Overview

The Migration Regulations 1994 were enacted to provide a structured framework for the regulation of migration within Australia. These regulations were created to address the need for a comprehensive system that governs the entry, stay, and departure of non-citizens in Australia. This legislation was introduced to ensure that migration practices are orderly, fair, and aligned with Australia's economic, social, and immigration policies. The enacting body responsible for these regulations is the Parliament of Australia, and the primary policy objective is to maintain a controlled and orderly immigration process that supports Australia's national interests. The explanatory statement for the specific legislative instrument IMMI 08/062 clarifies that this instrument operates to update and specify various aspects of the Employer Nomination Scheme, including the occupations eligible for nomination, the locations where tasks can be performed, the relevant assessing authorities for skill assessments, and the minimum salary levels required for nominated positions.

Scope and Application

The Migration Regulations 1994, as amended by this legislative instrument, apply to employers who seek to sponsor skilled workers under the Employer Nomination Scheme. These regulations govern the occupations eligible for nomination, the geographic locations where tasks may be performed, the minimum salaries that must be offered to visa holders, and the assessing authorities responsible for evaluating the skills of applicants. The instrument specifies a 3.8% increase in the minimum salary levels for nominated positions, with a special provision for occupations like Ministers of Religion, allowing for salaries and working conditions comparable to those of Australian permanent residents or citizens in similar roles. The changes are effective from 1 August 2008 and are made under specific subparagraphs of the Regulations, incorporating the Australian Standard Classification of Occupations by reference. The instrument does not require consultation due to its employment-related nature, as advised by the relevant department.

Key Provisions

The key provisions of the instrument (F2008L02847) are outlined in the Migration Regulations 1994, with specific reference to paragraphs 5.19(2)(h) and (i), and subparagraphs 121.211(b) and 856.213(b). Regulation 5.19 allows employers to apply for a nominated position to be approved as an approved appointment. To be approved, the tasks of the nominated position must correspond to the tasks of an occupation specified in a Gazette Notice (paragraph 5.19(2)(h)(i)), and those tasks must be carried out in a location specified in a Gazette Notice (paragraph 5.19(2)(h)(ii)). Furthermore, the employee in the nominated position must be paid a salary that is at least the specified salary for the relevant occupation and location as outlined in a Gazette Notice (paragraph 5.19(2)(i)). For applicants of subclass 856 and subclass 121 visas, their skills must be assessed as suitable by an assessing authority specified for the relevant occupation in a Gazette Notice (sub-subparagraphs 856.213(b)(i)(A) and 121.211(b)(i)(A)). These applicants must also receive a salary in their nominated position that is at least the amount specified in a Gazette Notice for the relevant subparagraph (subparagraphs 856.213(b)(ii) and 121.211(b)(ii)). The instrument imposes several obligations on parties involved in the Employer Nomination Scheme. Employers must ensure that the tasks of the nominated position correspond to the specified occupation and location, and that the salary offered meets the minimum requirements set out in the Gazette Notice. Additionally, applicants for subclass 856 and subclass 121 visas must have their skills assessed by the specified assessing authority and must receive a salary that meets the specified minimum amount. The instrument also requires the use of the Australian Standard Classification of Occupations (Second Edition) for categorising occupations. Breaches of the provisions set out in the instrument may lead to civil or criminal consequences. Employers who fail to meet the minimum salary requirements or who do not comply with the specified tasks and locations may face penalties. Similarly, applicants who do not meet the skills assessment requirements or who are not paid the specified minimum salary may face difficulties in obtaining or maintaining their visa. While the exact penalties are not specified in the explanatory statement, it is reasonable to infer that penalties for non-compliance could include fines, visa cancellations, or other civil or criminal sanctions under the Migration Act 1958.