Overview

The Notice titled "Minimum Salary Levels and Occupations for the Temporary Business Long Stay Visa Notice 2009" (F2009L01242) was enacted in 2009 to amend the Migration Regulations 1994, specifically addressing the eligibility criteria for the Subclass 457 (Business (Long Stay)) visa. This legislative instrument was developed to respond to a gap in the visa program concerning the types of occupations that could be sponsored under certain conditions, particularly in regional areas. The enactment aimed to refine the criteria for occupations eligible for the Subclass 457 visa by excluding certain Australian and New Zealand Standard Classification of Occupations (ASCO) categories, thus aligning the visa requirements with broader policy objectives regarding workforce management and regional development. This change was made to facilitate a more effective management of risks associated with the visa program, particularly by redirecting certain occupations to alternative pathways such as the Labour Agreement pathway.

Scope and Application

The Migration Regulations 1.20B, Paragraph 1.20CB(1)(i), Subregulation 1.20G(2), and Subparagraph 1.20GA(1)(a)(i) pertain to the minimum salary levels and occupations applicable to the Temporary Business Long Stay Visa, specifically Subclass 457. These provisions define the minimum salary that must be paid to individuals granted this visa, and mandate that employers sponsoring these individuals must adhere to the stipulated salary levels. Additionally, the tasks of positions for which applicants for the Subclass 457 visas are nominated must correspond to occupations specified in a Gazette Notice. The 2009 Instrument modifies these regulations to exclude Australian and New Zealand Standard Classification of Occupations (ASCO) levels 5 to 7 from the Subclass 457 visa program, particularly in certain regional areas, as these occupations are being directed towards the Labour Agreement pathway. This adjustment aims to better manage associated risks through collaboration with relevant departments. The changes outlined in this instrument commenced on 15 May 2009.

Key Provisions

The key provisions of this instrument pertain to the Temporary Business Long Stay Visa (Subclass 457) and modify the occupations eligible for this visa. Regulation 1.20B (1) sets out the minimum salary levels for certain visa holders. It requires that these individuals be paid a salary equivalent to that specified in a relevant Gazette Notice. Paragraph 1.20CB(1)(i) mandates that employers, who are standard business sponsors, must commit to paying a sponsored individual at least the minimum salary stipulated in the Gazette Notice. Furthermore, subregulation 1.20G(2) and subparagraph 1.20GA(1)(a)(i) stipulate that the job roles for which applicants for Subclass 457 visas are nominated must match the roles of occupations listed in a Gazette Notice for the relevant provision. This ensures that the tasks performed align with the occupations specified under the Migration Regulations 1994. The obligations imposed by these regulations primarily affect employers who sponsor individuals for the Subclass 457 visa. They are required to ensure that the sponsored individual receives a salary that meets or exceeds the minimum specified by Regulation 1.20B. Moreover, the job descriptions provided by these employers must correspond to the occupations listed in the Gazette Notice as per subregulation 1.20G(2) and subparagraph 1.20GA(1)(a)(i). These obligations are crucial to ensure that the visa program is used appropriately and that individuals are employed in roles that meet the regulatory standards. Breaches of these provisions may result in serious consequences. Although the specific offences, penalties, or civil and criminal consequences are not detailed in the explanatory statement, it is reasonable to infer that non-compliance could lead to the revocation of the visa for the sponsored individual or the employer's sponsorship privileges. The Migration Regulations 1994, under which these provisions operate, typically include provisions for penalties and enforcement actions for non-compliance, although these are not explicitly outlined in this particular instrument. The maximum penalties for breaches of the Migration Act 1958 can include fines of up to $22,200 for individuals and significantly higher amounts for corporations, along with potential imprisonment terms.