment in 2005. This legislation was enacted by the Parliament of Australia to streamline and modernise the ENS, ensuring it reflects the current economic conditions and salary levels. The policy objective is to maintain the integrity and relevance of the ENS by adjusting the salary thresholds to better align with prevailing market conditions for executive-level positions, thereby attracting and retaining high-skilled workers necessary for the Australian economy.

Scope and Application

This instrument, F2010L03158, made under the Migration Regulations 1994, is applicable to applications for employer nominations and visas submitted on or after 5 December 2010. It specifically pertains to the Employer Nomination Scheme, addressing occupations, locations, salaries, and relevant assessing authorities for nominated positions. The instrument revokes previous instruments IMMI 10/028 and IMMI 09/066 but notes that these will continue to apply in certain circumstances. Regulation 5.19 governs the process and criteria for employers seeking approval for nominated positions, while subparagraphs 5.19(2)(h)(i) and 5.19(2)(h)(ii) ensure that the tasks and locations of the nominated position align with those specified in a Gazette Notice. Furthermore, sub-subparagraphs 121.211(b)(i)(A) and 856.213(b)(i)(A) mandate that skills for certain occupations must be assessed by specified authorities. However, subparagraphs 121.211(b)(ii) and 856.213(b)(ii) allow the Minister to approve applicants who will be paid a salary at least equal to the specified threshold, which has been increased from $165,000 to $250,000 to reflect current executive-level salaries. This increase, effective from 5 December 2010, aims to ensure the scheme remains relevant and competitive.

Key Provisions

The Migration Regulations 1994, as amended by the Instrument IMMI 10/089, sets forth the key provisions for the Employer Nomination Scheme, specifically focusing on occupations, locations, salaries, and relevant assessing authorities. Regulation 5.19(2)(h)(i) stipulates that an employer's nomination for a position is valid if the tasks of the nominated position correspond to those of an occupation specified in a Gazette Notice in force at the time of application (Subparagraph 5.19(2)(h)(i)). Similarly, Subparagraph 5.19(2)(h)(ii) mandates that the nominated position's tasks must be performed in a location specified for that occupation in the Gazette Notice at the time of application (Subparagraph 5.19(2)(h)(ii)). Regulation 5.19(2)(i) further details the criteria for an employer to apply for approval of a nominated position (Paragraph 5.19(2)(i)). Additionally, Sub-subparagraph 121.211(b)(i)(A) and Sub-subparagraph 856.213(b)(i)(A) require that applicants for a Subclass 121 or Subclass 856 visa, respectively, have their skills assessed by a specified authority as outlined in the Gazette Notice (Sub-subparagraph 121.211(b)(i)(A), Sub-subparagraph 856.213(b)(i)(A)). The Act imposes obligations on employers to ensure that nominated positions meet the criteria outlined in the Gazette Notices regarding occupations, locations, and salaries. Employers must also ensure that applicants for the relevant visas have their skills assessed by the appropriate authorities, unless they fall under the exceptions specified in Subparagraphs 121.211(b)(ii) and 856.213(b)(ii). Additionally, applicants must be paid a salary that meets or exceeds the minimum threshold specified in the Gazette Notice, which has been increased to $250,000. Failure to comply with the provisions of the Act can result in civil or criminal consequences. Employers who do not adhere to the specified criteria for nominated positions may face penalties for non-compliance, which can include fines and other legal repercussions. Applicants who fail to meet the salary threshold or skill assessment requirements may have their visa applications rejected, and they could face deportation if already in Australia. The exact penalties for breaches are not specified in the text but would typically be determined by the applicable laws and regulations governing the Migration Regulations 1994.

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